⦿ CASE SUMMARY OF:
Akin Akinyemi v. Professor Mojisola A. O. Soyanwo & Anor (2006) – SC
1. Professor Mojisola A. O. Soyanwo;
2. Ajepero Estates Limited.
(2006) 13 NWLR (Pt.998) 496
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Dr. B. A. M. Ajibade;
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
This appeal is against the ruling of the Ibadan Division of the Court of Appeal on the 14th of January, 2001. The ruling is at pages 57 – 83 of the record. The motion sequel to which the decision was given, filed on the 15th of February, 2000 prayed for the following orders: (a) to set aside ex debito justitiae, the writ of execution dated 16th July, 1999 issued out of Oyo State High Court; (b) to set aside execution of the judgment wrongly carried out on 21 July, 1999 in pursuance of the said writ of execution; (c) to restrain the respondent from taking further steps in the levying of execution against the properties of the defendants/appellants/applicants; and (d) to direct the Sheriff of the Oyo State High Court to release the Daewoo Racer car No. OYO AE 178 DDA attached pursuant to the said writ of execution.
The ground for application was stated to be as follows: “The ground for the application is that the judgment debt was duly deposited with the Deputy Chief Registrar of the Court of Appeal on 15th July, 1999 as ordered by this Honourable Court.” In granting the application, the Court per Adekeye (J.C.A) at page 80 concluded as follows: “Consequently this application succeeds. All the reliefs except (c) are granted. The issuance of the writ by the High Court Ibadan on 16/7/99 is set aside, so also is the execution of the same writ on the 21/7/99. The car AE 178 DDA wrongly attached by the bailiff of the High Court Ibadan in the process of execution of the writ shall be and is accordingly released to the applicants.”
1. Whether in the absence of an appeal against the order of the High Court directing that the attached car be returned to the custody of the High Court, the Court of Appeal could on a mere application order the release of the car.
2. Whether the Court of Appeal acted validly in setting aside the execution levied on the respondent’s car.”
⦿ ARGUMENTS OF PARTIES
* FOR THE APPELLANT
1. The focus of the arguments of learned senior counsel in both the appellant’s brief filed on the 15/5/2001 and the appellant’s reply brief filed on 15/4/2005 is that there was no appeal against the order of the Oyo State High Court by which a writ of execution was issued on the 16th of July, 1999 for the attachment of the 1st respondent’s Daewoo Racer Saloon car. Learned senior counsel referred to the reliefs sought and granted which were not expressed to be granted pending the determination any appeal and submitted that the court below purported to exercise original jurisdiction in entertaining the motion and which original jurisdiction it does not have. It was further submitted that section 16 of the Court of Appeal Act upon which the lower court relied to grant the reliefs sought does not vest in that court any original jurisdiction to entertain the application.
2. His assertion in these paragraphs is to the effect that the 45 days granted the respondents by the Court of Appeal on the 2/2/99 within which to pay the sum of N106,000.00 in the name of the Deputy Chief Registrar into an interest yielding account in the bank lapsed on the 18/3/99 and that as at the 16th and 21st July there was no valid stay of execution, the respondents having failed to fulfill the condition precedent. He relied on the enrolment of the order of the Court of Appeal of the 15/7/99 at page 28 of the record which simply dismissed the respondents’ application.
*FOR THE RESPONDENT
1. Learned senior counsel for the respondents, justifying the decision of the Court of Appeal relied on section 22(2) of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990, and submitted that the execution was superseded by payment of the judgment debt of N106,000.00 on 15th July, 1999 pursuant to the order of the lower court.
2. The totality of their assertions is that the 45 days granted them by the Court of Appeal on the 2/2/99 within which to deposit the sum of N106,000.00 into an interest yielding account at the First Bank of Nigeria Plc., Bank Road, Ibadan, had not expired on the 15/7/99 when the Court of Appeal in its ruling rejected the application for variation and that on that same 15/7/99, the money was deposited in accordance with the order of the court. It is their assertion therefore that as at the 16/7/99 and 21/7/99 when the High Court granted the application for and levied execution on the car of the 1st respondent, the condition precedent to the stay of execution had been fulfilled and a valid and subsisting stay of execution in place. They relied on the ruling of the Court of Appeal of the 15/7/99 by which it refused the respondents’ application for variation at pages 6 15 of the record of appeal.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N10,000 COST]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
1. i. [From Order 3 rule 3(4) of the Court of Appeal Rules, 2002] thus the application to set aside the issuance of the writ of execution and the execution itself ought ordinarily to have been made at the High Court of Oyo State in the first instance. The question therefore is whether there were special circumstances to justify the application being brought in the first instance at the Court of Appeal? Learned senior counsel for the respondents referred to the special circumstances enumerated in the ruling of the court below at pages 74 – 75 of the record and the fact of the 1st respondent’s conviction by the High Court for contempt as such special circumstances to warrant the application of the Court of Appeal. I am again persuaded by the argument of senior counsel for the respondents. There has been no appeal against the ruling of the Court of Appeal of the 15/7/99 pursuant to which the respondent perfected the condition for stay by depositing the sum of N106,000.00 in the bank and so the same remains binding and subsisting. And the car was released in consequence of the stay granted. I am inclined to hold that trial and the conviction by the High Court of the 1st respondent for steps he took in compliance with the valid and subsisting order of stay constitutes a special circumstance to justify the filing of the application at the Court of Appeal. I hold, in the light of the above considerations therefore, that the court below had jurisdiction to entertain the application.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The appellant as a party in the case cannot claim ignorance of this decision of the Court of Appeal on the 15/7/99. He became aware or deemed to have become aware on the 15/7/99 that the court decided to keep the running of the 45 days in abeyance during the pendency of the motion for variation from the 17/3/99 to 15/7/99. And from the uncontroverted evidence on record, he was also aware of the respondent’s deposit of the sum of N106,000.00 in the bank in the name of the Deputy Chief Registrar, Court of Appeal Ibadan. Yet he ignored the ruling of the court and the stay in place and proceeded to initiate processes at the High Court for the execution and attachment of the 1st respondent’s car.
⦿ SOME PROVISIONS
Section 22(2) of the Sheriffs and Civil Process Act: “If the judgment debtor, before the actual sale of the property, pays or caused to be paid or tendered to the registrar of the court from which the writ issued or to the bailiff holding the writ, the sum of money and costs inserted or endorsed as aforesaid, or such part thereof as the judgment creditor agrees to accept in full satisfaction, together with the fees inserted or endorsed as aforesaid, the execution shall be superseded, and the property of the judgment debtor shall be discharged and set at liberty.”
Order 3 rule 3(4) of the Court of Appeal Rules, 2002 which states: “Wherever under these rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
And application to set aside a wrongful issuance of a writ of execution and a wrongful execution is, like an application for stay of execution, an interlocutory application over which both the High Court and the Court of Appeal have concurrent jurisdiction. – Tabai, JSC. Akinyemi v. Soyanwo (2006)
It is a settled principle of law that every party to a suit, and indeed every citizen, has an obligation to obey the subsisting court decision or order in the suit unless and until it is set aside. And the party’s obligation to obey the decision is without regard to his perception about the irregularity or illegality of the decision as long as it subsists. – Tabai, JSC. Akinyemi v. Soyanwo (2006)