Mr. Ayodele Igbokoyi & Ors V. Alhaji Raheem Adetoro Lawal (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the decision (Ruling) of the Hon. Justice F.O. Ogunsola Late Chief Judge of Osun State delivered on 22nd day of October 2009. The Respondent in this appeal, Alhaji Raheem Adetoro Lawal, had judgment entered against him in Suit No. HOS/12/86 in favour of the Plaintiff therein, Buraimoh Ogungbile. The said judgment of Sijuwade J. was overturned by the Court of Appeal Ibadan in CA/I/65/92 which held that Buraimoh Ogungbile the Plaintiff in Suit No. HOS/12/86 did not prove his case for declaration of title to land.

The Court of Appeal in a lead judgment by Aloma Mariam Mukhtar JCA (as he then was) allowed the appeal of Lawal Adetoro (Respondent herein) and set aside the judgment of the High Court of Oyo State. On appeal to the Supreme Court by Lasisi Aremu (substituted for Buraimoh Ogunleye) Appellant therein, the Supreme Court upheld the judgment of the Court of Appeal and also dismissed the appeal.

On 17th day of July 2009, Hon. Justice F.O. Ogunsola, Chief Judge of Osun State purportedly issued a warrant of Possession in suit No. HOS/12/86 and on the same day the Assistant Chief Registrar, High Court Osun State issued a writ of Attachment/Execution on the movable properties of Lasisi Aremu, Plaintiff in Suit No. HOS/12/86, for a sum payment of N13,000 (thirteen thousand naira) of which the defendant has made default.

On the face of it, the Warrant of Possession at page 20 of the record of appeal in this case was in respect of Suit No. HOS/12/1986 between Lasisi Aremu substituted for Buraimoh Ogunleye as Plaintiff and Alhaji Lawal Adetoro as defendant. The Warrant of Possession was then directed to the named Plaintiff as follows:

“Whereas at a court holden on the 13th day of July 2007, it was adjudged that the Defendant was entitled to possession of the Land mentioned in the particulars annexed to the summons in this action, that is to say: –

Area covered by Survey plan No. MAW 250/75 and Pillar Nos. AA5908, 5909, 5910, 5911, 5912, 5913, 5914, 5915, 5916, 5917, 5918, 5919, 5920, AA5904, AA5905, AA5906, AA5907 drawn by Licensed Surveyor Makanjuola Akin Laoye and signed and it was ordered that the Plaintiff should give the defendant possession of the Land on the 13th July, 2007. And it was adjudged that the defendant should recover against the Plaintiff the sum N13, 000… for costs…”

On 3rd August 2009 the Appellants as Applicants before the High Court brought a motion praying for the following orders:

1. An order stopping forth with the execution or further execution of the judgment in HOS/12/86, and/or CA/I/65/92 and/or SC/418/2007 by writ of attachment and Warrant of Possession issued on 17th July 2009.
2. An order setting aside the Warrant of Possession and writ of attachment, issued and signed under the hand of His Lordship the Hon. Chief Judge of Osun State, Hon. Justice F.O. Ogunsola on 17th July 2009 as same is without basis in law and was wrongly or fraudulently obtained issued without jurisdiction and a nullity.
3. An order setting aside the writ of attachment issued and levied against the applicants for N13,000 costs awarded against one Lasisi Aremu as irregularly issued.

The Grounds of the application of the Appellants as applicants as contained on the face of the motion of 3rd August, 2009 are as follows:

GROUNDS FOR THE APPLICATION

1. Suit No. HOS/12/86 was contested between the Respondent herein as Defendant and one Lasisi Aremu as Plaintiff.
2. The Plaintiff in the case ultimately lost the case at the Supreme Court where his case was dismissed due to failure to identify the land claimed as Plaintiff Tendered no Plan.
3. The defendant (respondent herein now levying execution) did not counter claim in the suit and no order was made in his favour by way of order of possession, declaration or injunction by any of the High Court, the Court of Appeal and the Supreme Court.
4. In the judgment of the High Court, the Court observed that although the defendant pleaded a survey Plan No. MAW/250/75 attached to a deed of conveyance dated 3rd May 1976; the Survey Plan was NEVER TENDERED.
5. The Respondent has now caused this Court to issue a Warrant of Possession based on Plan No. MAW/250/75 which was NEVER TENDERED IN COURT.
6. The Respondent has now caused this Court to issue a Warrant of Possession on a judgment in which THE COURT DID NOT GIVE ANY ORDER capable of execution in his favour.
7. The Respondent is now levying execution and has started demolishing and preparing to sell off structures owned by the applicants on a large expanse of land which forms a substantial part of Offatedo Town WITHOUT ANY VALID EXISTING COURT JUDGMENT/ORDER backing the execution.
8. The Respondent’s fraud lies in that, in Suit No. HOS/12/86, he did not tender Plan No. MAW/250/75 but he misled, enticed and deceived the registrars to present the Warrant of Possession for the Hon. Chief Judge’s signature based on the Survey Pillar numbers in the said Survey Plan No. MAW/250/75 and the Warrant of Possession is being so executed as if HOS/12/86 was based on Plan No. MAW/250/75 which was not true. The Plan was not even put in the file.
9. The execution against immovable property was irregular and was not made in accordance with law.
10. Above all, the executive was made on strangers who had not been sued and the Court lacks jurisdiction to execute a judgment against someone who had not been sued and against whom no order had been made.

The Appellants/Applicants supported their above application in the Court below by Affidavit in support and a further and better affidavit none of which was controverted by the Respondent who did not file any processes in opposition to the Appellants application for setting aside of the Warrant of Possession.

In refusing to grant the prayers of the Appellants/Applicants, the Learned Chief Judge, held in his Ruling more particularly at pages 74 – 75 of the record as follows: –

“….the issue in this case is whether the writ of possession was validly issued. Learned Counsel for the Applicants (sic) rightly pointed out that this Honourable Court has a duty to enforce any decision including judgment, decree or order given by the Supreme Court, such decisions being enforceable. The issue of Plan, Pillar etc. has featured prominently in the submissions of learned counsel for the Applicants to emphasize the need for certainty of the land in dispute. I must say that I read the judgments of the High Court, Court of Appeal and the Supreme Court.

At page 5 of the Lead Judgment on the identity of land again Niki Tobi JSC has this to say: