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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.
THE NATION TUESDAY, APRIL 28, 2015 LEGAL OPINION Sri Lankan Bar leader wins award FORMER President of Sri Lankan Bar Association (SBA) Upul Jayasuriya has been declared winner of the Second Commonwealth Law Conference Rule of Law Award. He was the President of Sri Lankan Bar from 2013 to March 31, 2015. The award was presented to him at the Commonwealth Lawyers Association (CLA) conference. He is the second winner of the By John Austin Unachukwu beautifully engraved trophy with a $5,000.00 monetary value. The inaugural award was won by Ms Robin Sully, a Canadian lawyer, who contributed to the rule of law both in Canada and across the Commonwealth Jayasuriy said: “ I am very happy, I feel that our cause has been achieved, we have been vindicated and all the sufferings we passed through has been appreciated by the Commonwealth Lawyers Association. “I came up to this level because of circumstances. I led the Bar at the when the Chief Justice Shirani Bandaranayake of Sari Lanka was impeached. At that time, the Bar needed a leader who could pursue her cause to the very end. The lawyers gathered and gave me overwhelming mandate to do that and that is just what I did.” LAW AND PUBLIC POWER with gabriel AMALU email:gabrielamalu1@yahoo.com For comments: 08033054939 (sms only) 39 •Mr. Jayasuriya (middle) flanked by his wife Chula (left) and daughter Erandi (right), all lawyers. Lawyers hail CLA conference LAWYERS at the 19 th edition of the Commonwealth Lawyers Association (CLA) Conference, which held in the Glasgow, Scotland, have scored the conference high in spite of poor attendance. They said the resource persons and quality of delivery made a great impact on them. The Nigerian Bar Association (NBA) First Vice-President, Mr. Francis Ekwere said: “It has been a worthwhile experience being here. It has opened our eyes to see how conferences are organised, the seamless transition from one session to another, etc. We will try and see what we will do to improve our own conferences. We have a lot to take home from here.” Another participant, Mr. Rotimi By John Austin Unachukwu Oguneso (SAN), said: “It is very stimulating because it afforded various practitioners from the commonwealth countries the opportunity to exchange ideas, network and bring their individual experiences to this conference while they learn from each other.” To Mr. Aniedi Akpabio, the conference was a great success notwithstanding the low attendance. “The resource persons were carefully selected. Their delivery was fantastic and change of sessions seamless. I urge lawyers from Commonwealth countries to always strive to attend this conference because it is quite interesting and very rewarding,” he said. Another participant, Mr. P.C.N. Okorie, described the conference as rewarding. A commissioner in the Nigerian Law Reform Commission, Kefas Mogaji said: “The conference was indeed; a huge success. First of all, the resource persons are those that are experienced and vast in their various areas.” A former Muslim Lawyers Association of Nigeria (MULAN) president Tajudeen Oladoja, said: “I will take home how to enhance access to justice for teeming Nigerian indigent clients because that is the focal point of one of the sessions I attended at the conference.” •Basil Udotai; Nigerian Bar Association Section on Business Law (NBA-SBL) Vice-Chair Olumide Akpata; Chief Judge of the Federal High Court Justice Ibrahim Auta; Funke Agbor, Agada Elachi and Endurance Uhumuavbi during a courtesy visit on Justice Auta in Abuja. Attempts at auctochthonous constitution THE Nigerian people have been dealt a double whammy, in the closing days of the Jonathan presidency. As things stand, both the “new constitution” from the Jonathan’s national conference and the national assemblyarranged fourth constitutional amendment,may become relics of our political history. Tragically, the relics would have been accumulated at humongous costs to the tax payers. While the legislative enterprise cost about 4 billion naira, the executive business is said to cost not less than 7 billion naira. The monies were substantially spent to smother our duplicitous political elites; who gathered at the variously organised jamborees, even as the organizers appear to know they were merely playing poker, with our commonwealth. With the presidency and national assembly controlled by the same political party, the Peoples Democratic Party (PDP);it is a measure of the party’s lack of discipline that they choose to work at cross purposes. President Jonathan’s so called master stroke - the constitutional conference, has now turned out a mere smoke bubble. Yet at that time, the hopes of long suffering Nigerians were heightened that at last, Nigeria was about to have something close toan autochthonous constitution. Even when the president choose to heavily induce the selected members, with sums that beggars any patriotism, (a whopping 12 million naira, per person), many still invested hope in the conference. On their part the national assembly which refused to give a legislative imprimatur to the conference, also refused to entertain any budgetary allowance for it. To show to what dubious use the so called executive-wide votes can be put, Jonathan’s men were able to raise the billionsneeded to excessively pay-off, the 492 conferees, which this column called thenan ensnarement into “the gang of national treasury looters”. Because the tension which had risen following President Jonathan’s determined presidential ambition, suddenly ricocheted, as the selected troublesome elites busied themselves with sharing the billions; Bishop Matthew Kukah made the famous quip, that Jonathan has dealt his opponents ‘a master stroke’. As may be obvious now, the Jonathan’s master stroke was only successfully aimed against the national patrimony. Meanwhile, the quality of the men and women gathered by Jonathan, gave many the hope that something positive may yet come out of the exercise. After several weeks, the conference submitted a report which commentators claimed would revolutionize the political and socio-economic laws of the country; which no doubt is more unitary than federal. Unfortunately, instead of Jonathan’s presidency moving with speed to implement the recommendations that require mere executive actions, and also submit a bill on others to the national assembly, it choose to set up another committee over that report. Of course, all efforts to get Nigerians to give Jonathan a second term, with a promise to implement the recommendations if re-elected,have turned a mirage. On their part, with a mind-set, to cut the executive to size; the legislature in complete disregard to the fundamental principle of appropriation, also dug its heavy hand into the treasury, and with 4 billion in their pockets, they setouton a nation-wide consultation (some called it a frolic), towards a fourth amendment of the 1999 constitution.In the particular effort of the lower chamber of the national assembly, a mini-conference was organized under the suzerainty of each Representative, to garner what they touted were the preferences of the people, from a list determined by the House. The senate also arrogantly set their minds to determine what the people wanted, as they organized town hall meetingswith their acolytes, which they passed-off as consultations. Pretending to be the only patriots, the national assembly members went ahead to fashion a fourth amendment, in their own image. One of the major highlights is the provision of mind boggling luxury for their principle officers, at retirement. They did not spare a thought about being one of the highest paid legislature in the world;which according to some sources, amounts to about 25% of the annual national budget. Having flagrantly over the years usurped the powers of anexecutive body, the Revenue Mobilisation Allocation and Fiscal Commission, the gamers at the national assembly also tried to chip-off more powers from the executive;in further defiance of the fundamental principles of separation of powers, which is the bedrock of a presidential system of government. Just as the current regime is about to wind up, it has become evident that the 7 th legislative house and the Jonathan executive,would jointly and severally carry home the moral baggage that goes with their respective illfated expensive jolly rides.While the legislature early enough sought to make a mockery of the constitutional conference, by refusing to gift it, a legal premise; the Jonathan presidency waited for its dying days to hand over to the legislature, a mock exam in constitutionalism. With clear malice against each other, the two prodigals have submitted their petty quarrel to the Supreme Court for adjudication. I support the intervention of the learned silk, Femi Falana (SAN), urging the national assembly and the presidency to come down from their high horses, and immediately seek a compromise in the interest of Nigerians. Eating such humble pie would enable the country gain a modicum of reform, if for instance, some provisions of chapter 11 of the 1999 constitution, dealing with fundamental objectives and directive principle of state policy,gains justiciability under the fourth amendment. At least, it would reduce the resources that would be available for more prodigality,in case the 8 th national assembly retains their predecessor’s DNA. If for instance education is made a fundamental right, then there will be less resources for the executive to steal or mismanage. President Jonathan with few enduring legacies, should consider reaching a compromise with the legislators, instead of the double dealings against greater national interests.
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