Onitiju loses bid to stay vacation judgment

Justice O.O Adewunmi-Oshin of the Lagos High Court has dismissed an application for stay of execution filed by Air Commodore Ademola Onitiju (rtd) seeking to continue to occupy a property that has been sold by the owner.

The applicant had prayed the court to stay execution of final judgment of Justice Bola Okikiolu-Ighile of the State High Court delivered on June 20, 2022, which ordered him to give up possession of the property.

Justice Okikiolu-Ighile had dismissed the claimants application, which sought to void the sale of a 4-Bedroom Duplex together with self-contain I-Bedroom Chalet situate at No. 49B Lafiaji Way, Dolphin Estate, Ikoyi, Lagos to a third party by the first and second respondents, who are the owners of the property.

The court refused to set aside the sale and ordered the claimant, who is occupying the property to vacate and give up possession to the new buyer.

Respondents in the suit are Mrs. Theodosia Ogunnaike (1st respondent), Omo Ogunnaike (2nd respondent), Colonel Samuel Dare (rtd) (3rd respondent and new buyer) and Lagos State Development Property Corporation (LSDPC) (4th respondent).

Dissatisfied with the decision, Onitiju approached the court to stay execution of the judgment, on condition that he would deposit a bank draft of N135 million (being the purchase price of the property) in the name of the Chief Registrar of the High Court in an interest yielding account within seven days of making the order.

But Justice Adewunmi-Oshin, in a judgment delivered February 8, 2023, but obtained by The Guardian, yesterday, dismissed his application for stay, saying that the applicant lacks capacity to get a stay, since there was no formal contract between him and the owners of the property that links him with the property.

“And there was no form of consideration, maybe a part payment or full payment, but there is evidence of consideration made by the 3rd respondent.

“Therefore, the applicant has not established any consensus ad idem, hence there is no obligation on the part of the 1st and 2nd respondents towards the applicant.

“If there is no consensus ad idem or consideration in respect of the res thereof, upon what ground is the res being preserved? A judgment creditor cannot be deprived of the fruit of its labour,” the judge declared.

The court held that to be granted such an application, the claimant must prove that he has an interest in the property to be preserved and that the property is in danger of being destroyed if a stay is not granted.

Consequently, the court held that the applicant has not proved any special circumstance(s) to warrant the grant of his application and awarded the cost of N400, 000 against him (N200, 000 for the 1st and 2nd respondents, and N200, 000 for the 3rd respondent).