Baale Simeon Akinya & Anor V. Chief Clement Omeyi (2016)

LawGlobal-Hub Lead Judgment Report

MOJEED ADEKUNLE OWOADE, J.C.A.

 This is an appeal against the judgment of Hon. Justice F. O, Aguda-Taiwo delivered on 21st October 2010 in the Ore Judicial Division of the High Court of Ondo State.
By a Writ of Summons of 26/9/2007 followed by a statement of claim of 2/11/2007, the Respondent as 1st Plaintiff claimed against the Appellants as defendants as follows:
(a) A declaration that the execution of the judgment in Suit No. ORCC/87/2004 at the 1st Plaintiff?s premises at kilometer 100 Lagos- Benin Express Way on 24th day of September 2007 is unlawful, unconstitutional/null and void and of no effect and as such amounts to trespass.
(b) An order on the defendants jointly and severally to pay special and general damages to the 1st plaintiff as follows:
(i) N5000 per day special damages for Hotel accommodation for the two rooms the 1st Plaintiff and his household occupied at Philinneka Hotel, Benin-Lagos Express Way, Showboy with effect from 24th day of September 2007 till the seal is (sic) removed from the 1st Plaintiff’s house or the date of judgment whichever is earlier.

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(c) N2000 per day for the loss of profit from the sale of food and drinks on the 1st Plaintiff’s Restaurant with effect from 24th day of September, 2007 till the seal is (sic) removed from the 1st Plaintiff’s house or the date of judgment in this case, whichever is earlier.
(d) Three Million Naira (3,000,000) general damages for the trespass committed by the defendants on 24th September, 2007 when the defendants and their agents and servants broke into and entered the 1st Plaintiff’s premises to execute the judgment in Suit No. ORCC/87/2004.
(e) A perpetual injunction restraining the defendants, their servants, agents, privies or any other person whosoever from further acts of trespass on the 1st Plaintiff?s properties.

The Appellants as defendants filed a statement of defence on 26/5/2008, consequent upon which the Respondent filed a Reply to statement of defence on 26/9/2008.

In the Court below, the Plaintiff testified and called his wife as a witness while the 1st and 3rd defendants testified and called one other witness.

?The Respondent as Plaintiff gave evidence that the Plaintiffs in Suit No. ORCC/87/2004 levied execution of

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the judgment through the balliffs who earlier pasted Exhibit E on his Respondents house and the police, who came to his premises on the 24th of September to drive him and his family out of his premises which was locked up. All the parties also agreed that the Respondent?s premises were actually sealed up on the 24th September 2007. The Respondent gave evidence that on the 24th of September, two policemen came into his premises containing three structures and sealed it up without letting him take anything out. His evidence was supported by that of PW2. Both DW1 and DW3 also gave evidence that the premises of the Respondent was sealed and locked up.

The Appellants as defendants gave evidence that the Respondent was served with a Writ of Summons in respect of Suit No. ORCC/87/2004.They admitted however that he (the Respondent) was not joined as a party to the said suit. In particular, DW1 further testified that he is not liable to pay damages to the Respondent who still stayed in his house after the Court’s bailiff was instructed to open the premises to him on his (DW1?s) instruction.

?The learned trial Judge made copious references to

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the judgment of the Customary Court in Suit No. ORCC/87/2004 and found out that the Respondent was not a party to suit No. ORCC/87/2004. The learned trial Judge held first at pages 92 – 93 of the record that:
The defendant/judgment debtor in this case is Emmanuel Egbedofor who was sued personally.
There is no evidence before the Court that the Plaintiff who is not a party to the suit was a servant, agent or privy of the defendant or that Egbedofor sold or alienated any land to the Plaintiff?.
There is no evidence that the land which was developed by the Plaintiff is the same as that in respect of which judgment was given. There was however evidence that the defendants acting through the police temporarily dispossessed the Plaintiff of the enjoyment of his property. Since the Plaintiff gave unchallenged evidence that he carried on restaurant business in the premises as well, he was also deprived of his means of livelihood”.

After finding that the service of both the Writ of Summons and Writ of Possession on those who are not parties to suit No ORCC/87/2014 is irregular, the learned trial Judge further held at pages 96