Alhaji Yekini Jimoh V. The Honourable Minister Federal Capital Territory & Ors (2006)
LawGlobal-Hub Lead Judgment Report
JOSEPH E. EKANEM, JCA.
By a motion on notice dated 21/1/2016 and filed on 22/1/2016 the applicant seeks the following reliefs:
“1. AN ORDER that the warrant for possession issued in the above Suit No: FCT/HC/CV/1991/2010 by the Chief Registrar and Deputy Sheriff of the High Court of the Federal Capital Territory, Abuja Judicial Division, Abuja, at the instance of the 3rd Respondent be set aside and the Appellant/Applicant restored into possession of his property at plot 108, Jabi Cadastral Zone, BO4, Federal Capital Territory, Abuja called plot 31, Umaru Dikko Street, Jabi, Federal Capital Territory, Abuja, which is in dispute in the Appellant’s appeal to the Supreme Court of Nigeria pending the hearing and the determination by this Honourable Court, of the Appellant/Applicant’s Motion on Notice for stay of execution and /or injunction dated and filed on 2/7/2015 in Appeal No: CA/A/26A/2012 BETWEEN ALHAJI YEKINI JIMOH and THE HONOURABLE MINISTER FEDERAL CAPITAL TERRITORY, FEDERAL CAPITAL DEVELOPMENT AUTHORITY AND ALHAJI BABA MUSTAPHA (suing through his authorized ATTORNEY/REPRESENTATIVE ALHAJI MOHAMMED SANI MUSA.
- AN ORDER setting aside the purported execution by, and all other steps by, the 3rd Respondent in the purported execution of the judgment of the High Court of the federal Capital Territory, Abuja Judicial Division, Abuja, delivered on the 7th day of December, 2011, by Honourable Justice S.E. ALADETOYINBO in Suit No: FACT/HC/CV/1991/2010 between ALHAJI BABA MUSTAPHA (suing through his authorized ATTORNEY/REPRESENTATIVE ALHAJI MOHAMMED SANI MUSA and THE HONOURABLE MINISTER FEDERAL CAPITAL TERRITORY, FEDERAL CAPITAL DEVELOPMENT AUTHORITY and ALHAJI YEKINI JIMOH which was affirmed by this Honourable Court on the 1st day of July, 2015 in Appeal No: CA/A/26A/2012 between ALHAJI YEKINI JIMOH and THE HONOURABLE MINISTER FEDERAL CAPITAL TERRITORY, FEDERAL CAPITAL DEVELOPMENT AUTHORITY and ALHAJI BABA MUSTAPHA (suing through his authorized Attorney/Representatives ALHAJI MOHAMMED SANI MUSA) levied on the Appellant/Applicants property at plot 108, Jabi Cadastral Zone, B04, Federal Capital Territory, Abuja municipally called plot 31, Umaru Dikko Street, Jabi Federal Capital Territory, Abuja on the 9/12/2015 and 14/1/2016 after the Appellant/Applicant had appealed to the Supreme Court against the said judgment and whilst the Appellant/Applicant’s Motion on Notice for stay of execution and/or injunction dated and tiled on 2/7/2015 was pending before this Honourable Court.
- AN ORDER that further steps by the 3rd Respondent in the execution of the judgment of the High Court of the Federal Capital Territory, Abuja Judicial Division, Abuja, delivered on the 7th day of December, 2011, by Honourable Justice S. E. Aladetoyinbo in Suit No: FCT/HC/CV/1991/2010 between ALHAJI BABA MUSTAPHA (suing through his authorized ATTORNEY /REPRESENTATIVE ALHAJI MOHAMMED SANI MUSA AND THE HONOURABLE MINISTER FEDERAL CAPITAL TERRITORY, FEDERAL CAPITAL DEVELOPMENT AUTHORITY AND ALHAJI YEKINI JIMOH which was affirmed by this Honourable court in the said Appeal No: CA/A/26A/2012 and now on appeal by the Appellant/Applicant to the Supreme Court of Nigeria be stayed and /or the 3rd Respondent be restrained from taking further steps in respect of the said purported execution pending the hearing and determination of the Appellant/Applicant’s Motion on Notice for stay of execution and/or Injunction dated and filed on 2/7/2015, pending at this Honourable Court.
- AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.”
The application is founded on eleven grounds which are set out in the motion paper. The application is supported by;
(i) A 35- paragraph affidavit deposed by one Edugie Abigail Abebe with the consent of the applicant, with 24 Exhibits numbered C1 – C 24 attached;
(ii) A further affidavit filed on 22/2/2016;
(iii) A 2nd further affidavit filed on 23/2/2016; and
(iv) A written address filed on 10/3/2016; and
(v) A reply on points of law
The 3rd respondent filed:
(i) A 26-paragraph counter-affidavit deposed to by Charles Jibuaka, Esq; a counsel in the Chambers representing the 3rd respondent with exhibits A, B, C, D, E, F, G, and H attached; filed on 3/2/2016.
(ii) An 8-paragraph further counter-affidavit still sworn to by Charles Jibuaka, Esq; with Exhibit “X” attached;
(iii) A written address filed on 15/3/2016;
On 7/4/2016, when the motion was moved counsel for the applicant M. I. Igbokwe (SAN) adopted and relied on his processes, and urged the court to grant the reliefs sought.
A. B. Anachebe (SAN) for the 3rd respondent also adopted and relied on his processes and urged the court to dismiss the application.
Chima Ede Esq; for the 1st and 2nd respondents did not oppose the application.
In his written address, applicants counsel formulated four issues for the determination of the application. The issues are:
“(i) Whether the Applicant’s notice of appeal and the Motion on Notice for stay of execution/ injunction pending the determination of the appeal to the Supreme Court were valid and filed by the Applicant before the 3rd Respondent levied execution of the judgment dated 1/7/15 on 9/12/15 and 14/1/16?
(ii) Whether the 3rd Respondent and his counsel were aware of the pendency of the Applicant’s Motion on Notice tor stay/injunction dated 2/7/15 and the notice of appeal before they levied the execution of the judgment on 9/12/15 and 14/1/16?
(iii) Whether the warrant of possession issued and the execution of the judgment dated 1/7/15 and 141/16 whilst the Applicant’s motion on Notice dated 2/7/15 were pending, are wrong and bad and should be set aside?
(iv) Whether this court should restrain the 3rd Respondent from taking further steps on the purported execution pending the determination of the motion for stay/injunction filed on 2/7/15.”
On the other hand, counsel for the 3rd respondent, proposed one issue for the determination of the application, viz;
“Whether the specific reliefs sought by the Applicant, a twice adjudged trespasser, are competent or sustainable in law and on the affidavit evidence placed before the court.”
Arguing his issue one, applicants counsel stated that upon a dismissal of his appeal to this court, the applicant filed a notice of appeal and a motion for stay of execution of the judgment pending the hearing and determination of his appeal. He submitted that both processes are competent.
In respect of issue 2, it was his contention that the 3rd respondent, his servants and agents were aware of the pendency of the notice of appeal and the motion for stay of execution before they levied execution of the judgment on 9/12/2015 and 14/1/2016. He noted that the motion was served on the Deputy Chief Registrar and Deputy Sheriff of the lower court and that advance copies of the two processes were served on 36 respondent’s counsel on 29/12/2015 by courier service He noted that the applicant, after execution was levied, was restored to possession on 15/12/2015 but on 14/1/16, the 3rd respondent, aided by the police, ejected the tenant of the applicant while the appeal and motion for stay of execution were pending.
Counsel referred to the case of VASWANI TRADING COMPANY V. SAVALAKH & COMPANY (1972) 12 SC 77 and submitted that the law sees the Deputy Sheriff and 3rd respondent’s counsel as agents of the 3rd respondent and their awareness of the process was ascribed to the 3rd respondent. He concluded that the executions levied on 9/12/15 and 14/1/16 were wrong and incompetent.
Arguing issue 3, counsel submitted that the issuance of the warrant of possession and the execution of the judgment were wrong, and should be set aside. He set out his reason for his stance including:
(i) That the issuance and execution were done while the notice of appeal and motion for stay of execution were pending to the knowledge of the lower court, the 3rd respondent and his counsel; and
(ii) That the issuance of the writ of possession and the execution of the judgment were an abuse of He cited and relied on several cases including ABDULLAHI V. GOVERNOR OF LAGOS STATE (1989) 1 NWLR (97) 356 and GOVERNOR OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT.18) 521 in support.
As regards issue 4, counsel submitted that there are special circumstances warranting the grant of prayer 3 which he said would ensure that the restored possession of the applicant is safeguarded, On the part of Counsel for the 3rd respondent and arguing his sole issue, it was submitted that the warrant for possession was issued by a Judge of the trial court and not the Chief Registrar and Deputy Sheriff (as slated in the motion paper). It was his further submission that applicants prayer 1 was undone by this as parties are bound by their reliefs In support, he cited and relied on OKOYA V. SANTILLI (1990) 2 NWLR (PT.131) 172 among other cases. It was his contention that a court can not grant a relief not specifically claimed by a party. It was finally submitted on prayer 1 that the applicant could not lawfully seek to be restored to possession of “his property” notwithstanding the two judgments which pronounced him a trespasser.
Turning his attention to prayer 2, counsel for 3rd respondent submitted that the said respondent not being a staff of the court could not possibly process or execute the warrant for possession. He noted that the applicant had deposed that his tenant was the person in occupation against whose properties the court levied execution. He pointed out that the applicant resorted to self-help in re-possessing the res and that courts frown al self – help He could therefore not be seeking an equitable indulgence while at the same time contemptuously disrespecting an order of the same court, he submitted.
With regard to prayer 3, it was his submission that it constituted an application for stay of execution by the applicant who has been adjudged a trespasser. It was his view that granting the prayer would amount to the court determining the applicant’s pending motion for stay of execution before it was heard. It was his further submission that an injunctive relief could not be granted an adjudged trespasser and that granting it would amount to pronouncing the applicant the owner of the res during the pendency of his purported appeal. In support, he placed reliance on AJOMALE V. YADUAT (1991) 5 NWLR (PT 191) 128, among other cases.
Continuing, counsel argued that since the 3rd respondent was not served with the notice of appeal and motion for slay, he could not rightly be held liable for applying to the lower court for execution prior to 2/12/2015.
It was finally submitted that the purported appeal of the applicant had long lapsed because no invitation for settlement of record has been sent to the 3rd respondent, record of appeal has not been transmitted and there is no admissible notice of appeal or motion for stay as both processes are not certified. The court was finally urged to refuse the application.
Appellant’s counsel filed a reply address spanning 24 pages, 7 pages more than the 3rd respondent’s address. That certainly is a legal oddity. Much of the reply address is a re-hash of the applicants original address which is not the function of a reply address. I shall therefore highlight only the parts of the reply address which is a reply property so called.
It was submitted in the reply brief that relief 1 in the applicant’s motion is not incompetent, that the 3rd respondent is not misled by it and that the attack on prayer 1 is a resort to technicality. It was also submitted that it is a judgment creditor who executes a judgment while the officials of the court acts as his agents. The case of NIGERITE LTD V. DALAMI (NIG) LTD (1992) 7 NWLR (253) 288, 299 was cited in support of the submission. Counsel for the applicant was of the view that the applicant was in possession of the property through his tenants.
It is pertinent at this stage to set out in summary the facts forming the background of the application under consideration. The High Court of the Federal Capital Territory, Abuja, gave judgment in favour of the 3rd respondent granting, inter alia an order setting aside the revocation of hrs right of occupancy over the property situate at plot 108, Jabi Cadastral Zone, B04, Abuja Municipality called plot 31, Umaru Dikko Street, Jabi, Abuja. The court also restrained the applicant, 1st and 2nd respondents from trespassing on the property. The appeal of the applicant to this court against the judgment was dismissed. The applicant filed a further appeal to the Supreme Court and also filed a motion on notice in this court for stay of execution of the judgment and /or injunction pending appeal to the Supreme Court. The motion was served on the Deputy Chief Registrar and Deputy Chief Sheriff of the trial court on 3/7/2015. Thus the trial court was fixed with knowledge of the pendency of those processes. See JULIUS BERGER (NIG) PLC V. TOKI RAINBOW COMMUNITY BANK LTD (2007) 1 NWLR (1016) 540, 598.
On 9/12/2015, officials of the trial court armed with a warrant for possession ejected a tenant of the applicant from the premises. The applicant regained possession of the promises, but on 14/1/2016, the applicant’s tenant was again ejected from the premises in enforcement of the judgment.
It was argued by 3rd respondents counsel that there is no admissible evidence of a notice of appeal or motion on notice for stay of execution as both processes attached to the affidavit in support of the motion are not certified The law is that documents attached to an affidavit in an interlocutory application should not be objected to as the issue of admissibility does not arise at that stage. See ADEJUMO V. GOVERNOR OF LAGOS STATE (1970) ANLR (1) 187, 191 and OLUTAYO V. FEDERAL UNIVERSITY OF TECHNOLOGY MINNA (2007) 13 NWLR (1051) 274, 301. I therefore discountenance the argument of the 3rd respondent s counsel.
It is also not correct to state as counsel for the 3rd respondent did, that the appeal of the applicant has lapsed because the record of appeal has not been compiled and transmitted to the Supreme Court from this court. The appeal is pending and can only be terminated upon an order made to that effect.
Having disposed of the points above, it is necessary to re-slate that the applicant’s motion for stay of execution of the judgment of this court pending the determination of the appeal to the Supreme Court (Exhibits C4 and C5, respectively, attached to the affidavit in support of the motion) were served on Deputy Chief Registrar and Deputy Chief Sheriff of the trial court on 3/7/15. Exhibit C4 in the said motion is a copy of the notice of appeal to the Supreme Court. It is thus clear that as at 3/7/2015 the trial court was aware of the pendency of the appeal of the applicant to the Supreme Court and the motion on notice for stay of execution/injunction pending the appeal. Exhibit C attached to the 3rd respondents counter- affidavit is a copy of the Writ for possession of premises issued by the trial court. It was issued or purportedly issued on 2/12/2015. Armed with the wit for possession, officers of the trial court on 9/12/2015 levied execution.
It is no doubt the taw that the filing of a notice of appeal will not operate as a stay of execution of the judgment appealed against. Section 24 of the Supreme Court Act provides that an appeal shall not operate as a stay of execution. However where a notice of appeal is coupled with a motion on notice filed for stay of execution of the judgment appealed against the victorious party is not permitted to levy execution during the pendency of the application for stay of execution. This is because that would result in stultifying the courts exercise of its discretion and foisting the court with a fait accompli. In deed, it is a subtle attempt to nibble at the inherent powers of the court as preserved by Section 6 (6)(a) of the Constitution of Nigeria, 1999 (as amended) All courts of record, trial or appellate, have inherent power to grant a stay of execution of judgment of to refuse it. See NIGERIAN BREWERIES PLC V. OSHO (2001) 7 NWLR (716) 746. 762.
In the case of VASWANI TRADING CO V. SAVALKH & CO (1972) ALL NLR 922, 927 COKER, JSC, stated as follows.
“In the present case there is no doubt the writ was executed and possession wrestled from the applicant whilst the motion to this court for a stay of execution was pending and awaiting a date to be assigned by this court for the hearing of the application. It is true and correct to observe that the notice of appeal filed would not operate as a stay of execution and section 24 of the Supreme Court Act makes this more clear; but it is equally correct to point out that the section does not prescribe in favour of any execution being carried out during the pendency of an appeal. Indeed, by its provision it postulates that during the pendency of an appeal the supreme court has got the jurisdiction to accede to an application tor a stay of execution conditionality or otherwise. The section does not give any licence, directly or indirectly, for the issue and execution of any process which may ultimately be offensive.”
In the case of NIGERITE LIMITED V. DALAMI NIG LTD supra, this court held that issuance of a will of fiaeri facies for the execution of a judgment when knowledge of the pendency of an application for stay of execution could be imputed to the issuing court was incompetent. See also NITEL PLC V. ICIC (DIRECTORY PUBLISHERS) LIMITED (2009) 16 NWLR LIMITED (PT 1167) 356, 384, ABDULLAHI V. GOVERNOR OF LAGOS STATE (1989) 1 NWLR (PT 97) 356, 369 – 370 AND JULIUS BERGER NIG PLC. V. TOKI RAINBOW COMMUNITY BANK LTD supra.
I must observe that there is no proof of service of the notice of appeal and the motion for slay of execution on the 3rd respondent prior to the execution of 5/12/2015. However, by Order 11 Rule 29 of the Judgments (Enforcement) Rules, the Deputy Sheriff of the trial court was for the purpose of the execution and matters relating thereto an agent of the Judgment creditor/respondent. In VASWANI TRADING CO V. SAVALAKH & CO.; supra 927, COKER, JSC, stated that;
“We think also that it is idle for the respondents to argue … that they were not aware of the pending proceedings in this court. We think that they were so aware and even if that were not so the law clearly makes the Deputy Sheriff their agent in these matters…”
See also NIGERITE LIMITED V. DALAMI NIGERIA LIMITED supra. 299.
It follows therefore that the argument of the 3rd respondent’s counsel that the premise of the application (of the applicant) is flawed in the absence of prior service of the motion for stay of execution on him does not represent the law. I therefore discountenance it. The further levying of execution on 14/1/2016 was done with the knowledge of the pendency of the appeal and motion for stay of execution on the part of the 3rd respondent, his counsel having been given advance notice thereof through Red Star express courier delivered on 29/12/2015. It is immaterial that no order of court was obtained for substituted service of the processes as they were sent as advance copies to put him on notice of their pendency.
It was argued by counsel for the 3rd respondent that prayer 1 on the motion paper was undone by Exhibit “C “11” attached to the applicant’s affidavit which shows that the writ tor possession was issued by a Judge and not by the Chief Registrar and Deputy Sheriff of the trial court. It is my view that the submission is an adventure in technicality which has no place in modern jurisprudence. See OLLEY V. TUNJI (2013) LPELR- 20339 (SC) As argued by counsel for the applicant, the 3rd respondent has not been misted by the innocuous error in stating in prayer 1 who issued the writ for possession. The error is not fundamental and therefore does not render the prayer incompetent. The substance of the prayer is clear, viz; to set aside the warrant for possession issued by the trial court which is exhibited to the affidavit in support of the application as Exhibit “C11”. What the taw requires the court to do is so to examine the substance of the prayer and not engage in chasing shadows. See the case of ABUBAKAR V. YAR’ ADUA (2009) 4 NWLR (1078) 465, 513. The law is as expressed in the latin maxin de minimis non curat lex, id est, the law does concern itself with trifles
I agree with the 3rd respondent s counsel that the applicant cannot ask to be restored to “his property as he has been adjudged not to be the owner of the property. However, a warrant for possession wrongly issued, as in this instance, must be set aside and the consequence is the restoration of possession to the victim of its execution even if he is not the owner. What is of concern is not the ownership of the property but the attempt to overreach the court and foist it with a fait accompli.
It was also argued by counsel for the 3rd respondent that prayer 2 is wrong as the judgment creditor/respondent is not a staff of the court and so he court not possibly have processed or executed the judgment.
This again is another attempt at technicality which shall not be allowed to becloud the court’s vision. In any case, it has been stated in this judgment that in matters of execution of judgment, the Deputy Sheriff acts as an agent of the judgment creditor and so the execution by the Deputy Sheriff was execution by the 3rd respondent. It is also immaterial that the tenant of the applicant was in occupation as possession of a tenant is ascribed to the landlord. See LADIPO VAJANI (1997) 8 NWLR (Pt. 517) 356, 357.
Counsel for the 3rd respondent contended that the applicant resorted to self-help by breaking into the property after execution was levied by Bailiffs of the trial court. However, the applicant’s position is that his possession of the Property was restored by the Chief Registrar and Deputy Chief Sheriff of the trial court after it was discovered that the execution was wrongly levied. The affidavit containing this deposition was addressed for service on the Chief Registrar and the Deputy Sheriff of the trial court. The said officers have not reacted to the deposition of the applicant. The deponent of the affidavit of the 3rd respondent did not state the source of his information that the applicant broke into the property. In any event, the 3rd respondent took back possession of the property on 14/1/2016 with the assistance of the Police.
It is therefore my view that this is a proper case for the setting aside of the writ for possession issued by the trial court and its execution as well restoring the applicant to possession pending the hearing and determination of the motion of notice for stay of execution and /or injunction.
As regards prayer 3, it is my view that it is necessary to grant the application to preserve the res pending the determination of the motion on notice for stay of execution and or injunction pending before this court. Its grant will not amount to determining the motion for stay of execution and/or injunction since it wilt only last until the motion for stay is heard and determined by this court.
On the whole, I hold that the application has merit and it succeeds I grant the same in the following terms;
- That the warrant for possession issued in suit No.FCT/HC/CV/1991/2010 by the High Court of the Federal Capital Territory, Abuja Judicial Division, Abuja, at the instance of the 3rd respondent be and is hereby set aside pending the hearing and determination by this court of the applicant’s motion on notice for stay of execution and /or injunction dated and filed on 2/7/2015 in appeal No. CA/A/26A/2012 between Alhaji Yekini Jimoh and the Honourable Minister, Federal Capital Territory
and 2 Ors.
- That the purported execution and all other steps in that regard, by the 3rd respondent in purported execution of the judgment of the High Court of the Federal Capital Territory, Abuja Judicial Division, Abuja delivered on the 7th day December, 2011 in Suit No. FCT/HC/CV/1991/2010 between Alhaji Baba Mustapha (Suing through his authorised attorney/representative Alhaji Mohammed Sani Musa & 2 Ors and Alhaji Yekini Jimoh) which was affirmed by this Honourable court in Appeal No. CA/A/26A/2012 between Alhaji Yekini Jimoh and the Honourable Minister, Federal Capital Territory & 2 Ors be and is hereby aside and the applicant shall be restored to possession of the property at plot 108, Jabi Cadastral Zone B04, Federal Capital Territory, Abuja called plot 31, Umaru Dikko Street, Jabi, Federal Capital Territory Abuja pending the hearing and determination by this court of the applicant’s motion on notice for stay of execution and / or injunction dated and filed in Appeal No. CA/A/26A/2012.
- That the 3rd respondent be and is hereby restrained from taking further steps in execution of the said judgment pending the hearing and determination of the applicant’s motion on notice for stay of execution and/or injunction.
The parties shall bear their costs.
Other Citations: (2006)LCN/1965(CA)
