Alhaji Awesu Atanda Adeyemi V Chief Simon Moronfolu Olakunri (1999)

LAWGLOBAL HUB Lead Judgment Report

KALGO, JSC.

In the trial court, the appellants who were the plaintiffs took out a writ of summons against the defendants now respondents seeking the following reliefs:-

“(i) A declaration that as executors of the estate of late Alhaji Fasasi Adisa Adeshina (the plaintiffs) are the persons entitled to a statutory certificate of occupancy on the piece or parcel of land conveyed by virtue of a deed of conveyance dated 12th day of September, 1972 and registered as No. 41 at page 41 Volume 1406 of the Lagos Lands Registry.

(ii) N10, 000.00 damages for trespass against the defendants jointly and severally.

(iii) A perpetual injunction restraining the defendants their servants or agents from committing further trespass to the land.

The writ was filed on the 19th of February 1991 and on the same day, the plaintiffs/appellants filed an ex-parte motion for interim injunction restraining the defendants/respondents their servants or agents from felling trees, demolishing structures, erecting new ones or selling or in any way alienating the land the subject matter of the suit pending the hearing and determination of the motion on notice for interlocutory injunction on the same prayers. On the 20th of February 1991, the interim injunction was granted and defendants/respondents were served with the writ of summons, interim injunction and the notion on notice for interlocutory injunction. Thereafter the 1st respondent filed a counter-affidavit. The 2nd – 11th respondents also filed their joint counter-affidavit; they had earlier on filed what they called ‘NOTICE OF OBJECTION IN LAW’ on the 5th of March 1991. The learned trial Judge, with the consent of all the parties in the case, ordered that both the motion on notice for interlocutory injunction and the said notice of objection be heard together. The application and the objection were then heard together and in a considered ruling delivered on 20th June, 1991, the learned trial judge, Obadina J. ruled:-

‘On the totality of the evidence, it is my view that the plaintiffs have not established that they have capacity to bring the application. The application is accordingly struck out.”

Dissatisfied with this order, the appellant appealed to the Court of Appeal which dismissed the appeal and found that:-

‘The striking out order made by the learned trial Judge is accordingly upheld.’

In their appeal to this Court, the appellants filed 5 grounds of appeal against the decision of the Court of Appeal, but formulated only three issues for determination thus:-

“(i) whether the court below was correct to insist upon strict proof of the appellants capacity, standing and proprietary interest in the consideration of an application for interlocutory injunction.

(ii) Whether the 2nd to 11th Respondents challenge to the Appellants locus standi was competent in the absence of a Statement of Defence raising the point for trial in limine as required by Order 22 rule 2 High Court of Lagos (Civil Procedure) Rules, 1972.

(iii) Whether the Court of Appeal can competently exercise power to set aside a writ of summons and strike out a suit in the absence of an appeal against the High Courts refusal to do so.’

The 1st respondent in his brief raised 2 issues only which read:-