Samuel Ndefo V. Joseph Okeneke Obiesie & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
AKAAHS, J.C.A.
The focal point in this appeal is whether the appellant disclosed a cause of action against the respondents in suit No.W/357/92 which he instituted at the Warri High Court. The facts which are quite straight forward may be briefly stated as follows:-
The appellant in this appeal was a tenant of the 1st defendant/respondent. Following the judgment by the Warri Customary Court 2, presided over by the 3rd defendant/respondent together with the 4th and 5th defendants/respondents as members in suit No.WACC/300/92 delivered on 30th day of June, 1992, the plaintiff/ appellant was ordered to vacate and deliver up possession of the two rooms he occupied as tenant to the landlord ON OR BEFORE THE 31ST DAY OF JULY, 1992. The plaintiff was evicted from the two rooms by the 6th defendant/respondent (Bailiff of Court) on 31st July, 1992 acting upon an order of possession signed by the 3rd respondent.
The plaintiff then sued the defendants in suit No.W/357/92 claiming against them the sum of N500,000 (Five hundred thousand Naira) for damages suffered and/or sustained by him and members of his family as a result of the illegal execution levied against him on the said 31st July, 1992. The 1st-5th defendants in their paragraph 14 of the joint statement of defence raised a preliminary issue of law objecting to the competency of the action. The preliminary objection was then set down for hearing and after hearing arguments on both sides, the learned trial Judge, Obi J. dismissed the claim on 8/2/94 and this prompted the appeal by the plaintiff who felt dissatisfied with the said ruling/judgment.
Two original grounds of appeal were filed along with the notice on 30/3/94. Later, three additional grounds were filed by leave of court. The grounds of appeal are set out as follows: –
That the judgment of the learned trial Judge is against the weight of evidence.
- The learned trial Judge erred in law in holding that without the order for recovery of the judgment debt and that of possession being set aside the plaintiff had no remedy at law.
Particulars
(i) The order above named was not only valid but was validly made by the defendants pursuant to the judgment of the court of competent jurisdiction in respect of which the appellant does not complain.
(ii) This appeal complains about the act of the defendant namely the wrongful authorisation of the execution of the said order which was made contrary to it; and is therefore one that attracts damages flowing directly from its wrongfulness in that the said act was made without any semblance of authority or jurisdiction.
- The lower court/the learned trial Judge erred in law when he stated in his judgment at page 64 line 35 and page 65 line 5 of the record that “Although the basic complaint as emerged from the submission of learned counsel, Mr. Okonedo – Egharegbemi, is one of premature levying of execution, there is no relief for an order setting it aside” when the issue before him was whether the execution levied by the respondents against the appellant on the 31st day of July, 1992 was wholly illegal and unjustifiable.
Particulars
(i) The 3rd to 5th respondents judgment at page 42 of the record; Form G: Formal Order at page 31 of the record; Form M: Attachment Notice at page 32 of the record and 1st respondent’s affidavit evidence at page 44 lines 5 – 15 shows quite clearly that the learned trial Judge did not consider the issue as to whether or not the said execution levied by the respondents against the appellant on the 31st day of July, 1992 was wholly illegal and unjustifiable.
(ii) In the case of Guardian Newspapers Limited & 5 Others v. The Attorney-General of the Federation (1995) 5 NWLR (Pt. 398) 703 at pages 718-719, Justice Ayoola, Justice Court of Appeal state (sic stated) that “in my view judicial review of the administrative actions does not necessarily need to involve a challenge to the validity of an ouster clause. Where the validity of such clause is not in dispute, the court still has jurisdiction to determine whether the administrative action is one that the ouster clauses has tended to protect. In the case of Anisminic Limited v. The Foreign Compensation Commission & Another (1969) 1 All ER 208 CA for instance, the determination of a tribunal which was not “a real determination” but purportedly to be one, was quashed notwithstanding the statutory provision that the determination by the Commission under the Act shall not be called in question to any court of law. In my view, even where the statute provides that the things purportedly done pursuant to the empowering statute shall not be called in question in any court of law, the jurisdiction of the courts to enquire whether, viewed objectively, a claim that the action is so purportedly done, is made in good faith or can reasonably be made must still remain.”
(iii) Order 4 rule (1) of the Sheriffs and Civil Process Law, Cap. 151, Laws of the Bendel State of Nigeria, 1976 applicable in Delta State says:
“No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or if no date has been fixed by the court for giving possession until after the expiration on fourteen days from the day of which judgment is given”.
The execution complains (sic complained) about by the appellant is entirely not in compliance with 3rd – 5th respondent’s judgment/order at page 42 of the record as confirmed by 1st respondent in his affidavit evidence at page 44 lines 5-15 of the record.
The issue of illegal and/or premature levying of execution referred to by the trial Judge in his ruling/judgment at pages 64-65 of the record, Form G and 3rd 5th defendants’ judgment at page 42 of the record, Form M at pages 31-32 of the records both dated 2/7/92 and 30/7/92 should therefore have been tried by the learned trial Judge and determined before he ruled against the appellant on these vital points which were the main issues in the substantive suit which were (sic had) not yet been argued, the learned trial Judge has (sic had) no basis to reach such hasty and premature decision when he did.
- The learned trial Judge erred in law and on the facts when he said “I am inclined to agree that since the execution order has not been set aside, it remained and subsisted. It is an order which comes within the contemplation of the Edict which gives immunity from civil liability to the defendants’ jurisdiction to sign warrant of possession/execution in furtherance of its judgment lawfully made and if any question arises as to the validity of any act in this regard, that question has to be settled first and if established, the act or order set aside before the question of compensation for loss resulting from the unlawful act, can be considered” when the act of the defendant were said to be in bad faith, and in complete disobedience of the defendants’ own order (see the case of Anisminic Limited v. Foreign Compensation Commission( supra).
Particulars
(i) 3rd to 5th defendants proceedings, judgment and order dated 30/6/92 can be found at page 42 lines 10- 30 whilst Form G. dated 2/7/92 and Form M dated 30/7/92 can be found at pages 31 – 32.
(ii) The entire proceedings showed clearly that the defendants acted in bad faith as the Form G and M not only signed prematurely but the execution was carried out prematurely and thereby ejected the appellant illegally in bad faith.
- The learned trial Judge erred in law and on the facts when he ignored the Attorney-General of Delta State’s application for leave within which to file his statement of defence (see page 46 of the record and appellant’s application to amend his statement of claim pages 50-60) and went ahead in a hurry and gave decision on these vital issues in the substantive suit which had not yet been argued, ignoring the fact that the respondents were sued jointly and severally in the action.
Particulars
(i) The issues of the learned Attorney-General and Commissioner for Justice of Delta State’s application under Order 22 rule 3 of the Bendel State High Court (Civil Procedure) Rule, 1988 applicable to Delta State on page 46 of the record for extension of time within which to file defence, should have been dealt with before the learned trial Judge hastily reached erroneous and premature decision.
(ii) The issue of the appellant’s application under Order 26(1) High Court (Civil Procedure) Rules, 1988 applicable to Delta State on pages 50-60 of the records for leave to amend his statement of claim should have been considered before the learned trial Judge rushed into taken (sic taking) the said erroneous and premature decision.”
It is pertinent at this stage to comment on the grounds of appeal and the particulars given. In Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718, the Supreme Court laid down that grounds of appeal ought to be set out concisely under distinct heads and without the arguments in support of the grounds and that only the broad issues to be raised in each ground should be stated and not the reasons in support thereof or the whole gamut of irrelevant facts dumped into them. And this Court, per Edozie, J.C.A pointed out in Obaike v. Benue Cement Company Plc (1997) 10 NWLR (pt.525) 435 at 446 that:-
“Particulars required in a ground of appeal are not the argument or narrative that should be advanced at the hearing of the appeal or in the brief of argument to establish that the court erred or misdirected itself but ancillary to it. The particulars to the grounds of appeal must compliment each other and must not raise issues completely distinct from each other. Where the particulars to a specific ground of appeal are raising completely distinct issues from each other, then such particulars should constitute separate grounds of appeal: Carlen (Nig) Ltd v. UNIJOS (1994) 1 NWLR (Pt.323) 631 at 652.”
It is my view that particulars (ii), (iii) and (iv) to ground 3 are arguments to be advanced in the appeal while particulars (i) to ground 4 as well as the particulars to ground 5 are not particulars at all.
The appellant filed a brief of argument but contrary to Order 6 rule 3(1) Court of Appeal Rules, 1981 (as amended in 1984) which specifies the forms and contents of a brief, the appellant did not clearly formulate any issues for determination. The said Order 6 rule 3(1) stipulates as follows: –
“The brief, which may be settled by counsel, shall contain what are, in the appellant’s view, the issues arising in the appeal…”
Even if it is considered that each ground of appeal raised an issue for determination there is no indication what issues were formulated in grounds 3 and 4 and issues 1 & 2 could not be distilled from ground 5 alone as one issue can be distilled from several grounds but not several issues from a single ground. (See Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122.
The issues which may be said to have arisen for determination in the appellant’s brief are as follows:-
“1. Did the 3rd to 5th defendant/respondents comply with the terms of their judgment delivered on 30th June, 1992 to the effect that the appellant should deliver up possession of his apartments to the 1st respondent on or before 31st July, 1992?.
2.Was the Judge right in stating… that there is no relief for an order setting it aside when the appellant’s complaint is that the learned trial Judge has jurisdiction to determine whether the administrative action of the 3rd – 5th respondents is one that the ouster clause in section 14(1) and 18 of the Customary Court Edict 1984 intended to protect?.
- Was the learned trial Judge right in dismissing this action without considering the fact that the appellant, the respondents jointly and severally… and that the 1st and 2nd respondents are not government officers and therefore could not be protected by the provision’s of section 14(1) and 18 of the Customary Court Edict No.2 of 1984 particularly when the learned trial Judge struck out for want of prosecution… the Attorney-General and Commissioner for Justice Delta State’s application for extension of time to file defence?.
- Was the learned trial Judge right in dismissing this action when parties were still settling issues that is when the appellant’s application to amend his statement of claim… had not been taken and Attorney-General and Commissioner for Justice Delta State’s application for leave within which to file his statement of defence… has not yet been argued?”.
Joint brief were filed for 1st and 2nd respondents as well as for 3rd – 7th respondents. The 1st and 2nd respondents’ brief raised three issues for determination while the 3rd – 7th respondents whose brief was deemed filed on 30/9/99, had one issue and is covered by issue No.3 in the 1st and 2nd respondent’s brief. The issues raised in the respondents brief are as follows: –
“1. Whether the appellant can properly make a claim based on the illegality of the execution when neither the judgment nor order for writ of possession has been set aside or even challenged by him?.
- Whether the learned trial Judge was right when he held that “since the execution order had not been set aside it remained and subsisted?”.
- Whether that order provides immunity from liability to the 3rd – 7th respondents and if the answer to the above is in the affirmative, whether the action can still subsists (sic subsist) against the 1st and 2nd respondents?”.
On issue No.1, the appellant referred to Order 4 rule 1 of the Sheriffs and Civil Process Law, Cap. 151 Laws of the Bendel State of Nigeria ,1976, applicable in Delta State and submitted that the learned trial Judge brushed under the carpet a serious illegality committed by the respondents when he failed to give proper weight and value to the respondents’ inexcusable execution levied on the appellant before the expiration of the day so ordered. Considering the date on which the appellant was to vacate the premises, learned counsel for the appellant in making reference to Order 22 rule 1 of the High Court (Civil Procedure) Rules, 1988 of Bendel State, contended that the appellant was legally entitled to stay in his apartments at the time of the said execution and the respondents could only execute on or after 1st August, 1992 and not on the 31st July, 1992. Learned counsel relying on Magregor on Damages 14th edition page 745 Articles 1103, 1104 and 1105 defined illegal execution/distress as one which is wrongful from the very start, either because no right to execute existed or because wrongful act was committed at the commencement of the levy which invalidated all subsequent proceedings.
On issue No.2, learned counsel stated that although the validity of the judgment of 3rd – 5th respondents is not being queried, but the execution levied consequent upon the said judgment before the same became matured is the complaint of the appellant. He then argued that even where the statute provides that the things purportedly done pursuant to the empowering statute shall not be called in question in any court of law, the jurisdiction of the courts to enquire whether, viewed objectively, a claim that the action is so purportedly done, is made in good faith or can reasonably be made must still remain and cited Guardian Newspapers Limited & 5 Others v. The Attorney-General of the Federation (1995) 5 NWLR (Pt. 398) 703 at pages 718-719. He then submitted that, the respondents had no authority and/or jurisdiction to enter and carry out execution against the appellant as they did on the 31st day of July, 1992.
Making submissions on issue No.3, learned counsel argued that even if the provisions of section 14(1) and 18 of the Customary Courts Edict of 1984 protect 3rd, 4th 5th and 6th respondents, the said sections cannot and will not protect the 1st and 2nd respondents having regard to the provisions of Order 2 rule 29(2) of Sheriffs and Civil Process Law, Cap. 151 of the defunct Bendel State. It was further argued that since the appellant’s claim was made both jointly and severally, the 1st and 2nd respondents cannot enjoy the immunity provided by section 14(1) and 18 of the Customary Court Edict, 1984. The argument on issue No.4 is to the effect that it is most unrealistic and unfair for the trial Judge in not allowing the appellant leave to amend the statement of claim.
The 1st and 2nd respondents in arguing Issue No.1 formulated by them contended that the appellant has raised completely unnecessary and irrelevant issues in his brief while leaving the crux of the matter unattended. They argued that an order made by a court of competent jurisdiction is valid and it subsists, until it is set aside and that is so even when the order was made in ignorance of some essential facts which went to the validity of the order. In support of this submission, the following cases were cited: Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129 and I.B.W.A. Ltd. v. Kennedy Transport (Nig) Ltd. (1993) 7 NWLR (Pt.304) 238. Continuing the argument, it was further contended that the judgment or order of such court is still valid even when it is wrong in its decision on an issue before it and the remedy of the party aggrieved or complaining is to either appeal against the said judgment or apply to have the judgment set aside K.S.U.D.B. v. Fanz Construction Ltd. (1990) 4 NWLR (Pt.142) 134. Learned Counsel went on to state that it was in pursuance of the judgment of the Warri Area Customary Court which made the order that plaintiff/appellant “shall give up possession of the premises on or before the 31st day of July, 1992” which prompted the 3rd respondent to sign a notice of attachment and was executed by the 6th respondent on the 31st day of July, 1992. He drew attention to the fact that the order has neither been appealed against or set aside and submitted that since the illegality has not been shown the claim must fail as it does not disclose a cause of action and the learned trial Judge was therefore perfectly right when he held that the order remained and subsisted.
Learned counsel’s submission on Issue No.2 is that the 3rd – 6th respondents acted in the performance of their official duties which acts are still valid and subsisting. They are thus entitled to immunity from civil liability provided for by section 14(1) & (2) of the Customary Courts Edict No.2 of 1984, Laws of defunct Bendel State applicable to Delta State and the following cases were cited in support: Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549, Boyo v. Atake (1970) WNLR 197; Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546. Learned counsel argued that the plaintiff/appellant’s case is predicated on the assumed illegality of the execution and submitted that this position is untenable because the act was carried out under and in strict compliance with the judgment and order of a court of competent jurisdiction.
On the last issue, learned counsel for 1st and 2nd respondents observed that the plaintiff sued the defendants in this case as joint tortfeasors, the cause of action against them being the alleged illegal execution against him. Since the evidence is the same, a discharge against some of the defendant/respondents operates as a discharge against all: Ogunsan v. Iwuagwu & L.C.C. (1968) 2 All NLR 124 at 129. Learned counsel submitted that the provision of Order 22 Rule 1 of the High Court Rules which deals with computation of time with respect to matters in the High Court and the Sheriffs and Civil Process Law Cap. 157 Laws of defunct Bendel State applicable to Delta State are inapplicable to this matter as the Rent Control and Recovery of Residential Premises Edict, 1977 gives the Customary Court sitting as a Rent Tribunal power to make whatever orders for possession it deems necessary. For the 3rd-6th respondents it was submitted that section 14(1) of the Customary Court Edict, 1984 will avail the 3rd-5th respondent while section 18 of the same Edict will grant immunity to the 6th respondents. The respondents accordingly asked us to dismiss the appeal.
I wish to first consider the issue of the application to amend the statement of claim. Generally, an amendment of the pleadings for the purpose of determining the real questions in controversy between the parties will be allowed at any stage of the proceedings unless such amendment will entail injustice or surprise or embarrassment to the other party or where the applicant is acting mala fide or by his blunder the applicant has done some injury to the respondent which cannot be compensated by costs or otherwise. The discretion of the court ought to be exercised so as to do what justice and fair play may require in the particular case. See: Adetutu v. Aderohunmu (1984) 6 SC 92 at 108; (1984) 1 SCNLR 515; Nwanyanwu v. Nweke (1995) 5 NWLR (Pt.394) 277. The plaintiff had, in his statement of claim dated 22nd day of September, 1992, claimed the following reliefs in paragraph 24 thereof: –
“24.(a) Wherefore the plaintiff claims against the defendants jointly and severally the sum of N500,00 (five hundred thousand Naira) being damages suffered and/or sustained by the plaintiff, plaintiff’s wife and the plaintiff’s nine (9) children on the 31st day of July, 1992 when the 1st defendant by his servants or agents, 2nd defendant, 6th defendant, two armed Nigeria Police men and two other persons wrongfully and/or illegally broke and entered the plaintiff’s house and/or two rooms apartment and forcibly packed out at gun point the plaintiff’s furniture, goods and chattels at No.6 Okpeki Street, Warri and wrongfully left the said furniture, goods and chattels outside under the pouring rain, and thereupon ejected the plaintiff from the said apartment/two room, and deprived the plaintiff of the lawful and/or constitutional/peaceable use of the said two rooms/apartment situate at No.6 Okpeki Street, Warri and the illegal execution/distress was wholly illegal and unjustifiable.
(b) And the plaintiff claims:
(i) Damages for illegal execution
(ii) Damages for trespass
(iii) Damages for wrongful trespass to plaintiff’s furniture, goods and chattels.
(c) And the plaintiff claims any other relief and/or reliefs.”
The 1st-5th defendants also filed their statement of defence dated 23rd day of November, 1992 in which they raised the incompetency of the action in paragraph 14 and consequently urged the court to dismiss the action. In the said paragraph 14 of the statement of claim the defendants averred as follows:-
“14. The Defendants would raise at the trial of this suit a preliminary objection on points of law as to the competency of the action against the defendants generally but particularly the 3rd – 7th defendants and contend that the same is incompetent in law and would move the court to dismiss the action in that:-
(a) The 1st and 2nd defendants moved the 6th defendant (who is lawfully charged with the duty of executing the courts order(s) to cause the execution to be levied on the plaintiff sequel to a judgment of the court lawfully delivered on 30/6/92.
(b) The 3rd-5th Defendants lawfully heard and delivered judgment in the case on 30/6/92.
The action is predicated on the aftermath of acts done by the 3rd-5th defendants on 30/6/92.
By the provisions of section 14(1) & (2) of the Customary Courts Edict, 1984 the 3rd – 5th defendants are legally protected against this action.
By the provision of section 18 of the Customary Courts Edict 1984, the 6th defendant is also legally protected against this action.”
In the course of the proceedings, after plaintiff had unsuccessfully asked that judgment be entered as per the writ of summons against 3rd-7th defendants, he then brought a motion dated 12th day of October, 1993. (See pages 50 – 52 of records) to amend the statement of claim in which he added paragraphs 20( d), (e), (f) and 24(b) to the proposed amended statement of claim.
The new paragraphs read as follows: –
“20(d) On the 30th of June, 1992, the 3rd-5th defendants in their judgment ordered the plaintiff to give the 1st defendant possession of the said premises on or before the 31st day of July, 1992.
(e) On the 31st day of July 1992 at about 6.a.m. 1st, 2nd, 6th defendants, two armed Nigeria Police and two other persons levied the illegal execution complained about in this action. The execution was carried out in bad faith in that the plaintiff was not allowed to exercise his right to stay in his rooms/apartment at 6, Okpeki Street, Warri on the said 31st day of July, 1992 when the plaintiff’s legal right to stay had subsisted and/or unexpired as per the judgment of 3rd-5th defendants.
(f) The said execution levied against the plaintiff/applicant on the 31st day of July, 1992 was not in compliance with the order made by the 3rd-5th defendants in their judgment, and therefore the said execution is illegal and was carried out with utmost bad faith.
24 (b) A declaration that the said execution is illegal.”
As already stated, the principle under which an amendment of the pleadings can be granted is for the purpose of determining the real questions in controversy between the parties. Even if the application for amendment of the pleadings had been moved and granted, this will not affect the immunity granted to the 3rd-6th defendants/respondents by virtue of sections 14(1) and 18 of the Customary Court Edict of the defunct Bendel State 1984 applicable in Delta State. The said provisions provide as follows: –
“14(1) No Customary Court President or Member shall be liable to be sued in any court of law for or on account of any act or thing done or purported or ordered to be done by him in exercising jurisdiction or power conferred under this Edict or thing being within the limits of his jurisdiction or power, if he at the time of doing the act or thing believed in good faith that he had the jurisdiction or power to do or order to be done the act or thing in question.
- No officer of any Customary Court or other person bound to execute lawful warrant or order issued or made in exercise of any jurisdiction conferred by this Edict shall be personally liable on account of anything done by him in the execution of any warrant or order of the court if the person issuing the same had been acting in exercise of lawful authority and in good faith.”
The particulars given by the appellant in respect of ground 2 in the original grounds of appeal evince clearly that the order for possession of the premises was properly made by the 3rd, 4th and 5th respondents. In his own words, the appellant stated that: –
“The Order above named was not only valid but was validly made by the defendants pursuant to the judgment of the court of competent jurisdiction in respect of which the appellant does not complain.”
What he was complaining about is “the wrongful authorisation of the execution of the said order…”
With this concession by appellant’s counsel, the statement of the law by Karibi- Whyte, J.S.C. in Egbe v. Adefarasin & Anor (1985) 16 NSCC (Pt.1) 643; (1985) 1 NWLR (Pt.3) 549 at 564 that:-
“The law as I understand it has always been and still is, that where the judge has assumed jurisdiction properly and the matter complained of was done within jurisdiction, neither malice nor corruption nor bias renders such conduct liable in an action.”
would give absolute immunity to the 3rd, 4th and 5th Respondents.
In Sirros v. Moore (1974) 3 All ER 776 Lord Denning M.R. dealing with the liability of the judge for acts within jurisdiction said at pages 781-782:-
“it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the Judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some steps to reverse his ruling.”
Learned counsel for 3rd-7th appellants has argued that the reason for the immunity given to Judges of the High Court which extends to inferior courts such as Magistrate Courts and Area Customary Court is to enable the judge conduct “his duty with complete independence and free from fear.” He cited the reasoning of De Commarmond SPJ in Onitiri v. Ojomo 21 NLR 19 at page 23 in support of the arguments. I agree entirely with the argument of counsel.
It would have been a futile exercise to continue with the case and grant the application for amendment of the pleadings against the 3rd, 4th and 5th respondents. The 6th respondent enjoys the same immunity as the 3rd, 4th and 5th respondents once it is shown that he executed the order signed by the 3rd respondent and did not go outside it. The warrant was made in exercise of jurisdiction conferred on 3rd, 4th and 5th respondents and since it was not shown that he exceeded the orders contained in the warrant to evict the appellant on the 31st July, 1992, he cannot be held liable for executing the warrant. In Holman Brother (Nig.) Ltd. v. The Compass Trading Co. Ltd. (1992) 1 NWLR (Pt.217) 368, this court held that where wrongful distraining is made, an action will lie against the sheriff and this includes the bailiff.
The appellant did not allege that the 6th respondent did not have a warrant to enter the appellant’s premises. Since the warrant specified that it was the appellant who was to give up possession and the order of eviction was executed on him, no liability attaches to the 6th respondent. He was an authorised officer who carried out the order duly signed by the 3rd respondent – See: Halsbury’s Law of England, 4th Edition, Vol.17, paragraph 460.
It remains to consider whether an action is maintainable against the 1st and 2nd respondents. The appellant stated in the statement of claim that the liability was both jointly and severally; hence any immunity being enjoyed by 3rd -6th respondents cannot be extended to the 1st and 2nd respondents. The learned trial Judge held that since the execution order had not been set aside it remained and subsisted. He went further to hold that the Customary Court had jurisdiction to sign a warrant of possession/execution in furtherance of its judgment made and if any question arose as to the validity of any act in this regard, that question had to the settled first and if established, the act or order set aside before the question of compensation for loss resulting from the unlawful act can be considered.
A wrongful execution is a trespass – Clissold v. Cratchley (1910) 2 KB 44; and the judgment creditor and his solicitor are liable in damages to the judgment debtor. – Barker v. Braham & Norwood (1773) WMB 1 866; Sanford v. Porter & W Aine (1912) 21 R 551. Thus, when a writ of execution is set aside as illegally issued, or is issued and put in force after the debt has been paid or after a valid tender of the amount due, the client and solicitor are liable, but neither of them is liable if it is left to the sheriff to do what is right. See: Halsbury’s Law of England 4th Edition para.431.
Thus, the liability of the 1st and 2nd respondents would arise only if the writ of execution is set aside – See: Akpunonu v. Bekaert Overseas (1995) 5 NWLR (Pt.393) 42. In Pavex International Co. (Nig.) Ltd. v. I.B.W.A. (1994) 5 NWLR (Pt.347) 685, this court in allowing the appeal, upheld the preliminary objection of appellant’s counsel when he contended that Balogun Ag. C.J. lacked the competence and jurisdiction to make the order upon an ex-parte motion or motion on notice or to interfere with the execution of a judgment of another judge of co-ordinate jurisdiction, after a writ of execution had been executed and an application for stay of execution of the judgment had been refused by the same judge (Adeniji J.). In the leading judgment of Uwaifo, J.C.A (as he then was), he dealt with irregular and wrongful execution of a writ of attachment and the consequences that follow. He said at page 700:-
“If there is a wrongful execution or irregular execution of a writ of attachment, certain consequences follow. Apart from the execution being liable to be set aside, damages may be awarded to a person who is affected by the execution. I do not think that there is anything like irregular or void issue of a writ of attachment which Balogun J. said he had no competence to entertain except perhaps a writ of execution which may be issued without leave of the court. If in the present circumstances of this case there had been wrongful or irregular execution properly so-called, even the lower court would be competent to set it aside. In that case an application to have it set aside would not be another method of obtaining a stay of execution which the lower court had refused. It is a situation which by itself calls for the intervention of the court as a remediable grievance ex debito justiciae.
He then made a distinction between what circumstance constitute wrongful and irregular execution. Instances of wrongful execution were given earlier in the judgment as contained in paragraph 431 of Halsbury’s Laws of English 4th Edition Vol. 17.
In the case of irregular execution, an execution is irregular where any of the requirements of the rules of court have not been complied with, and in such a situation the proceedings may be set aside or amended or otherwise dealt with in such manner or upon such terms as the court thinks fit. See paragraphs 459, Halsbury’s Law of England 4th Edition Vol. 17. Where the writ is set aside on the ground of irregularity, this does not prevent the judgment creditor from issuing and executing another writ.
The appellant should have applied to set aside the writ of execution first before instituting fresh action for damages for wrongful execution. Any amendment to the statement of claim, no matter what cause of action it discloses, cannot cure this fundamental defect because the right to maintain an action for wrongful execution only arises after the execution has been set aside: Halsbury’s Law of England 4th Edition Vol. 17 paragraph 431; Akpunonu v. Bakaert Overseas (supra); Pavex International Co. (Nig.) Ltd v. I.B.W.A. (supra).
I wish to say that while the High Court (Civil Procedure) Rules, 1988 of the defunct Bendel State are not binding on the Area Customary Court, the Sheriffs and Civil Process (Judgment Enforcement) Rules are binding on the said court.
The appellant’s brief was difficult to comprehend. It is not what a good brief should contain.
In conclusion, I find that the appeal is devoid of any merit and it is accordingly dismissed. The appellant shall pay costs to each set of respondents assessed at N2,500.00.
Other Citations: (2000)LCN/0747(CA)
