Mr. Akinfela Frank Cole V Mr Adim Jibunoh & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal by the Appellant against the judgment of the Court of Appeal, Lagos Division delivered on 17th day of November, 2005, wherein it held that:

“Issue of estoppels has been successfully raised to sustain plea of Res judicata.”

The background facts in this appeal are briefly exposed for the better understanding of the issues involved as follows: The suit No. ID/1082/90- REV. CLM FAJEMIROKUN (2nd Respondent herein) v. MRS. TITILAYO COLE (Appellant herein) had been previously tried in Lagos State High Court, Ikeja Division. The 2nd Respondent herein, as plaintiff in the suit, was successful and the sum of N169, 000 was awarded in his favour against the Appellant herein, as the defendant. Consequently a writ of fifa was filed to cause execution against Appellant’s moveable property. That execution yielded sum of N15, 812.50; which the 2nd Respondent felt was insufficient to satisfy the judgment debt. Consequently, as a judgment creditor, the 2nd Respondent applied to Court for issuance of a writ of attachment and sale of the immovable property of the

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appellant for the sum of money outstanding against the judgment debtor, the Appellant herein.

Consequently the Court made an order for writ of attachment to issue against the immovable property of the judgment debtor known as No.23 OSIPITAN STREET, BARIGA, LAGOS.

The Judgment debtor, Appellant herein after the order of writ of attachment of her immovable property, still failed, neglected and/or refused to pay the judgment debt. However, on 24/04/94, she filed a motion seeking to set aside the order of writ of attachment by the Court.

Upon the dismissal of the application of the judgment debtor, the Deputy Sheriff, Lagos State High Court issued a Public Notice of Auction sale, advertising the sale of the property of the judgment debtor.

On 23/11/94 the sale was conducted publicly and the Appellant’s property was sold for the sum of N450,000 to the 1st Respondent herein, the highest bidder and accordingly a certificate of purchase of the property was issued to him, after 21 days from the date of sale.

Dissatisfied with the sale of her property, the Judgment debtor, Appellant herein now instituted a fresh suit No. ID/3228/94 on 23/12/94

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challenging the sale and seeking to declare it null and void.

The 1st Respondent herein, in reaction to the Writ of Summons and Statement of claim filed a Notice of Preliminary Objection challenging the jurisdiction of the Court to try the suit on grounds that the issues raised in Suit No. ID/3228/94 had been raised and determined in the previous Suit No. ID/1082/90 and that the Sale of the Appellant’s property has become absolute pursuant to the provision of the Sheriff and Civil Process Law of Lagos State.