Alfa Kamoru Salawu V. Mrs. Z. S. Adebanke & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

MODUPE FASANMI, J.C.A.

This is an appeal against the ruling of the High Court of Justice Oyo State delivered on 12th July 2002, The Appellant was the 1st Respondent before the lower court while the 1st Respondent was the Applicant in suit No. 1/172/2000. The relief sought for at the lower Court was for an order setting aside the sale of the Judgment debtor/Applicant’s immovable property situate, lying and being at No. 10, Salawu Street, New Gbagi, Ibadan Oyo State for non-compliance with the legal procedures for sale.

The 1st Respondent filed the application dated 19th March 2002 while the Appellant filed a counter affidavit dated 23rd of May 2002. The application was argued on the 7th June 2002 and ruling was delivered on 12th July 2002. The purported sale of the 1st Respondent’s property on the 12th of March 2002 was set aside by the lower court. The Appellant being dissatisfied with the said ruling thereafter appealed to this court by its notice of appeal dated 15th July 2002 containing 3 grounds of appeal. In the Appellant’s brief of argument dated and filed on the 26th of July 2004 but was deemed, properly filed and served on the 17th of May 2005, 3 issues were formulated for determination as follows:

(1) Whether the learned trial judge as a court of coordinate jurisdiction could validly treat as non-existent a positive order of the Chief Judge of Oyo State of 21/1/2001 ordering the attachment and sale of the 1st Respondent’s property lying being and situate at 10 Salawu Street, New Ife Road in view of her failure to liquidate the judgment debt in this case.

(2) Whether by virtue of the ruling of the learned lower court Judge delivered on 12th Oct. 2001, that a default in one instalment will make the entire debt realizable, it is open to the Court, to set aside a sale carried out pursuant to a standing and positive order of court of coordinate jurisdiction which was never set aside at any time.

(3) Whether inspite of the order of the then Chief Judge of Oyo State Hon. Mr. Justice Moshood Adio (of 21/01/01) the Appellant upon any default in the instalmental payment ought to begin all over, the process of attaching the MOVABLE property of the Respondent before moving against the IMMOVABLE property as posited by the trial Judge in her ruling, by filing a fresh application to attach immovable property.

Learned Counsel for the Appellant distilled Issue 1 from grounds A & B of the grounds of appeal. He distilled issue 2 from grounds B & C of the grounds of appeal and issue 3 from grounds B and C of the grounds of appeal respectively.

Learned Counsel for the 1st Respondent in his brief of argument before this Court dated and filed 16th of June 05 formulated three issues for determination thus:-

(i) Whether the trial Court was not justified in granting the application for the setting aside of the purported sale of the 1st Respondent’s property situate lying and being at No. 10 Salawu Street, New Ife Road, Ibadan for non-compliance with the laid down procedures.

(ii) Whether at the time of the purported sale the order of the learned Chief Judge of Oyo State made on 10/1/2001 has not been overtaken by the subsequent order for instalmental payment made on 12th Oct. 2001 by the lower Court

(iii) Whether upon the default of payment of an instalmental payment by the 1st Respondent the Appellant ought not to have commenced fresh steps to attach the 1st Respondent’s property on the outstanding judgment debt.

The learned Counsel for the 2nd Respondent in his brief of argument filed before this court on 13th of Sept, 05 but deemed properly filed and served on 29th of June 06 associates and adopts the three issues formulated by the Appellant in his brief or argument and in addition formulated three other issues for determination as follows:-

(1) Whether or not the order of Hon, Justice I.S Yerima made on 12/10/2001 has the effect of reviewing the order of Hon, Chief Judge of Oyo State, Justice M.O. Adio (as he then was) made on 10/1/2001.

(2) Whether or not the purported reduction in judgment debt in this case will affect the sale of the 1st Respondent’s immovable property.