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Enforcement/execution of declaratory judgment must contain negative orders against a party

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NIGERIAN PORTS AUTHORITY v. DR. SAMA EKPO SAMA & ORS (2019) LPELR-47613(CA)

In the Court of Appeal
(Calabar Judicial Division)

ON THURSDAY, 30TH MAY, 2019
Suit No: CA/C/03/2017

Before Their Lordships:

MOJEED ADEKUNLE OWOADE, JCA
YARGATA BYENCHIT NIMPAR, JCA
MUHAMMED LAWAL SHUAIBU, JCA

Between

NIGERIAN PORTS AUTHORITY
-Appellant(s)

And

1. DR. SAMA EKPO SAMA
2. ATTORNEY GENERAL OF CROSS RIVER STATE
3. LAND USE AND ALLOCATION COMMITTEE, CROSS RIVER STATE
4. COMMISSIONER OF POLICE, CROSS RIVER STATE -Respondent(s)

LEAD JUDGMENT DELIVERED BY MUHAMMED L. SHUAIBU, J.C.A.
FACTS OF THE CASE
This appeal is against the ruling of the High Court of Cross River State sitting at Calabar delivered on December 13, 2016. The 1st respondent, who was the plaintiff in suit No. C/104/84 sued the Attorney General of Cross River State and the Land Use & Allocation Committee, Cross River State claiming ownership of land, which was acquired by Cross River State Government vide acquisition Notice dated May 3, 1979, and claimed certain reliefs.

After trial and in the judgment, the Court held that the right of occupancy of the property reverts to the plaintiff who is declared entitled to take appropriate steps to evict any person from the said property and use same for his own purpose. The prayer for injunction was therefore refused. Upon a motion on notice filed on 8/8/2012, the 1st respondent sought and was granted an indulgence to apply for the issuance of execution processes for the purpose of enforcing the judgment in suit No. C/104/84.

Subsequently, a warrant of possession was issued and signed at the instance of the 1st respondent. However, the appellant and the 1st respondent entered into an agreement whereby appellant’s staff were to remain in the property until 2nd October, 2012 and it was on account of the said agreement that the execution was halted. Before the expiration date, the appellant filed a motion on notice to set aside the leave hitherto granted to the 1st respondent for the issuance of execution processes of enforcing judgment in suit NO 104/84 as well as the warrant of possession issued in that respect. The learned trial judge refused to accede the appellant’s request. Dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal.

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ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the issues distilled by the Appellant:
1. Whether learned trial judge rightly or wrongly held that the appellant lacks the locus standi to apply to the Court below to set aside enforcement of judgment in C/104/84.
2. Whether learned trial judge was right when he held that the appellant who is in physical possession of the property in respect of which, warrant for possession was administratively issued by the Court below can only appeal as an interested party against judgment in C/104/84 as opposed to applying to set aside warrant of possession which was administratively issued by the Court below. 3. Whether learned trial judge rightly or wrongly refused to set aside the warrant of possession which was issued administratively for the enforcement of declaratory/non-executory judgment in C/104/84. 4. Whether having regard to the mandatory provision of Order XI Rule 5 of the Judgment Enforcement Rules and the undertaking/agreement which is at page 162 of the record of appeal, learned trial judge rightly relied on Exhibits MEV 4 & MEV 5 as proof of execution of the Warrant of Possession in respect of the property in dispute on 27/9/12.

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, the Appellant submitted that the law recognizes the locus of a person with possessory right on landed property and that the appellant who was not a party to suit NO. C/104/84, but who admittedly is in occupation of the property which is the subject matter of the execution process has locus standi to challenge the warrant of possession which was administratively issued by the court in respect of the property in dispute. He therefore, submitted that the appellant who is evidently in physical possession of the disputed property at all material times has the locus standi to challenge the said post judgment enforcement order and the administratively issued warrant of possession of 12/9/2012.

On issue two and three, the Appellant submitted that the judgment and the judgment process are two distinct issues which are separate and should be separated. Appellant’s case is that an order of possession in a judgment of the Court is a condition precedent to the issuance of warrant of possession. It is also the case of the appellant that issuance of warrant of possession is purely administrative and not judicial decision. He further submitted that the learned trial judge acted without jurisdiction when he granted leave for the issuance of execution process for enforcement of declaratory judgment in suit NO C/104/84 in the absence of prior order for possession of the property in dispute.

On issue four, the Appellant submitted that Exhibit MUE 4 which is a ruling of the lower Court of 4/9/2012 is not evidence of execution of the declaratory judgment in C/104/84 and Exhibit MEV 5 is also not a proper proof of execution of warrant for possession by the Sheriff. He submitted that there is no certificate evidencing the execution. Also, that a certificate in the form prescribed in form N of the Rent Recovery and Control of Premises Law of Cross River State is the appropriate mode of proving execution of warrant for possession, and that there must be full and exact compliance with the prescribed form.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, two and three, the Respondent submitted that all the processes filed in suits NO. C/104/84, FHC/CA/CS/27/2006 and appeal NO. CA/E/139/89 all reinforce the fact that the property in dispute belongs to the 1st respondent and that same do not support the appellant’s claim to the ownership of the said property. Respondent submitted that by virtue of Order IV Rule 8 of the Judgment Enforcement Rules, the lower Court properly issued the warrant of possession and that its execution was duly carried out.

On the appropriateness of the issuance of writ of possession based on the declaratory judgment, Respondent submitted that the declaration in the instant case is not a bare declaration but one that was backed up with a firm directive that the right of occupancy of the 1st respondent’s property should revert to him. That the judgment in question is not declaratory simpliciter as it went on to empower the 1st respondent to take steps to evict any person found therein. Furthermore, Respondent submitted that the ruling which is the basis of the Warrant of Possession is a judicial decision not an administrative decision and the appellant ought to appeal against it. Finally, it was submitted that Order 7 of the High Court of Cross River (Civil Procedure) Rules 2008 which procedure was adopted by the appellant is not the proper procedure for commencing an action as it is mandatory for proceedings to be commenced under procedure specifically provided for by law or rules of court.

On issue four, the Respondent cited Order XI Rule 5 of the Judgment Enforcement Rules in submitting that all that is required for enforcement of the order of possession made by the Court is that a writ of possession which shall be in the like form as a warrant of possession be taken out to enforce the said judgment. He further submitted that Exhibits MUE 4 and MUE 5 together with the undertaking at page 162 of the record are sufficient to show that the execution was carried out on 27/9/2012.

RESOLUTION OF ISSUES
In resolving issue one, the Court held that once a plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in the writ of summons and statement of claim and in an action commenced by originating summons, or in the depositions in an affidavit in support of the summons, the plaintiff would be adjudged to have shown interest which entitles him to sue on the subject matter. The Court held that it is clear from the affidavits and counter affidavits that the appellant has shown sufficient interest which entitles it to sue on the subject matter and that the chances of success of an action are not relevant consideration. The Court agreed with the appellant that the eviction of a person who is admittedly in physical possession of a property against who no order for possession has been made in a judgment has both the statutory and constitutional right to challenge a warrant of possession which adversely affects him. The appellant having demonstrated and showed that it has vested interest in the property, the subject matter of the attachment in the writ of possession, had the locus standi to bring an action to protect that vested interest.

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Resolving issue two, three and four, the Court held that the judgment in suit NO. C/104/84 is a declaratory judgment without a direct, positive and unequivocal Order as to the eviction of the appellant and its staff from the property, the subject matter of litigation. Also, that notwithstanding the general position of law that once a Court has delivered its decision on a matter it becomes functus officio with regards to that matter, Courts of record have the inherent jurisdiction to set aside their judgment, decisions, or orders, in appropriate cases.

Furthermore, that since the declaratory judgment in suit NO. C/104/84 contained no negative Orders against the appellant and no recovery action was commenced against the appellant, there was no legal basis for the issuance of the execution processes. That being the position, the ruling of Ikpeme J. granting leave to the 1st respondent to apply for the issuance of execution processes for the purpose of enforcing that declaratory judgment was ex-facie without jurisdiction. Worst still, the appellant who was in possession /occupation of the disputed property was not made a party to the aforesaid decisions. Finally, that the appellant does not require any leave to appeal as interested party against the ruling of Ikpeme, J. before moving the Court to set aside its decision and or order which was evidently made without jurisdiction. And also, that the procedure adopted by the appellant was a proper procedure to set aside judgment or orders given without jurisdiction.

HELD
In the final analysis, the Court held that the appeal is meritorious. The ruling in Suit: NO. HC/MSC.219/2012 was set aside. On the other hand, the proceedings in Suit: NO. HC/MSC.180/2012 was accordingly struck out for lack of jurisdiction.
Appearances:
Prof. Taiwo Osipitan, SAN with him, Ayodeji Awobiyide and Horace Bale Teedu -For Appellant(s)
Mba E. Ukweni, SAN with him, E. J. Amatey for 1st Respondent. Angela Obi (SSCI MOJ Calabar)-For 2nd-4th Respondents For Respondent(s)
Compiled by LawPavilion

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