MR. AYODELE IGBOKOYI & ORS v. ALHAJI RAHEEM ADETORO LAWAL (2013)

MR. AYODELE IGBOKOYI & ORS v. ALHAJI RAHEEM ADETORO LAWAL

(2013)LCN/6532(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of November, 2013

CA/I/347/2009

RATIO

WORDS AND PHRASES: TRIAL

It must be restated here that a trial is not an investigation and investigation is not the function of a court. A trial is the public demonstration and testing before a Court or Tribunal of the cases of contesting parties, the demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a Court or Tribunal is to decide between the parties on the basis of what has been demonstrated and tested. See: Mohammed Duruminiya V. C.O.P. (1962) NNLR 70, R. V. Gabriel Adaoju Wilcox (1961) ALL NLR 631, Okafor v. Obiwo (1978) 9 & 10 SC 115 at 123.

ENFORCEMENT OF JUDGMENT

It is trite, that an order for the enforcement of a valid judgment of a Court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined. Alpha Prop; Int. Ltd. V. N.D.I.C (2006) 1 NWLR (Pt.962) 624. Per MOJEED ADEKUNLE OWOADE, J.C.A.

WHETHER A CLAIMANT MUST ESTABLISH HIS ENTITLEMENT TO THE SATISFACTION OF THE COURT TO ACTIVATE THE COURT TO MAKE A DECLARATION OF TITLE TO LAND

For a party to be able to activate the court to make a declaration of title to land in his favour, that party must establish his entitlement to the satisfaction of the court by his own evidence either as a claimant or counter-claimant in the suit. See: Dumez Nig. Ltd. v. Nwakhoba & Ors. (2008) 18 NWLR (1119) 361 S.C.; Kodilinye v. Odu (1935) 2 WACA 336; Bello v. Eweka (1981) 1 SC 101; Woluchem v. Gudi (1981) 5 SC 291; Shittu & ors. v. Olawumi & Ors (2011) LPELR 3955 CA. Per SOTONYE DENTON WEST, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

J.C.A. Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

MR. AYODELE IGBOKOYI & ORS Appellant(s)

AND

ALHAJI RAHEEM ADETORO LAWAL Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision (Ruling) of the Hon. Justice F.O. Ogunsola Late Chief Judge of Osun State delivered on 22nd day of October 2009. The Respondent in this appeal, Alhaji Raheem Adetoro Lawal, had judgment entered against him in Suit No. HOS/12/86 in favour of the Plaintiff therein, Buraimoh Ogungbile. The said judgment of Sijuwade J. was overturned by the Court of Appeal Ibadan in CA/I/65/92 which held that Buraimoh Ogungbile the Plaintiff in Suit No. HOS/12/86 did not prove his case for declaration of title to land. The Court of Appeal in a lead judgment by Aloma Mariam Mukhtar JCA (as he then was) allowed the appeal of Lawal Adetoro (Respondent herein) and set aside the judgment of the High Court of Oyo State. On appeal to the Supreme Court by Lasisi Aremu (substituted for Buraimoh Ogunleye) Appellant therein, the Supreme Court upheld the judgment of the Court of Appeal and also dismissed the appeal.
On 17th day of July 2009, Hon. Justice F.O. Ogunsola, Chief Judge of Osun State purportedly issued a warrant of Possession in suit No. HOS/12/86 and on the same day the Assistant Chief Registrar, High Court Osun State issued a writ of Attachment/Execution on the movable properties of Lasisi Aremu, Plaintiff in Suit No. HOS/12/86, for a sum payment of N13,000 (thirteen thousand naira) of which the defendant has made default. On the face of it, the Warrant of Possession at page 20 of the record of appeal in this case was in respect of Suit No. HOS/12/1986 between Lasisi Aremu substituted for Buraimoh Ogunleye as Plaintiff and Alhaji Lawal Adetoro as defendant. The Warrant of Possession was then directed to the named Plaintiff as follows:
“Whereas at a court holden on the 13th day of July 2007, it was adjudged that the Defendant was entitled to possession of the Land mentioned in the particulars annexed to the summons in this action, that is to say: –
Area covered by Survey plan No. MAW 250/75 and Pillar Nos. AA5908, 5909, 5910, 5911, 5912, 5913, 5914, 5915, 5916, 5917, 5918, 5919, 5920, AA5904, AA5905, AA5906, AA5907 drawn by Licensed Surveyor Makanjuola Akin Laoye and signed and it was ordered that the Plaintiff should give the defendant possession of the Land on the 13th July, 2007. And it was adjudged that the defendant should recover against the Plaintiff the sum N13, 000… for costs…”

On 3rd August 2009 the Appellants as Applicants before the High Court brought a motion praying for the following orders:
1. An order stopping forth with the execution or further execution of the judgment in HOS/12/86, and/or CA/I/65/92 and/or SC/418/2007 by writ of attachment and Warrant of Possession issued on 17th July 2009.
2. An order setting aside the Warrant of Possession and writ of attachment, issued and signed under the hand of His Lordship the Hon. Chief Judge of Osun State, Hon. Justice F.O. Ogunsola on 17th July 2009 as same is without basis in law and was wrongly or fraudulently obtained issued without jurisdiction and a nullity.
3. An order setting aside the writ of attachment issued and levied against the applicants for N13,000 costs awarded against one Lasisi Aremu as irregularly issued.
The Grounds of the application of the Appellants as applicants as contained on the face of the motion of 3rd August, 2009 are as follows:
GROUNDS FOR THE APPLICATION
1. Suit No. HOS/12/86 was contested between the Respondent herein as Defendant and one Lasisi Aremu as Plaintiff.
2. The Plaintiff in the case ultimately lost the case at the Supreme Court where his case was dismissed due to failure to identify the land claimed as Plaintiff Tendered no Plan.
3. The defendant (respondent herein now levying execution) did not counter claim in the suit and no order was made in his favour by way of order of possession, declaration or injunction by any of the High Court, the Court of Appeal and the Supreme Court.
4. In the judgment of the High Court, the Court observed that although the defendant pleaded a survey Plan No. MAW/250/75 attached to a deed of conveyance dated 3rd May 1976; the Survey Plan was NEVER TENDERED.
5. The Respondent has now caused this Court to issue a Warrant of Possession based on Plan No. MAW/250/75 which was NEVER TENDERED IN COURT.
6. The Respondent has now caused this Court to issue a Warrant of Possession on a judgment in which THE COURT DID NOT GIVE ANY ORDER capable of execution in his favour.
7. The Respondent is now levying execution and has started demolishing and preparing to sell off structures owned by the applicants on a large expanse of land which forms a substantial part of Offatedo Town WITHOUT ANY VALID EXISTING COURT JUDGMENT/ORDER backing the execution.
8. The Respondent’s fraud lies in that, in Suit No. HOS/12/86, he did not tender Plan No. MAW/250/75 but he misled, enticed and deceived the registrars to present the Warrant of Possession for the Hon. Chief Judge’s signature based on the Survey Pillar numbers in the said Survey Plan No. MAW/250/75 and the Warrant of Possession is being so executed as if HOS/12/86 was based on Plan No. MAW/250/75 which was not true. The Plan was not even put in the file.
9. The execution against immovable property was irregular and was not made in accordance with law.
10. Above all, the executive was made on strangers who had not been sued and the Court lacks jurisdiction to execute a judgment against someone who had not been sued and against whom no order had been made.
The Appellants/Applicants supported their above application in the Court below by Affidavit in support and a further and better affidavit none of which was controverted by the Respondent who did not file any processes in opposition to the Appellants application for setting aside of the Warrant of Possession.

In refusing to grant the prayers of the Appellants/Applicants, the Learned Chief Judge, held in his Ruling more particularly at pages 74 – 75 of the record as follows: –
“….the issue in this case is whether the writ of possession was validly issued. Learned Counsel for the Applicants (sic) rightly pointed out that this Honourable Court has a duty to enforce any decision including judgment, decree or order given by the Supreme Court, such decisions being enforceable. The issue of Plan, Pillar etc. has featured prominently in the submissions of learned counsel for the Applicants to emphasize the need for certainty of the land in dispute. I must say that I read the judgments of the High Court, Court of Appeal and the Supreme Court.
At page 5 of the Lead Judgment on the identity of land again Niki Tobi JSC has this to say:
“The test for the establishment of the identity of the land is whether a surveyor can from the record, produce an accurate Plan of such land. While it is the law that a plan is not in all cases a sine qua non, some description is necessary to make a disputed land ascertainable…………………………………………
At the Supreme Court, N10, 000.00 damages was awarded in favour of Respondent against the Appellant. This is Respondent’s entitlement. I cannot continue to enforce the judgment of the Supreme Court instalmentally other ancillary issues may fall within the realm of consequential orders. Furthermore parties include privies to an action.
Having regard to the circumstances I am unable to set aside the writ of possession for the reasons stated above. The application is therefore refused and is accordingly dismissed.”

Dissatisfied with this Ruling, the Appellants filed a Notice of Appeal (containing three (3) grounds of appeal) dated 23/10/2009 before this Court on 26-10-2009, Appellant’s brief of argument dated 5-11-09 was filed on the same day.
Respondents brief of argument dated 4-7-2011 was also filed on the same day. Appellants nominated three (3) issues for determination. They are:
1. Whether the writ of execution/warrant of possession issued by the Hon. Chief Judge in this case were issued regularly and in accordance with relevant legal principles.
2. Whether the applicants/appellants were parties or privies to the parties in the judgment being executed, and the execution against them proper as held by the Lower Court.
3. Whether the High Court of Osun State was right to have refused to set aside the said writs/warrants (at the instance of the applicants/appellants) going by the material/evidence before it.
Learned Senior Counsel for the Respondent N.O.O. Oke Esq. formulated two issues for determination namely:
(i) Whether the Respondent is not entitled to the Warrant of Possession issued at the Lower Court by the Honourable Chief Judge in the circumstance of the case.
(ii) Whether the Honourable Chief Judge was not right to have refused the Appellants application for setting aside the writ of Execution/Warrant of possession.
This appeal would be decided on the issues nominated by the learned counsel for the Appellants. On issue No. 1 Learned Counsel for the Appellant submitted that the question whether the writ/warrant of execution were issued regularly and in accordance with relevant legal principles and were properly levied or are nullities is the central question in this appeal. Counsel said it is trite law that only parties to proceedings are bound by order/decisions or findings made therein. That, the appellants were not parties to the judgment sought to be executed on them. Ex facie the judgments being executed, none of the appellants was a party to the judgments.
Learned, counsel to Appellants submitted that on this ground alone, any process issued to levy execution on the appellants who are not parties to the case amounts to a process issued without jurisdiction as it tantamount to a direct infraction of the constitutional rights of the appellants to be heard before processes of Court are issued against them. Moreover, said Counsel the Respondent herein practiced fraud on the Court and the appellants when he caused the warrant of possession to be executed on them. And that, in the circumstances, the warrant lied against itself when it stated in part.
“Whereas at a Court Holden on the 13th day of July 2007, it was adjudged that the defendant was entitled to possession of the land…” and it was ordered that the defendant recovered against the Plaintiff N13,000. These are therefore to authorize and require you forthwith to give possession of the said land covered by Survey Plain No. MAW/250/75 to the defendant”
Counsel referred to the cases of Anwoyi v. Shodeke (2006) ALL FWLR (Pt. 350) 1041-1056 and Akulaku v. Yongo (2002) ALL F.W.L.R. (Pt. 100) 1228 at 1252. He submitted that in the first case, it was held that a defendant in a land case who did not counter claim cannot have any order made in his favour. That, in the second case, it was held that in a case for declaration of title, even if the plaintiff fails, title is not automatically conferred on the defendant without a counter claim.
Counsel argued that the Respondent herein, who applied for the writ of execution and Warrant of Possession, was just a defendant in Suit No. HOS/12/86 which gave rise to appeal No. CA/I/65/92 at the Court of Appeal and SC/418/2007 at the Supreme Court. That, the Respondent did not counter claim. He submitted that it is trite law that when a Plaintiff’s case in a land matter is dismissed, the failure of the Plaintiff does not translate into a declaration of title in favour of the defendant. Such a defendant, said counsel, cannot use that judgment to levy execution. On this, counsel further referred to the cases; of Awoniyi v. Registered Trustee (AMORC) (2002) F.W.L.R (Pt. 25) 1592 at 1617 and Adone v. Ikebudu (2001) F.W.L.R (Pt. 72) 1893.
There is therefore no basis in law, according to counsel to issue a Warrant of Possession in favour of defendant in a land matter who had no counter claim, just because the plaintiff who sued failed. Such defendant would still have to file an action to establish his own title as the dismissal does not translate to a declaration of title or order of possession in his favour. Appellants counsel reiterated the facts of the present case as follows: that, in the case at hand, and reading through the judgment obtained from the court, at the High Court, the respondent herein (as the defendant then) lost the case to one Buraimoh Ogungbile. In the second case, the respondent as appellant against one Buraimoh Ogungbile, won the appeal and the Judgment of the High Court was set aside while the Plaintiff’s case was dismissed. The plaintiff then appealed (with one Lasisi Aremu substituted as appellant in place of the initial Plaintiff). The Supreme Court finally held while dismissing the appeal:
“The Court of Appeal, in my humble view, properly analysed, the case and the learned trial judge was clearly in error in giving judgment”.
The question, according to counsel is: does this dismissal translate into an order of possession that could be executed by the respondent in the appeal, against the whole world, including those who are not parties to the suit? He submitted that the answer is in the negative. Counsel submitted that in the circumstance, the Warrant of possession being executed against the appellants is clearly a nullity both as an order made against non-parties and as a process issued in favour of a defendant without a subsisting court order in his favour. Counsel submitted that the High Court thereon lacked jurisdiction to issue warrants and writs of execution against the appellants. The processes are issued without jurisdiction and are pro tanta nullities.
Appellants counsel further submitted that even on grounds of procedure, the issuance of the warrant of possession and its utilization to attach the appellant’s houses (immovable properties) in this case is still irregular on the following grounds.
(i) There was no order for possession made by the Court in favour of the respondent who applied to the Chief Judge for the warrant.
(ii) The cumulative cost of N13,000 awarded in the respondent’s favour is a money judgment.
That, under the Sheriff and Civil process Law of Osun State a money judgment must be levied first on the movable properties of a Judgment creditor. Counsel referred to the provision of Order 3 Rule 16 of the Judgment Enforcement Procedure Rules, to the effect that it is only when the movable properties of the judgment creditor cannot be found or is insufficient to satisfy the judgment creditor (not non-parties) to the judgment, that an application will be made on notice supported by affidavit to attach his immovable properties. On this, he further referred to the case of Saleh v. Monguno (2006) All F.W.L.R (pt. 332) 1411 at 1419. Appellant’s Counsel submitted that in this case, the persons whose immovable properties were being attached were not parties. But, even if they were and the execution was being made for N13,000 costs, the due process that could lead to a Warrant of Possession for their immovable properties were not followed. That, first, there was no execution of movable properties. The writ of attachment of movable properties and warrant of possession for immovable properties were issued simultaneously by the Hon. Chief Judge contrary to the relevant procedure rules. And, that what the bailiff executed was the warrant of possession as can be seen from the inventory/return filed by the bailiffs on pages 20 – 22 of the record of appeal. Appellants counsel urged that Issue No. 1 be decided in the negative and hold that the issuing of writs of execution/warrant of possession in this case were irregular, in defiance of relevant legal principles and without jurisdiction.

On Issue No 1, Learned Senior Counsel for the Respondent submitted that a court would not deprive a successful litigant of the fruits of his judgment as well as the price of his legal battle in a case. In other words, he must be given the benefit to enjoy his victory. Counsel referred to the cases of Aje Printing (Nig.) Ltd. v. Ekiti L.G.A. (2009) 7 NWLR (pt. 1141) 512 at 528 and Lijadu v. Lijadu (1991) 1 NWLR (pt. 16) 627 at 642 and submitted that the judgment of the Supreme Court delivered on the 13th day of July 2007 dismissing the case of the Appellant in Suit No. SC 418/2001 is presumed to be correct and subsisting and this gave the Respondent herein the authority to execute the said judgment. That it was based on the Supreme Court judgment that the Respondent applied for the Warrant of Possession which the Hon. Chief Judge granted in order not to deprive Respondent the fruit of his judgment.
Learned Senior Counsel for the Respondent submitted further that the Court below is empowered to enforce the judgment of the Supreme Court by virtue of the provision of S. 287 (1) of the 1999, Constitution (as amended) and that the Hon. Justice F.O. Ogunsola was right by issuing the Warrant of Possession to the Respondent in order to enforce the judgment of the Supreme Court in Suit No. SC/418/2001.

The main thrust of the Appellants argument in relation to Issue No. 1 is that the Respondent was a defendant in the High Court in Suit No. HOS/12/86. That the Respondent did not counter-claim in that suit. That the fact that he, eventually won on appeal both at the Court of Appeal and the Supreme Court does not automatically make him the owner of the land in dispute.
It seems to me that the above position of the law by the Appellants is trite and that the Respondent did not and could not have been able to fault the Appellants on this score.
The reason is that when a Plaintiff fails to prove his case as in the instant case, nothing is awarded for a defendant who has not counter-claimed.
See Awoniyi V. Regd. Trustee (AMORC) 2002 F.W.L.R. (pt. 25) 1592 at 1617, ANONE V. IKEBUDU (2001) F.W.L.R. (Pt. 72) 1893, ANWOYI V. SHODEKE (2006) ALL F.W.L.R (pt. 340) 1041 at 1056. AKULAKU V. YONGO (2002) ALL F.W.L.R. (pt. 100) 1228 at 1252. Put in another way, the dismissal of a Plaintiff’s claim for declaration of title does not automatically confirm title to the same land in dispute in the defendant. Therefore, where a plaintiff claims title to land and the court dismisses his claim for failing to prove title, a defendant who has not counter-claimed for declaration of title to the same land does not automatically become entitled to the land.
In the instant case, the Plaintiff’s case in Suit No. HOS/12/86 was dismissed for failure to prove title, this does not translate to a declaration of title or order of possession in favour of the Respondent. Therefore, there was no basis in law to issue a Warrant of Possession in favour of the Respondent who had no counter-claim in the suit under reference.
Issue No.1 is resolved in favour of the Appellants.

On Issue No.2. Learned Counsel for the Appellants submitted that first, it is clear on the face of the records that none of the appellants was a party to the suit being executed against them. That, secondly, at paragraph 4 (a) of the Affidavit of Mukaila. A. Adebisi in support of the application before the Hon. Chief Judge, it is clearly stated “None of the Appellants was involved in the case on which the writs were issued.”
This deposition, said counsel, remained uncontroverted as the Respondent who applied for the writs never filed a counter-affidavit before the Lower Court and therefore is deemed to have admitted the content of the applicant’s affidavit. He referred to the case of Edem v. Akamkpa L.G. (2000) 4 NWLR (Pt. 651) 70 at 85. Counsel submitted that it is settled law that uncontroverted affidavit evidence should be believed. That, the Appellants were not parties to the suit being executed. The onus of showing that the appellants were privies who were bound by the judgments should have been on the Respondent who applied for the execution against them. He (the Respondent) never furnished any such proof. Appellants counsel further submitted that the Supreme Court ultimately agreed with the Court of Appeal that the Plaintiff’s case in Suit No. HOS/12/86 was not proved due to failure to identify the land and dismissed it. That, the summary statement of the law that “Parties include privies” in the Ruling of the Learned Honourable Chief Judge was irrelevant to the case before him as nobody has alleged or proved before him that the applicants/appellants were privies to any of the parties in the judgment being executed. The deafening silence from the respondent (herein) who applied to the Court for the processes, said counsel, could not be remedied by his Lordship’s statement.
On the other hand, said counsel, the appellants could not have been privies of the losing party (Ogungbile/Aremu) since the land litigated upon by the latter was held not to be identifiable. That it would be a baseless assumption to hold that the appellants were privies/grantees of the losing party when the land litigated upon was held by the apex court to be unidentifiable. The court below, said counsel, was doubly wrong in issuing a warrant of possession on the appellants landed property when the land litigated upon was held to be unidentifiable.
Learned Senior Counsel for the Respondent in defending the ruling of the Learned Chief Judge submitted that under Issue No.2 that the Appellants were privies to the proceeding since they got their title from the vendor who was a party in the proceeding.
Counsel referred to the case of Olosunde V. Oladele (1991) 4 NWLR (Pt. 188) 713 at 726 and submitted that the title of the vendor to the Appellants had been defeated in the Supreme Court Judgment delivered on 13th day of July, 2007 in Suit No. SC/418/2001. That the Appellants having bought from a vendor who had been adjudged not to be the owner of the land, the principle of nemo dat quod non habet applies which makes the purported sale to the appellants vold ab-initio and therefore nothing has passed to the purchasers who are the Appellants in this case.

The point in Issue No. 2 seems to be whether or not the Respondent proved the Appellants/Applicants to be privies to Suit No. HOS/12/86 and Appeal Nos. CA/I/65/92 and SC/418/2001 and not whether or not they are indeed privies to the suits. Clearly, and as pointed out by the learned counsel for the Appellants, the parties before the Supreme Court in Appeal No. SC.418/2001 are Lasisi Aremu (substituted for Buraimoh Ogunleye) as Appellant and Alhaji Lawal Adetoro, the respondent as Respondent. Appellant’s claims were dismissed.
Obviously on the face of the Judgment of the Appeal Court – on which the Respondent applied for Warrant of Possession and writ of attachment, the Appellants/Applicants were not parties. It then behoved on the Respondent who applied to the High Court for processes of execution before the then Honourable Chief Judge of Osun State to show that the Appellants were parties or privies to the Judgment of the Supreme Court.
Meanwhile, the Respondent did not file any processes before the Learned Chief Judge in opposition to the supporting Affidavit and Further and Better Affidavit of the Appellants/Applicants which deposed inter alia that “None of the Applicants was involved in the cases of which the writs were issued”
In spite of the uncontroverted affidavit of the applicants/appellants, the Learned Chief Judge held that the appellants were privies to Suit No. HOS/12/86 and Appeal Nos. CA/I/65/92 and SC/418/2001 based on Suit No. HOS/12/86. I think by the above holding, the Learned Chief Judge erred in two important respects. First, is the fact that there was nothing on record placed before the Learned Chief Judge to have come to the conclusion that the applicants/appellants were privies to Suit No. HOS/12/86 and Appeal Nos. CA/I/65/92 and SC/418/2001. The implication of the above holding by the Learned Chief Judge is that he acted out of the record of Court, indeed outside jurisdiction to find for the Respondent on that score. It must be restated here that a trial is not an investigation and investigation is not the function of a court. A trial is the public demonstration and testing before a Court or Tribunal of the cases of contesting parties, the demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a Court or Tribunal is to decide between the parties on the basis of what has been demonstrated and tested. See: Mohammed Duruminiya V. C.O.P. (1962) NNLR 70, R. V. Gabriel Adaoju Wilcox (1961) ALL NLR 631, Okafor v. Obiwo (1978) 9 & 10 SC 115 at 123.

Secondly,where a party files an affidavit deposing to certain vital facts which are material to the case in dispute, the opposing party has the duty to counter those facts by way of counter affidavit and failure to do so, those facts must be deemed unchallenged.
Malgit V. Dachem (1998) 5 NWLR (pt. 550) 384. In the instant case the deposition in the supporting affidavit and further and Better Affidavit of the applicants/appellants in the Court below that they are not privies to Suit No. HOS/12/86 and Appeal Nos. CA/I/65/92 and SC/418/2001 were uncontroverted and unchallenged and should be deemed as the truth of the matter.
See: Adamu v. Akukalia (2005) 11 NWLR (pt.936) 263. A-G, Lagos State V. Purification Tech. (Nig.) Ltd. (2003) 15 NWLR (PT. 845) 1.
Issue No. 2 is also resolved in favour of the Appellants.

On issue No. 3, Learned Counsel for the Appellants submitted that a Court of Law must base its findings and decisions on facts placed before it. After referring to the case of Chukwu v. Diala (1999) 6 NWLR (pt. 608) 673, Appellants counsel submitted that on the face of the Warrant of Possession, the land to be attached was described as:
“Area covered by Survey plan No. MAW/250/75 and Pillar Nos…drawn by Licensed Surveyor Makanjuola, Akin Laoye and signed”
Counsel submitted that reading through the judgment placed before the learned Chief Judge, it will be clearly seen that the description was a fraudulent trick to mislead the Hon. Chief Judge, which trick unfortunately succeeded for the following reasons.
1. Survey Plan No. MAW/250/75 whose Pillar numbers were inserted into the warrant of Possession was never tendered in Court. The Survey Plan No. MAW/250/75 was pleaded by the respondent (as defendant) before the High court but it was never tendered.
The High Court observed at page 5 sic (4) of its judgment (page 27 of the record) as follows:
“….which parcels of land are described as being along Ido-Osun Osogbo road, Ede as allegedly shown on plan No. MAW/250/75 attached to the deed of conveyance dated 3rd May, 1976. Notwithstanding the fact that the said plan and deed of conveyance to which it was attached WERE NOT TENDERED …..”
That down the same page 4 of the judgment of the High Court (page 27 of the Record of Appeal) towards the end of the same paragraph, the learned trial judge said:
“As I have earlier remarked, it is to be noted that a plan was referred to in the deeds of conveyance dated 3/5/76 but no such Plan was tendered by the defence.”
ii. In his efforts to see whether the land litigated upon could be identified in any way, the Hon. Justice Aloma Mariam Mukhtar JCA (as he then was) in the lead judgment at the Court of Appeal at page 8 of the Judgment (Page 44 of the record of Appeal) observed as follows:
“In arguing this issue learned counsel for the Appellant referred to Exhibits ‘A’ ‘B’ and ‘C’. Exhibits ‘A’ and ‘B’ are sale agreement of parcel of land described in paragraph (6) of the two Exhibits as follows: –
“Under and by virtue of a Deed of Conveyance dated 3rd day of May, 1976 and registered as No. 40 at page 40 in Volume 1929 of the lands Registry the said hereditament shown on plan No. MAW/250/75 covering an area of 34.03 acres and attached to the Deed of conveyance recited above and hereon EDGED RED was sold to the purchaser by the said Timi of Ede for consideration therein stated.”
“Neither the Deed of Conveyance nor the Plan mentioned above was tendered in evidence, hence no light has been shed to the identity of the land purportedly sold to and owned by the Respondent ….”
Appellants Counsel submitted that the above shows that plan No. MAW/250/75 was never tendered before the Court. That, yet it was the particulars of that survey plan that was inserted in the Warrant of possession issued by the Honourable Chief Judge to describe the land being attached in execution of the judgments.
The Learned Chief Judge, said counsel, refused to correct the obvious error made by the Court in issuing the processes of execution thereby causing a miscarriage of Justice.
On Issue No. 3, Learned Senior Counsel for the Respondent submitted that the Appellants herein have no legal right to apply to set aside a Warrant of Possession that was validly issued since they have no title in respect of the land in question. That the grant of an application to set aside the Warrant of Possession issued by the Lower Court is a matter of discretion. And, that before this discretion can be exercised in favour of any applicant he must place material facts before the Court which will clearly convince the Court to exercise such discretion in favour of the applicant.
On this, Learned Senior Counsel for the Respondent referred to the cases of Bamaiyi V. Bamaiyi (2005) 15 NWLR (Pt. 948) 334 at 360 and Alemaieyesigha V. F.R.N. (2006) 16 NWLR (Pt. 1004) 1 at 14 – 15.
He submitted that the Appellants failed to show the area of land that was affected by the judgment in which he was seeking an order to set aside the Warrant of Possession. That, they could not identify the land, which made it impossible for the Court below to exercise its discretion in their favour.

Answers to Appellants Issue No. 3 have already been provided in my treatment of Issues Nos. 1 and 2. The learned Chief Judge was indeed wrong to have refused to set aside the writ/warrant at the instance of the Applicants/Appellants. First, because the Respondent was not entitled to the Warrant of Possession having not counter-claimed in the initial suit. Secondly because the Appellants were not proved to be privies to Suit No. HOS/12/86 and Appeal Nos. CA/I/65/92 and SC/418/2001.
Finally, and more particularly in relation to Appellants Issues No. 3 there was no order of any Court of law which tallies with the description on warrant of possession issued by the Hon. Chief Judge. It is trite, that an order for the enforcement of a valid judgment of a Court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined. Alpha Prop; Int. Ltd. V. N.D.I.C (2006) 1 NWLR (Pt.962) 624. For these reasons, Issue No. 3 is also resolved in favour of the Appellants.
Having resolved the three (3) Issues in this appeal in favour of the Appellants, the appeal succeeds. The ruling of the Hon. Justice F.O. Ogunshola delivered on 22/10/2009 in Suit No. HOS/M62/2009 and Suit No. HOS/12/86 is accordingly set aside.
The Warrant of Possession and writ of attachment/Execution dated 17th July 2009 against the Appellants in favour of the Respondent in relation to Suit No. HOS/12/86 are also set aside.
N30, 000 costs is awarded to the Appellants against the Respondent.

SOTONYE DENTON WEST, J.C.A.: I had the benefit of reading in draft the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA. His Lordship has exhaustively considered and meticulously resolved the issues in controversy in this appeal. I agree entirely with the reasoning and conclusions ably advanced therein.
I agree with my learned brother that it is trite that where a plaintiff claims title to land and the court dismisses his claim for failing to prove title, a defendant who has not counter-claimed for declaration of title to the same piece of land does not automatically become entitled to the land. For a party to be able to activate the court to make a declaration of title to land in his favour, that party must establish his entitlement to the satisfaction of the court by his own evidence either as a claimant or counter-claimant in the suit. See: Dumez Nig. Ltd. v. Nwakhoba & Ors. (2008) 18 NWLR (1119) 361 S.C.; Kodilinye v. Odu (1935) 2 WACA 336; Bello v. Eweka (1981) 1 SC 101; Woluchem v. Gudi (1981) 5 SC 291; Shittu & ors. v. Olawumi & Ors (2011) LPELR 3955 CA.

Declaratory reliefs are granted to a party on the strength of that party’s evidence before the court. The respondent herein was neither a claimant nor a counter-claimant in suit. No. HOS/12/86 and Appeal Nos. CA/I/65/92 and SC/418/2001. He did not pray the court for a declaratory relief. The court did not make any order for possession in favour of any of the parties. There is no order by the court to be enforced by any of the parties.
For these and the more detailed reasons well set out in the lead judgment, I also find the appeal to be meritorious. I accordingly also allow it. I abide by all the consequential orders contained in the lead judgment, including the orders as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, OWOADE, JCA. I agree with all the reasonings and conclusion clearly set out by him in the judgment. Albeit, I feel compelled to lend my voice to the fact that the respondent herein attempted to reap where he did not sow by pulling a wool across the eyes of the learned Hon Chief Judge of Osun State, the respondent caused him to issue warrant of possession against the appellants in respect of land which he the said respondent did not counter-claim title or declaration of. See in addition the decision of this court in the case of Etukudo & Anor. vs. Udoakagha (2012) LPELR-9471.
In fact the respondent can best be described as a gold digger and I so hold him to be. Thus, the Warrant of Possession and Writ of Attachment/Execution dated 17th July, 2009 granted in favour of the said respondent in relation to Suit No. HOS/12/85 are also set aside.
The appeal succeeds. I abide by the order as to costs.

Appearances

M.O. AGBOOLAFor Appellant

AND

N.O.O. OKE (SAN) WITH O.O. ODUMOSU (MISS)For Respondent