ALHAJI SALISU IBRAHIM v. ADAJI OJONYE
(2011)LCN/4603(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of June, 2011
CA/K/350/06
RATIO
GROUND OF APPEAL: EFFECT OF AN ISSUE THAT DID NOT ARISE FROM ANY OF THE GROUNDS OF APPEAL IN THE APPELLANT’S NOTICE OF APPEAL
It is the law that any issue which did not arise from any of the grounds of appeal in the Appellant’s Notice of Appeal shall be struck out. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
SETTING ASIDE OF JUDGMENT: WHETHER A JUDGMENT THAT HAS BEEN EXECUTED UPON CAN BE SET ASIDE; WHETHER WHERE A JUDGMENT IS SET ASIDE, ANY EXECUTION THAT HAS BEEN CARRIED UPON IT WILL ALSO BE AFFECTED BY THE ORDER
However, it is worthy to note that a judgment can be set aside whether it has been executed upon or not. By setting aside a judgment, the said judgment becomes ineffectual and nugatory that nothing can cure it. In that circumstance, both the Court and the parties would revert to or return to their former position before the said judgment was delivered. See Black’s Law Dictionary, 7th Edition at p. 1372 which defines the phrase “set aside” to mean, “to reverse, vacate, cancel, annul or revoke a judgment, order, e.t.c.” It follows that by setting aside a judgment, the Court voided or vacated or reverted the judgment for error. I would, further, at this juncture, refer to Obi Okoye in his book entitled, “Essays on Civil Proceedings” Vol. 2 p. 335 where he aptly stated that a judgment can be set aside whether it has been executed upon or not. When a judgment is set aside, any execution which had already taken place goes with it. So, the true position is, the moment a judgment is set aside, the parties automatically go back to their former positions as if nothing had at all been done in the matter in the first place. Where a judgment had been set aside, there is nothing upon which the execution already levied upon it could stand or exist. It completely falls like a pack of cards with the said judgment and becomes ineffectual as the judgment. It was circumstance such as this that actuated Katsina-Alu, J.S.C. (as he then was) in Societe Generale Bank (Nig.) Ltd. vs. John Adebayo Adewunmi (2003) 10 NWLR Part 829 p.526, to hold that “since the judgment of 14th February, 1994 is a nullity, it follows that, the subsequent order of the trial Court on 9th October, 1995 for the attachment and sale of the Defendant’s immovable property situate at No. 4A. Dawaki Road, New Extension, Kaduna in satisfaction of the judgment, is null and void”. Similarly, in the case of Fada vs. Naomi (2002) 4 NWLR Part 757 p.318 Mohammed, J.C.A. (as he then was) stated thus: Having set aside the judgment, the issue of execution of the same judgment no longer arises since the sale of the Appellant’s property was pegged upon the judgment which is now voided. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
SETTING ASIDE OF JUDGMENT: EFFECT OF THE JUDGMENT OF A COURT THAT HAS BEEN SET ASIDE
The Supreme Court of this country, per Tobi, J.S.C., in its revered wisdom, in the case of Fagunwa vs. Adibe (2004) 17 NWLR part 903 p. 844 critically analysed the legal effect of an appellate Court setting aside the judgment of a trial Court thus: “If a judgment is set aside, it means that the judgment is not legally valid. A judgment which is set aside has not the legal capacity to resurface for a retrial. By the order of setting aside, the issues canvassed in Court are dead as far as the Court is concerned; and only an appellate Court can resuscitate the judgment”.I have painstakingly and elaboratively dissected the phrase “setting aside” judgment and its natural and uninhibited consequences which I believe must have been known by the Appellant’s Counsel, only, that his views seemed to be clouded. It is a basic principle of law that the moment a judgment is set aside every other action taken upon the said judgment must immediately fall with it having no longer efficacy or life in it. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
EXECUTION OF JUDGMENT: GROUNDS UPON WHICH THE SHERIFF OR BAILIFF OR THE OFFICER CHARGED WITH EXECUTION OF JUDGMENT MAY BE SUED BY THE JUDGMENT DEBTOR OR JUDGMENT CREDITOR
It is the law that the sheriff or bailiff or the officer charged with execution of judgment can be sued by the judgment debtor or judgment creditor for: (a) illegal execution, e.g., an error in the levy. (b) irregular execution, e.g., levy by an unauthorized officer or (c) excessive execution. The officer charged with the execution can also be sued by the judgment creditor for failing to act promptly or for failing to protect his/her interests. See Slated vs. Hawley (1845) 15 M & W 757 and Pitch vs. King (1844). PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI SALISU IBRAHIM Appellant(s)
AND
ADAJI OJONYE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: (Delivering the Leading Judgment): The crux of this appeal is that by the judgment of the Kaduna State High Court delivered in suit No. KDH/KAD/435/94 on the 6th March, 1997 involving the parties in this appeal, and, upon which execution was levied, the Respondent’s movable items listed at paragraphs 9 and 10 of his Statement of Claim were attached and auctioned by the Bailiff of the said High court. Then, a day after the said judgment, i.e. 7/3/97, the Respondent lodged an appeal challenging the decision of the trial Court therein, and, filed a Motion for Stay of Execution of the same. The said Motion was heard and refused by the then trial Court on 3/6/97. Eventually, the Notice of Appeal No. CA/K/68/98 filed in respect of the said judgment, was heard and in the judgment of this Court delivered on the 28th June, 2001, the said judgment in suit No.KDH/KAD/435/94, and upon which execution had been carried out, was set aside, with, the premises in dispute then reverting to the Respondent in this appeal. Consequently upon that, the Respondent, on 3/10/2001, initiated fresh legal proceeding against the Appellant in suit No. KDH/KAD/631/2001, in which, he filed a Statement of Claim seeking the following reliefs against the Appellant thus:
Special damages in the sum of N859,950 (Eight Hundred and Fifty Nine Thousand, Nine Hundred and Fifty Naira) only made up as follows;
(i) The sum of N589,950 (Five Hundred and Eighty Nine Thousand, Nine Hundred and Fifty Naira) only being the value of the movables attached and sold by the Defendant in satisfaction of judgment debt in suit No.KDH/KAD/435/94 on 3rd June, 1997.
(ii) The sum of N270,000 (Two Hundred and Seventy Thousand Naira) only being the rent collected by the Defendant on property known as No. Z.5, Jaji Road, Abakpa, Kaduna at N300.00 (Three Hundred Naira).
Hearing in the said suit No.KDH/KAD/631/2001 was conducted, and, after hearing the parties, and, their witnesses, and, evaluation of their evidence, the trial Court, then awarded to the Respondent, the sum of N878,450.00 which comprised all the heads of claim presented by the Respondent before it. It was following the said judgment of the trial Court which the Appellant, apparently found obnoxious, that he filed the present appeal.
In the Notice of Appeal filed on 30/10/2006 by the Appellant against the judgment of the High Court of Kaduna State delivered on 4/10/2006 in Suit No. KDH/KAD/631/2001, the Appellant invited this Court to allow his appeal, and set aside the judgment of the trial Court for being perverse and occasioning gross miscarriage of justice.
The parties filed and exchanged their Briefs of Argument in this appeal. Five issues were propounded by the Appellant in the Appellant’s Brief of Argument for determination of this Court. They are:
“1. Whether there was a valid and subsisting judgment in suit No. KDH/KAD/435/94 which led to the execution and subsequent sale by auction of the Respondent’s movable properties between 3rd of June, 1997 and 23rd of July, 1997.
2. Whether having regard to the Plaintiffs/Respondent’s Statement of Claim and evidence thereby adduced, the proper and necessary persons or parties were presented before the lower trial Court, for proper determination of Appellant’s liability, (if any) to the Respondent on the execution carried out by Court officials of the lower Court between 3rd of June 1997 and 23rd of July 1997.
3. Whether a likelihood of bias would not be fathomed, when inspite of Appellant’s protest for transfer of the case, the presiding trial Court Judge refused to disqualify himself from the proceeding in the interest of justice, fair hearing and fair trial.
4. Whether the learned trial Court Judge was right to have awarded Respondent a claim beyond what was before the Court.
5. Whether the Court was right to have ascribed probative value or weight to the evidence of P.W.2, P.W.3 and P.W.4 by reasons of their consanguinity with the Plaintiff/Respondent as tainted witnesses”.
The Respondent for his part formulated four issues for determination in this appeal. They are as follows:
“1. Whether the execution of the judgment in suit No. KDH/KAD/435/94 which judgment was set aside by the Court of Appeal in Appeal No.CA/K/68/98 remains valid.
2. Whether the Appellant can sustain allegation of bias after his petition to the Chief Judge that this matter be transferred from the trial Judge was dismissed and the Judge ordered to conclude the case.
3. Whether the Honourable learned trial Judge was right to have awarded damages to Respondent in excess of his claim.
4. Whether the failure to join the Deputy Sheriff and Bailiffs was total (sic) fatal to the Respondent’s case”.
The Appellant’s Counsel, Chief J. A. Ajayi, submitted in respect of issue No. 1, that the parties via the evidence of P.W.1, P.W.2, D.W.1, D.W.3, D.W.4 and D.W.5 admitted the existence of a valid judgment in favour of the Appellant in suit No. KDH/KAD/435/94 which gave rise, to the execution carried out by the Court’s Bailiffs on 3/6/97. It was shown in the evidence of D.W.5, that the execution was carried out before the Respondent’s appeal in suit No.CA/K/68/98 was heard and determined by the Court of Appeal. He then urged this Court to uphold issue No. 1 in favour of the Appellant.
With regard to issue No. 2, it was contended that if there were really a case of wrongful execution, all the necessary parties involved therein would have been brought before the Court. He explained that necessary parties are the persons who without them or in their absence , it may be difficult to achieved the justice of the case as their presence would be crucial to the resolution of the issues in the case. He relied on Union Beverages Ltd. vs. Pepsi Cola Int. Ltd. & others (1994) 2 SCNJ p.157 at 174 line 23 – 32. Counsel further contended that the Bailiffs of the Court that carried the execution and conducted the public auction on 3rd June, 1997 and 23rd July, 1007 (sic) respectively were necessary parties because their liability could be limited to what was realized as the proceeds from the execution or and auction. He stressed that the Appellant was not involved in the execution and auction of the attached properties. He explained that the Respondent’s house where execution was carried out on the movable properties therein is situated at No. 10 Lagos Street, Abakpa, Kaduna whereas the property in dispute is at No. Z.5, Jaji Street Abakpa yet the Respondent claimed to have lost rent over which property. He, also, stressed that the calculation made by the trial Court was far above the figure claimed by the Respondent, and that it was on 28/6/2001, that the judgment of Appeal Court was delivered but was given effect in August, 2001. He argued that there was no evidence before the lower Court as to who was collecting any rent in respect of the property in dispute at No.Z.5, Jaji Road, Abakpa, Kaduna nor any corroborative evidence on what the Respondent was previously collecting nor was any tenant called to establish that claim, rather, the Court was left to speculate. He said that the Appellant rebutted the claim of letting out the premises in his evidence-in-chief.
On issue No. 3, Counsel emphasised that the Appellant had established elements of likelihood of bias from the conduct of the presiding Judge, when the Appellant changed to a new Counsel, and the new Counsel applied to recall the Respondent and his witnesses but the learned trial Judge refused as he was denied fair hearing and fair trial. He said the learned trial Judge openly rebuked and abused the Appellant which propelled the Appellant to file a petition to the Chief Judge of the State for transfer of the case and a Motion on Notice praying for the transfer which, said processes, were technically overruled. He made reference to the cases of Denge vs. Ndalewoji (1992) 1 NWLR Part 216 p. 221 at 233 – 234 paras H – A and Omoniyi vs. Central Schools (1988) 4 NWLR Part 89 p.448 at 451 in which it was held that where an allegation of bias is made against a Judge, the safest option to take is for the trial Judge to withdraw from hearing the case. He alleged that the Appellant was frustrated to withdraw in the cause of the proceedings and all the applications made by the Appellant including one to amend his pleading were refused. He was compelled to conclude his defence despite the non-availability of his witnesses in Court. Counsel emphasised that the Appellant was not given a fair hearing. He cited Secretary, Iwo Central Local Government vs. Adio (2000) FWLR Part 7 page 1142 at 1146 – 1147 at 1169 para H and 1170 para H and Adio vs. Attorney General Oyo State (1990) 7 NWLR Part 163 p. 448 at 452 – 453. It was alleged that the trial Court suo motu cited a law and relied on it without summoning Counsel for parties to buttress on it. He argued that the Public Officers, Protection Law of Kaduna State Cap. 126 of 1991 which the trial Court said protected the Court Bailiff from being joined in the suit, is not applicable to the instant case and does not state that such public officer cannot be joined in an action. He also cited G. C. Akpunonu vs. Beakart Overseas & others (2000) 7 SCNJ p. 105.
Supplying answer to issue No. 4, learned Counsel referred to Victor Olurotimi vs. Felicia Ige (1993) 10 SCNJ p. 1 and Afrata Technical Services (Nig.) Ltd. vs. MIA & Sons Ltd. (2002) 12 SCNJ p.298 and explained that the Respondent’s claim was for the sum of N889,950.00 but the sum awarded by the trial Court was N878,450.00 in excess of what was claimed. He stressed that experts in the field were not called, only the Respondent, his son and driver who testified as P.W.1, P.W.4 and P.W.2 respectively, in that regard, and, the prices given were prices for new items. He cited Victor olurotimi vs. Mrs. Felicia Ige (1993) 10 SCNJ p.1 and Afrata Technical Services (Nig.) Ltd. vs. MIA & Sons Ltd. (2002) 12 SCNJ p. 298 and argued that the Court was in error to have awarded the relief not before the Court.
On issue No. 5, Counsel stressed that P.W.2 was a brother to the late Respondent and they were from the same clan of Ofukpo, Benue State, while the present substituted Respondent was the biological son of the late Respondent and their evidence was prejudicial, and, they were nothing, but, tainted witnesses. He argued that the learned trial Judge ought to have warned himself as to their evidence by reason of their consanguinity with the late Respondent. Counsel urged the Court to allow the appeal, and set aside the judgment of the lower Court.
It was stoutly submitted on behalf of the Respondent by his learned Counsel, S. O. Omoloba (Mrs.) that on the footing of the decision in Dan Zaria Fada & Others vs. Mammom Naomi & Others (2002) 4 NWLR Part 757 p. 318 at 337 paras A – B, the moment a judgment upon which execution was based is set aside, the said execution becomes invalid and the Respondent ought to be restored to the original position. She persuaded that issue No. 1 be resolved in favour of the Respondent.
Dealing with issue No. 2, learned Counsel drew the attention of this Court to Edozien vs. Edozien (1998) 13 NWLR Part 580 p. 133 at 147, Orunlola vs. Adeoye (1995) 6 NWLR Part 401 p. 338 at p.349, Peoples Democratic Party (PDP) vs. Kwara State Independent Electoral Commission & 40 (2005) 15 NWLR Part 948 230 at 255 paras B – C, Orunlola vs. Adeoye (Supra) and emphatically asserted that the Appellant’s allegation of bias is baseless having been hinged on the trial Court’s refusal to grant his application for recall of witnesses for further cross-examination given on 19/8/04. She stressed that the said ruling of 19/8/04 was not appealed against and it cannot be saved by the ground of appeal in the Notice of Appeal for being filed out of time. She stated that dismissal of particular regulation on application cannot amount to bias and that where a party chooses to adopt administrative procedure to apply for transfer of case and did not succeed, he, cannot, thereafter, file a motion to ask for the same relief especially before the same Court.
Turning to the issue of awarding damages in excess of the sum claimed, Counsel itemized the Respondent’s claim and showed that they came to a total of N878,450. She argued that the trial Court’s award is neither in excess of the Respondent’s claim nor at variance with it.
On issue No. 4, Counsel submitted that failure to join the Deputy Sheriff or the Bailiff of the High Court to the suit is not fatal to the case since the purpose of the suit was not for challenging the mode of execution or claiming damages for unlawful execution.
In the Appellant’s Reply Brief, several authorities were cited and the Appellant’s arguments in respect of all the issues formulated were more or less reiterated by Counsel. I took cognizance of all the points made therein.
I have given a careful consideration to all the issues raised in this appeal that was predicated on four grounds which I feel bound to reproduce hereunder excepting their particulars. They are:
“GROUND 1
The judgment of the lower Court is against the weight of evidence proffered and canvassed before it thus leading to the perversed judgment and miscarriage of justice.
GROUND TWO
The learned trial Judge erred in law when it (sic) refused to disqualify himself inspite of the allegation of likelihood of bias raised against him by the Appellant, and therefore arrived at a pre-determined decision leading to the perverse judgment and a miscarriage of Justice.
GROUND 3
The learned trial Judge erred in law, when he awarded the Respondent cost which is at variance with the claim before it, and thereby occasioned a miscarriage of justice.
GROUND4
The learned trial Court judge erred in law when it (sic) failed to consider the issue of the proper and or necessary parties expected to have been joined as Defendants in the matter and thereby arrived at wrong and perversed conclusions leading to miscarriage of justice”.
As evidenced by the Notice of Appeal filed by the Appellant, only four grounds of appeal were raised but, learned Counsel for the Appellant, proliferated the issues formulated thereupon, by propounding five issues out of the four grounds of appeal. A great caution had been given in the past by Courts particularly the apex Court against proliferation of issues for determination. A close study of the five issues shows that issues 1 – 4 are clear as to the grounds they emanated from, but, issue No. 5; even though still touching on the evidence adduced before the lower Court, specially, complained about the consanguinity of P.W.2, P.W.3 and P.W.4 with the Plaintiff/Respondent which stricto sensus has no correlation with the first ground of appeal. It is the law that any issue which did not arise from any of the grounds of appeal in the Appellant’s Notice of Appeal shall be struck out. Having observed that issue No. 5 does not have connection with the grounds of appeal in this appeal, it with be and is hereby struck out.
It is a cardinal principle of law as submitted by the Appellant’s Counsel , that a judgment remains valid until set aside. However, it is worthy to note that a judgment can be set aside whether it has been executed upon or not. By setting aside a judgment, the said judgment becomes ineffectual and nugatory that nothing can cure it. In that circumstance, both the Court and the parties would revert to or return to their former position before the said judgment was delivered. See Black’s Law Dictionary, 7th Edition at p. 1372 which defines the phrase “set aside” to mean, “to reverse, vacate, cancel, annul or revoke a judgment, order, e.t.c.” It follows that by setting aside a judgment, the Court voided or vacated or reverted the judgment for error. I would, further, at this juncture, refer to Obi Okoye in his book entitled, “Essays on Civil Proceedings” Vol. 2 p. 335 where he aptly stated that a judgment can be set aside whether it has been executed upon or not. When a judgment is set aside, any execution which had already taken place goes with it. So, the true position is, the moment a judgment is set aside, the parties automatically go back to their former positions as if nothing had at all been done in the matter in the first place. Where a judgment had been set aside, there is nothing upon which the execution already levied upon it could stand or exist. It completely falls like a pack of cards with the said judgment and becomes ineffectual as the judgment.
It was circumstance such as this that actuated Katsina-Alu, J.S.C. (as he then was) in Societe Generale Bank (Nig.) Ltd. vs. John Adebayo Adewunmi (2003) 10 NWLR Part 829 p.526, to hold that “since the judgment of 14th February, 1994 is a nullity, it follows that, the subsequent order of the trial Court on 9th October, 1995 for the attachment and sale of the Defendant’s immovable property situate at No. 4,A. Dawaki Ro,ad, New Extension, Kaduna in satisfaction of the judgment, is null and void”.
Similarly, in the case of Fada vs. Naomi (2002) 4 NWLR Part 757 p.318 Mohammed, J.C.A. (as he then was) stated thus:
Having set aside the judgment, the issue of execution of the same judgment no longer arises since the sale of the Appellant’s property was pegged upon the judgment which is now voided. Having voided the judgment, the property reverts to the original owner because the consequence of declaring the judgment null and void is as if, it were never delivered. Exnihilo nihil. Nothing comes out of nothing. Nullification and setting aside of judgment are both meant to reverse for special purpose to quash or to discard judgment”.
The Appellant is now arguing that no provision of any law was contravened as at the date the execution was levied upon the said judgment of the trial Court in Suit No. KDH/KAD/435/94 because, according to him, the said judgment was still valid and subsisting at the time. Counsel for the Appellant strenuously argued that a valid judgment of the Kaduna State High Court in Suit No. KDH/KAD/435/94 was in existence as at 3rd June, 1997, and too, the execution had been levied well before the hearing and determination of the appeal filed in respect thereof.
I must say that I find the argument of learned Counsel for the Appellant very puerile and terribly disturbing. Apparently, it escaped his memory to educate this Court on the consequences of setting aside a judgment or the status of the parties in a judgment that was subsequently set aside. As valid as his argument may sound, its porosity is unimaginable. It is devoid of any common sense.
Let’s assume, as learned counsel rightly put it, that the said judgment was valid and in existence as at the time the said execution was levied thereupon and the movable properties attached as a result, were auctioned, the question then is, when the appeal filed against the said judgment was eventually heard and determined and the appellate Court came to the conclusion that he, the Appellant, was not the one who supposed to have been entitled to that judgment, but, the Respondent, and, then set aside the judgment, what does this phrase “set aside” connotes? And what does it imply? What happens to the properties that ab initio belonged to the Respondent, but, which the Appellant had already taken and discarded? Doesn’t the Respondent have the right to collect his personal properties back, and, even where they were lost, or sold by the Appellant, isn’t he entitled to have the monetary value of them?
The Supreme Court of this country, per Tobi, J.S.C., in its revered wisdom, in the case of Fagunwa vs. Adibe (2004) 17 NWLR part 903 p. 844 critically analysed the legal effect of an appellate Court setting aside the judgment of a trial Court thus:
“If a judgment is set aside, it means that the judgment is not legally valid. A judgment which is set aside has not the legal capacity to resurface for a retrial. By the order of setting aside, the issues canvassed in Court are dead as far as the Court is concerned; and only an appellate Court can resuscitate the judgment”.I have painstakingly and elaboratively dissected the phrase “setting aside” judgment and its natural and uninhibited consequences which I believe must have been known by the Appellant’s Counsel, only, that his views seemed to be clouded.
It is a basic principle of law that the moment a judgment is set aside every other action taken upon the said judgment must immediately fall with it having no longer efficacy or life in it.
If by an appellate Court’s decision, a judgment of the lower Court was set aside, it means, therefore, that the person who was then adjudged to have been entitled to the said judgment was not, in the least, or from the onset, entitled to the judgment, and, that any execution levied upon the said judgment, is equally cancelled or revoked. The argument of Counsel is, therefore, unfounded, and has no basis in law. The so called valid judgment was found to be perverse and not valid by this Court in appeal No.CA/K/68/98. It had phantom validity that was never there from the beginning. Accordingly, issue No.1 is hereby resolved in favour of the Respondent.
The argument of the Appellant on issue No. 2 is that the Bailiff of the lower Court ought to have been joined as a party. In ABC Merchant Bank (Nig) Ltd. vs. Panalpina World Transport (Nig.) Ltd. (2005) 4 NWLR Part 915 p. 37 4, it was stated by Aderemi, J.C.A. (as he then was) that a judgment creditor and a judgment debtor are the persons respectively entitled to the benefit of, and, liable under an enforceable judgment or order. The Sheriff who is an officer of the Court in the performance of his duty in relation to execution of judgment has as his duties and liabilities generally under the writ in three fold: viz:-
(1) to the judgment creditor, to obey the writ and any lawful instructions that have been given to him;
(2) to the judgment debtor, not to do any act he is not authorized so to do;
(3) to the Court, to make a return on the writ, if he is required so to do.
His lordship relied on Domine vs. Grimsdall (1937) AER 119.
It is the law that the sheriff or bailiff or the officer charged with execution of judgment can be sued by the judgment debtor or judgment creditor for:
(a) illegal execution, e.g., an error in the levy.
(b) irregular execution, e.g., levy by an unauthorized officer or
(c) excessive execution.
The officer charged with the execution can also be sued by the judgment creditor for failing to act promptly or for failing to protect his/her interests. See Slated vs. Hawley (1845) 15 M & W 757 and Pitch vs. King (1844).
It is clear in the circumstances of this case, that the issue of wrongful or illegal or irregular or excessive execution did not arise. The scenario in this case was orchestrated by the setting aside of the judgment of the lower Court in suit No. KDH/KAD/435/97 by this Court, which had the effect of setting aside, too, every action taken or execution already levied upon that judgment. As declared in Soyannwo vs. Akinyemi (2001) 5 NWLR Part 714 p.95, a bailiff is an agent of the judgment creditor, but, I must observe that in the Supreme Court case of Saleh vs. Monguno (2006) 15 NWLR Part 1001 p.26, the deputy sheriff of the High Court of Maiduguri and the individuals who purchased the auctioned property were all sued as parties in the case.
Paragraph 11 of the Respondent’s Statement of Claim shows that the judgment debt then, was in the sum of N57,961.7, but, in the process of execution several items listed at paragraphs 9 and 10 were attached and auctioned. The Respondent at the trial Court in the suit leading to this appeal, claimed the market value of those items as at October 2001, when his action was filed. The execution was carried out on the 3rd June, 1997. It sounds ridiculous, too, that because of the said judgment sum of N57,961.7, the bailiff of the trial Court, amongst other moveable properties of the Respondent, then attached the Respondent’s Peugeot Pick Up Van with Registration No. KD 9147 AB and a complete Mercedes Benz Car Engine. Honestly, some explanations are required from him, about these valuable goods he removed and auctioned, although the record bears out that the said bailiff is now deceased. However, since the bailiff is said to be the agent of the judgment creditor, and, that judgment creditors and judgment debtors are the beneficiaries of any execution levied, therefore, the non-joinder of the bailiff as a party to the suit does not render the suit incompetent, nor is it catastrophic or fatal to the action, since he was an agent of a disclosed principal.
Although in Adisa vs. Oyinwola (2000) 10 NWLR Part 674 p. 116, the Supreme Court held that it is the duty of Plaintiff to bring to Court a party whose presence is crucial to the resolution of his case. Where the Plaintiff fails to so do, the appellate Court would strike out the action or order a retrial of the action. What it signifies is that only the Plaintiff can decide on the person he believes he has right of relief against and then institute an action against him before the Court, though, a person whose interest may be affected by the outcome of the case, may apply to join as a co-defendant. See, also, the case of Sapo vs. Sunmonu (2010) 11 NWLR Part 1205 p.374 where the case of Alhaja R. Ayorinde & 4 Ors. vs. Alhaja Oni A. (2000) FWLR Part 3 p.448 at 464 or (2000) 3 NWLR Part 649 p. 348 per Karibi-Whyte, J.S.C. was cited, in which it was stated, inter-alia, that it is a correct proposition of law that where an action is properly constituted, with a Plaintiff with legal capacity to bring the action, a Defendant with capacity to defend, and a claim with cause of action against the Defendants, and the action has satisfied all pre-conditions for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity.
It is interesting to note that the Respondent in the present appeal did not institute the action on the ground that the items attached and auctioned were in excess of the judgment, but, that he could not recover any of the items attached and auctioned. The sums realized from the auction sale were supposedly given to the Respondent by the bailiff in satisfaction of the judgment debt.
The bailiff was not the one who benefited from the execution, rather the Appellant, so, it is the; Appellant that ought to be accountable to the Respondent for the return of his properties or payment of the market value where the judgment had been set aside.
In the light of the above, I resolve issue No. 2 in favour of the Respondent.
Issue No. 3 literally painted the learned trial Judge in a bad light, accusing him of being biased in the proceedings before him. It was alleged that the learned trial Judge openly rebuked and abused the Appellant which then prompted him to apply for transfer of the suit and, even, forwarding a petition to the Chief Judge of Kaduna State to that effect, but, which was not granted. It was further alleged that all the applications made by the Appellant were refused by the trial Court and, as such, the Appellant did not have fair hearing at the lower Court. Further, the learned trial Judge suo motu invoked the provisions of the Public Officers Protection Law of Kaduna State and stated that the bailiff was protected thereunder from being joined as a party.
What could really be discerned from the circumstances highlighted by the Appellant’s Counsel about the learned trial Judge is, at most, the learned trial Judge’s displays of temperament. The word ‘bias’ is defined in the Black’s Law Dictionary, 7th Edition at p. 162 as “inclination; bent; prepossession; a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. It is further said to be a condition of mind, which sways judgment and renders judge unable to exercise his functions impartially in a particular case. It also refers to mental attitude or disposition of the Judge towards a party to the litigation and not to any views that he may entertain regarding the subject matter involved.”
The test for determining bias or real likelihood of bias is objective in nature and not subjective. The Court examines the Judge’s conduct and then looks at the impression that would be given to other people. The law is that no matter how impartial a Judge could be, if, right-minded people would be of the opinion that in the circumstances of the case, there was a real likelihood of bias on the part of the Judge, then he should not sit. There must be a real likelihood of bias and not a conjecture, or a figment of a person’s imagination. In Onigbede vs. Balogun (2002) 6 NWLR Part 762 p.1, the Supreme Court referred to Adefulu vs. Okulaja (1998) 5 NWLR Part 550 p. 435 and opined that there must be circumstances from which a reasonable man would think it likely or probable that the justice, or as the case may be, would, or did favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact, favour one side fairly. The apex Court went further to say that a Judge would be precluded from hearing a case when:
a. he has personal interest and would seem to be a Judge in his own matter; or
b. having dealt with the same issue and it comes or resurfaces when he is in a superior Court and is being called upon to decide an appeal against his own decision; or
c. because of some obvious or latent connection of his with either of the parties or all of them, it will not be conscionable of him to participate in hearing the case; or
d. generally his being a member of the tribunal would not appear to be in the interest of justice as he will not be seen to do justice.
I had thoroughly examined pages 60 – 63 of the record showing the application made by Counsel for the Appellant for leave to recall P.W.1 – P.W.4 for purposes of further cross-examination and the ruling delivered by the trial Court therein. Specifically, at page 63, the trial Court expressed that the affidavit in support of the application failed to state the nature and character of the issues on which the Plaintiff witnesses are being sought to be recalled. The Court went further to say:
“There is no suggestion as to the indolence or incompetence of the Defendant’s Counsel who conducted the cross-examination of the Plaintiff s witnesses on behalf of the Defendant.
The withdrawal of previous Counsel Mr. Manta for the Defendant and the subsequent engagement of Mr. Ajayi as defence counsel is not a reason to recall witnesses who had previously testified in chief, cross-examined and re-examined.
The interest of justice is not a one way traffic. It connotes the interest of both parties and the court having regard to the law and rules of Court applicable to this case. It is my view that the Defendant had been given adequate opportunity to cross-examine the Plaintiffs witnesses spanning a period between July 2002 and November 2003 when witnesses for the Plaintiff were discharged. To grant this application would occasion miscarriage of justice on the Plaintiff’.
After the Court’s ruling on recall of witnesses, the suit came up about three occasions, i.e. 11/11/2004, 15/11/2004 and 8/3/2005 and the proceedings were all adjourned on those three dates at the Counsel. The drama in the Court below continued until 19/5/2005 when the trial Court dismissed the Motion on Notice for transfer of the said case before it based on the letter dated 9/5/2005 from the Chambers of the Hon. Chief Judge of Kaduna State directing that the case be continued and concluded by the trial Court. See pages 68 -76 of the record of appeal.
It is settled that to accuse any Court of being biased or alleging a real likelihood of bias, the accuser must produce cogent and credible evidence to prove or convince the Court that there was infact such bias or real likelihood of bias as alleged. It is a grave matter and the accuser must be ready and able to establish the facts and grounds he relies upon before he can succeed in his complaint. See Osayomi vs. State (2007) 1 Part 1015 p. 352. The record of appeal depicts that the learned trial Judge was as fair and just as he ought to have been in the administration of justice. The Appellant did not indicate whether in the absence of the alleged circumstances of bias, the Court would have arrived at a different decision. Of course, it is clear that there was no way the trial Court could have allowed the execution levied upon a judgment that had been set aside by the Court of Appeal to still stand, when the basis upon which it was effected had been uprooted and had no legal validity, and, with the parties reverting to the positions they were in, before the matter commenced. There is nothing on record to show that a reasonable man would have said that justice had not been done. There are no facts supporting the allegation of bias or real likelihood of bias against the learned trial Judge as the record of proceedings of the trial Court speaks for itself. The facts set out by the Appellant did not show that the learned trial Judge had any personal interest in the suit. Furthermore, it is an entrenched principle of law, distinctly embedded and rooted in section 74(1)(a) and (b) of our Evidence Act that the Court shall take judicial notice of (a) all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria, (b) all public Acts passed or hereafter to be passed by parliament and all subsidiary legislation made thereunder, and all local and personal Acts directed by parliament to be judicially noticed, e.t.c.
Judicial notice is defined in Black’s Law Dictionary 7th Edition at page 848 as “the act by which a Court, in conducting a trial, or framing its decision, will, of its own motion or on request of a party, and without the production of evidence, recognized the existence and truth of certain facts or law, having a bearing on the controversy at bar, which from their nature, are not properly the subject of testimony, or which are universally regarded as established by common notoriety e.g. laws of the State.
There is no doubt that Courts were actively empowered by the Evidence Act to take judicial notice of any legislation or case law that has direct bearing on the issue in controversy before them without the same being necessarily referred to or cited by any of the parties. It is clear from the record before this Court that reference by the trial Court to the Public Officers Protection Law of Kaduna State did not occasion any miscarciage of justice to the Appellant, since earlier opined that non-joinder of the bailiff to the suit was not destructive to the case.
I must commend the learned trial Judge for exhibiting a high sense of maturity in conducting the trial before him. He always obliged the Appellant’s request for adjournments and did not shut him out for one day. The trial Court acted with considerable measure of circumspection and exercised its discretion judicially and judiciously. There are no facts warranting or justifying any allegation of bias or real likelihood of bias against the learned trial Judge. Accordingly, issue No. 3 is hereby not countenanced.
In considering the last issue, it should be recognized that the grouse of the Appellant hereat, is that, the trial Court awarded damages in excess of the sum of N859,950.00 actually claimed by the respondent. It should be recognized that the Appellant never complained about the quantum of damages, it was only in the Appellant’s Brief and, not even forming part of the issue formulated in that respect, that learned Counsel for the Appellant somewhat, in passing, remarked that prices quoted in the Statement of Claim are prices for new items.
Perhaps, I may in passing, observe that generally, in situations of total loss of property or chattel or wrongful disposal of goods, what is usually recovered is some sort of restitution damages. However, in Usman vs. Abubakar (2001) 12 NWLR part 728 p.685, Salami J.C.A., (as he then was) said thus:
“It is a settled law by a long line of cases that where a chattel or property is damaged, the damages may be the value at the time it was destroyed subject of course to the principle of restoring the Plaintiff as far as it is possible to the position he was before the injury. The purpose of an award of damages is to compensate the Plaintiff for damage, injury or loss suffered. The guiding principle is restitution in integrum when a Court is called upon to assess compensation in tort. The principle foresees that a party which has been damnified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damage for which he is now being compensated. See the case of Livingstone vs. Rawyards Coal Co. (supra).
This raises the important question of what is the proper yardstick to measure the damages that will restore the Respondent to the position he was before the demolition of his property. In the light of rising inflation in the country the estimate based on the value of the house at the time of its destruction will be perverse or based on wrong principle of quantification of damages. The fast decline in the value of the naira cannot be ignored. It has to be taken into account in the assessment of damages to show that judges keep abreast with the happenings around them. In the case of Senior vs. Barker & Allen Ltd. (1965) 1 WLR 429, 432, Lord Denning looked into an award made in 1953 in an accident of an almost identical description and remarked as follows: “‘We all know the value of money has changed since that time. The award of … shows how the judges keep pace with time.” Nnaemeka-Agu, J.S.C. in the case of NEPA vs. Alli (supra) at page 57 observed in this connection as follows:-
“It should have been accepted in this case, moreso in this country in which it is a matter of common knowledge that because of the rapid depreciation of Naira, a chattel could be sold for much higher price than it was bought after it has been used for a number of years.”
See also the decision of this Court in the case of Onagoruwa vs. IGP (1991) 5 NWLR part 193 p. 593 especially at pages 650 – 651 cited in the Respondent’s brief on this vexed issue:-
“In these days of racing inflation where the buying and purchasing power of the naira falls drastically (and painfully so) every day and therefore not commensurate to the quality and quantity of goods bought, a judge should in the assessment of damages consider the current market situation. It will be most unrealistic to ignore this fundamental aspect and merely theorise with principles of law and facts and figures presented to him in Court by Counsel and witnesses.”
The view set out above from the dictum of this Court is supported by the judgment of Iguh, J.S.C., in Allied Bank vs. Akubeze (supra) 145, (1997) 6 NWLR part 509 374, 407 where he said:-
“I also recognize that the court ought, in appropriate circumstance, to keep up with the times and in particular, with the economic strength or decline, as the case may be of our national currency the Naira. See L. O. Ejisun vs. M. Ajao and others (supra) and Dr. O. O. Kalu & Another vs. Dr. S. Mbuko (1988) 3 NWLR Part 80 p. 86″.
The economic reality of today is that the naira is a ghost or shadow of its old self”
(Underlining mine for emphasis).
Further, in ABC Merchant Bank Nig. Ltd. vs. Panalpina World Transport (Nig) Ltd. (supra), it was expressed that where a Plaintiff succeeds in his claim for goods lost as a result of the negligence of the Defendant, he is entitled to recover such sum of money as will replace the lost goods, so far as money can compensate him for the loss suffered, subject to the rule of remoteness of damage.
“I am in complete agreement with the views expressed in the aforestated cases about taking cognizance of the current value of our Naira when awarding compensation to a person for loss of his goods or moveable properties’ It is interesting to note that the Appellant did not complain that there was no proof of the special damages claimed before the trial Court, his only worry was, the award of N878,450.00 instead of the N859,950.00 specifically claimed before it. In this appeal, three heads of claims were made by the Respondent in his Statement of Claim, the first head, comprises two sub-heads for the sums of N589,950.00 and N270,000.00 respectively which came to a total of N859,950.00, the second head is for the sum of N1,500.00 daily except Sundays for use of his Pick Up Van with Registration No. KD 9147 AB from June 1997 until judgment debt is fully satisfied , and, the third is for the cost of the action. In proof of the reliefs sought by him, the Respondent testified and called three other witnesses who then supplied details of the then current prices of his goods or items that were removed during the execution. The Respondent’s witnesses were not challenged under cross-examination over the prices given by them as the current prices as at the time they were testifying, although the Court based the award on the sums claimed.
Whether as stated by D.W.2, the total sum realized as proceeds of auction was N42,800.00 or not, it is, the statement of the law, that must be adhered to, in ascertaining the measurement of the damages awardable in circumstances such as that.
The trial Court also awarded the N1,500 daily for use of the Pick Up Van from 3rd June, 1997 till judgment debt is liquidated. It was this sum that was calculated and added to the other sum of N859,950.00 that brought it to a total of N878,450.00. Certainly, the Court did not conjecture or speculate, the awards were made on the empirical evidence presented before it. Even if the trial Court did not add the sums up to come to that figure, the bailiff of the Court would still have done that when it comes to execution of the judgment so as to ascertain the actual judgment sum since the trial Court had already made the award of N1,500 daily for use of the Pick Up Van within the period specified. It is, therefore, my considered view, that since the judgment upon which the said execution was levied, had been set aside by the Court of Appeal, the Respondent is entitled in law to have the monetary value of all the items enumerated in his Statement of Claim and evidence as items removed from his house by the bailiff in the execution of his official duty, from which the Appellant, who was then entitled to the said judgment, benefited. Accordingly issue No. 4 is hereby resolved in favour of the Respondent.
As could be gleaned from the reasons given herein, this Court has no iota of reason to disturb the findings of the trial Court, and that being the case, I felt an irresistible urge to dismiss this appeal for lacking in merits. Consequently, this appeal is hereby dismissed. The judgment of the trial High Court of Kaduna State in suit No.KDH/KAD/631/2001 is hereby affirmed by this Court. There will be no order as to costs.
JOSEPH TINE TUR. J.C.A.: I have read in advance the judgment delivered by my Lord Theresa Ngolika Orji-Abadua, JCA. I agree with the facts, the reasonings and conclusions arrived at by my Lord. I wish to comment on one or two issues.
I shall refer to two additional judgments on the effect of an appeal Court setting aside the judgment of a lower Court. The first is Olisedozi Nwokelbke & 2 ors vs Osele of Onicha & 10 ors (1956) W.R.N.L.R 87 where Onyeama, Acting Judge referred to Spencer Power at page 34, paragraph 45 of the book “Res Judicata” and another Indian authority at page 91-92 as follows:
“The learned author of Spencer Bower on Res Judicata at page 34, paragraph 45 of the book states the law on point as follows:
‘When a judicial tribunal of competent original jurisdiction had granted or refused the relief claimed in an action or other proceeding, and an appellate tribunal reverses the judgment or order of the Court of first instance and either refuses the relief granted below, or grants the relief refused below, as the case may be, the former decision till then conclusive as such, disappears altogether, and is replaced by the appellate decision, which thenceforth holds the field, to the exclusion of any other as the res jurisdicata between the parties.”
An Indian case applies even more exactly to the present issue. It is the case Nilvaru vs Nilvaru (1881) 1 LR 6 Bom 110 digested at page 151 of Volume 21, English and Empire Digest; footnoter:
“When the judgment of a Court of first instance upon a particular issue is appealed against, the judgment ceased to be res judicata and becomes res sub judice and if the appellate Court declines to decide that issue, and disposes of the case on other grounds, the judgment of the first Court upon that issue is no more a bar to a future suit than it would be if that judgment had been reversed by the court of Appeal.”
In view of these authorities, I hold that the effect of following the appeal in Suit W18/53/ was to wipe away the findings of fact and decisions on the law by the Court of first instance.
In the words of Spencer Bower “the former decision… disappears altogether.”
Again in J.A. Oyefeso vs Madam Tola (1963) NWLR 317 Reed S.P.J sitting in the High Court of then Northern Nigeria came to the same conclusion that the judgment on appeal became that of the trial Junior Alkali Court in Jos in the following manner:
“REED S.P.J.: This case was originally tried in the Court of the Jos Junior Alkali. There was an appeal to the Provincial Court against the judgment and the appeal was dismissed. There was a further appeal to the High Court and that appeal was also dismissed. The appellant made default in payment of the sum recovered against him under the judgment and the respondent applied to the High Court for the issue of a judgment summons. The judgment summons was issued and the appellant has answered it. The respondent now seeks to examine the appellant on oath as to his means.
The respondent is, therefore, attempting to enforce the judgment in the High Court and the question is whether she is entitled to do so or whether she could do so in the Court of the Jos Junior Alkali where the judgment was originally obtained. I am of opinion that the judgment may be enforced in the Junior Alkali’s Court and in no other Court. By O.II, r.24, of the Judgments (Enforcement) Rules process, save in exceptional circumstances which are not relevant here, “shall issue from the Court… which gave the judgment sought to be enforced,… and from no other Court.” The judgment was given in the Junior Alkali’s Court. The Provincial Court, on appeal had the powers set out in Section 67 of the Native Courts Law. It could have quashed the proceedings but it did not do so. Alternatively it had power to “reverse, vary or confirm” the decision. In fact the decision was confirmed; but whether the Provincial Court reversed, varied or confirmed the decision it made an order which became the order of the Court from which the appeal was brought. The effect of the High court’s order was the same. The High Court, by confirming the order of the Provincial Court, confirmed the order of the Junior Alkali’s Court and the order became the Order of the Junior Alkali’s Court.
It follows, therefore, that the respondent now has the judgment of the Junior Alkali’s Court in her favour and if she wishes to enforce it she must do so in that Court.
The judgment summons before the High Court is struck out”
Therefore the appeal Court in setting aside the judgment in suit No.KDH/KAD/435/94 wiped out or erased the judgment upon which execution was levied against the properties of the Respondent’s predecessor in title.
Moreover, the Plaintiff/Respondent’s predecessor had no grievances against the bailiff that executed the judgment since he is not shown to have executed the judgment wrongly or took from the sale of the property so as to be joined as a necessary party without whose presence judgment cannot be obtained against the Appellant. See Far East Mercantile Co. Ltd vs Jackie Phillips Photo Ltd, (1974) 1 All NLR (pt 2) 27 246 at 252-253.
On the whole I also join in dismissing the appeal and affirming the judgment of Hon. Justice Sukola J. delivered on 4/10/2006.
OBANDE OGBUINYA, J.C.A.: I have had a preview of the judgment delivered by my learned brother, T. N. Orji-Abadua, JCA, and I agree with her reasons and conclusions. My learned brother had ably articulated the facts, the issues and arguments in the leading judgment. It is, therefore, pointless to recycle them again.
The heart of the appellant’s grouse in issue two was that the respondent’s action was not properly constituted for non-joinder of the court officials, bailiffs, who carried out the execution and sale of the respondent’s movable property. The contention of the learned counsel for the appellant on this point, with due deference to him, does not have the backing of the law.
To start with, by law, a plaintiff, which is what the respondent was in the lower court, has the monopoly of deciding who to sue in any proceedings. The Supreme Court has given its blessing to this hallowed principle of law in the case of Bello v. INEC (2010) 8 NWLR (Pt.1196) 342.
Moreover, the current position of the law is that non-joinder or misjoinder of a particular party will not defeat any proceeding by divesting the court of the jurisdiction to adjudicate over it. In the case of Anyanwoko v. Okoye (2010)5 NWLR (Pt.1188) 497 at 515-516. Tabai, JSC, opined:
“The non-joinder or misioinder of a necessary party is only a procedural irregularity which can be corrected in the course of the proceedings by recourse to the relevant Rules of court and does not in any way affect the jurisdiction of the court or the competence of the suit”
See, also, Okoye v. Nigeria Cost. & Furniture Co. Ltd. (1991) 1 NWLR (Pt.199) 50; Bello V. INEC (supra); Sapo v. Sunmonu (2010) 11 NWLR (Pt.1205)374; Iyere V. B.F.F.M Ltd. (2008) 18 NWLR (Pt.1119) 30; General Electric Co. V. Akande (2010) 18 NWLR (Pt.1225)596. These binding authorities amply signify that the grievance of the appellant about the non-joinder of the court officials flies in the face of the law. I, therefore, resolve issue two against the appellant.
It is for the above reasons, coupled with other detailed reasons advanced in the leading judgment, that I, too, visit dismissal on the appellant’s appeal. I abide by the orders made in leading judgment.
Appearances
Chief J. A. AjayiFor Appellant
AND
S. O. Omoloba (Mrs) with M. Seyi (Miss), Mutallah Usman Esq., Hamza Yahaya Esq., A. Oyibo (Miss), Nana Usman (Miss), H. Abdulrasheed Esq. and P. C. Okeke (Mrs)For Respondent
