nation0428

38 THE NATION TUESDAY, APRIL 28, 2015
LAW & SOCIETY
Ayangburen’s stool: court dismisses joinders’ application
JUSTICE Akintunde Savage of a
Lagos High Court, sitting in
Ikorodu, has dismissed an application
filed by two members of the
Odusago royal family of the
Lasunwon Ruling house seeking to
be joined as 13 th and 14 th respondents
in the suit challenging the adoption
of the Odofin of Ikorodu, Chief
Kabiru Shotobi as the oba-elect by
the king makers.
Justice Savage, in his ruling last
week, dismissed the application for
lacking in merit.
Jamiu Olusola Alejo and
Durojaiye Ekundayo Alejo, through
their lawyer, Suleiman Talabi, had
on behalf of Odusago branch of the
Lasunwon Ruling House of Ikorodu,
sought to be joined as defendants in
the suit.
Those seeking to be joined based
their reasons on three main issues
in their 17-point affidavit in support
of the motion on notice filed before
the court.
They
averred that it was necessary that
they were joined in the suit as defendants.
As descendants of
Lasunwon Ruling House, also entitled
to present candidates for the selection
and nomination for the
throne of Ayangburen of Ikorodu,
the decision of the court, according
to them, may adversely affect their
claim to the stool should they be excluded
from the present suit. They
said it was in view of the aforementioned
facts and in the interest of the
proper and holistic determination
of all issues before the court, that
they sought to be joined as defendants.
They averred further that it was
imperative that all interested parties
be included in this suit for the
court to have a proper appraisal of
By Adebisi Onanuga
the consent judgment delivered by
Justice Habeeb Abiru, now of the
Court of Appeal, in the earlier suit
number IKD/57/2007.
The judge noted that while moving
the application, counsel to the
joinders , Sulaiman Talabi, had submitted
before the court that the
members of the Odusago royal family
were not interested in the earlier
suit, which centered on the position
of Odofin of Ikorodu, but was
interested in the present suit because
the issue at stake was the
Ayangburen stool.
They also submitted that it becomes
necessary for them to join for
easy resolution, and to save the time
of the court by avoiding multiple
suits.
Justice Savage also noted the opposition
of counsel to the applicants,
John Osighala and that of the second
respondent, Kazeem Adenabjo
to the joinders application.
He noted that Osighala in a nineparagraph
counter affidavit had submitted
that the parties seeking to
be joined are not parties in the previous
suit numbered KD/57/2007
and that the matter in the new suit
can be resolved without them.
He also noted that in his counter
affidavit, Adebanjo denied the existence
of Odusago royal family of
Lasunwon Ruling House of Ikorodu
and the fact that those seeking to be
joined were not parties to the earlier
suit, the enforcement of the consent
judgment of which they are
seeking in court now.
Adebanjo, the judge said, submitted
that the alleged Odusago royal
family has never occupied the stool
of Ayangburen and that he cited relevant
laws and decided cases of the
Supreme Court of Nigeria to support
his submission on why the application
should be rejected and dismissed.
The judge also noted that counsels
to other respondents in the suit, including
Gbenga Hassan for first and
third respondents, O. Fabunmi for
fourth to seventh respondents and
S. A. Quadri for 11th and 12th respondents
did not oppose the application
nor file any counter affidavit.
On Justice Savage request, Chief
Babatunde Olusola Benson (SAN),
who is an “amicus curiae” (friend of
the court) and a prominent son of
the soil, reported to the court that
several meetings held with various
counsels after the court’s sitting of
March 18, were deadlocked as counsels
refused to shift positions.
Justice Savage, while ruling on the
matter, held those seeking to be joinders
were not parties in the previous
suit and that they ought to have
shown interest before the consent
judgement delivered by Justice
Abiru(now Justice of the Court of
Appeal) in 2007 or at the Court of
Appeal as an intervener. He also
noted that the consent judgment was
never appealed at the appellate
level.
He also held that parties cannot
join a suit in which judgment has
been delivered and which enforcement
has become the subject of another
suit.
At this stage, Osighala asked for
cost in the sum of N150,000 explaining
that the joinders application had
made them incurred addition cost
as they had to file counter affidavit
and serve 13 respondents.
Adebanjo aligned with the request
of Osighala, pointing out that the
application took them back despite
the fact that the court had taken a
decision to ensure speedy hearing
in the matter. Adebanjo submiited
further that the application seeking
to be joined was filed “malafides”
(in bad faith), adding: “our time was
wasted, efforts wasted and three adjournments
wasted on the application.”
But Talabi argued that any application
in a suit must be judicially
determined otherwise “people
would be scared of bringing application
before the court”.
Talabi declined to concede to costs,
but prayed that if the court must
award costs, it should not be more
than N10,000 and urged the court to
use its discretion on the matter. Justice
Savage said the two counsels
were right to ask for cost and
awarded N30,000 each for Osighala
and Adebanjo. He said other counsels
did not merit costs as they filed
no counter affidavit.
Just as Osighala asked the court
for a date to move the main application,
which was brought by an originating
summon, counsel to the state
government (11 th and 12 th respondents),
Quadri, told the court that he
wanted to withdraw his earlier application
dated February 18, and to
substitute it with another dated
March 16.
Counsels to the third respondent,
Hassan, and those of the fourth to
the seventh respondents, Fabunmi,
did not raise any objection to the
development.
But Osighala, counsel to the applicants,
opposed the substitution of
the application by the government
counsel, Quadri, saying: “counsel is
attempting to withdraw through the
back door, issues already raised in
our argument already made and
submitted before the court.
“The law does not make provision
for substitution. What the law provides
for is amendment under Order
24 Rule 2. Secondly, it is “over
reaching” wherein by rules and procedures,
arguments had commenced
and closed, a party is extort from
proferring new arguments to overreach
previous issues already canvassed.
“If we keep doing this, there would
be no end to litigation because if allowed,
I would have to go and file an
amendment.” He cited various cases
decided by the Supreme Court of Nigeria
to buttress his submission.
Adebanjo also said the attempt by
counsel to the government to have
previous process withdrawn was surprising.
He submitted that if allowed,
the court would have to call for counter
applications fron other counsels
in the matter.
Asked for their views on the new
development espoused by government
counsel, Hassan, counsel to the
first and third respondent, said he
was indifferent and left the matter to
the discretion of the court.
Fabunmi, counsel to the fourth to
the seventh respondents, said no
harm would be done by the substitution
of the application the government
wanted to make. “Claimants
counsel has the opportunity to respond
again,”he said.
Quadri also said arguments had not
really commenced on the matter as
they were yet to commence hearing
of the originating summon. He said
the only right counsel to the applicants
have is that of reply having been
served the application.
•From left: Dr Abiola Sanni; Mr. Ashimizo Afadameh; Prof. Peter Fogam; Prof. Jumoke Oduwole; Mr. Wahab Shittu and Dr. Dayo Ayodele at a press conference on the 3 rd African International
Economic Law Network Biennial Conference held at the Faculty of Law conference room, University of Lagos (UNILAG), Akoka, Lagos.
Homeowners sue developer for N100m over ‘arbitrary charges’
HOME owners in Pearl Gar
den Estate, at Sangotedo Vil
lage in Eti-Osa Local Government
Area of Lagos State have
filed a N100 million class action suit
against a property developer,
Oyetubo Jokotade Estate Resource
Limited, over alleged incessant harassment
and imposition of arbitrary
charges.
The claimants in the suit included
Messrs Francis Adesuyi, Felix
Obiakor, Martin Ajayi-Obe and Peter
Afenotan. They filed the N100
million suit on behalf of themselves
and all interested homeowners
within the Pearl Garden Estate.
The claimants filed the suit before
a Lagos State High Court sitting
in Epe, headed by Justice
Abisoye Bashua.
Joined as second defendant is
CMB Building Maintenance and
By Adebisi Onanuga
Investment Company Limited, in
charge of providing estate management
services to the claimants.
In the suit, the claimants are asking
the court for a declaration that
the incessant harassment, restriction
of movement and the imposition
of arbitrary charges on them
by the defendants as illegal and
unlawful.
They also asked the court to declare
that the refusal of the second
defendant to allow them install
borehole in their homes as illegal
and unlawful.
They had prayed the court for “an
order of perpetual injunction restraining
the defendants, jointly
and severally, their agent, privies
and cronies from further demanding
or collecting reticulation charges in
the sum of N650,000 or any other
sums from the claimants contrary to
the express terms of the Deeds of
Assignment and the Sale and Management
Agreement.
“A Mandatory Order directing the
second respondent to refund to the
claimants and other residents all
monies collected forcefully as part
or full payments of the unlawful
imposition of the reticulation charges
and the unilateral estate charges immediately
to the respective claimants
and other homeowners.”
They also asked for an order restraining
the defendants from further
harassing them and also the sum of
N100 million as general damages for
the barricade, destruction of property
and unlawful denial of the claimants
access to the estate on March
13,2013.
At the hearing last Thursday,
counsel to the respondents, Mr R.A.
Aladesanmi, said they had filed an
application asking the court to stay
proceedings on the suit, pending a
referral from arbitration proceedings.
Aladesanmi argued that all purchases
of the land entered into an
arbitration agreement contained in
their individual sale and management
agreement, adding that the
appropriate place to resolve the
dispute was arbitration.
But counsel to the claimants, Mr
Adeyinka Adeyemi, objected to the
application, arguing that some of
the parties in the suit did not sign
the arbitration clause.
Adeyemi argued that it was ironic
that the same defendants asking for
arbitration had filed notices of appeal
at the Court of Appeal against
a previous order of the court, which
restrained them from restricting the
claimants from the estate.
Adeyemi further submitted that
the said agreement was entered
between some of the claimants
and the first respondent, adding
that the second defendant (BCM)
was not a party to the agreement.
“As at now, there is no appointed
body to even conduct
the arbitration. They have not
taken any step to show that arbitration
has commenced. The
arbitration is inexistent so the
court cannot stay proceedings.
“The claimants in view of this
submitted that ”It will be gross
injustice for the matter to be referred
to arbitration that is nonexistent
and that which has not
even commenced as papers are yet
to be filed to that effect,”he said.
After taking the submissions of
the parties, Justice Bashua adjourned
the matter till May 21,
for ruling.