SEGIRAH SEKANDE & ORS v. AJIBOLA ARUBIELU & ORS
(2013)LCN/6347(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2013
CA/I/93/07
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. SEGIRAH SEKANDE
2. KAYODE SEKANDE
3. ADELEKE SEKANDE
4. JIMOH SEKANDE Appellant(s)
AND
1. AJIBOLA ARUBIELU
2. WASIU ARUBIELU
3. IBRAHIM ARUBIELU
4. ADISA ARUBIELU Respondent(s)
RATIO
WHETHER OR NOT THE SHERIFF AND CIVIL PROCESS ACT, LAWS OF THE FEDERATION OF NIGERIA 2004 AND THE JUDGMENT ENFORCEMENT RULES MADE THEREUNDER GOVERNS THE EXECUTION OF JUDGMENTS AND NOT THE HIGH COURT RULES UTILIZED BY THE APPELLATE HIGH COURT
Order 44 Rule 27 of the Ogun State High Court (Civil Procedure) Rules, Edict of 1987 was utilized by the appellate High court. It provides as follows:
27. “Any order given or made by the court may be enforced by the court or by the Lower Court as may be most expedient.”
(Underlining mine for emphasis) While Section 44 of the Sheriffs and Civil Process Act, L.F.N. 2004 provides as follows:
Execution of Immovable property 44″If sufficient movable property of the judgment debtor can be found in the Federal Capital Territory, Abuja or the State as the case may be to satisfy the judgment and costs and the cost of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the court against the immovable property of the judgment debtor in accordance with the provisions of this Act, and any rules under thereunder:
Provided that where the judgment has been obtained in a Magistrate’s court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.”
Order 2 Rule 24 of the Judgment (Enforcement) Rules provides thus:
“Except for the purposes of Sections 44 and 55 of the Act and Rule 13 of Order IV, Process, other than a warrant issued from the High Court to arrest an absconding defendant, and a writ of interim attachment, shall issue from the court before which the proceeding is pending or which gave the judgment sought to be enforced, as the case may be, and from no other court.”
This appeal is not against the judgment of the High Court delivered on 15/4/05 affirming the judgment of the Grade 2 Customary Court but, an appeal against the High Court’s refusal to set aside the execution by the Sheriff/Deputy Sheriff or the bailiff of the High Court on 7th September, 2005 on the basis that the High Court lacked the jurisdiction to execute the judgment of the Customary Court Grade II Ado Odo. One thing is clear, as at 20/4/06 when the application was filed before the appellate High Court the execution of the judgment had already been carried out.
By simple interpretation given of Order 44 Rule 27 of the Ogun State High Court Civil Procedure Rules any order made by the court may be enforced by the court or by the Lower Court. In other words the judgment being considered now is the judgment of the High Court affirming that of the Grade 2 Customary Court delivered on 15/4/05 and 14/7/03 respectively. The appellate High court by this provision may enforce the judgment or the customary court. The power to enforce the judgment was not exclusively left for the Customary Court. This Rule is clear and unambiguous. From the provision of Order 44 Rule 27 above, it empowers the Appellate High court to enforce the judgment as well as the Lower Court from which the appeal arose i.e. concurrent powers were given to both courts for the purposes of execution.
No doubt, as rightly argued by the learned counsel to the Appellants, execution of judgments are governed by the Sheriff and Civil Process Act, L.F.N. 2004 and the Judgment Enforcement Rules. In the Act (as highlighted by the learned Counsel to the Respondents) part II – Interpretation, Section 2 thereunder, “Court” in the Act was interpreted to include a High court and a Magistrate’s court. Under part III – Enforcement of Judgments and orders, Executions and committals: Section 19(a) “Court” was interpreted to mean High Court of the Federal Capital Territory Abuja or of the state and under the Judgment Enforcement Rules and the Sheriffs and Civil Process Act there is no specific mention of the Customary Court or a situation where the exclusive power of execution would be that of the Customary Court. As rightly argued by the learned counsel to the Respondents, to which I am at one with, the Ogun state High Court Rules which gave powers of execution to the High Court and a Lower Court is not in conflict with the provisions of the Act. In my humble view, the appellate High Court had the jurisdiction to approve the execution of the judgment of the Customary Court which it affirmed. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering The Leading Judgment): This is an appeal against the Ruling of the High Court of Ogun State sitting at Ota delivered on 24th November, 2006 by Solanke, J wherein he dismissed the Appellants’ motion of 20th April 2006, seeking to set aside the execution carried out by the Respondents against the Appellants who were the Applicants.
The background facts are that, at the Customary Court Grade II Ado-Odo, Ogun State, the Respondents herein as plaintiffs instituted a suit against the Appellants as defendants and at the close of the case judgment was entered in favour of the Respondents herein.
The Appellants dissatisfied with the judgment appealed to the High court that affirmed the judgment of the customary Court.
The Appellate High Court authorized the execution of the customary court’s judgment carried out by the sheriff of the Appellate High Court.
On 20th April, 2006, the Appellants filed a motion challenging the jurisdiction of the High court to carry out the execution on the ground that the judgment was not that of the High court in its appellate capacity but that of the customary court and made out that only the customary court could carry out the said execution. Further, that the High court only affirmed the judgment of the customary court and did not make any order that it could order its execution. It was also contended that the execution of judgment is governed by the sheriff and Civil Process Act L.F.N 2004 and the Judgment (Enforcement) Rules made thereunder and not the High Court Rules.
The Respondents opposed the application which was dismissed by the Appellate High court. The Applicants now Appellants dissatisfied with the ruling appealed to this Court.
On 19th November, 2008, the Appellants’ initial Notice of Appeal was amended, which now contains six (6) grounds of appeal from which six (6) issues were formulated for the determination of this appeal. They are:
“1. Whether it is right for the Appellate High Court to speculate or source for evidence in deciding the case before it when such evidence is not argued or placed before it by the parties.
2. Whether it is proper for the Appellate High Court to raise an issue, which was not raise (sic) and or argued by the parties before it suo motu and based its ruling on it without allowing the parties or their counsel to address it on it or whether raising issue an (sic) suo motu without allowing parties to argue it before deciding on it as he did in this suit does not amount to denial of fair hearing and making a case for the Respondents.
3. Whether the learned Appellate High Court Judge was right in refusing to follow the precedent laid down by the Court of Appeal in the case of D.O. EBERE VS. ALHAJI ZAKARE TUTARE (1992) 3 NWLR (PART 227) 15 and the High Court case of OYEFESO VS. TOLA (1968) NWLR 317.
4. Whether the affirming or confirming the judgment of a Lower Court by an appellate High Court makes the affirmed or confirmed judgment the judgment of the Appellate High Court thereby granting it power to execute it.
5. Whether the Appellate High Court Judge was right in refusing the motion of the Appellants on the ground that no prejudice has accrued to them and that their objection to the mode of execution was a technicality when the issue raised is as to jurisdiction of the Appellate High Court to order and execute the judgment of the lower Customary Court where there is a laid down procedure that must be followed in execution of judgments.
6. Whether there was any order that the Appellate High Court could execute that the Appellants ought to have been aware of or deemed to have been aware of.”
On their part, the Respondents distilled two (2) issues for the determination of the appeal. They are:
(i) “Whether the Appellate High Court was right in dismissing the Motion dated 20th of April, 2005 seeking to set aside the execution carried out by the Respondents against the Appellants herein.
(ii) Whether the learned Appellate High Court Judge has the power to distinguish the cases: (i) OYEFESO VS. MADAM TOLA (1968) NWLR P.317 & (ii) T. O. EBERE vs. ALH. ZAKARE TURARE (1992) 3 NWLR PT.227, P.15 from the instant case.”
When the appeal was argued, S.O. Ajayi Esq. the learned counsel to the Appellants adopted and relied on his brief of argument dated 18/12/08 filed on 2/1/09 and a reply brief dated and filed on 15/3/10 deemed properly filed and served the same day in urging us to allow the appeal and set aside the judgment of the Lower Court.
In their issue one, it was submitted that the Respondents, in the Lower Court did not pray that the case of D.O. EBERE vs. ALHAJI ZAKARE TUKARE (supra) be distinguished from the case of OYEFESO vs. MADAM TOLA (supra). It was argued that the High Court acted on speculation to import reasons for distinguishing the two cases, not canvassed or prayed for, having been raised suo motu by the High Court, we were urged to discountenance same.
On their issue two, it was submitted that the issue of distinguishing the two cases above was raised and resolved suo motu by the High Court, without conceding that even if the High Court had the power to raise the issue suo motu, the court ought to have given the parties an opportunity to address it on it, which learned Counsel argued is against the principle of fair hearing. We were urged to set aside the ruling and the execution carried out by the Sheriff of the appellate High Court.
On their third issue, it was argued that it was wrong for the appellate High Court to have refused to follow the case of D.O. EBERE vs ALHAJI ZAKARI TUTARE (supra). The learned Appellants’ Counsel under this issue reargued issue one.
On the Appellants’ issue four, it was the contention of the learned counsel to the Appellants that the Appellate High Court had no jurisdiction to carryout the execution of a judgment it did not deliver, it was argued that the judgment was that of the customary court Ado-Odo that has the authority to carry out the execution by the provisions of Order 2 Rule 24 of the Judgment Enforcement Rules and the case of D.O. EBERE VS. ALHAJI ZAKARI TUTARE PAGE 18 (SUPRA) and OYEFESO VS. MADAM TOLA (SUPRA) PAGE 317. Reference was made to Order 44 Rules 26 and 27 of the Ogun State High Court Rule 1988 which provides for execution of judgment in the customary court and appellate High court respectfully. It was submitted that the Appellate High Court cannot rely on the rules of Court to order the execution of the judgment subject of this suit but, rather reliance should be governed by the sheriff and civil process L.F.N., 2004 Act and Judgment Enforcement Rules made thereunder.
The learned Counsel in arguing their fifth issue submitted that the High court was wrong to have held that the Appellants did not show prejudice. It was submitted that they stated that they suffered, loss of money and property worth N10 Million. It was also contended that the High Court was wrong to have rejected the application of the Appellants on the ground that it was a technicality. We were urged to set aside the enforcement of the judgment in that the laid down procedure was not followed.
In the Appellants’ sixth issue, learned counsel reargued the submission that the appellate High Court had no jurisdiction to order the execution of the judgment of the Customary Court, the execution was said to be null and void and should be declared so by this court. See: PAVEX INTERNATIONAL CO. NIG. LTD. VS. INTERNATIONAL BANK FOR WEST AFRICA (2000) 4 SC (PT.11) 196 at 240 Paragraph 10, and RAYMOND S. DANGOTE VS. CIVIL SERVICE COMMISION PLATEAU STATE (2001) 4 SC (PT.11) 43 at 53 paragraph 5 to 30 and ABEL ISAIAH & ORS VS. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2001) 5 SC (PT.11) 1 at 7 paragraph 35 and pages 8, 16-25.
In response, the learned Counsel to the Respondents Chief Yomi Alliyu Esq. appearing with T. Otaigbe (Miss) adopted and relied on his brief dated 20/1/10 filed the same day but deemed filed on 27/1/10, in a nutshell on issue one submitted that since it is on a point of law (that is whether the two cases could be distinguished) therefore that there was no need to call parties to address the court on it. We were urged to dismiss the appeal.
In arguing his first issue, it was submitted that the Lower Court was right in dismissing the motion dated 20th April, 2006 seeking to set aside the execution carried out by the Respondents in that by order 214 Rules 26 and 27 of the Ogun State High Court (Civil Procedure) Rules, Edict 1987 the judgment may be enforced by both the appellate High court or Lower Court. We were urged to hold that the appellate High Court has the power to enforce the judgment of the Lower Court which it affirmed on appeal, that is, approving the claim for possession to be executed.
On his second issue, it was submitted that the appellate High Court has the right and power to distinguish the two cases cited by the Appellants from the instant case. It was argued that in those two cases there was nothing to show that there was in existence High Court Rules providing specifically for concurrent jurisdiction of both court of first instance and appellate court for the purpose of execution in those cases while in the present case, the Ogun State High Court (Civil Procedure) Rules Edict 1987 made specific provisions as to enforcement of judgment and order in its order 44 Rule 27. It was argued that the judgment of the Appellate High court dated the 15th of April, 2005 in which the Grade 2 customary court judgment of the 14h of July, 2003 was affirmed could be enforced by either the Lower Court or the appellate High court, and that it was properly carried out, by the appellate High Court. We were urged to dismiss the appeal and hold that the appellate High court was duty bound to pronounce on the two cases cited and relied upon by the learned counsel to the Appellants.
The learned counsel in addition to arguments in support of his issues also responded to those formulated and argued by the learned Counsel to the Appellants.
On issues one and two, the learned Counsel to the Respondents submitted that the appellate High Court did not speculate to source for evidence.
On the Appellants’ third issue, it was argued that the High Court was right to have utilized the High Court Rules in the case at hand. It was argued that the present case is distinguishable from the two authorities in question.
On the Appellants’ fourth issue it was submitted that the provisions of Order 44 Rule 27 of the Ogun State High Court (Civil Procedure) Rules entitles the Appellate High court to enforce the judgment.
On the Appellants’ issues five and six, it was submitted that the Appellants did not depose to cogent and compelling facts in the affidavit in support of their motion dated 20/4/06 and no sufficient facts exist to show that the Appellants were prejudiced by the execution, pages 14-15 and 40 of the records of appeal referred to.
In sum, we were urged to dismiss the appeal for lacking in merit.
In the Appellants’ reply brief, it was submitted that the Respondents did not file a cross appeal or Respondents’ Notice as contained in Order 9 Rules 2 and 3 of the 2007, Court of Appeal Rules and therefore cannot seek that the Lower Court’s judgment be affirmed other than on the grounds on the Amended Notice of Appeal. It was submitted that the Respondents’ paragraphs 4.03, 4.04, 5.04, 5.05, 5.06, 5.07, 5.08, 5.09 and 5.10 in the Respondents’ brief are alien to the Appellants’ amended grounds of appeal; we were urged to strike out these paragraphs.
Alternatively, in response to the Respondents’ issue one, it was submitted that by virtue of Order 44 of the Ogun State High Court (Civil Procedure) Rules, Edict 1987 and Order 44 Rule 26 where a judgment is affirmed by the appellate High court, it remains the judgment of the Lower Court and the only court to execute it, it is mandatory and does not give room for discretion.
It was reargued that such affirmed judgment must go back to the Lower Court for execution in compliance with Rule 26 of Order 44.
On the Respondents’ second issue, it was submitted that even though the Lower Court could distinguish a case before it from decided authorities, it is a power only exercisable where the facts and circumstances are different but where they are not, the said court is duty bound to follow the decided authorities by the principle of judicial precedent. We were once again urged to allow the appeal.
From the issues formulated by the parties I would reformulate same to a sole issue for the determination of the appeal. The sole issue covers all those raised by the parties. It is as follows:
Whether the Appellate High Court was right in dismissing the Appellants’ motion of 20th April, 2005, seeking to set aside the execution carried out against the Appellants.
As stated earlier in this judgment, while reviewing the background facts to this appeal, the Appellate High Court affirmed the Customary Court’s judgment and authorized the execution of the Lower Court’s judgment said to have been carried out by the Sheriff of the Appellate High court on 17th of August, 2005, see page 1 of the Appellants’ brief. The Appellants in their application dated 20th April 2006 challenged the jurisdiction of the High Court to carry out the said execution, the judgment being that of the Customary Court and not the High Court. The prayer sought in the application dated 20th April, 2006 filed the same day is as follows:
“1. An order of court setting aside the Execution, the writ of Fifa, Warrant of Possession/Form O carried out and or issued by the Sheriff/Deputy Sheriff or the bailiff of this Court on the 7th of September 2005 in respect of this suit is illegal null and void and of no effect.
2. And for such further or other orders as the court may deem fit to make in the circumstances.
UPON THE GROUNDS
1. That the Sheriff/Deputy Sheriff or Bailiff of the High Court has no jurisdiction to execute the judgment of the Customary Court Grade II Ado-Odo and therefore lack the capacity to issue the Writ of Fifa and Warrant of possession in respect of the judgment of the Customary Court Grade II Ado-Odo.
2. That there was no order or judgment of this Court that the Sheriff/Deputy Sheriff and or the bailiff of this Court could execute in respect of this suit.
3. That the Customary Court Grade II Ado-Odo is the owner of the judgment in this suit and it is the only Court that can carry out the execution or enforcement of this Judgment.
4. That the said execution carried out on the 7th of September, 2005 by the Sheriff/Deputy Sheriff or the Bailiff of this Court in respect of this suit is illegal, null void and of no effect.
Take further notice that the applicants shall rely on all documents already filed in the court’s file and the Judgment of this honourable Court of which copy is in the court’s file upon the affidavit hereto attached.”
There were various affidavits in support and against the grant of the application. The application was dismissed, the judgment of the Customary Court was then carried out by the Sheriff of the Appellate High Court which is the crux of the Appeal. The learned Counsel to the Appellants contended that the Sheriff and Civil Process Act, Laws of the Federation of Nigeria 2004 and the Judgment Enforcement Rules made thereunder governs the execution of judgments and not the High Court Rules utilized by the appellate High Court. It is therefore necessary to examine for clarity, the two.
Order 44 Rule 27 of the Ogun State High Court (Civil Procedure) Rules, Edict of 1987 was utilized by the appellate High court. It provides as follows:
27. “Any order given or made by the court may be enforced by the court or by the Lower Court as may be most expedient.”
(Underlining mine for emphasis)
While Section 44 of the Sheriffs and Civil Process Act, L.F.N. 2004 provides as follows:
Execution of Immovable property
44. “If sufficient movable property of the judgment debtor can be found in the Federal Capital Territory, Abuja or the State as the case may be to satisfy the judgment and costs and the cost of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the court against the immovable property of the judgment debtor in accordance with the provisions of this Act, and any rules under thereunder:
Provided that where the judgment has been obtained in a Magistrate’s court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.”
Order 2 Rule 24 of the Judgment (Enforcement) Rules provides thus:
“Except for the purposes of Sections 44 and 55 of the Act and Rule 13 of Order IV, Process, other than a warrant issued from the High Court to arrest an absconding defendant, and a writ of interim attachment, shall issue from the court before which the proceeding is pending or which gave the judgment sought to be enforced, as the case may be, and from no other court.”
This appeal is not against the judgment of the High Court delivered on 15/4/05 affirming the judgment of the Grade 2 Customary Court but, an appeal against the High Court’s refusal to set aside the execution by the Sheriff/Deputy Sheriff or the bailiff of the High Court on 7th September, 2005 on the basis that the High Court lacked the jurisdiction to execute the judgment of the Customary Court Grade II Ado Odo. One thing is clear, as at 20/4/06 when the application was filed before the appellate High Court the execution of the judgment had already been carried out.
By simple interpretation given of Order 44 Rule 27 of the Ogun State High Court Civil Procedure Rules any order made by the court may be enforced by the court or by the Lower Court. In other words the judgment being considered now is the judgment of the High Court affirming that of the Grade 2 Customary Court delivered on 15/4/05 and 14/7/03 respectively. The appellate High court by this provision may enforce the judgment or the customary court. The power to enforce the judgment was not exclusively left for the Customary Court. This Rule is clear and unambiguous. From the provision of Order 44 Rule 27 above, it empowers the Appellate High court to enforce the judgment as well as the Lower Court from which the appeal arose i.e. concurrent powers were given to both courts for the purposes of execution.
No doubt, as rightly argued by the learned counsel to the Appellants, execution of judgments are governed by the Sheriff and Civil Process Act, L.F.N. 2004 and the Judgment Enforcement Rules. In the Act (as highlighted by the learned Counsel to the Respondents) part II – Interpretation, Section 2 thereunder, “Court” in the Act was interpreted to include a High court and a Magistrate’s court. Under part III – Enforcement of Judgments and orders, Executions and committals: Section 19(a) “Court” was interpreted to mean High Court of the Federal Capital Territory Abuja or of the state and under the Judgment Enforcement Rules and the Sheriffs and Civil Process Act there is no specific mention of the Customary Court or a situation where the exclusive power of execution would be that of the Customary Court. As rightly argued by the learned counsel to the Respondents, to which I am at one with, the Ogun state High Court Rules which gave powers of execution to the High Court and a Lower Court is not in conflict with the provisions of the Act.
In my humble view, the appellate High Court had the jurisdiction to approve the execution of the judgment of the Customary Court which it affirmed.
I am at one with the distinction made by the learned trial judge in the cases cited and relied upon by the learned Counsel to the Appellants in the appellate High court, the cases of D.O. EBERE vs. ALHAJI ZAKARI TUTARE (1992) 3 NWLR (Pt.222) 15 and OYEFESO vs. TOLA (1968) NWLR 317, distinguishing these cases from the present case, in that there is a definite provision as to the concurrent jurisdiction of both courts of first instance and the appellate courts for the purposes of execution, in the Ogun State High Court (Civil Procedure) Rules, unlike in the above cited cases, it was not shown that there was such provision.
The Appellants as rightly observed by the High court at page 40 of the printed records, were aware or are deemed to have been aware of the judgment of the High court which was enforced, at the time there was no application for stay of the execution of the said judgment to talk of its refusal.
In sum, I hold that the learned trial judge rightly dismissed the Appellants’ motion of 20/4/05 in its Ruling of 24th, November, 2006.
I also hold that the appeal is without merit, same is hereby dismissed. The Ruling of the Lower Court of 24/11/06 in Suit No.HCT/23A/2003 is hereby affirmed. I award costs of N50,000.00 (Fifty thousand Naira) to the Respondents.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother Chidi Nwaoma Uwa, J.C.A that this appeal is without merit.
I have nothing peculiar to add to the comprehensive evaluation and conclusions made in the lead Judgment which I hereby adopt in its entirety.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Lord Chidi Nwaoma Uwa J.C.A. I agree with the reasoning and the conclusions reached in the judgment. By way of a modest contribution, it is clear to me that by virtue of Order 44 Rule 27 of the Ogun State High Court (Civil Procedure) Rules, 1987, the High Court of Ogun State is in as good a position as the Customary Court of that State to execute the judgment of the Customary Court. The High Court (Civil Procedure) Rules of Ogun State are quite specific on the point unlike the Sheriffs and Civil Process Act and the Judgment Enforcement Rules made thereunder. The law is that where specific provisions of a statute are subsequent to general provisions, the specific provisions will prevail. See Akpan vs. State (1986) 3 NWLR part 27 p.225.
For the above reason and the fuller and better reasons given in the lead judgment, I agree that the ruling of the Lower Court should be affirmed and is hereby affirmed. I agree with the costs awarded in the lead judgment.
Appearances
S. O. Ajayi Esq.For Appellant
AND
Chief Yomi Alliyu Esq. with T. Otaigbe (Miss)For Respondent
