Bime Ventures Ltd V. Linpak (Nig) Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED LAWAL GARBA, J.S.C. 

In the judgment delivered on 8th of May, 2009 by the Court of Appeal, Lagos Division (Court below) in the Appellant’s appeal, it, among others, ordered that:-

“(3) The Deputy Sheriff of the High Court of Lagos State shall take immediate possession of 20 Type A locked up shops at Awolowo Market, Olosa, Mushin, Lagos and vest same on the defendant/counter-claimant.”

Aggrieved by the order, the Appellant brought this appeal on a lone ground contained on the Notice of Appeal dated 18th May, 2009 which was amended by the Amended Notice of Appeal filed on the 9th February, 2022, deemed on the 10th February, 2022; the date of the hearing of the appeal. The Amended Notice of Appeal retains the sole ground of appeal which I can afford to set out in details, as follows:-

“1. ERROR IN LAW

The learned justices of the Court of Appeal erred in law when they relied on the provision of Section 15 of the Court of Appeal Act to order the Deputy Sheriff of the High Court Lagos State to take immediate possession of 20 type A lock-up shops at Awolowo Market, Olosa, Mushin, Lagos State and vest same in the defendant/counter-claimant (Respondent).

PARTICULARS IN ERROR

a. It is trite law that in the exercise of its power under Section 15 of the Court of Appeal Act, the Court of Appeal can only make such orders or grant such reliefs as the trial Court is entitled to make or grant.

b. It is trite law that a Court is not charitable institution and should not grant a party a relief not claimed.

c. The respondent had no claim in its counter-claim at the trial Court for an order that the Deputy Sheriff of the High Court of Lagos State shall take immediate possession of 20 type A lock-up A shops at Awolowo Market, Olosa, Mushin, Lagos State and vest same in the Respondent (Defendant/Counter-Claimant).

d. The Respondent can only get possession by a subsequent proceeding.

e. The learned justices of the Court Appeal did not avert their minds to the fact that apart from declaratory reliefs the respondent has a counter-claim for an injunctive relief as a consequential order.

f. It is trite law that a declaratory relief was not executor or capable of enforcement unless it is coupled with an injunctive relief.

g. The learned justices of the Court of Appeal did not grant the respondent’s counter-claim for an injunctive relief.