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.

2. 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.

3. 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”.