Mr. Emmanuel Olumuyiwa Akinwale V. Mrs. Bosede Olaogun Akinwale (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

The appeal at hand is against the Ruling of the Lagos High Court, presided over by Honourable Justice Adefope Okojie dated 17th November, 2004 wherein he dismissed the applicant’s application dated 23rd March, 2004 on the ground that the court is funtus officio and that the only remedy to the applicant, if aggrieved is to appeal against his ruling of 5th November, 2002.

The brief facts of this case was that the appellant by his motion dated 23rd March, 2004 sought to set aside the order of writ of attachment and sale of his immorable property situate at 34, now 42, Adeniyi Street Alakuko, Lagos State dated 16th March, 1999 on the ground of fraud and gross misrepresentation of facts in the way and manner the order itself was obtained, and in the said sale of the property. For the comprehensive understanding of this case, regard must be had to the historical background of same that gave rise to the state of the appeal now before us. The relevance of going down the memory lane is therefore very significant.

By a motion on notice dated 10th December, 1997 at page 19 of the record of appeal, the present respondent before us who was the plaintiff/applicant at the lower court sought for an;

‘order for writ of attachment and sale to be issued Against the IMMOVABLE PROPERTY of the DEFENDANT/RESPONDENT in this suit situate and being at No. 34 Alhaji Hammed Adeniyi Street Alakuko, Lagos State for the purpose of recovering the sum of N351,450.00 being debt owed the plaintiff together with 5% per annum from February 1994, until the sum is fully liquidate by the defendant’.

The said application was supported by an affidavit of 12 paragraphs and against which the appellant at hand as the respondent filed an 11 paragraphs counter affidavit at page 24 of the record. The lower court on the 16th March, 1999, and after having heard the applicant’s learned counsel and in the absence of the defendant who was on notice but unrepresented, made the following order and said thus at page 23 of the record of appeal:

“THAT an order for writ of attachment and sale to be issued against the immovable property of Respondent/Judgment Debtor situate and being at No. 34 Alhaji Hammed Adeniyi Street, Alakuko, Lagos State for the purpose of recovering the judgment debt of N351,450.00 with interest of 5% per annum from February 1994 until the date of sale;

THAT any sum realized at the sale in excess of this Judgment sum shall immediately be paid to the Defendant”.

Consequent to the order of attachment and sale made by the lower court, the appellant filed a motion on notice dated 30th day of May, 2001 and sought for the following seven reliefs as shown at page 47 of the record of appeal:

“1. AN ORDER SETTING ASIDE the EX-PARTE ORDER obtained by the Plaintiff/Respondent and the second Respondent against the Defendant/Applicant on 9th April, 2001.

2. AN ORDER SETTING ASIDE THE EXECUTION of the said order and/or judgment pending the determination of this motion.
3. AN ORDER SETTING ASIDE the purported SALE of The Applicant’s property at 42, Adeniyi Street, Alakuko, Lagos State to the second Respondent.
4. AN ORDER IN ALTERNATIVE to prayer 3 that the purported sale of the Applicant’s property worth more than Five Million Naira was INEQUITABLY sold for One Million Naira.
5. AN ORDER IN ALTERNATIVE also that the property be VALUED by a Quantity Surveyor agreed by both parties to determine the correct and reasonable price for the property. Thereafter the difference paid to the Applicant and/or the Applicant be at liberty to liquidate the judgment debt so that the Purchaser/Respondent can collect back his purchase amount.
6. AN ORDER RESTORING the Applicant back in possession forthwith and that STATUS QUO be maintained pending the determination of this motion.
7. And for such order or further orders as this Honourable court may deem fit to make in the circumstances.”

By its ruling delivered on the 5th November, 2002 which is contained at pages 111 – 123 of the record of appeal, the said application was refused on the grounds inter alia that the judgment debtor’s application challenging the sale should have been filed within 21 days as stipulated in S.47 of the Sheriffs and Civil Process Act Cap. 407 Laws of Lagos State of Nigeria 1994. It is pertinent to mention that there is no appeal against the said ruling. Rather, the appellant by another application dated and filed on the 23rd March, 2004 and evidenced at pages 140 – 141 of the record sought for the following relief:

“AN ORDER of this Honourable Court setting aside the order for WRIT OF ATTACHMENT AND SALE of the Immovable Property of the Defendant/Applicant/Judgment Debtor situate at 34, now 42 Adeniji Street, Alakuko, Lagos State, dated 16/3/1999 on the ground of FRAUD and GROSS MISREPRESENTATION of facts in the way and manner the order itself was obtained and in the purported sale of the property.

PARTICULARS OF FRAUD

(i) The Plaintiff willfully and fraudulently deposed To an affidavit dated 10th December 1997 paragraph 7 of which says there is no movable Property of the defendant.