Olufemi Onabanjo V. The Sheriff High Court of Justice & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the judgment of the Ibadan High Court No. 12 delivered on 8th day of January, 2004 wherein the appellant was then the plaintiff while the respondents were the defendants.

Briefly the plaintiff/appellant’s claims before the trial court at paragraph 21 at pages 34 and 35 of the record of appeal were as follows:-

“1. Declaration that the purported auction of the plaintiff’s house carried out in respect of the plaintiff’s landed property situate lying and being at Arigbowoja village Alakia Area, Old Ife Road Ibadan Oyo State of Nigeria is null and void and of no effect.

IN THE ALTERNATIVE

2. An order setting aside the purported sale of the plaintiff’s bungalow situate lying and being at Arigbowoja village, Alakia area, Old Ife Road Ibadan Oyo State of Nigeria purportedly carried on 26th January, 1993.
3. An order of perpetual injunction restraining the defendants, their agents or privies or any other person acting on their behalf from doing anything in respect of the said sale or ejecting the plaintiff from the said property until the final determination of the case.
4. N10,000.00 as general damages against the defendants jointly and severally for trespass committed on his house at Arigbowoja village Alakia, Old Ife Road Ibadan.”

The plaintiff/Appellant purchased the property subject of dispute in this suit from the 2nd defendant/Respondent in 1988 for a sum of N45,000.00. The appellant took immediate possession of the property after the agreement for sale and payment of N20,000.00 out of the purchase price leaving a balance of N25,000.00 unpaid. An action in suit No. 1/529/91 was filed by the 2nd defendant/respondent in 1991 for the payment of the balance of N25,000.00 and he obtained judgment.

In the execution of the judgment in suit no. I/529/91, efforts were made to attach the movables of the plaintiff/appellant but subsequently the 2nd defendant/respondent filed a motion for the attachment of the immovable, which is the property subject matter of dispute in this suit. The motion was served and the court granted the order for the attachment of the property in dispute described in suit No.1/529/91 as being at Adegbowoja.

Pursuant to the order of the court, the plaintiff’s property was attached, auctioned and sold to the 3rd defendant/respondent on the 26th of January 1993 for the sum of N45,000.00. The 2nd defendant/respondent was paid the judgment sum of N25,000.00 in suit No.I/529/91.

The plaintiff/appellant, subsequent to the auction carried out in suit No. 1/529/91 on 26/1/93, filed an action challenging the sale of his property. Pleadings were filed, evidence led and the trial judge dismissed the action on the 8th January 2004. The plaintiff/appellant was irked and very much dissatisfied with the decision of the lower court and hence filed a notice of appeal against the said judgment dated 12th January 2004 and filed on the 4th March, 2004. The notice contains nine grounds of appeal.

From the said grounds of appeal, the appellant distilled six issues for determination as follows:-

“1. Whether or not the order for the sale and attachment of the appellant’s immovable property at Adegbowoja village obtained by the 2″ defendant/respondent was incompetent therefore a nullity so also the execution and sale of the said immovable property.

2. Whether or not the appellant’s landed property in dispute at Arigbowoja village was legally and lawfully sold by the 1st and 2nd defendants/respondents when the order of the court authorizing or directing the sale of the appellant’s immovable property was in respect of appellant’s alleged immovable property at Adegbowoja village and not Arigbowoja village.
3. Whether or not the purported execution and auction sale of the plaintiff/appellant’s immovable property at Arigbowoja village were valid when the plaintiff/appellant/judgment debtor in suit No. 1/529/91 was not served with the application for attachment and sale of his immovable property and secondly when the statutory provision of the Constitution and the Judgment Enforcement Rules Cap 117 Laws of Oyo State were not complied with.
4. Whether or not the learned trial judge was right in dismissing the plaintiff’s case by refusing to set aside the purported execution and sale of the appellant’s immovable property at Arigbowoja village when the 3rd defendant/respondent who was alleged to have bought the property neither filed any Statement of Defence nor gave evidence in rebuttal of the plaintiff/appellant’s evidence so also the 1st defendant, on the authority of the case of DR. N. A. IRAGU NIMA V. RIVER STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY & 2 ORS 2003 7 SCM PG.93 at 94.
5. Whether or not the learned trial judge was right in basing his decision on choice of different names relating to the same place in defiance to the name cited in the documents of title and certificate of occupancy issued by Oyo State Government Ministry of Land in respect of the property purportedly sold and on the doctrine of waiver alleged by the 2nd respondent’s counsel and accepted by the court.
6. Was the learned trial judge right in not awarding damages in the alternative.”

On behalf of the 1st respondent, two issues, one following the other, were formulated by their learned counsel as follows:-

“1. Whether the description of the plaintiff/appellant’s property as being at Adegbowoja in place of Arigbowoja invalidates the auction sale of the plaintiff/Appellant’s property carried out on 26th January, 1993.

2. Whether the order of attachment made by the court in suit No. 1/529/91 which led to the sale of the plaintiff/Appellant’s property at Adegbowoja village Old Ife Road could be an issue for the lower court especially when the plaintiff/Appellant did not appeal against it or move to set it aside suit.”

The 2nd and 3rd respondents have also formulated three issues for determination as follows:-