Mr. Ganiyu Badaru v. Somolu Community Bank Nig. Limited (2008)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.,

This appeal is against the Ruling of the Hon. Justice O.H. Oshodi (J) of the Lagos State High Court holden at Ikeja. The ruling which was pronounced on the 1st day of March 2005 dismissed the motion ex-parte of the Appellant which was filed on the 16th June 2004. Although filed ex-parte, the Respondent was eventually put on notice and issues were joined and keenly contested between the parties.

The Appellant sought an order for the leave of the High Court to levy execution of the judgment of this court against which an appeal had been entered in the Supreme Court.

The brief facts which culminated in this appeal commenced with the suit of the Appellant filed as suit ID/2460/94. On the 11th April 1997, the Hon. Justice C.A. Olorunnimbe (J) pronounced Judgment in favour of the Respondent granting an order of specific performance of the contract of sale of the landed property of the Appellant.

The said landed property is situated at and known as No 9, Alarape Street, Bariga, Somolu, Lagos. The learned trial Judge also ordered that the Appellant should deliver up possession of the said landed property to the Respondent forthwith. The Appellants appealed to this Court and on the 9th day of May 2004, in appeal No CA/L/344/99, this Court set aside the decision of the trial court.

The Respondent appealed to the Supreme Court where the matter currently resides. Meanwhile, the Appellant who is now respondent before the Supreme Court wants to levy execution upon the Judgment of this Court setting aside the decision of the trial court. (Ref: pages 18 – 38 of the records for this Appeal).

The Appellant’s three issues for determination were couched in these terms:-

“2.01. The first issue for determination in this appeal is whether the Appellant’s Application for an Order for Leave to Levy execution of judgment of the Court of Appeal No. CA/L/344/99 should be brought in the Supreme Court of Nigeria instead at the High Court of Lagos State of Nigeria.

2.02. The Second Issue for Determination in this appeal is whether the Application for Stay of Execution, which was filed in the Court of Appeal by the Respondent in the Appeal No. CA/L/344/99 after the Appeal had been entered in the Supreme Court of Nigeria constituted a Stay of execution of the Judgment in Appeal No. CA/L/344/99.

2.03. The third issue for Determination in this Appeal is whether the Ruling or Decision of the Honorable Justice O. H. Oshodi in suit No. ID/260/94 is a nullity.”

By a subtitle to wit: – “NOTICE OF PRELIMINARY OBJECTION”, the learned Counsel for the Respondent seems to have incorporated some argument in the Respondent’s brief. However, when the appeal was heard on the 22/03/07, the preliminary objection was not argued. There is also no evidence in the file that any notice of preliminary objection had been filed in compliance with the Rules of this Court, the preliminary objection is therefore discountenanced having been abandoned.

Respondent’s Issue

“Whether the Appellant’s motion in the High Court being a motion to enforce a judgment, an appeal from which has been entered in the Supreme Court, may be entertained by any court other than the Supreme Court.”

The Respondent’s issue seems more germane to the title subject of this strange appeal.