CORAM

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PARTIES

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MR. AKINFELA FRANK COLE   APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

In a previous suit, the 2nd Respondent herein was the Plaintiff wherein he sued the Appellant herein as Defendant before the Lagos State High Court, Ikeja Division, and was successful with the court awarding the sum of N169, 000 in his favour against the Appellant.  Consequently a Writ of Fifa was filed to cause execution against Appellant’s moveable property. The execution yielded the sum of N15, 812.50; which the 2nd Respondent felt was insufficient to satisfy the judgment debt. Consequently, the 2nd Respondent as judgment creditor applied to court for issuance of a writ of attachment and sale of the immovable property of the Appellant for the sum of money outstanding against the judgment debtor, the Appellant herein.  The court made an order for writ of attachment to issue against the immovable property of the judgment debtor known as No.23 Osipitan Street, Bariga, Lagos. The judgment debtor, after the order of writ of attachment of her immovable property, failed, neglected and/or refused to pay the judgment debt.  She filed a motion seeking to set aside the order of writ of attachment by the court. Upon the dismissal of the application of the judgment debtor, the Deputy Sheriff, Lagos State High Court issued a Public Notice of Auction Sale, advertising the sale of the property of the judgment debtor. The sale was conducted publicly and the Appellant’s property was sold for the sum of N450, 000 and certificate of purchase of the property was issued to 1st Respondent who was the highest bidder. Dissatisfied with the sale of her property, the Appellant instituted a fresh suit challenging the sale.  At the trial of the suit, the 1st Respondent unsuccessfully raised a preliminary objection challenging the jurisdiction of the court to entertain the suit on grounds of estoppel and that the sale of the Appellant’s property has become absolute. An appeal to the Court of Appeal at the instance of the 1st Respondent was allowed hence a further appeal by the Appellant to this court.

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HELD

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Appeal Dismissed.

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ISSUES

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1. Whether an Order for Writ of attachment and sale of immoveable property made by a High Court for the enforcement of Judgment debt obtained in previous suit No,ID/1082/90 – REV. C.L.M. FAJEMIROKUN VS MRS. TITILAYO COLE operates as a RES JUDICATA precluding the Plaintiff/Appellant from filing a fresh suit ID/3228/94 -MRS. TITILAYO COLE VS. C. LM. FAJEMIROKUN & TWO OTHER to challenge the sale of the immoveable property carried out fraudulently and illegally.?

2. Whether the Plaintiff/Appellant herein is right to have filed a fresh writ ID/3228/94 challenging the sale of her property through fraudulent means instead of filing an application within 21 days to the same court to set aside the sale pursuant to Section 47 of Sheriff and Civil Process Act Cap 407 LFN1990″?

3. Whether the issue of the setting aside of the writ of Attachment and saie of the Appellant’s property known as No.23 Osipitan Street Bariga, Lagos raised in the present suit No. ID/3228/94 has not been raised and determined upon in suit No.ID/1082/90 to entitle the 1st Respondent plead issue estoppels being a Judgment in rem?

4. Whether the court can by a fresh suit or otherwise set aside a sale which title has crystallized and a certificate of purchase issued thereon, after 21 days from date of sale, to a third party Bona Fide purchaser for value without notice?

 

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RATIONES DECIDENDI

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JUDGMENT IN REM – FEATURE OF A JUDGMENT IN REM

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…The feature of a judgment in rem is that it binds all persons, whether party to the proceedings or not. It stops anyone from raising the issue of the status or person or persons or things, or the rights or title to the property litigated before a competent court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are estopped from averring that the status of persons is other than the Court has by such judgment declared or made it to be.”
See also: Okpalugo Vs Adeshoye (1996)10 NWLR (Pt-476) 77; Fointrades Ltd. Vs Uni Association Co. Ltd. (2002) 8 NWLR (Pt.770) 669: Olaniyan Vs Fatoki (2003) 13 NWLR (Pt.837) 273: Adesina Oke Vs Shittu Atoloye & Ors (1986), NWLR (Pt. 15) 241.” PER K.M.O. KEKERE-EKUN, J.S.C

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EXECUTION OF JUDGMENT -REMEDY AVAILABLE TO A JUDGMENT DEBTOR

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Sections 47 and 48 of the Sheriff and Civil Process Law Cap. 407 Laws of Lagos State provide the remedy available to the appellant in the circumstances of this case. They provide as follows:
“47. At any time within twenty-one days from the date of the sale of immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has sustained substantial Injury by reason of such irregularity.
48. If no such application as is mentioned in Section 47 of this Act is made, the sale shall be deemed absolute. If such application be made and the objection be disallowed, the court shall make an order confirming the sale; and in like manner, if the objection be allowed the Court shall make an order setting aside the sale for irregularity.” PER K.M.O. KEKERE-EKUN, J.S.C

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PLEA OF RES JUDICATA – CONDITIONS PRECEDENT TO A SUCCESSFUL PLEA OF RES JUDICATA

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“The conditions precedent to a successful plea of res judicata were amply set out by this Court in the case of The Honda Place Ltd. Vs Globe Motors Ltd, (2005)14 NWLR (945.) 273 at 291 R – E as follows:
(a) There must be an adjudication of the issues joined by the parties.
(b) The parties or their privies as the case may be must be the same in the present case as in the previous case.
(c) The issues and subject matter must be the same in the previous case as in the present case.
(d) The adjudication on the previous case must have been by a court of competent jurisdiction.
(e) The previous decision must have finally decided the issue between the parties, that is the rights of the parties must have been finally determined.” PER K.M.O. KEKERE-EKUN, J.S.C

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JURISDICTION OF COURT – WHETHER A COURT OF CO-ORDINATE JURISDICTION IS CONFERRED WITH CONSTITUTIONAL POWER TO SIT AS AN APPELLATE COURT

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“A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy”. See: Chief Gani V A-G Lagos State No. 1 (1989) 3 NWLR (Pt 112) 707 at 774 where the Court held:
“The presumption has always been that the decisions of a superior court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior court is a nullity, the only proper way of challenging such decision must be by an application before the very court which tried the case or by an application to the appropriate appellate court even if the judgment of Longe J. were a nullity the proper way to set it aside is by an Appeal not be a review before a court of co- ordinate jurisdiction ………. it seems to me that, in view of the provision of the constitution, which carefully shares jurisdiction to the various courts …. Only the court vested with the particular jurisdiction can interfere with the decision of another court.”
– PER S. GALADIMA, J.S.C

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ORDER OF WRIT OF ATTACHMENT – STATUTORY PROVISION UPON WHICH ONE CAN CHALLENGE OR SET ASIDE A SALE UNDER AN ORDER OF WRIT OF ATTACHMENT

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In Bank Of The North Ltd V. Nigerian Bank For Commerce And Industry Ltd And 3 Ors. 119901 5 NWLR (Pt. 150) 263, the Court considering the provisions of sections 47 and 48 of the Sheriff and Civil Process Law Cap 123, Laws of Northern Nigeria (which is in pari materia with the Lagos State provisions on the matter) the Court below, inter alia, held that the only statutory provision upon which one can challenge or set aside a sale under an order of Writ of Attachment is by virtue of Section 47 of the Law. See also G. C Akunonu V. Bekaert Overseas And 2 Ors. (1995) 5 NWLR pt 393) P 42 at 66”. PER S. GALADIMA, J.S.C

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RES JUDICATA – PRINCIPLE OF RES JUDICATA

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“Where a court of competent jurisdiction has finally settled a matter in dispute between parties, neither party or privy may re-litigate that issue as under the guise of bringing a fresh action, since the matter is said to be res judicata”. PER S. GALADIMA, J.S.C

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act Cap 18, 2011

3. Sheriff and Civil Process Act 1990 Laws of the Federation

4.Sheriff and Civil Process Law Cap. 407 Laws of Lagos State

 

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