Segirah Sekande & Ors V. Ajibola Arubielu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the Ruling of the High Court of Ogun State sitting at Ota delivered on 24th November, 2006 by Solanke, J wherein he dismissed the Appellants’ motion of 20th April 2006, seeking to set aside the execution carried out by the Respondents against the Appellants who were the Applicants.

The background facts are that, at the Customary Court Grade II Ado-Odo, Ogun State, the Respondents herein as plaintiffs instituted a suit against the Appellants as defendants and at the close of the case judgment was entered in favour of the Respondents herein.

The Appellants dissatisfied with the judgment appealed to the High court that affirmed the judgment of the customary Court.

The Appellate High Court authorized the execution of the customary court’s judgment carried out by the sheriff of the Appellate High Court.

On 20th April, 2006, the Appellants filed a motion challenging the jurisdiction of the High court to carry out the execution on the ground that the judgment was not that of the High court in its appellate capacity but that of the customary court and made out that only the customary court could carry out the said execution. Further, that the High court only affirmed the judgment of the customary court and did not make any order that it could order its execution. It was also contended that the execution of judgment is governed by the sheriff and Civil Process Act L.F.N 2004 and the Judgment (Enforcement) Rules made thereunder and not the High Court Rules.

The Respondents opposed the application which was dismissed by the Appellate High court. The Applicants now Appellants dissatisfied with the ruling appealed to this Court.

On 19th November, 2008, the Appellants’ initial Notice of Appeal was amended, which now contains six (6) grounds of appeal from which six (6) issues were formulated for the determination of this appeal. They are:

“1. Whether it is right for the Appellate High Court to speculate or source for evidence in deciding the case before it when such evidence is not argued or placed before it by the parties.

2. Whether it is proper for the Appellate High Court to raise an issue, which was not raise (sic) and or argued by the parties before it suo motu and based its ruling on it without allowing the parties or their counsel to address it on it or whether raising issue an (sic) suo motu without allowing parties to argue it before deciding on it as he did in this suit does not amount to denial of fair hearing and making a case for the Respondents.
3. Whether the learned Appellate High Court Judge was right in refusing to follow the precedent laid down by the Court of Appeal in the case of D.O. EBERE VS. ALHAJI ZAKARE TUTARE (1992) 3 NWLR (PART 227) 15 and the High Court case of OYEFESO VS. TOLA (1968) NWLR 317.
4. Whether the affirming or confirming the judgment of a Lower Court by an appellate High Court makes the affirmed or confirmed judgment the judgment of the Appellate High Court thereby granting it power to execute it.
5. Whether the Appellate High Court Judge was right in refusing the motion of the Appellants on the ground that no prejudice has accrued to them and that their objection to the mode of execution was a technicality when the issue raised is as to jurisdiction of the Appellate High Court to order and execute the judgment of the lower Customary Court where there is a laid down procedure that must be followed in execution of judgments.
6. Whether there was any order that the Appellate High Court could execute that the Appellants ought to have been aware of or deemed to have been aware of.”

On their part, the Respondents distilled two (2) issues for the determination of the appeal. They are:

(i) “Whether the Appellate High Court was right in dismissing the Motion dated 20th of April, 2005 seeking to set aside the execution carried out by the Respondents against the Appellants herein.

(ii) Whether the learned Appellate High Court Judge has the power to distinguish the cases: (i) OYEFESO VS. MADAM TOLA (1968) NWLR P.317 & (ii) T. O. EBERE vs. ALH. ZAKARE TURARE (1992) 3 NWLR PT.227, P.15 from the instant case.”

When the appeal was argued, S.O. Ajayi Esq. the learned counsel to the Appellants adopted and relied on his brief of argument dated 18/12/08 filed on 2/1/09 and a reply brief dated and filed on 15/3/10 deemed properly filed and served the same day in urging us to allow the appeal and set aside the judgment of the Lower Court.

In their issue one, it was submitted that the Respondents, in the Lower Court did not pray that the case of D.O. EBERE vs. ALHAJI ZAKARE TUKARE (supra) be distinguished from the case of OYEFESO vs. MADAM TOLA (supra). It was argued that the High Court acted on speculation to import reasons for distinguishing the two cases, not canvassed or prayed for, having been raised suo motu by the High Court, we were urged to discountenance same.