Re Alhaji Kabiru Rufai V. Leo Attah Ekpo Otu (1993)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A. 

The applicant Alhaji Kabiru Rufai filed a motion on notice in this court on 30th April, 1992 seeking the following reliefs:

(i) An Order extending the time within which to appeal against the judgment of Sotuminu J. dated 17th May, 1991.

(ii) An Order suspending the order of Sotuminu, J. dated 17th May 1991 setting aside the judgment of that court dated 10th October, 1988.

(iii) An Order suspending the ancillary Orders contained in the Judgment of Sotuminu J. dated 17th May, 1991.

(iv) Suspending the order setting aside the order dated 29th January, 1990 granting leave to sell the immovable property of the defendant/respondent.

(v) An Order of stay of further proceedings of the following suits:-

(a) Suit No. ID/1002/87 between ACB Ltd. v. L.A Ekpo Otu.

(b) Suit No. ID/2455/90 between L.A. Ekpo Otu v. ACB. Ltd. & Ors.

(vi) An order of departure from the Rules of this Honourable Court so that the appeal can be heard on the documents attached to this application.”

The motion is supported by a 35, paragraph affidavit sworn to by the applicant himself in which he deposed in paragraphs 9-15 and 21-32 which are relevant to the application as follows:-

9. On the 27th day of November, 1991 the auction of the property at 24, Western Avenue was conducted by the Deputy Sheriff in front of the premises in the presence of the auditor of the Lagos High Court, the Legal Adviser of A.C.B., the plaintiff herein Court bailiffs, Police officers, members of the public a number of whom have come to bid at the said auction.
10. Several individuals made bids for the property including myself and eventually I ended up as the highest bidder at the price of N 125,000.00 and the property was knocked down and sold to me at that price.
11. That I thereupon paid cash of N 125,000.00 to the Deputy Sheriff who thereupon issued a receipt No. 12945 dated 27/11/90. A copy of the receipt is now produced and shown to me marked “KR 2”.
12. The Deputy Sheriff thereupon in my presence handed over that purchase price less official deduction to plaintiff/respondent counsel.
13. I was thereafter issued by the Court with a certificate of purchase No. 1237 as having purchased the right, title and interest of the defendant in respect of the said property. Now produced and shown to me marked “KR 3” is a copy of the said certificate.
14. That at the time of the sale, there were tenants in the said property and immediately after the sale, my solicitors applied to the court for leave to issue Warrant of Possession against the tenants as vacant possession of the property was necessary before renovation work could commence.
15. That pursuant to an order of Court in Suit No. ID/184m/91 dated 21st day of January, 1991, the Court issued a Warrant of Possession against the tenants in the said premises and the Warrant was duly executed by the Deputy Sheriff of the lower court. A copy of same is now produced and shown to me marked “KR 4”.

XX X X X X X X X X

21. That it was as a result of the search conducted by my Solicitor that I became aware of the decision of Hon. Justice Sotuminu dated 17th May, 1991 setting aside the order of 29th January, 1990 granting leave to attach the immovable property of the defendant/respondent to satisfy the judgment debt. Now produced and shown to me marked “KR 5” is a copy of the order of Sotuminu J. dated 17th May, 1991.
22. That the effect of the decision of the Hon. Justice Sotuminu is to divest me of whatever title, right or interest I had had by virtue of the court’s sale of the said property to me.
23. That I was never served with or ever made aware of the application that went before Justice Sotuminu for an order setting aside the order for the sale of the property in dispute aforesaid.
24. That I was never heard or given an opportunity of being heard in the order which so adversely affects me.
25. That my Solicitor Mr. Okunuga thereupon applied for a Certified True Copy of the proceedings which then led to the setting aside of the sale before Sotuminu J.
26. But by the time he was able to obtain the said papers the time within which to appeal against the decision had expired.
27. That I am almost certain that at the time the application to set aside the proceedings was made to court and the time the order of court was made the defendant in the action was already aware that the property had been sold to me.
28. That being dissatisfied with the ruling of Hon. Justice Sotuminu, J. dated 17th May, 1991, I gave instructions to my Solicitors Mr. Okunuga to appeal against the said decision. A copy of the said Notice is now produced and shown to me marked “KR 6”
29. That since I was not served with processes leading up to the order dated 17th May 1991, I was not aware of the said proceedings hence it was after the time limited by the rules of this Honourable Court that I became aware of same as a result of a search conducted by my solicitors on my behalf.
30. That the records which have been made available to me from the various searches show that the plaintiff/respondent in suit No. ID/1007/87 commenced action by a specially endorsed writ against the defendant for the sum N99,653.85 as overdraft granted to him with interest.
31. The facts also show that judgment in default of appearance was entered against the defendant for the amount claimed.
32. That I have now caused to be compiled a record of proceedings which consist of the Writ of Summons, the proceedings up to the judgment of Sotuminu, J, and the application to set aside the judgment of Sotuminu J. and the Notice of Appeal herein marked as “KR 7”.

In opposing the motion, the defendant/respondent also filed a 27-paragraph counter-affidavit on 22nd October, 1992 in which one Ayodeji Osula learned counsel in the chambers of the defendant/respondent’s counsel deposed in paragraphs 4-5, 9-10,13-17,23-26 as stated below:-

4. That I know that the applicant is not a party in Suit No. ID/1002/87 pending in the lower court and cannot file this appeal.
5. That the substance of Suit No. ID/1002/87 in the lower court does not in any way concern the applicant who cannot under any circumstance be a party therein. Paragraph 1 of the affidavit is not true.
6. That paragraphs 13 & 14 of the affidavit are to deliberately mislead this court as the date of that exhibit is not obvious on same and it came after the defendant/respondent had filed Suit No. ID/2455/90 challenging the said irregular sale which suit the applicant now wants the court to stay AND also after the applicant had filed an application before the substantive judge to set aside the judgment in default.
7. That as a solicitor, I know that it is irregular, a denial of fair hearing and violent contradiction of the Constitution of this great country for possession to be ordered on an ex-parte application and Suit No. ID/18M/91 under which the Warrant for Possession was obtained has nothing to do with Suit No. ID/1002/87. That paragraphs 14, 15,16,17,18,20 and 21 are not true.
8. That paragraphs 21,22,23,24,25,26,27, & 28 are not helpful in this matter as the applicant is still in a position to reclaim the N 125,000.00 paid by him. It is in fact the defendant/respondent herein who has suffered in this matter.
9. That the ruling of Sotuminu J., (the substantive judge in ID/1002/87) only means that the parties therein, not including the applicant, have been allowed to lead evidence and for the matter to be determined on its merit.
10. That paragraph 29 is misleading as the applicant was not a party in the said suit and could not have been served. Applicant cannot use facts in suit No. ID/18M/90 between different parties to appeal in this particular matter.
11. That paragraphs 30 and 31 of the applicant’s affidavit are true.
12. That exhibit ‘KR7’ is not record of proceedings as stated in paragraph 32 of the applicant’s affidavit.
13. That contrary to applicants depositions he was aware of the ruling of 17th May, 1991 immediately after, as he was informed and served with a copy together with other processes but he again attempted to refuse to accept same threatening violence to whoever challenged his title irrespective of any court judgment or order and it was after report to the Police that he realised the futility of avoiding and disobeying the Court Orders. Applicant completely destroyed the property which is available for inspection.
14. That applicant’s affidavit confirms that the applicant has hurriedly put the structure in a position as to damage same after the order of Court restraining him without any Certificate of Occupancy.
15. That paragraph 28, 33 & 34 are clear admission of the applicant’s disobedience to order of Court and also a civil wrong. He used thugs to keep owners out and continued destruction of the place even after becoming aware of the Court’s Order and because of his affluence, the Police at Western Avenue could not do anything. It took the intervention of the Inspector General’s Office to stop him.
16. That I am aware as one of the said defendant/respondent’s Solicitors herein in the firm of Messrs Orok Ironbar & Associates – and I truly and verily believe that:

(i) Applicant is the party still in forceful and illegal occupation of 24, Western Avenue, Surulere Lagos in utter violation of Court Order.