STEPHEN ONYENEHIDO V. M.O. BABALOLA & ANOR.
(2011)LCN/5004(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of December, 2011
CA/L/930/2008
RATIO
ISSUES FOR DETERMINATION: THE RULES GUIDING THE FORMULATION OF ISSUES FOR DETERMINATION
Let me see if the Appellant has complied with the relevant rules guiding formulation of issues for determination. For instance (1) It should not be framed on grounds not appealed against. (2) It should not be framed from defective ground or grounds of appeal. In DADA VS. DOSUNMU (2006) 18 NWLR Pt. 1010 at Pg. 134 @ 165, it was held that issues or questions for determination are framed from the grounds of appeal properly before the Court. An issue or issues not formulated from the grounds of appeal will go to no issue and will be struck out by the Court. IDIKA VS. ERISI (1988) 2 NWLR (Pt.78) 563; NKADO VS. OBIANO (1997) 5 NWLR Pt. 503. 31. A cursory look at the Grounds of Appeal, it seems to me that the issues for determination were aptly distilled from the Grounds of Appeal. PER RITA NOSAKHARE PEMU, J.C.A
RESPONDENTS’ NOTICE: THE PURPOSE OF FILE A RESPONDENTS’BRIEF NOTICE
In BOB-MANUEL VS. BRIGGS (2003) 5 NWLR (Part 813) at pages 323 @ 339 – 340, Uwaifo JSC had this to say “It is said that the traditional role of a Respondents’ Notice is to seek to affirm the judgment appealed against on other grounds than may have been given in the judgment: See LAGOS CITY COUNCIL VS. AJAYI (1970) 1 ALL NLR 291 at 294. The essential position of a Respondent who files a Respondents’ Notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment.” PER RITA NOSAKHARE PEMU, J.C.A
RESPONDENT NOTICE: WHETHER A RESPONDENT CAN USE THE RESPONDENTS’ NOTICE TO MAKE A CASE AT THE APPELLATE COURT THAT IT DID NOT MAKE AT THE TRIAL COURT
No Respondent can use the Respondents’ Notice to make a case at the Appellate Court that it did not make at the trial court. See OSAYANDE UHUMWANGHO VS. F.L OKOGIE & ANOR (1989) 12. SCNJ. 84; NABISCO INC. VS. ALLIED BISCUITS COMP. LTD. (1998) 7 SCNJ 235, PER RITA NOSAKHARE PEMU, J.C.A
JUDGMENT: EFFECT OF A JUDGMENT UNTIL IT IS SET ASIDE ON APPEAL
…it is a well established law that a judgment is sacrosanct until it is set aside on appeal. GONZEE NIG. vs. NERDC 128 LRCN 1540 @ 1559. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
EXECUTION OF JUDGMENT: WHETHER A SHERIFF AND HIS OFFICERS CAN BE LIABLE IN AN ACTION FOR DAMAGES EXECUTING A JUDGMENT
Also, Order 45.3.9 Supreme Court Practice 1999, Vol. 1 exempts a sheriff and his officers from liability in an action for damages in the lawful execution of a judgment and it is immaterial that the judgment is wrong. The officers are only liable where the execution is in itself unlawful. HOLMAN BROS VS. THE COMPASS TRADTNG CO. LTD (1999) 1 NWLR Pt. 217 at 368. As such, the 2nd Respondent cannot be held liable for illegal eviction, detention or trespass to the Appellant’s goods in executing the Judgment as it was a valid one as at that time. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKARE Justice of The Court of Appeal of Nigeria
MUHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
STEPHEN ONYENEHIDO Appellant(s)
AND
M.O. BABALOLA & ANOR. Respondent(s)
RITA NOSAKHARE PEMU, J.C.A, (Delivering the Leading Judgment): This is an appeal against that part of the decision (i.e. the whole decision except the order striking out the 1st Defendant’s counter claim) of the High Court of Lagos State, Ikeja Division contained in the judgment of the Honourable Justice M.O. Obadina (Mrs.) dated the 13th day of May 2008. At the lower court the Appellant (as Plaintiff) had in an amended statement of claim dated 2nd May 2003 claimed against the Defendants jointly and severally thus.
1. “the sum of N543,950 (Five Hundred and Forty-Three Thousand, Nine Hundred and Fifty Naira) being special damages including the value of the plaintiffs personal effects or proper unlawfully seized, detained and/or sold by the defendants in execution of the invalid, illegal, null and void Court judgment”.
IN THE ALTERNATIVE
Delivery up of all the plaintiff’s chattels described in paragraphs 8A(1) – (II and 8A(13) (25) in sound condition plus judgment for N7,000.00 being cost of transporting the plaintiffs remaining property after the wrongful and illegal eviction.
2. ‘N5,000,000 (Five Million Naira) being general damages for the trespass to the plaintiffs property and unlawful/illegal eviction by the defendants and inhuman and degrading treatment the defendants subjected the plaintiff and his family to in execution of the illegal, invalid, null and void judgment of the Magistrate’s court to evict the plaintiff from a three (3) bedroom flat which the plaintiff held of the 1st defendant at No, 17 Ademefun crescent, Alimosho Agege, Lagos State”. (See pages 21 – 30 of the Records).
Pleadings having been ordered and exchanged, at the lower court, the case proceeded to trial, and on the 13th of May 2008, judgment was entered in favour of the Respondents against the Appellant.
The Appellant, is dissatisfied with the said judgment and on the 4th of August 2008, pursuant to the Practice Direction of this Court, filed Notice and Grounds of Appeal. The Appellant has filed fourteen (14) Grounds of Appeal as reflected at pages 334 -341 of the Record of Appeal.
At the lower court, the 1st Defendant counter claimed as reflected at pages 27-33 of the Record of Appeal.
There was a defence to counter claim and 1st Defendants reply to Plaintiffs defence to counter claim as reflected at pages 34-38 of the Record of Appeal.
The 2nd Defendant filed no Statement of Defence at the lower court. It is on record that on the 10th of April 1997, the 1st Defendant had obtained Judgment at the Magistrate Court Ikeja, against the Appellant on the basis that he failed to appear in court. Judgment was therefore entered in the 1st the Defendants favour inter alia to recover from the plaintiff (Appellant here in this Appeal) the sum of N10,000.00 being balance of arrears of rent from February 1995 to February 1996 in respect of the 3 bedroom flat and premises situate at No. 17 Ademefun Crescent, Alimosho, Lagos State ret by the Plaintiff to the Defendant at the rate of N25,000.00 per annum.
Let me attempt to ray bare the facts in this case.
The Appellant (Plaintiff at the lower court) a Pastor was a respect of a three (3) bedroom apartment situate at No. 17 Crescent’ Alimosho, Lagos State, which is under the landlordship of the 1st Defendant *(1st Respondent in this Appeal).
The 2nd Defendant (2nd Respondent) is, a High Court official, charged with the enforcement of Judgments of the Magistrate Courts and High Courts of Lagos State.
At the instance of the 1st Defendant (1st Respondent) he executed a purportedly invalid, illegal, null and void judgment against the Plaintiff, his property and residential apartment.
The 1st Respondent commenced an action against the Plaintiff (Appellant) in the Magistrate Court of Lagos Sate for recovery of the aforesaid premises and arrears of rent.
According to the Plaintiff although the parties had settled the case out of Court on terms that the 1st.Defendant will discontinue proceedings after receiving payment from the Plaintiff, the presiding Magistrate E.A. Lufadeju (Mrs.) (as she then was) gave judgment against the Plaintiff on 10-4-97 in the absence of the Plaintiff.
The Rent Constitution and Recovery of Residential Premises Edict 1997 of Lagos State came into force on 21/3/1997 and by this, all pending cases regarding recovery of residential premises after the commencement of the said Rent Edict were to be transferred to Rent Tribunals created under the Edict.
The case of the Appellant is that, rather than have the suit transferred to the Rent Tribunal, the 1st Defendant and the Presiding Magistrate E.A. Lufadeju (Mrs.) (as she then was) maintained the suit at the Magistrate Court and on the 10th of April 1997, she entered judgment in favour of the 1st defendant in the absence of the plaintiff.
The said judgment was enforced by the Defendants against the Plaintiff on June 10, 1997 and the Defendants forcibly evicted the Plaintiff from the said flat with members of the Plaintiffs family under very unfavourable weather. The Plaintiff’s chattels were attacked by the 2nd Defendants.
In his counterclaim, the 1st Defendant had averred that the Appellant (Plaintiff) at the lower court is indebted to the 1st Defendant in the sum of N39,400.00 being arrears of rent, N33,000.00 being special damages caused to the 1st Defendant’s property by the Plaintiff, N6,292.24 being debt owed by the Plaintiff for electricity consumed by him on the premises totally N78,692.24 [Seventy-Eight Thousand, Six Hundred and Ninety-Two Naira, Twenty-Four Kobo) which the Plaintiff refused to pay for, and which had to be liquidated by the 1st Defendant.
A cursory look at the brief of the Appellant, shows that there are three issues for determination. They are:
(1) Was Obadina J. right on the facts of this case to create the exception to the rule that makes ineffectual the Magistrate court Judgment given without jurisdiction? Tied to Grounds 1, 2, 5 and 6,
(2) Did Estoppel applying against the Respondents in view of
(a) The previous decision of both the High Court (Exhibit P8) and court of Appeal (Exhibit P9) in favour of the Appellant?
(b) The pre-trial Judge’s discretion based on the agreement of the parties – that the trial of the case would be limited only to proof of damages by the Appellants? Grounds 3, 4 and 9
(3) Did the Appellant establish his four causes of action, ‘having regard that the Respondents enforced against him by the Magistrate Court Judgment that higher courts later declared null, void and ineffectual? Grounds 7, 8, 10, 11, 12, 13 and 14)
Let me see if the Appellant has complied with the relevant rules guiding formulation of issues for determination. For instance
(1) It should not be framed on grounds not appealed against.
(2) It should not be framed from defective ground or grounds of appeal.
In DADA VS. DOSUNMU (2006) 18 NWLR Pt. 1010 at Pg. 134 @ 165, it was held that issues or questions for determination are framed from the grounds of appeal properly before the Court. An issue or issues not formulated from the grounds of appeal will go to no issue and will be struck out by the Court. IDIKA VS. ERISI (1988) 2 NWLR (Pt.78) 563; NKADO VS. OBIANO (1997) 5 NWLR Pt. 503. 31. A cursory look at the Grounds of Appeal, it seems to me that the issues for determination were aptly distilled from the Grounds of Appeal.
On Issue No 1, learned counsel has argued that his quarrel is about the view of the learned trial Judge that because the judgment had been enforced before it was nullified, the enforcement remains valid. He argues that the learned trial judge misapplied the Supreme Court decision in Osefile Vs. Odi (No) 1 which she relied on.
Relying on FADA VS. NAOMI (2002) 4. NWLR Pt.757 at 318, he submits that in that case a judgment given by a High Court had been enforced before the Appeal to the Court of Appeal which set it aside for want of jurisdiction.
Now the judgment of the Magistrates Court referred to in Issue No. 1 is dated 10th of April 1997 before His Worship Mrs. E.A. Lufadeju Chief Magistrate Grade 1 in Suit No. MIK/2177/96.
Paragraph 1 of the said judgment is worthy of reproduction.
“Upon the undisputed evidence given by the Plaintiffs’ attorney against the Defendant on the 1st of April 1997 and upon proof of statutory notices being duty served on the Defendant before this action was instituted against him (See Exhibits “C” and ‘D’). I am satisfied that the Plaintiffs have sufficiently proved their case against the Defendant who was served with the writ of summons on the 26/6/96 but had failed to put up an appearance here in court, consequently, the Plaintiffs’ claims succeeds.”
This judgment is one in default of appearance. It is Exhibit D5 in the Magistrate Court. Judgment was entered in favour of the Plaintiffs in consequence in that suit. The Appellant was the Defendant in that matter and he did not appear in Court though served with processes,
The judgment was removed into the High Court of Lagos State, Ikeja for the purposes of being quashed and on the 22nd of May 1998, Hon. Justice, A.A. Phillips, after hearing the application for certiorari, and interlocutory injunction, quashed the judgment of the Magistrate Court in Suit No. MIK/217/97 of 10th April 1997.
This decision was appealed in Appeal No. CA/L/331/99 and the Court of Appeal dismissed same. In its judgment at page 10 of Exhibit P9, Oguntade, JCA (as he then was) observed inter alia.
“The Ground relied upon by the Respondent in bringing the application to quash the Judgment given by 1st Respondent was that the 1st Respondent had no jurisdiction to have heard the suit and given Judgment when she did. Once the judgment was pronounced a nullity, the resultant position in law was that the Judgment never existed. All acts founded on the supposition that the Judgment existed were a nullity.
See U.A.C. VS. NIACFOY (1961) 3 W.L.R. 1405 at 1409.
It is my respectful view that since the judgment had been enforced before it was nullified, the enforcement remains valid.
The judgment of the Magistrate Court subsists until set aside. As at the time execution was carried out, the judgment subsists in law.
Indeed at page 329 of the Record of Appeal, the learned trial judge had this to say, rightly in my view.
“After the Judgment that gave rise to the execution was nullified, was it not the duty of the claimant to notify the 2nd Defendant of this Judgment and claim his goods? He did not…”
Again at page 330, he had this to say
“It is thus clear that the detention as would constitute the tort must be a wrongful one. At the risk of repetition, I reiterate that the execution was not wrongful, the goods recovered and invented pursuant thereto and taken to the office of the 2nd Defendant were recovered lawfully. There was no detinue and trespass et al…”
This does not mean that the judgment is good, but it subsists until set aside and any execution done in consequence thereof is in order. It is trite that a judgment is sacrosanct until set aside on appeal. GONZEE NIG. VS. NERDC 128 LRCN 1540 @ 1559,
By Order 45.3.9 of the Supreme Court Practice 1999, Vol. 1 (the White Book) – A sheriff and his officers executing a judgment (e.g. by causing an eviction) however wrong the judgment, or however they may be mistaken as to its effect, are not liable in an action for damages. Nor is the landlord rendered liable by his mere presence at the time of the eviction. See WILLIAMS VS. WILLIAMS & NATHAN (1951) 2. ALL ER 557. It is where a wrongful execution is made that an action will be against the Deputy Sheriff. HOLMAN BROS VS. THE COMPASS TRADING CO, LTD. (1999) 1 NWLR Pt, 217 at 368. It was the duty of the Appellant to mitigate his loss by going to claim his goods back when invited to do so. He did not. He failed to appear in Court. He failed and/or refused to go and claim his goods back. He apparently was complacent and it seems to me that all that he wanted was to claim damages. Damages from what wrong may I ask?
The argument of learned counsel for the 1st Respondent is that at the time of the execution, the judgment had not been challenged and was a valid judgment which must be obeyed. He further argued that since the judgment was valid and could be enforced at the time it was executed, the execution cannot be declared as invalid, illegal and void because the judgment was quashed a year after.
I cannot agree with him more.
The answer to Issue No. 1 is therefore in the affirmative and same is resolved in favour of the Respondents.
Did estoppel apply against the Respondents in view of
(a) the previous decisions of both the High court (Exhibit P8) and Court of Appeal (Exhibit 9) in favour of the Appellant?
Learned counsel had argued that since the invalidity of enforcing the nullified judgment was already an issue pointedly decided in Exhibits 8 & 9 against the Respondents, the 1st Respondent was also estopped from raising the same issue before Obadina J. The reasons given by the learned trial Judge for not banning 1st Respondent from rearguing the issue were:
(1) The only issue decided in Exhibits P8 and P9 was jurisdiction
(2) The parties in Exhibits P8, P9 and the present case respectively are in each instance different from the others.
Now the parties in the Magistrate Court were Mr. & Mrs. Babalola as Plaintiff vs. Stephen Onyenehido as Defendant.
In the High court, the parties increased, Mr. Stephen Onyenehido as Appellant while Mrs. E.A. Lufadeju (Chief Registrar Grade 1, Ikeja), Mr. M.O. Babalola and the Deputy Sheriff Lagos State were Respondents.
In the Court of Appeal, the Appellant was Mr. M.O. Babalola and Mr. Stephen Onyenehido as Respondent
Therefore it is correct to say that the parties in the respective Court processes are not exactly the same.
As earlier observed the judgment in 1997 in the Magistrate Court was predicated on the ruling of default of appearance. The reliefs sought in the High Court has to do with restraining reliefs and an order of certiorari. The restraining order is with regard to the property at No. 17 Ademefun Crescent, Alimosho, Lagos State.
The Appeal in the Court of Appeal is one appealing the judgment of the High Court in respect of this issue.
The claim which culminated in this present appeal is one for special damages, including the value of the Plaintiffs personal effects or property, unlawfully seized, detained and/or sold by the Defendants in execution of the invalid, illegal, null and void Court judgment.
In the alternative, delivering up of all the Plaintiff s chattels described in paragraphs 8(A)(I)-(II) and 8(A) (13 – 25) in sound condition plus judgment for N7,000.00 being cost of transporting the Plaintiffs remaining property after the wrongful and illegal eviction and the sum of N5,000,000.00 (Five Million Naira) being general damages – Pages 311 – 312 of the Record of Appeal.
The processes just mentioned, do not in my view constitute estoppel, as there is nothing to show that the 1st Respondent was relitigating the matter and/or raising the same issue before Obadina J.
What the 1st Respondent did was to file a counter-claim – albeit statute-barred. To file a counter-claim does not amount to relitigating a matter. It is a separate action on its own. Issue No. 2 is misconceived and same is resolved in favour of the Respondents.
The Appellant has strove to argue so many issues in his Issue No. 2 which gave that issue a semblance of confusion, and which is capable of beclouding the eyes of the unsuspecting reader in appreciating the real issues in controversy. It took me time to unravel his argument. This constitutes bad brief writing! Issue No. 3 is vague, as the causes of action were not mentioned. Same is hereby discountenanced.
The 1st Respondent filed a Respondents’ notice vide additional record of appeal on the 3rd of August 2008 to the effect that the award of N50,000.00 general damages and N20,000.00 costs in favour of the Claimant/Appellant and against the 1st Defendant/Respondent by the lower court be set aside.
The ground upon which the 1st Respondent intends to rely are as follows:
“Having correctly decided that there was no illegal eviction, delitune or trespass to property carried out by the 1st Defendant, the court below erred in law by proceeding to award general damages in the sum of N50,000.00 and costs of N20,000,00 against the 1st Defendant on the basis that the 1st Defendant and his agent never informed the Claimant/Appellant of the judgment of the Magistrate Court.”
In the Appellant’s reply brief filed on the 19th of November 2010, he contended that the 1st Respondent should have filed a cross-appeal instead of a Respondent’s notice, arguing that the 1st Respondent can seek to upset the finding and that part of the judgment only by a substantive cross-appeal and not by an application to vary the decision of the trial judge.
He further argues that the purpose of a cross-appeal is to correct an error standing in the way of a Respondent in the main appeal.
His reply brief, in essence was in my view a repetition and reiteration of facts argued in his Brief of Argument.
Learned counsel for the Appellant reiterates that the Appellant’s claim was not for wrongful execution but for null and void execution, and that there is a vast difference between the two. He argues that the former is voidable while the latter is void.
He further argues that because the 1st Respondent did not cross-appeal, he is not entitled in his brief to go outside the Appellant’s Grounds of Appeal.
Let me quickly deal with the 1st Respondent’s notice, to see how viable and tenable it is.
The 1st Respondent brings his Respondent’s Notice pursuant to Order 3 Rule 14(1) of the Court Rules.
It is to vary the decision of the Court ex facie. The relevant order should have been under Order 9 Rule 1 of the Court of Appeal Rules 2007, which is now in pari-materia with Order 9 Rule 1 of the 2011 Rules of Court.
In BOB-MANUEL VS. BRIGGS (2003) 5 NWLR (Part 813) at pages 323 @ 339 – 340, Uwaifo JSC had this to say
“It is said that the traditional role of a Respondents’ Notice is to seek to affirm the judgment appealed against on other grounds than may have been given in the judgment: See LAGOS CITY COUNCIL VS. AJAYI (1970) 1 ALL NLR 291 at 294. The essential position of a Respondent who files a Respondents’ Notice is that the judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the judgment.”
That can be seen in the observation of Olatawura JSC at P.31 of American Cyanamid case thus:
“In my view, invocation of Order 3 Rule 14(L) postulates that the judgment is correct but the reasons for the judgment are based on wrong supposition when there is enough evidence on record which can sustain the judgment on other grounds other (sic) than those relied upon by the trial court.
The Respondents’ Notice postulates the correctness of the judgment notwithstanding the grounds of appeal by the Appellant to set it aside”.
There is a distinction between a Respondent’s Notice filed by the successful party under Order 9 Rule 2 of the Court of Appeal Rule 2011 (which is a notice to affirm the Judgment on other grounds) while a Respondents’ notice of intention to vary the judgment is to be brought under Order 9 Rule 1. Order 9 of the Court of Appeal Rules, can only be activated where the issues contained in the Respondents’ notice had been brought to the attention of the trial Court who failed to utilize those reasons in arriving at his Judgment in favour of the Respondents.
The Issue in respect of which the Respondents’ Notice is filed was in my view canvassed at the lower court by the parties i.e. issue of general damages.
No Respondent can use the Respondents’ Notice to make a case at the Appellate Court that it did not make at the trial court. See OSAYANDE UHUMWANGHO VS. F.L OKOGIE & ANOR (1989) 12. SCNJ. 84; NABISCO INC. VS. ALLIED BISCUITS COMP. LTD. (1998) 7 SCNJ 235,
I am of the view that in the circumstances, I can safely consider the issue raised in the 1st Respondent’s notice.
I agree with the 1st Respondent entirely that the Appellant was aware of the case in the Magistrate Court. He should have mitigated his loss but he did not. Moreso, I had held earlier on in this judgment that the execution levied on the Appellant’s property was not illegal at the time it was carried out. Therefore the issue of damages is spurious and of no moment. Where there is a right, there is a remedy. No right has accrued to the Appellant to necessitate his entitlement to damages – special or general.
The learned trial Judge had held, rightly in my view that there was no illegal eviction, detention or trespass to the Claimants goods. Neither was there an infraction on the Appellant’s fundamental human right.
There was therefore no need for that award. The 1st Respondent’s Notice therefore is meritorious and the award of N50,000.00 awarded by the learned trial Judge and N20,000.00 costs in favour of the Appellant is based on no just ground and same is hereby set aside.
The 1st Respondent at pages 3-4 of his brief of argument formulates and distilled four issues for determination but did not state which of the 15 Grounds of Appeal he distilled same from. Decidedly, issues for determination raised in a brief must be clear and devoid of irrelevant complexity or verbosity. Most importantly, issues for determination “must be distilled or formulated from valid Grounds of Appeal which in turn have to be predicated upon the ratio decidendi of the decision of the trial Court or tribunal appealed against,
DELEK (NIG) LTD VS. OMPADEC (2007) 7 NWLR Part (1033) 402; AGBALLAH VS. CHIME (2009) 1 NWLR (Pt. 1122) 373 at 419 paragraph a-b.Therefore it is only issues formulated in a brief that are usually argued on appeal. Grounds of Appeal are not argued in a brief.
In OKWUAGBALA VS. IKWENE (2010) 19 NWLR Pt. 1226 at page 54 @ 63 a – c, it was held inter alia that an issue which is without a supporting ground of appeal is incompetent, and the 1st Respondent issues are hereby discountenanced. This is without prejudice to the fact that the issues raised by the Appellant are all resolved in favour of the Respondents.
In all, I am of the view that the appeal lacks merit. It is one that should be dismissed and same is hereby dismissed while the judgment of the learned trial judge is hereby affirmed, save the part where he awarded general damages and costs in the sum of N50,000.00 and N20,000.00 respectively ln favour of the Appellant, with N30,000.00 costs in favour of the 1st Respondent.
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have had the privilege of reading the Judgment just delivered by my learned sister, RITA NOSAKHARE PEMU JCA. I am in complete agreement with her reasoning and conclusion that the appeal lacks merit and should be dismissed.
The appeal is against the decision of the High Court of Lagos State, Ikeja Division contained in the judgment of the Honourable Justice M.O. Obadina dated the 13th day of May 2008.
The Appellant contended that the learned trial judge erred in law when she held that because the Judgment had been executed before it was nullified, the enforcement remains valid.
I disagree with the learned counsel and I agree with the learned trial Judge as well as my learned sister that the execution of the Judgment is valid because the judgment had not been quashed as at the time it was executed. As my learned sister has rightly averred, it is a well established law that a judgment is sacrosanct until it is set aside on appeal. GONZEE NIG. vs. NERDC 128 LRCN 1540 @ 1559.
Also, Order 45.3.9 Supreme Court Practice 1999, Vol. 1 exempts a sheriff and his officers from liability in an action for damages in the lawful execution of a judgment and it is immaterial that the judgment is wrong. The officers are only liable where the execution is in itself unlawful. HOLMAN BROS VS. THE COMPASS TRADTNG CO. LTD (1999) 1 NWLR Pt. 217 at 368. As such, the 2nd Respondent cannot be held liable for illegal eviction, detention or trespass to the Appellant’s goods in executing the Judgment as it was a valid one as at that time.
Also, after the Magistrate Court Judgment contained in Suit No MIK/2177/97 was finally set aside by the Honourable Justice A.A. Phillips of the High Court of Lagos, Ikeja Division on the 22nd of May 1998, the Appellant ought to have notified the Respondents of the judgment and claimed his goods. He was actually invited to claim his goods but he failed to do this. I agree that by such a refusal to act, he acted complacently and equity does not aid the indolent.
Furthermore, since the learned trial judge had held that there was no illegal eviction, detention or trespass to the Claimant’s goods, the award of N50,000 as damages and N20,000 as costs in favour of the Appellant is not justifiable.
For the above and further reasons given by my learned sister, I agree that this appeal lacks merit and should be dismissed. I abide by all orders in the lead judgment.
MOHAMMED A. DANJUMA, J.C.A: The outcome of the appeal herein, in my view, revolves around issues numbers 2 and 3 of the Appellant. My Lord, Hon. Justice R.N. Pemu J.C.A. has in her lead Judgment so clearly, meticulously and comprehensively summarized the facts and the submissions of the respective parties as relating to these issues, aforesaid.
Starting with issue No. 2 which relates to estopel a perusal of the decision of the High court tendered as Exhibit P8 and that of the Court of Appeal tendered as Exhibit P9 in favour of the Appellant does not show that the parties, and issues were the same in Exhibit 8, 9 and in the present appeal. Estopel does not apply. Issue is revolved against Appellant and in favour of the Respondents.
Issue No. 3 in substance and in essence seeks to have determined the question whether not the nullification of a judgment robs or renders invalid such actions on enforcement carried out pursuant thereto before the said nullification.
I have calmly studied the record of appeal and the briefs of the respective parties as filed by their counsel, and agree entirely with the reasoning and conclusion arrived thereat by my learned brother, R.N. Pemu, in his lead judgment that the setting aside or quashing of the decision of the learned magistrate, does not, in law, invalidate or render useless or wrongful execution of the said Judgment which had been carried out preceding the order of nullification; as a Judgment or order of a Court of law remains valid and binding until it is set aside. It remains binding and subsists. See Gonzele Nig, Ltd. VS. Nerd 128 LRCN 154 at 1559. To hold otherwise will create as situation of uncertainty in the law and foist a state of confusion and hobsenian wobbling, thus making non-sense of the time tested principle that there must be certainty in the law. There is also the presumption of regularity of official acts. This doctrine, developed from the Anglo Saxon times is expressed as omnia rite presumuturite esse acta i.e there is a presumption of regularity of official acts. Indeed this principle of law has, statutory support in our section 150 of the Evidence Act, 2004.
This presumption of regularity in favour of the official acts of the bailiff of the trial magistrate court when he enforced or executed the judgment appealed against shields and protects the said judgment until shown otherwise. There can be no valid complaint raised against the said execution nor any claims made as corollary thereto, as the execution was made pursuant to a Judgment. It is for the aforesaid and the more detailed reasons given in the read judgment, which are adopted in toto as mine, that I, too, agree that this appear is without any merit and should be dismissed.
I shall, however, indicate that the part of the Judgment awarding N50,000 in favour of the Appellant is being set aside with respect, not only because of the 1st Respondent’s Notice in that respect but because it surely had no basis or terra to stand on, having resolved the issue of the validity of the execution of the judgment against the Appellant and in favour of the respondent.
Explicitly put, I mean, even without the Respondent’s Notice an order quashing the award of general damages as made shall be the necessary and inevitable order of this court.
In consequence, I affirm the judgment of the lower court barring the portion in respect of the award of general damages of N50,000 and N20,000 as costs in agreement with the leading judgment.
I also abide by the order as relating to the award of costs as made in the lead judgment.
Appearances
K. Okoroafor Esq.,For Appellant
AND
Miss G.E. FasotoFor Respondent
