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(2018) LPELR-45751(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of October, 2018


Before Their Lordships

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FOLASHADE OJO Justice of The Court of Appeal of Nigeria




3. MR. BELLO LUKMAN (for themselves and on behalf of Late Alhaji Yekinni Rafiu
Bello also known and called
Alhaji Yekinni Bello Rafiu) - Respondent(s)

Other Citations

; ;


This appeal borders on Civil Procedure.
This appeal emanated from the Ruling of High Court of Justice, Ogun State, Ota Judicial Division in Suit No - HCT/147/2013 - Between - ALHAJI S. A. OTAPO AND (1) MR. BELLO KABIRU (2) MR. BELLO LUKMAN (3) AARTI STEEL NIGERIA LTD, delivered on the 4th day of July, 2013.

Briefly, the facts of the case are that the subject matter of the action was the property situate near Ogun State Housing Corporation Estate Ota, in the Ado Odo/Ota Local Government Area of Ogun State. The land said to be 3.124 Hectares was owned by Late Alhaji Yekinni Rafiu Bello. It was covered by certificate of occupancy dated 7/2/96 and registered as No 60 at page 60 in Vol. 522 in the Land Registry Abeokuta. The Claimant/1st Respondent, a farmer and business-man of Iyedi Titun Osi quarters, Ota by his Writ of Summons and statement of claim filed on 11/2/2013 claimed that he bought 3 acres out of the total acreage of 7 acres from the 1st and 2nd Respondents formerly the 1st and 2nd defendants. By a sale transaction evidenced by a sale agreement dated 10/10/2005, the said sale which was filed in Court was pleaded as conferring ownership and right of possession of the land on the claimant.  It was stated that on the face of the agreement the transaction did not receive Governor's consent as required by Section 22 of the Land Use Act. Also, the document though stamped, was not registered as required by Section 8 of the Land Instruments Registration Law Cap L. 53 Laws of Ogun State of Nigeria, 2006. The claimant commenced an action against the 2nd and 3rd Respondents and the Appellant for declaration of title, injunction and damages for trespass. 

Upon being served with the originating process at the High Court, the Appellant entered a conditional appearance and immediately filed a motion on notice on 23/4/13 for an order striking out the endorsement on the Writ of Summons and certain paragraphs of the statement of claim on the ground that the action disclosed no reasonable cause of action against the Appellant and further that the objectionable paragraphs of the statement of claim are neither pleadable nor admissible in evidence. Both the claimant and the Appellant filed written addresses which were adopted at the hearing of the application.  At the conclusion of hearing, the learned trial Judge held that the application was incompetent and dismissed it on the ground that it was an abuse of Court Process, and also that it lacked merit.  The Appellant who was dissatisfied with the Ruling appealed against same to the Court of Appeal.

The Court determined the appeal on these issues couched as follows:
(1) Whether or not the trial/lower Court wrongly exercised its judicial powers when the trial Judge dismissed the Application of the Appellant/3rd Defendant and held that none of the grounds alleged lack of jurisdiction by the Court in order to avail the applicant the general position of the law that the issue of jurisdiction can be raised at any time. 
(2) Whether or not the motion on notice filed on behalf of the Appellant filed on 23/4/13 was caught by demurrer and same was an abuse of Court process.

On the whole, the Court found merit in the appeal and accordingly allowed same. The Ruling of the High Court in Suit No: HCT/47/13 - ALHAJI S. A. OTAPO VS MR. BELLO KABIRU & ORS delivered on 4/7/2013 was set aside. And in its place, the Application of the Appellant before the High Court was granted. The Claimant/1st Respondent's claim at the trial Court was thereby struck out.

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