3PLR – KOSOFE LOCAL GOVERNMENT AREA & ORS. V. CHIEF T. ABAYOMI DAVIES

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KOSOFE LOCAL GOVERNMENT AREA & ORS.

V.

CHIEF T. ABAYOMI DAVIES

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 18TH DAY OF JUNE, 2012

CA/L/661/2008

3PLR/2012/59 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

HELEN MORONKEJI OGUNWUMIJU, JSC

RITA NOSAKHARE PEMU, JSC

MOHAMMED AMBI-USI DANJUMA, JSC

BETWEEN

KOSOFE LOCAL GOVERNMENT AREA & ORS. – Appellants

AND

CHIEF T, ABAYOMI DAVIES – Respondents

REPRESENTATION

1. R. Oguntade Esq. – For Appellant

AND

1. A. O. Nylander – For Respondent

MAIN ISSUES

1. LAND LAW – POSSESSION OF LAND: Whether the law ascribes possession to the party who has better title where there are rival claimants

“That courts have consistently held that, where there are rival claimants to possession of a piece of land, the law ascribes possession to the party who has title or better title. That a trespasser, though in actual physical possession of the land, is regarded in law not to be in any possession since he cannot, by his own wrongful act of trespass, acquire any possession recognized at law – CARRENA V. AKINLASE (2008) 14 NWLR (Pt.1107) 262 pg. 281 g.” Per PEMU J.C.A (P 20,Paras A-C)

2. APPEAL – RESPONDENT’S NOTICE: Whether respondent’s notice brings to the notice of the appellate court factual or legal reasons relied on to arrive at its ratio decidendi

“The Respondents Notice postulates the correctness of the Judgment notwithstanding the grounds of appeal, by the Appellant to set it aside.” A Respondents’ Notice brings to the attention of the Appellate Court, factual or legal reasons, apart from the facts and law which the trial court relied on, to arrive at its ratio decidendi, and to convince the appellate court that these reasons hitherto brought to the attention of the trial court, but not considered can as well be used by the appellate court to affirm the Judgment of the trial court, which the Respondent seeks to defend. Order 9 of the Court of Appeal Rules can only be activated where the issues contained in the Respondents’ Notice had been brought to the attention of the trial court who failed to use those reasons to arrive at its Judgment in favour of the Respondent.” Per PEMU J.C.A (Pp 21-22,Paras D-A)

 

3. COURT – RULES OF COURT: Whether rules of court are used by courts to discover and not to choke justice

“It is my humble view that to bring a motion through a wrong head of rules, does not take away the need for Courts to do substantial justice in any given case, at the expense of regard for technicalities. As rightly stipulated by Pats Acholom ISC in DUKE V. AKPABUYO LOCAL GOVERNMENT (2005) 12 S.C. (Pt.1) at page 4 “Rules of Court are to be used by the Courts to discover justice and not to choke, throttle or asphyxiate justice. They are not a sine qua non in the just determination of a case and therefore not immutable.” Per PEMU J.C.A (P 19,Paras A-C)

 

MAIN JUDGMENT

 

RITA NOSAKHARE PEMU J.C.A, (Delivering the Leading Judgment):

This appeal is against the Ruling of Honourable Justice L.A. Okunnu delivered on the 14th day of April 2008 at the High Court of Justice, Lagos State, Ikeja, wherein he dismissed the Appellants application challenging the power of the Administrative judge to approve the execution of the Judgment delivered on the 15th day of March 2006, by Hon. Justice O.M. Falase (Mrs) (Deceased) of the Lagos State High Court and executed on the 24th of January 2008.
SYNOPSIS OF THE FACTS

By Writ of Summons dated 16th February 1993 and in paragraph 16 of his Statement of Claim dated and filed on same date, the Defendants (now Appellants) sought the following reliefs from the court below viz:

(1)     A declaration that the property known as and called Block B, located along Ogudu Road, Ojota by Taiwo Street, Ojota, Lagos which the Plaintiff bought from the Olabisi family in 1976 belongs to the Plaintiff.

(2)     A declaration that the purported entering of the property by the Defendants is unlawful, illegal, invalid
and void.

(3)     An Order of perpetual injunction restraining the defendants, their agents, privies or servants from entering or building upon any part or portion of the property in any way contravening in trespass therein.

(4)     General damages in the sum of N2,000,000.00 (Two Million Naira Only) against the Defendants jointly and severally for trespass.

At the conclusion of hearing of the case, the learned trial judge Hon. Justice O.M. Falase (Mrs) (Deceased) on the 15th of March 2006, found for the Claimant in the following terms-

“Judgment is hereby entered in favour of the Claimant as follows:-

(1)     A declaration that the property known as and called Block B located along Ogudu Road, Ojota by  Taiwo Street Ojota, Lagos which the Claimant bought from the Olabisi Family in 1976 belongs to the Claimant.

(2)     A declaration that the purported entering of the property by the Defendant is unlawful, illegal and

(3)     An Order of perpetual injunction restraining the Defendants, their agents, privies, servants from entering or building upon any part or portion of the property in any way contravening in trespass therein.

(4)     General damages in the sum of N2,000,000.00 (Two Million Naira) against the Defendants jointly and severally for trespass.”

By motion on notice filed on the 22nd of February 2008, the judgment debtor applicant sought inter alia, a declaration that the purported Warrant of Possession which was issued without due process of law, by the office of the Deputy Sheriff of the Lagos High Court, Ikeja, during the pendency of a subsisting motion for possession, of 4th July 2006, brought by the Judgment Creditor -Respondent is irregular, illegal and therefore null and void.
The learned trial Judge, after taking the application and considering same, struck out the application.

The Appellants are dissatisfied with this decision and have appealed it.

They consequently filed a Notice of Appeal on the 15th of April 2008, with four (4) Grounds of Appeal.

The Appellants seek a “reversal of the Judgment of the lower court and substituting therewith an order setting aside the Possession Warrant dated 22nd January 2007, which was signed in advance of pending proceedings, by a Court different from that in which proceedings were ongoing.”

I find it pertinent to reproduce the four Grounds of Appeal. They are, shorn of its particulars, thus:-

Ground 1. “The learned trial Judge erred in law and in fact in striking out the motion on notice of the Appellant dated 22nd February 2008 seeking for an order to set aside the Possession Warrant signed in advance of in favour of the Respondent dated 22nd January 2007, while the case was still pending in court”.
Ground 2. “The learned trial Judge erred in law in holding that the signing of a Possession Warrant by one Judge while the matter is pending before another Judge is an administrative and not a judicial act, and that the Application for setting aside was wrongly brought.”

Ground 3. “The learned trial Judge erred in law in holding that the Appellant brought the application for setting aside the Possession Warrant under a wrong head of rules and as such subject to striking out”

Ground 4. “The learned trial Judge erred in law in holding that the Respondent’s Application for possession pending before the Court was not an adverse application and as such should not prevent the Pension Warrant already signed in advance of arguments”

By motion on notice filed on the 17th of December 2010, the Respondent/Applicant has sought enlargement of time within which he may file and serve a Respondent’s Notice of Contention that the Judgment should be affirmed on other grounds, and a deeming order, which application was granted by this Court on the 11th of October, 2011.

Learned counsel for the parties filed their respective Briefs of Argument. The Appellants brief was filed on the 5th of November 2010. It was settled by A.A. Osibajo Esq. pursuant to a motion for extension of time to file the said briefs out of time.

The Respondent on his part filed its brief of argument on the 17th of December 2010. It is settled by Adeniyi Ogunfuwa Esq.

The Respondent also filed a Respondent’s Notice on the 20th of December 2010, but same was deemed filed on the 11th of October 2011 by order of this Honourable Court, the Respondent, having been out of time in filing same.

The Respondent’s Notice is to the intent that the decision of the Court below, dated the 14th day of April 2008 be affirmed on grounds, other than those relied on by the Court below. The grounds on which the Respondent intends to rely are as follows:-

“The lower court in its Ruling failed to avert its mind to the position of the law that there was no need for an order of possession to give effect to the Judgment of Hon. Justice O.M. Falase (Mrs.) (Deceased) since the Appellants were adjudged as trespassers, thus issuance of the Writ of Possession during the pendency of motion for possession was unnecessary and superfluous.”

I shall consider the substance of this appeal and thereafter go on to consider the Respondent’s notice.

Learned counsel for the Appellants identified three issues for determination which are similar, materially to the issues couched by the Respondent’s counsel.
For purposes of elucidation, I shall reproduce verbatim the issues for determination as couched by learned counsel to the respective parties.
The Appellants three issues for determination as submitted are as follows:

1. Is the learned trial Judge correct in holding that it is proper for the Administrative Judge to step in and sign a Possession Warrant while the motion for possession itself was yet to be argued before a substantive Judge?
2. Is the learned trial Judge correct in striking out the motion to set aside the signing of the Possession Warrant on the grounds that it was brought under a wrong head of rules?
3. Is the learned trial Judge correct in holding that the signing of the Possession Warrant by the Administrative Judge ahead of the pending motion for possession was in order simply because the said motion is not contrary and hostile to the enforcement of the Judgment?

The Respondent’s two issues for determination as gleaned from paragraphs 3.0-3.2 of his brief are as follows:-

1. Whether the signing of the Warrant of Possession by the Administrative Judge is not an administrative function? If in the affirmative, whether it can be appealed against?
2. (Same distilled from the Respondent’s Notice) Whether the Respondent properly executed the Warrant of Possession in this matter?

It is apparent that issues 1 and 3 of the Appellants’ brief of argument are the same, in as much as it talks about the propriety of the signing of the Warrant of Possession, by the Administrative Judge, ahead of the motion for possession.
Was the learned trial Judge correct in striking out the motion to set aside the signing of the Warrant of Possession, on the grounds that it was brought under a wrong head of rules?

The question posed by the Respondent, is whether the signing of the said Warrant of Possession by the Administrative Judge was not an administration function? And if so, whether it can be appealed?

I am of the view that I can safely adopt the issues formulated by learned counsel for the respective parties, and I shall adopt these issues as couched in considering this appeal

Learned counsel for the respective parties adopted their briefs of argument on the 19th of March 2012.

Learned counsel for the Appellants had argued that by virtue of the order made by the lower court on the 7th of May 2007, pursuant to information elicited from Mr. Sofola, learned counsel for the Respondent (Defendant at the lower court), which order was that “the pending motion of the Judgment Creditor Applicant dated 4th of July 2006, sought to be adjourned sine die, not being opposed the said application stands adjourned sine die”

Learned counsel argues that since the court had ruled, that the Appellants be put notice before the motion for possession could be considered, which order the Respondent had failed to comply with, but had sought an adjournment sine die, it means that an adverse party existed to that application. Therefore he further argues, any action taken either judicially, or even administratively, is an abuse of either judicial or administrative power, which he urges this Honourable Court to reverse.

He argues that it was perverse of the learned trial Judge, to conclude that the application for possession before the court is not “hostile” to the enforcement of the Judgment, and therefore could be dispensed with without hearing any contrary argument by the Appellants, even when a Court of competent jurisdiction had ordered that the Appellants be put on notice referring to page 10 of the Record of Appeal.

He further argues, that it was perverse of the learned trial Judge to gloss over the fact that the matter was substantively before Hon. Justice Okunobi as at 22nd January 2007, when he consistently claimed that the Administrative Judge stepped in “upon the demise of Justice Falase”, when there was ample evidence before the Court, of the fact that the matter was substantively before Okunobi J, upon the demise of Falase J.

Learned counsel has argued that it is a matter of public law, that for acts carried out in defiance of pending proceedings, the Court is bound to set aside such acts – citing OBI V. INEC & 6 ORS (2007) 7 S.C. 357.

He contends that it was improper for the Administrative Judge to touch and treat a file that was already before a substantive judge, who had given an order, that the other party should be put on notice – a directive that was not complied with
On Issue No. 2, learned counsel submits in essence, that the attitude of the Supreme Court is that there is a need for the Courts to do substantive justice rather than relying on technicalities citing DUKE V. AKPABUYO LOCAL GOVERNMENT (2005) 12 SC (Pt.1) 4; NWOSU V. IMO STATE ENVIRONMENT (1990) 2 NWLR (Pt.135) 688 at 717; UTC (NIG.) LTD. V. PAMOTEI (1989) 3 S.C. (Pt.1379); AG (Bendel State) & 2 ORS. V. AIDEYAN (1989) 9 S.C. 127.
Arguing, learned counsel for the Respondent submits that the lower court’s Ruling was to the effect that the issuance and signing of a Warrant of Possession, is no more than a mere administrative process of the Registry of the High Court of Lagos State. He contends that, after all the Appellants have not appealed this holding by the Court.

He argues that the signing of the Warrant is not a judicial act, but rather, a step taken consequent to a judicial act. This is because Hon. Justice L.G. Marsh, who signed the Warrant of Possession, did not have to re-hear the issues decided by the Judgment of Hon. Justice O.M. Falase (Mrs) (Deceased), before appending his signature on the Warrant of Possession.

He submits unequivocally that the signing of the Warrant of Possession by Hon. Justice L.G. Marsh was an administration act, citing FOLAGBADE V. GOVERNOR OF ONDO STATE (2007) Vol.49 WRN 176.

He submits that a party cannot appeal against a decision made by a Judge in the discharge of a mere administrative duty – citing DIKE V. ADUBA (2000) 3 NWLR (Pt.647).

On Issue distilled from the Respondent’s Notice, learned counsel for the Respondent has argued, that in the event that this Court does not agree with him in respect of Issue No. 1, the execution was proper in the circumstances. That there was a judgment. He adopts his Respondent’s notice.

That Judgment was entered in the Respondent’s favour by the Judgment of the Hon. Justice O.M. Falase (Mrs) Deceased dated 15th March 2006.

He argues that the pertinent question is whether the Respondent was granted possession of the land?

He queries how a party vested with ownership of land may execute Judgment and obtain possession from the trespasser. Is it by approaching the Court for an order of possession, or simply approaching the Court for issuance of a Writ of Possession.

He provided the answer, that it is to approach the Court for issuance of a Writ of Possession.

Learned counsel argues, that to emphasize this, one has to look at the import of Order IV Rule 1(1) of the Judgment Enforcement Procedure Rules, which provides that a Writ of Possession can be issued after the date on which the Court orders possession, or fourteen days from the date of Judgment citing OPARAUGO V. OPARAUGO (2008) 5 NWLR (Pt.1081) 574 page 599 f.
He submits that since the Court has declared that the Appellants are trespassers, it has thus recognized that the Respondent has constructive possession of the premises, and only requires to wait for the expiration of fourteen days before applying for a Warrant of Possession.

On Issues No 1 and 3 which I deemed it fit to take together, the parties are agreed that there was Judgment given in favour of the Respondent in the Court below – pages 8-16 of the Record of Appeal. Put succinctly, Judgment was entered in favour of the Claimant (Respondent) in this suit on the 15th day of March 2006 in the following terms viz:-

1. A declaration that the property known as and called Block B located along Ogudu Road, Ojota by Taiwo Street, Ojota, Lagos which the Claimant bought from the Olabisi family in 1976 belongs to the Claimant.
2. A declaration that the purported entering of the property by the Defendant is unlawful, illegal and
3. An order of perpetual injunction restraining the Defendants, their agents, privies, servants from entering or building upon any part or portions of the property in any way contrary in trespass therein.
4. General damages in the sum of N2,000,000 (Two million naira) against the Defendants jointly and several for trespass.

At pages 26-27 of the Record of Appeal is the Warrant for Possession dated 22nd January 2007. At Page 28 is the Notice of Attachment.

At page 36 of the Record of Appeal, vide minute to the DS from ADS on the 17th of December 2007, it says that there is no pending application in this suit. The ADS therefore submitted the Writ of Fifa and possession for approval.
Indeed at page 37 it states that there is no pending motion and that one that was filed was struck out. Further information was that the suit was not a subject of appeal.

Now for the purpose of giving effect to the subsisting Judgment, in the absence of any subsisting motion and pending appeal, the Appellants (Claimants at the lower court) were at liberty to approach the court for issuance of a Writ of Possession.

I agree with submission of learned counsel for the Respondent that on the Respondent needed to do to give effect to the Judgment of Hon. Justice O.M. Falase (Mrs) Deceased, since the Appellants were adjudged as trespassers, was only to approach the court for the issuance of a Writ of Possession.

Indeed the steps taken by the Respondent in approaching the lower court for an Order of Possession was utterly unnecessary as it was his inherent right.
At page 60 of the Record of Appeal (page 4 of the Judgment) the learned trial Judge, rightly in my view, observed

“that issuance (and signing) of a Warrant for Possession without more, is no more than a mere administrative process of the Registry of the High Court of Lagos State. It is not a judicial act, but rather a step taken consequent upon a judicial act. A Judge signs such processes in chambers, and not by way of a judicial pronouncement made before the parties to the action! Indeed it is for this very reason that the Administrative Judge of the Ikeja Judicial Division could step in upon the demise of Justice Falase, to sign the process. The case file did not have to be re-assigned to another Judge by some “hearing” in the court room in order for the warrant for possession to be signed.”

I cannot agree more, with this view of the learned trial Judge.

From records, as reflected at page 36 of the Record of Appeal, the office of the Deputy Sheriff had since the 1st of February 2007, written to the Defendant/Judgment Debtor/Appellants herein, notifying them of the writ awaiting execution in their office. See page 41 of the Record of Appeal.
The learned trial judge again went on to say that the Warrant for Possession could not by itself alone, amount to the enforcement of the Judgment. The enforcement of the Judgment rather, is in the action taken upon the issuance of the Warrant. The Warrant is no more, than a piece of paper issued for administrative purposes.”

He again observed at page 5 of his Judgment (page 69 of the Record of Appeal) viz –

“The only grouse that the 1st Judgment Debtor could have had was lf action was taken upon that warrant whilst all of the very many motions for stay of execution that it failed were yet pending before the various courts. However, all those motions had gradually been struck out with the last of them being struck out on the 23rd of January 2008, with this, the Judgment Creditor was properly enabled to proceed to cause execution to be levied on the warrant which had stood in abeyance for a period of one year.”

At page 6 of the judgment – page 70 of the Record of Appeal, the learned trial Judge observed that;

“Counsel for the 1st Judgment Debtor has relied on the provision of Order 63 of the High Court of Lagos State (Civil Procedure) Rules 2004 and argued that the Judgment Creditor did not follow the laid-down procedure therein, and has, therefore acted improperly. Order 53, however is totally irrelevant to this case. It concerns summary proceedings for possession instituted before the Court in the first instance. It does not, at all, concern the enforcement of Court Judgments upon the final disposal of a case. the only rules of procedure that relates to the enforcement of Judgment are the Judgment (Enforcement) Rules made under the Sheriff and Civil Process Act.”

The relevant processes of the Judgment Enforcement Procedure Rules, that relate to the issue at hand, are that in Order IV Rule 1(1) of the Judgment Enforcement Procedure Rules of Lagos State. It has this to say-

“No Writ of Possession shall be issued until after the expiration of the day on which the Defendant is ordered to give possession of the land, or, if no day has been fixed, by the Court for giving possession until after the expiration of fourteen days from the day on which Judgment is given”

The facts culminating in this appeal, do not in my view, fall within a circumstance constituting wrongful or irregular execution. It is my view that the learned trial judge is right, when he held that the signing of the Possession Warrant by the Administrative Judge ahead of the pending motion for possession was in order.

The term “Administrative Judge” and “Substantive Judge” in my view are not mutually exclusive. They both perform the same function. The Administrative Judge is just “primus inter pares”

I do not see the rationale, behind learned counsel for the Appellants’ hue and cry about “Administrative and Substantive Judge.”

I agree with the learned trial Judge that the application for possession before the Court is not “hostile to the enforcement of the Judgment”, and therefore could be dispensed with without hearing any contrary argument by the Appellants, even when a Court of competent jurisdiction had ordered that the Appellants be put on notice – page 60 of the Record of Appeal.

The questions in the issues for determination of the Appellants can and ought to be answered in the affirmative. That being so, issues No 1 and 3 are resolved in favour of the Respondent and against the Appellants.

Regarding Issue No 2. At page 6 of the Judgment page 70 of the Record of Appeal, the learned trial Judge had this to say

“Counsel for the 1st Judgment Debtor has relied on the provision of Order 53 of the High Court of Lagos State (Civil Procedure) Rules 2004 and argued that the Judgment Creditor did not allow the laid down procedure therein, and has, therefore, acted improperly. Order 53, however, is totally irrelevant in this case and concerns summary proceedings for possession instituted before the Court in the first instance. It does not, at all concern the enforcement of Court Judgments upon the final disposal of a case. The only rules of procedure that relate to the enforcement of Judgment are the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Act”‘

I simply cannot agree more.

It is my humble view that to bring a motion through a wrong head of rules, does not take away the need for Courts to do substantial justice in any given case, at the expense of regard for technicalities.

As rightly stipulated by Pats Acholom ISC in DUKE V. AKPABUYO LOCAL GOVERNMENT (2005) 12 S.C. (Pt.1) at page 4 “Rules of Court are to be used by the Courts to discover justice and not to choke, throttle or asphyxiate justice. They are not a sine qua non in the just determination of a case and therefore not immutable.”

Appellants’ counsel was misconceived in this issue. The issue is resolved in favour of the Respondent and against the Appellant.

The Respondent on the 20th of December 2010 filed a Respondent’s Notice that the decision be affirmed on grounds other than those relied on by the Court below.

I had earlier on set forth the sole ground for the notice.

Learned counsel for the Respondent arguing the issue distilled from the Respondent notice, linked it to his argument on the first issue. It is to the intent that the execution was proper in the circumstances.

Learned counsel agrees with the lower courts ruling striking out the Defendants/Judgment Debtor/Appellants application seeking inter alia to set aside the warrant of possession. He argues that the Judgment of Hon. Justice O.M. Falase (Mrs) (Deceased) dated 15th March 2006 entered in favour of the Respondent gave possession of the land, subject matter of the dispute in the lower court to the Respondent.

That courts have consistently held that, where there are rival claimants to possession of a piece of land, the law ascribes possession to the party who has title or better title.

That a trespasser, though in actual physical possession of the land, is regarded in law not to be in any possession since he cannot, by his own wrongful act of trespass, acquire any possession recognized at law – CARRENA V. AKINLASE (2008) 14 NWLR (Pt.1107) 262 pg. 281 g.

He submits that a party vested with ownership of land may approach the Court for issuance of a Writ of Possession.

Quoting Order IV Rule 1(1) of the Judgment Enforcement Procedure Rules, he submits that since the Court has declared that the Appellants are trespassers, it has thus recognized that the Respondent has constructive possession of the premises and only requires to wait for the expiration of fourteen days before applying for a Warrant of Possession.

It is noteworthy that the Appellants failed to respond to the Respondent’s Notice.
In BOB-MANUEL V. BRIGGS (2003) 5 NWLR (Part 813) page 323 at page 339 – 340, Uwaifo J.S.C. had this to say inter alia.

“It is said that the traditional role of a Respondent’s Notice is to seek to affirm the Judgment appealed against on other grounds than may have been given in the Judgment: see Lagos City Council V. AJAYI (1970) 1 ALL NLR 291 at 294. The essential position of a Respondent who files a Respondents’ Notice is that the Judgment is correct but that there are other grounds which could either be in substitution for some of the reasons given for it or in addition to the grounds for the Judgment. That can be seen in the observation of Olatawura J.S.C at page 31, of American Cynamid case thus:

‘In my view invocation of Order 3 Rule 14(2) postulates that the Judgment is correct but the reasons for the Judgment are based on wrong premise when there is enough evidence on record which can sustain the Judgment on other grounds other (sic) than those relied upon by the trial court,
The Respondents Notice postulates the correctness of the Judgment notwithstanding the grounds of appeal, by the Appellant to set it aside.”

A Respondents’ Notice brings to the attention of the Appellate Court, factual or legal reasons, apart from the facts and law which the trial court relied on, to arrive at its ratio decidendi, and to convince the appellate court that these reasons hitherto brought to the attention of the trial court, but not considered can as well be used by the appellate court to affirm the Judgment of the trial court, which the Respondent seeks to defend.

Order 9 of the Court of Appeal Rules can only be activated where the issues contained in the Respondents’ Notice had been brought to the attention of the trial court who failed to use those reasons to arrive at its Judgment in favour of the Respondent.

It is obvious that the issue of proper execution of the Warrant of Possession came up in the lower court, as the Respondent submits that the execution was proper. Therefore this issue came up at the trial court, and this is not a case where the Appellate Court is assuming the powers of the trial court to determine issues not submitted to it for determination.

After all no Respondent can use the Respondents’ Notice to make a case at the Appellate Court that it did not make at the trial court – OSAYANDE UHUMNANGHO V. F.I. OKOJIE & ANOR. (1989) 12 SCNJ 84; NABISCO INC. V. ALLIED BISCUITS COMPANY LTD. (1998) 7 SCNJ 225.

I had that the issue raised in the Respondent’s Notice, came up at the lower court, and has been considered in the consideration of the issues formulated by the Appellants in this appeal.

As earlier observed, the fact of this appeal do not fall within the circumstances constituting wrongful or irregular execution. The issue in the Respondent’s Notice is resolved in favour of the Respondent and against the Appellants.
The appeal is bereft of merit and it is hereby dismissed.

The Ruling of the Honourable Justice L.A. Okunnu dated 14th day of April 2008 is hereby affirmed. No order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A:

I have read the judgment just delivered by my learned sister RITA NOSAKHARE PEMU, JCA. The issues in controversy were exhaustively treated and I have nothing useful to add. I agree that the appeal be dismissed. I abide by the order as to costs.

1. A. DANJUMA. J.C.A:

I agree that this appeal should be dismissed, as there is no basis to oppose or appeal the decision of an administrative order to approve the execution of a judgment by the signing of the warrant of possession.

The challenge to the exercise of that power is baseless; appeal has no merit. I abide by the lead judgment that affirmed the Ruling of the trial court.