Akinyemi Fasuba V. Mrs. F. Taiwo Adumasi & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering The Leading Judgment)

This is an appeal from the judgment of S. A. Sadiq J. of the Akure Division of the High Court of Ondo State delivered in Akure on 29th September, 2005.

By a Writ of summons and statement of claim dated 2/1/1996, the Appellant as Plaintiff claimed against the Respondents (Defendants) jointly and severally as follows:-

(a) A declaration that the entire proceedings including the judgment therein given on 23rd November, 1994 in suit Number AK/93/92 between the first Defendant as plaintiff on the one hand and the second and the third defendants as well as the Plaintiff as Defendants on the other hand are wrongful, illegal, unconstitutional, null, void and of no effects whatsoever as the same are vitiated by fraud, misrepresentation, substantive and procedural irregularity and illegality.

(b) An order setting aside and nullifying the said proceedings and judgment, they being wrongful, illegal, unconstitutional, null, void and of no effect.

The 1st Respondent in this appeal instituted suit No.AK/93/92 against the Commissioner of Police Ondo state and 2 others whereby she claimed that the seizure, detention and the purported sale of her Peugeot 504 saloon car Registration No. LA 2535 SF by the 1st and 3rd Defendants to the 2nd defendant is null, void, unconstitutional and of no legal effect.

An order directing the defendants to deliver the said vehicle in a perfectly motorable condition to the Plaintiff or in the alternative to pay to the Plaintiff the sum of N100,000.00 (One Hundred Thousand Naira) being the current market price of the vehicle Registration No. LA 2535 SF and N300,000.00 (Three Hundred Thousand Naira) as general damages.

On 23/11/1994, S. A. Afonja J. of the Akure Division of the Ondo State High Court granted the Plaintiff’s (now 1st Respondent) reliefs in suit No.AK/93/92 found the Defendants therein jointly and severally liable to the plaintiff’s claims and held inter alia as follows:-

“2. A declaration that the purported sale of the plaintiff’s Peugeot 504 Saloon Car with Registration No. LA 2535 SF by the 1st and 3rd Defendants to the 4th Defendant is illegal null and void.

4. An order that the 4th Defendant shall deliver to the plaintiff immediately or within twenty-one days from this day and in good and road worthy condition the said Peugeot Car with Registration No. LA 2535 SF now in custody of the Defendants or of anybody else through all or any of the Defendants.
5. An order that in the event of a failure of all or any of the Defendants or other person or persons to comply with the above order to deliver the said vehicle No. LA 2535 SF to the plaintiff within the said period and in the said condition as prescribed above, the Defendants shall become liable jointly and severally to the Plaintiff in the sum of N180,000.00 (One Hundred and Eighty Thousand Naira) being the current market price of the said vehicle as claimed by the plaintiff;—-”

The Appellant (Plaintiff in suit No.AK/7/96) who was referred to as the 4th Defendant in suit No. AK/93/92 instituted the suit now on appeal that his name was not in the writ of summons and statement of claim in suit No.AK/93/92 that he was never served any processes and that he never appeared in the trial of suit No.AK/93/92.

That, in any event, he was not the person who purchased 1st Respondent’s vehicle No. LA 2535 SF from the Police auctioneer as to be liable to return the said vehicle or his money worth to the 1st Respondent (plaintiff in suit No.AK/93/92. Pleadings were filed and exchanged by the Appellant and the 1st Respondent in suit No.AK/93/92. The Appellant as Plaintiff gave evidence and called one other witness – PW2. The 1st Respondent also gave evidence. At the trial, Appellant tendered Exhibits P1 – P4.

At the end of the trial, the learned trial judge held at page 43 of the records that:

“In view of all I have said and held above, the plaintiff claims as contained in paragraphs 5(a) and (b) of the amended statement of claim and as constituted in this action lacks merit, incompetent, a nullity and same is accordingly dismissed—”

Dissatisfied with the judgment the Appellant filed a Notice of Appeal (containing five (5) grounds of appeal) in this court on 21st October,2005. By order of this Honourable Court, the Appellant filed an Amended