Doctor Akinola E. Omojola & Anor V. Chief Michael Dada Oyateru & Ors (2007)

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STANLEY SHENKO ALAGOA J.C.A.

1st Appellant is a lecturer in the Ondo State University Ado Ekiti while the 2nd Appellant is his son. Sometime in October 1989, one Oluwadare Olaleye approached the 1st Appellant urging him to purchase the house which is the subject matter of this appeal.

The 1st Appellant and Oluwadare Olaleye consulted Odunayo Fatogbe Associates a firm of Chartered Quantity Surveyors who valued the house at N245,000.00 but it was agreed by the parties that Appellants should pay N200,000.00 for the house while N45,000,00 should be for incidental expenses including stamp duties. Subsequently a search at the Ministry of Lands and Housing indeed revealed that 1st Respondent was actually the owner of the house.

A draft purchase agreement was thereafter prepared with respect to the proposed sale of the house in question and Appellants made payments totalling N245,000.00 towards the purchase of the house for which the Appellants got a final certificate of payment. Inspite of the payment of the full purchase price of N245,000,00, Respondents have refused to give up possession of the house to Appellants. The 1st Respondent on his part has denied in its entirety the 1st Appellant’s claim of purchase of the house in question alleging fraud on the part of the 1st Respondent.

He contended that when the 1st Appellant was a Commissioner for Lands and Housing he corruptly made use of his position to obtain the issuance of Governor’s consent and got the property registered. He denied issuing any Certificate of final payment to the 1st Appellant with respect to the purchase of the house in question and could not have sold his house for less than N2,500,000.00. 1st respondent contended that he had the matter reported to the police at the Police Headquarters Akure as a result of which some people who were part of the illicit sale transaction with the 1st Appellant were charged to court in charge NO. AK/3C/92 and were all convicted but the 1st Appellant was not prosecuted. The 1st Respondent further contended that the 2nd Appellant Oladapo O.O. Akinola is not a living person and is not in existence but was part of the 1st Appellant’s design to perfect his fraudulent act.

The Respondents subsequently brought a summons dated 19th December 2003 and filed on the 30th December 2003 pursuant to order 2 Rule 1 (2) and Order 11 Rule 5 (2) of the High Court of Ondo State Civil Procedure Rules praying the court for an order striking out the said Suit No. AK/150/96. OR IN THE ALTERNATIVE An order striking out the name of 2nd Plaintiff (Oladapo O.O. Akinola) from the action on the grounds that- (1) The subject matter of the action is tainted with illegality and as such the court lacks jurisdiction. (2) The 2nd Plaintiff (Oladapo O.O. Akinola is not a legal personality that can sue or be sued as the said Oladapo O.O. Akinola does not exist in law and in fact. The summons is supported by a 15 paragraph affidavit.

The present Appellants as Respondents to the summons filed a 15 paragraph counter affidavit. Arguments of counsel on both sides were canvassed and the learned trial Judge Komolafe J. in his ruling of the 26th April 2004 upheld both prayers in the summons and consequently struck out the action of the Respondents in Suit No. AK/150/96. It is this ruling that is now the subject matter of this appeal. It is thus clear that so much is wrong with the procedure adopted to finality in this case and the action cannot as such be sustained in its present form.

This court hereby allow the appeal and set aside the Ruling of Komolafe J in this suit No. AK/150/96 delivered. It is also ordered that this case be remitted back to the Chief Judge of the State for assignment to any other Judge than Komolafe. J for hearing and determination de novo on filed pleadings.

Parties are to bear their own costs.

Other Citations: (2007)LCN/2597(CA)