Akin Akinyemi V. Professor Mojisola A. O. Soyanwo & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C.

This appeal is against the ruling of the Ibadan Division of the Court of Appeal on the 14th of January, 2001. The ruling is at pages 57 – 83 of the record. The motion sequel to which the decision was given, filed on the 15th of February, 2000 prayed for the following orders:

(a) to set aside ex debito justitiae, the writ of execution dated 16th July, 1999 issued out of Oyo State High Court;

(b) to set aside execution of the judgment wrongly carried out on 21 July, 1999 in pursuance of the said writ of execution;

(c) to restrain the respondent from taking further steps in the levying of execution against the properties of the defendants/appellants/applicants; and

(d) to direct the Sheriff of the Oyo State High Court to release the Daewoo Racer car No. OYO AE 178 DDA attached pursuant to the said writ of execution.

The ground for application was stated to be as follows:

“The ground for the application is that the judgment debt was duly deposited with the Deputy Chief Registrar of the Court of Appeal on 15th July, 1999 as ordered by this Honourable Court.”

In granting the application, the Court per Adekeye (J.C.A) at page 80 concluded as follows:

“Consequently this application succeeds. All the reliefs except (c) are granted. The issuance of the writ by the High Court Ibadan on 16/7/99 is set aside, so also is the execution of the same writ on the 21/7/99. The car AE 178 DDA wrongly attached by the bailiff of the High G Court Ibadan in the process of execution of the writ shall be and is accordingly released to the applicants.”

Earlier in the ruling, the lower court examined relief (c) in considerable details and concluded at page 79 of the record that in view of the subsisting order for conditional stay of execution granted

on the 2nd February, 1999, granting another order of restraint of the respondent/appellant would be merely superfluous.

The notice of appeal dated 14th February, 2001 contained two grounds of appeal. In the appellants’ brief settled by Chief Akin Olujinmi, SAN the following two issues for determination were formulated:

(a) “Whether in the absence of an appeal against the order of the High Court directing that the attached car be returned to the custody of the High Court, the Court of Appeal could on a mere application order the release of the car.