Alhaji Baba M. Saleh V. Alhaji Shetima Monguno & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C.

The process culminating in this appeal started 24 years ago when the 1st respondent, as plaintiff filed suit No. M1152/82 against the appellant as defendant at the Borno State High Court. The action was under the undefended list procedure and he obtained judgment for the sum of N1,412,926.00 plus N5,000.00 costs on the 16/12/82. The appellant filed an appeal. While he pursued the appeal, he did not seek and obtain an order for stay of execution.

The 1st respondent made some efforts to recover the judgment debt and as at 26/1/84, he had recovered only N280,000.00 from the movable properties of the appellant leaving a balance of about N1,137,986.00. On the 26/1/84 therefore, he filed a motion for leave to attach three specific immovable properties of the appellant in Maiduguri covered by certificates of occupancy Nos. NE 1776, NE 1777 and NE 1828. And on the 29/2/84 the trial Chief Judge granted the leave. In purported execution of the aforesaid leave/order of the 29/2/84, the 2nd respondent, (Deputy Sheriff High Court, Maiduguri), at the instance and as agent of the 1st respondent, sold not only the 3 properties specified in the order but also 4 other properties of the appellant not covered by the leave/order.

By the judgment on the 27/1/86, the Court of Appeal allowed the appeal and the judgment of the 16/12/82 was set aside for being a nullity. In the wake of this nullification the 1st respondent filed a fresh action in suit No. M/36/86. On the application by the defendant/applicant/appellant the trial court set aside the order of sale of 29/2/84 on the 15/7/86.

And on the 25/8/87, this motion culminating in this appeal was filed. The motion prayed for an order or orders:

(A) Directing the 3rd – 8th respondents/any of them to and deliver up possession of the under listed three houses covered by certificate of occupancy Nos. NE 1776, NE 1777 and NE 1828 sold at an auction by the 2nd respondent at the instance of the 1st respondent and purchased severally by the 3rd – 8th respondents pursuant to the order of this Honourable Court in the suit herein on the 29th February, 1984 which order has now been set aside by the order of this Honourable Court of 15th July, 1986 thereby rendering the sale of the said houses null and void.

1. One two-storey building situate at Buba Gana Road, Gamboru Ward, Maiduguri.
2. Two storey-buildings in one compound situate at Railway Street, Gamboru Ward, Maiduguri.
3. One house situated at No. 29 Yaskuma Street, Gamboru Ward, Maiduguri.

(B) Also directing the 3rd – 8th respondents/any of them to quit and deliver up possession of the under listed houses unlawfully sold at the same auction by the 2nd respondent at the instance of the 1st respondent and purchased severally by the 3rd – 8th respondents.

(1) One house situate at Lawan Usman Street, Gamboru Ward, near Alhaji Ali Mohammed’s house, Maiduguri.

(2) One two-storey building situated along Airport Road, Bulumkutu Ward, Maiduguri.

(3) One house situated at No. 13 Musa Dagash Street, Gamboru Ward, Maiduguri.

(4) A piece of land measuring 100ft x 50ft at Bulumkutu Ward, Maiduguri purchased by the 8th respondent.

The motion was supported by an affidavit of 15 paragraphs. No counter-affidavit was immediately filed by any of the respondents. On the 16th of February, 1988 the trial Chief Judge decided that the motion would not be taken until the fresh suit filed by the 1st respondent against the appellant had been dispensed with (see page 10 of the record). Nearly 10 years after that is, on the 21st of February, 1997 the 3rd respondent filed a 9 paragraph counter-affidavit. The motion was finally heard on the 26th of February, 1997. In a considered ruling on the 7th of April 1997, the trial court dismissed the application. Dissatisfied with that decision the appellant appealed to the Court of Appeal.

By its judgment on the 26th of June 2001, the appeal was dismissed. Still dissatisfied, the defendant/applicant/appellant has come on further appeal to this court. Before this court the appellant, 3rd, 4th and 7th respondents filed and exchanged their briefs of argument. The appellant’s brief of argument was prepared by J. B. Daudu, SAN. Mr. M. A. Adamu prepared two separate briefs for the 3rd and 7th respondents. And Nankham Ayuba Dammo prepared the brief of the 4th respondent. The 1st, 2nd, 5th, 6th and 8th respondents did not filed any brief. In the appellant’s brief of argument, Mr. J. B. Daudu SAN formulated seven issues for determination. The issues were adopted in the briefs of the 3rd, 4th and 7th respondents. The issues as formulated by Daudu, SAN are as follows:-

(1) Whether the Court of Appeal was right in affirming the decision of the Borno State High Court that steps taken by the latter in enforcing her judgment which was later adjudged a nullity by the former and which had led to the void sale of appellant’s houses could not be reversed by an application brought by way of a motion on notice as the appellant did but by a writ of summons