USMAN v. A.B.M OIL (NIG) LTD & ORS
CITATION: (2018) LPELR-46400(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON THURSDAY, 20TH DECEMBER, 2018Suit No: CA/J/96/2018
Before Their Lordships:
UCHECHUKWU ONYEMENAM Justice, Court of AppealTANI YUSUF HASSAN Justice, Court of AppealMUDASHIRU NASIRU ONIYANGI Justice, Court of Appeal
BetweenMOHAMMED USMAN - Appellant(s)
And1. A.B.M OIL NIGERIA LTD2. A.U.S GENERAL MERCHANT NIG. LTD3. ALHAJI USMAN SALEH4. ALHAJI ALI YUSUF5. DEPUTY SHERRIFF, BORNO STATE HIGH COURTOF JUSTICE
- Respondent(s)
RATIO DECIDENDI1. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of an issue for determination not arising or relating to
any ground of appeal"In the Appellant's reply brief, the Appellant challenged the competence of the 1st issue raised by the 1stRespondent's counsel alleging that the same does not flow from the grounds of appeal in the Notice ofAppeal. The Courts have settled that issue or issues for determination in an appeal must flow from thegrounds of appeal and therefore, any issue not founded from the grounds of appeal is incompetent andmust be struck out. See: TAHIR V. KAPITAL INSURANCE CO. LTD. (2007) ALL F.W.L.R (PT. 370) PG. 1482;EMMANUEL V. DOHERTY (2008) ALL F.W.L.R (PT. 445) PG. 1634. I have gone through the grounds ofappeal and I agree with the learned counsel for the Appellant that the issue 1 formulated by theRespondents does not arise from the grounds. In view of the above authorities, I hold that the 1stRespondent's issue number one in his brief of argument is incompetent having not been distilled from theAppellant's grounds of appeal. The same is struck out and discountenanced with the submissions madetherein."Per ONYEMENAM, J.C.A. (Pp. 6-7, Paras. E-C) - read in context
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2. EVIDENCE - ESTOPPEL PER REM JUDICATAM/RES JUDICATA: Types of privies and the principles oflaw governing privies in estate in relation to a judgment of Court"A privy is that person whose title is derived from and who claims through a party. It also includes personshaving interest in property. There are three kinds of privies:a) privies in blood, such as testator and heirb) privies in law such as testator and executor or in the case of intestate succession, a successor andadministrator.c) privies in estate, such as vendor and purchasers; lessor and lessee etc. See: ARABIO V. KANGA (1932) 1WACA 253; COKER V. SANYAOLU (1976) 9 - 10 SC 203; AKPAN V. UTIN (1996) 7 NWLR (PT. 108)164;ADELEKE V. AKANJI (1994) 4 NWLR (PT. 341) 715; NWOSU V. UDEAJA (1990)1 NWLR (PT. 125) 188;AGBOGUNLERI V. DEPO & ORS. (2008) LPELR - 143 (SC);The principle of law governing privies in estate in relation to judgment and order of Court has been setdown by the apex Court. In OMIYALE V. MACAULAY & ORS (2009) 3 M.J.S.C PG. 29 AT 45 PARAS C-D; wherewith similar facts, the Appellants therein contended that the Respondents were privies of the parties inExhibits M and M1 because the root of title of the Respondents was traced to one of the parties in theExhibits referred to. The Apex Court followed its earlier decision in TALABI V. ADESEYE (1972) 7 -8 SC 20;where per Coker, JSC said:"Prima facie, a prior purchaser of land cannot be estopped as being privy in estate by a judgment obtainedin action against the vendor commenced after the purchase. (See per Rommer J., in MERCANTILEINVESTMENT AND GENERAL TRUST COMPANY V. RIVER PLATE TRUST LOAN AND AGENCY COMPANY (1894)1 CH. D. 578 AT PAGE 595). In Spencer-Bower on Res Judicata (Second Edition) at P. 210, the followingstatement of law appears: -'where privity of estate is set up as the foundation of estoppels per rem judicata, the title relied on toestablish such privity must have arisen after the judgment on which res judicata is based, or at least afterthe commencement of the proceedings in the course of which judgment was given."In the instant case, it is on record and not in dispute that the Appellant purchased the Filling Stationthrough the 5th Respondent on 9th May, 2013 at the consideration of N20,000,000.00. See pages 8 and 9;page 84 lines 4-8 of the record. It is also undisputed that the ruling in Motion No. BOHC/MG/CV/02m/14was delivered on 12th August; 2014. Not in contention too, is the fact that the Appellant was not a party inthe proceedings of the referred motion yet, the trial Court held that the Appellant was bound by the rulingin the said Motion No. BOHC/MG/CV/02/14 as he was a party by privy because he derived his root of title tothe filling station from the 5th Respondent who acted as an agent of 2nd & 3rd Respondents who wereparties to the ruling in Motion No. BOHC/MG/CV/02m/14. See pages 84 - 85 line 5 of the records. There isno gain saying that the Appellant purchased the Filling station long before the ruling that set aside thejudgment in execution of which he purchased the filling station. See pages 8, 9 & 18-24 of the records.This is to say that the purchase predates the decision of the Court in Motion No. BOHC/MG/CV/02m/14.For a purchaser to be a party by privy, the purchase must have taken place after the judgment or theruling against his vendor. In order words a prior purchaser cannot be a party by privy in a judgmentobtained against his vendor after the purchase. See: OMIYALE V. MACAULAY & ORS (supra). I thereforehold that the 1st Respondent having filed motion No. BOHC/MG/CV/02m/14; and its subsequent rulingmade long after the Appellant had purchased the filling station, the Appellant is not and cannot be held aparty by privy to the ruling setting aside the judgment and the order of the attachment. The learned trialJudge was therefore in error when he held that the Appellant was privy to the party in Motion No.BOHC/MG/CV/02m/14.?With the facts and circumstances of the suit leading to this appeal and the issue under consideration, theargument of the learned counsel for the Respondents that the Appellant is bound by the ruling of the trialCourt in Motion No. BOHC/MG/CV/02m/14 since the claim of the Appellant to the auctioned A.B.M. FillingStation was as a result of the Judgment in Suit No. BOHC/MG/CV/61/2011, which was set aside by the trialCourt with all that followed the Judgment as it affects the 1st Respondent including the auction, cannotstand in view of the decision of the Supreme Court in OMIYALE V. MACAULAY & ORS (supra). As well, thecases of SALEH V. MONGUNO & ORS (2006) LPELR-2992 (SC); MACFOY V. U. A. C. LTD (1962) AC 152 AT160; OKAFOR V. A G ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659 are not relevant to this issue. This isparticularly so since in law, a person who is not a party to a case cannot be bound by decisions arisingthere from. This is founded on the latin maxim - res inter alios, acta alteri nocere non debet meaningthings done between others ought not to injure an outsider. See: COKER V. SANYAOLU (1976) 10 NSCC566 AT 573; ABUBAKAR V. B. O. & A. P. LTD (2007) 18 NWLR (PT. 1066) 319; E EZEBILO ABISI V. VINCENTEKWEALOR (SUPRA); CLAY INDUSTRIES (NIG.) LTD. V. ADELEYE AINA (SUPRA); ANYAWOKO V. OKOYE(2010) 5 NWLR (PT. 188) 497."Per ONYEMENAM, J.C.A. (Pp. 10-14, Paras. C-F) - read in context
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3. JUDGMENT AND ORDER - EXECUTORY AND DECLARATORY JUDGMENT: Distinction betweendeclaratory and executory judgment"The parties are ad idem that there is a distinction between an excutory judgment and declaratoryjudgment. Equally there is no dispute that the decision in Motion No. BOHC/MG/CV/02m/2014; isdeclaratory in nature. The law is very well settled that in an action, whatever its nature and no matter howit is framed, the party who approaches the Court obtains the order he seeks. The order may be declaratoryor executory. It is executory where the order declares the rights of the party before the Court and thenproceeds to enjoin the Defendant to act in a certain way. It is declaratory when it merely proclaims theexistence of a legal relationship, but contains no specific order to be carried out by or enforced against theDefendant. CARRENA & ORS V. AKINLASE & ORS. (2008) LPELR - 833 (SC); AKUNNIA V. A.G ANAMBRASTATE & ORS. Furthermore, whilst an executory judgment is capable of immediate enforcement, adeclaratory judgment gives no such right. The right which a declaratory judgment confers on the Plaintiffcan only be enforceable if another and subsequent judgment, howbeit relying on the rights it declared, sodecrees. Such a subsequent judgment conferring the power of execution is executory. The date ofenforceability must be the date of the subsequent (executory) judgment and not the earlier judgment,which is merely declaratory. OGUNLADE V. ADELEYE (1992) LPELR - 2340 (SC).The Appellant's contention herein is that the enforcement of the declaratory decision of the trial Court wasvoid. The trial Court agreed with the Appellant that the act was improper but voidable and not void abinitio. Since a declaratory order confers unenforceable right to a party except and until there is asubsequent executory judgment that makes the earlier enforceable at such a later date the executoryjudgment was entered. It means by the ruling of the trial court in Motion No. BOHC/MG/CV/02m/2014;there was nothing for the 5th Respondent to enforce; and there being nothing, the 5th Respondentexecuted nothing meaning that any purported execution of a non-executory judgment was null and voidas the same was not in existence. I therefore do not agree with the learned trial Judge that the act of the5th Respondent in handing over possession of the A.B.M. Filling Station to the 1st Respondent based onthe declaratory decision of the trial Court without a subsequent decision decreeing the execution of thedeclarations of rights in the ruling in Motion No. BOHC/MG/CV/02m/2014 is merely voidable. I hold that theact is void in law moreso since I had earlier on in this judgment held that the Appellant was not privy tothe party in Motion No. BOHC/MG/CV/02m/2014; and was therefore not bound by its ruling. The argumentof the 1st Respondent that the fact that the trial Court set aside the judgment in suit No.BOHC/MG/CV/61/2011 and the ensuing order that led to the auction of the filling station made the act ofthe 5th Respondent valid flies in the face of the fact that the said order setting aside the auction did notmake the declaratory orders sought for by the 1st Respondent and so granted by the trial Court executoryin that the order setting aside the auction and other acts did not direct nor contain a specific order to becarried out by or enforced against the parties on who the Appellant was alleged to be privy to."PerONYEMENAM, J.C.A. (Pp. 17-20, Paras. C-B) - read in context
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UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the
Leading Judgment): The appeal is the dissatisfaction of
the judgment of the High Court of Borno State in Suit No.
BOHC/MG/CV/25/17 delivered on 15th January, 2018 by
Haruna Yusuf Mshelia, J.
The Appellant who was the Claimant at the trial Court
initiated an action by way of an Originating Summons filed
on 23rd March, 2017 before the Borno State High Court
against the Respondents who were the Defendants seeking
for the determination of the following issues: -
i. “Whether the Claimant has purchased the A.B.M
filling station in an auction sale conducted by the 5th
Defendant on 9/5/2013 in the execution of Judgment
in suit No. BOHC/MG/CV/61/2011 of 22/10/2012.
ii. Whether the Claimant is a party to the ruling in
motion No. BOHC/MG/CV/02m/2014 of 12/8/2014
which set as ide the Judgment in sui t No.
BOHC/MG/CV/61/2011 of 22/10/2012 thus, he is
bound by the ruling.
iii. Whether the action of 5th Defendant acting on the
ruling in Motion No. BOHC/MG/CV/0272014 of
12/8/2014 and took over the A.B.M filling station from
the Claimant and handed it over to the 1st Defendant
is not void, illegal and abuse of Judicial process.
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Upon the determination of the above issues the Appellant
sought for the following reliefs from the lower Court: -
i. A declaration that the Claimant has purchased an
A.B.M filling station of Bama Road Maiduguri in an
auction sale conducted by the 5th Defendant on
9/5/2017 in execution of a Judgment in suit No.
BOHC/MG/CV/61/2011 of 22/10/2012.
ii. A declaration that the Claimant is not a party to
the ruling in motion No. BOHC/MG/CV/02m/2014
which set as ide the judgment in sui t No.
BOHC/MG/CV/61/2011 of 22/10/2012 therefore not
bound by it
iii. A declaration that the action of the 5th Defendant
a c t i n g o n t h e r u l i n g i n m o t i o n N o .
BOHC/MG/CV/02m/2014 of taking over the A.B.M
filling station from the Claimant and handed it over
to the 1st Defendant is illegal, void and abuse of
judicial process.
iv. An order directing the 5th Defendant to reverse
the parties to their position before the purported
e n f o r c e m e n t o f a r u l i n g i n m o t i o n N o .
BOHC/MG/CV/02m/2014 of 15/3/2017.
The genesis of the suit leading to this appeal is that the
Appellant bought a filling station known as A.B.M filling
station of Bama
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Road Maiduguri in an auction sale conducted by the 5th
Respondent pursuant to the execution of a Judgment in Suit
No. BOHC/MG/CV/61/2011; between the 2nd and 3rd
Respondents as the Plaintiffs, and 1st and 4th Respondents
as the Defendants. The judgment was delivered on 22nd
October, 2012. In 2014, after the execution of the Judgment
against the immovable property of the 1st and 4th
Respondents, the 1st Respondent filed an application
before the lower Court in motion No. BOHC/MG/CV/02m/14
seeking to set as ide the judgment in su i t No.
BOHC/MG/CV/61/2011 of 22nd October, 2012. The
Appellant by this time had taken possession of the filing
station and carrying on business therein. He was not joined
as a party in motion No. BOHC/MG/CV/02m/14. The trial
Court proceeded and heard the motion and in its ruling
delivered on 12th August, 2014, set aside the earlier
judgment and the order of attachment of immovable
property made; and any action taken pursuant to the
judgment and attachment order. Following the above ruling
the 1st Respondent moved the 5th Respondent to execute
the orders contained in the ruling.
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The 5th Respondent there fore went in to the
Appellant's filling station and took over same from him and
handed it over to the 1st Respondent.
Consequent upon that, the Appellant initiated a action by
way of an Originating Summons before the trial Court
against the Respondents in suit No. BOHC/MG/CV/25/17
seeking for the determination of the issues, and grant of
relieves reproduced above. None of the Respondents with
the exception of 1st Respondent contested the Appellant’s
suit. The trial Court in its Judgment delivered on 15th
January, 2018, dismissed the Appellant’s suit, hence this
appeal.
The appeal was heard on 30th October, 2018 wherein the
following representations were made: K.M. Haruna Esq.,
for the Appellant; M.Y. Usman Esq., holding the brief of K.
A. Dawud Esq., for the 1st Respondent and; Z. Hamza Esq.,
for the 2nd and 3rd Respondents. The 4th and 5th
Respondents were served with hearing notices but failed to
appear. Based on the order of the Court made 26th
September, 2018 directing that the appeal be heard on
Appellant’s and 1st Respondent’s briefs, the appeal was
heard. Mr. Hamza for 2nd and 3rd Respondents said they
were not filing any brief.
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Mr. Haruna referred to the Appellant’s brief filed 26th
March, 2018 and reply brief filed 11th June, 2018. He
adopted and relied on both in urging the Court to allow the
appeal. In response, Mr. Usman for the 1st Respondent
referred to their brief filed 31st May, 2018. He adopted
same in urging the Court to dismiss the appeal.
In the Appellant’s brief settled by Mr. K. M Haruna, he
distilled 3 issues as follows:
i. Whether the lower Court was right when it held that
the Appellant is a party by privy to the ruling in
motion No. BOHC/MG/CV/025/17 and is bound by it.
ii. Whether the lower Court was right when it held
that the Appellant was aware of the proceedings in
motion No. BOHC/MG/CV/02m/2014 but failed to
apply to be joined.
iii. Whether the lower Court was right when it held
that the act of the 5th Respondent of dispossessing
the Appellant of the filling station and delivered it to
the 1st Respondent may be wrong but not void.
On their own, Mr. K. A. Dawud learned counsel for the 1st
Respondent formulated 4 issues for determination to wit:
i. Whether with the subsistence of the ruling of the
lower Court in Motion
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No. BOHC/MG/CV/Q2m/2014, the lower Court can
grant the reliefs sought by the Claimant/Appellant by
the i r Or ig ina t ing Summons in Su i t No .
BOHC/MG/CV/25/2017
ii. Whether the Claimant/Appellant is not bound by
the ruling of the lower Court in Motion No.
BOHC/MS/CV/02m/2014, which set aside all processes
that relate him to the property known as ABM filling
station and as it affect the 1st Defendant/Respondent,
including the judgment of the lower Court in Suit No.
BOHC/MG/CV/61/2011.
iii. Whether in compliance with the ruling of the
lower Court in motion No. BOHC/MG/CV/02M/2014,
the Defendant/Respondent was wrong in returning
back ABM Filing station to its rightful owner, the 1st
Defendant/Respondent.
In the Appellant’s reply brief, the Appellant challenged the
competence of the 1st issue raised by the 1st Respondent’s
counsel alleging that the same does not flow from the
grounds of appeal in the Notice of Appeal. The Courts have
settled that issue or issues for determination in an appeal
must flow from the grounds of appeal and therefore, any
issue not founded from the grounds of appeal is
incompetent and must be struck out.
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See: TAHIR V. KAPITAL INSURANCE CO. LTD. (2007)
ALL F.W.L.R (PT. 370) PG. 1482; EMMANUEL V.
DOHERTY (2008) ALL F.W.L.R (PT. 445) PG. 1634. I
have gone through the grounds of appeal and I agree with
the learned counsel for the Appellant that the issue 1
formulated by the Respondents does not arise from the
grounds. In view of the above authorities, I hold that the
1st Respondent’s issue number one in his brief of argument
is incompetent having not been distilled from the
Appellant’s grounds of appeal. The same is struck out and
discountenanced with the submissions made therein.
I have also examined the issues raised by the parties for the
determination of this appeal, issues 1 and 3 of the
Appellant which are basically the same with issues 2 and 3
of the Respondents’ issues will well settle the dispute in
this appeal. Also from the phrasing of the Appellant’s
issues, the resolution of issue 1 will answer the Appellant’s
issue 2, I shall therefore adopt issues 1 and 3 of the
Appellant’s issues for the resolution of the appeal.
SUBMISSIONS ON ISSUE 1
“Whether the lower Court was right when it held that
the Appellant is a party by privy to the ruling in
motion No. BOHC/MG/CV/025/17 and is bound by it.”
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Mr. Haruna, the learned counsel for the Appellant argued
that the Appellant purchased an A.B.M filling station in an
auction sale conducted by the 5th Respondent on 9th May,
2013 in execution of a judgment delivered in Suit No.
BOHC/MG/CV/61/2011; on 22nd October, 2012 between
the 2nd and 3rd Respondents as plaintiffs; and 1st and 4th
Respondents as Defendants at the consideration of
N20,000,000.00. He noted that the 1st and 4th
Respondents did not appeal against the referred judgment
which execution was carried out six months thereafter.
Rather by motion No. BOHC/MG/CV/02m/2014; the 1st
Respondent got both the judgment and the ensuing auction
that vested the Filling station on the Appellant set aside.
Following this the 5th Respondent repossessed the A.B.M
filling station which was auctioned to the Appellant and
gave the same back to the 1st Respondent.
Upon this, the Appellant initiated an action before the trial
Court for a declaration that he was not a party to Motion
No. BOHC/MG/CV/02/2014 which set aside the judgment in
suit No.BOHC/MG/CV/61/2011 and
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the ensuing order of attachment and therefore cannot be
bound by the order made therein. In its judgment delivered
on 15th January, 2018 the trial Court held that the
Appellant is a party by privy to the ruling in motion No.
BOHC/MG/CV/02/14 and so was bound by it.
The learned counsel argued that the learned trial Judge
was wrong in law since the Appellant purchased the filling
station long before the ruling that set aside the judgment in
execution of which he purchased the filling station. He
submitted that, for a purchaser to be a party by privy, the
purchase must have taken place after the judgment or the
ruling against his vendor. He cited: OMIYALE V.
MACAULAY & ORS (2009) 3 M.J.S.C PG. 29 AT 45
PARAS C - D.
Mr. Haruna argued that had the Appellant been joined as a
party to Motion No. BOHC/MG/CV/02m/14, the ruling
would not have affected the auction of the filling station to
the Appellant. He relied on:SALEH V. MONGUNO (2006)
15 NWLR PT. 1001 PG. 26 AT 51-52 PARAS F-B.
He finally urged the Court to resolve the issue in favour of
the Appellant.
In response, Mr. Dawud, learned counsel for the 1st
Respondent submitted that the
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Appellant is bound by the ruling of the trial Court in Motion
No. BOHC/MG/CV/02m/14 since the claim of the Appellant
to the auctioned A.B.M. Filling Station was as a result of
the Judgment in Suit No. BOHC/MG/CV/61/2011, which was
set aside by the trial Court with all that followed the
Judgment as it affects the 1st Respondent including the
auction. He referred Court to: SALEH V. MONGUNO &
ORS (2006) LPELR-2992 (SC); MACFOY V. U. A. C.
LTD (1962) AC 152 AT 160; OKAFOR V. A G
ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659.
He urged the Court to resolve the issue in favour of the 1st
Respondent.
RESOLUTION OF ISSUE 1
A privy is that person whose title is derived from and who
claims through a party. It also includes persons having
interest in property. There are three kinds of privies:
a) privies in blood, such as testator and heir
b) privies in law such as testator and executor or in the
case of intestate succession, a successor and administrator.
c) privies in estate, such as vendor and purchasers; lessor
and lessee etc. See: ARABIO V. KANGA (1932) 1 WACA
253; COKER V. SANYAOLU (1976) 9 – 10 SC 203;
AKPAN V. UTIN (1996) 7 NWLR (PT. 108)164;
ADELEKE V. AKANJI (1994) 4 NWLR (PT. 341) 715;
NWOSU V. UDEAJA (1990)1 NWLR (PT. 125) 188;
AGBOGUNLERI V. DEPO & ORS. (2008) LPELR – 143
(SC);
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The principle of law governing privies in estate in relation
to judgment and order of Court has been set down by the
apex Court. In OMIYALE V. MACAULAY & ORS (2009) 3
M.J.S.C PG. 29 AT 45 PARAS C-D; where with similar
facts, the Appellants therein contended that the
Respondents were privies of the parties in Exhibits M and
M1 because the root of title of the Respondents was traced
to one of the parties in the Exhibits referred to. The Apex
Court followed its earlier decision in TALABI V. ADESEYE
(1972) 7 -8 SC 20; where per Coker, JSC said:
“Prima facie, a prior purchaser of land cannot be
estopped as being privy in estate by a judgment
obtained in action against the vendor commenced
after the purchase. (See per Rommer J. , in
MERCANTILE INVESTMENT AND GENERAL TRUST
COMPANY V. RIVER PLATE TRUST LOAN AND
AGENCY COMPANY (1894) 1 CH. D. 578 AT PAGE
595). In Spencer-Bower on Res Judicata (Second
Edition) at P. 210, the following statement of law
appears: -
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‘where privity of estate is set up as the foundation of
estoppels per rem judicata, the title relied on to
establish such privity must have arisen after the
judgment on which res judicata is based, or at least
after the commencement of the proceedings in the
course of which judgment was given.”
In the instant case, it is on record and not in dispute that
the Appellant purchased the Filling Station through the 5th
Respondent on 9th May, 2013 at the consideration of
N20,000,000.00. See pages 8 and 9; page 84 lines 4-8 of
the record. It is also undisputed that the ruling in Motion
No. BOHC/MG/CV/02m/14 was delivered on 12th August;
2014. Not in contention too, is the fact that the Appellant
was not a party in the proceedings of the referred motion
yet, the trial Court held that the Appellant was bound by
the ruling in the said Motion No. BOHC/MG/CV/02/14 as he
was a party by privy because he derived his root of title to
the filling station from the 5th Respondent who acted as an
agent of 2nd & 3rd Respondents who were parties to the
ruling in Motion No. BOHC/MG/CV/02m/14. See pages 84 -
85 line 5 of the records.
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There is no gain saying that the Appellant purchased the
Filling station long before the ruling that set aside the
judgment in execution of which he purchased the filling
station. See pages 8, 9 & 18-24 of the records. This is to say
that the purchase predates the decision of the Court in
Motion No. BOHC/MG/CV/02m/14.
For a purchaser to be a party by privy, the purchase must
have taken place after the judgment or the ruling against
his vendor. In order words a prior purchaser cannot be a
party by privy in a judgment obtained against his vendor
after the purchase. See: OMIYALE V. MACAULAY & ORS
(supra). I therefore hold that the 1st Respondent having
filed motion No. BOHC/MG/CV/02m/14; and its subsequent
ruling made long after the Appellant had purchased the
filling station, the Appellant is not and cannot be held a
party by privy to the ruling setting aside the judgment and
the order of the attachment. The learned trial Judge was
therefore in error when he held that the Appellant was
privy to the party in Motion No. BOHC/MG/CV/02m/14.
With the facts and circumstances of the suit leading to this
appeal and the issue under consideration, the argument of
the learned counsel for the
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Respondents that the Appellant is bound by the ruling of
the trial Court in Motion No. BOHC/MG/CV/02m/14 since
the claim of the Appellant to the auctioned A.B.M. Filling
Station was as a result of the Judgment in Suit No.
BOHC/MG/CV/61/2011, which was set aside by the trial
Court with all that followed the Judgment as it affects the
1st Respondent including the auction, cannot stand in view
of the decision of the Supreme Court in OMIYALE V.
MACAULAY & ORS (supra). As well, the cases of SALEH
V. MONGUNO & ORS (2006) LPELR-2992 (SC);
MACFOY V. U. A. C. LTD (1962) AC 152 AT 160;
OKAFOR V. A G ANAMBRA STATE (1991) 6 NWLR
(PT. 200) 659 are not relevant to this issue. This is
particularly so since in law, a person who is not a party to a
case cannot be bound by decisions arising there from. This
is founded on the latin maxim – res inter alios, acta alteri
nocere non debet meaning things done between
others ought not to injure an outsider. See: COKER V.
SANYAOLU (1976) 10 NSCC 566 AT 573; ABUBAKAR
V. B. O. & A. P. LTD (2007) 18 NWLR (PT. 1066) 319;
E EZEBILO ABISI V. VINCENT EKWEALOR (SUPRA);
CLAY INDUSTRIES (NIG.) LTD. V. ADELEYE AINA
(SUPRA); ANYAWOKO V. OKOYE (2010) 5 NWLR (PT.
188) 497.
I therefore resolve issue 1 in favour of the Appellant.
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SUBMISSIONS ON ISSUE 2
"whether the lower Court was right when it held that
the act of the 5th Respondent of dispossessing the
Appellant of the filling station and delivered it to the
1st Respondent may be wrong but not void."
Mr. Haruna referred to the ruling of the trial Court in
Motion No. BOHC/MG/CV/02m/14 which he noted was
declaratory in nature. He submitted that the act of the 5th
Respondent in enforcing a non-executory but declaratory
order is void, illegal and abuse of judicial process. The
learned counsel contended that while an executory
Judgment must contain an order directing the parties to do
or abstain from doing particular act (s); in a declaratory
order , there i s noth ing to be en forced . See :
OLORUNTOBA - OJU V. DOPAMU (2008) ALL FWLR
PT. 411 PG. 810 AT837PARAS B-G.
He urged the Court to resolve this issue in favour of the
Appellant, allow the appeal, set aside the judgment of the
trial Court and enter Judgment for the Appellant and grant
the relieves sought in his originating summons as contained
in page 2 of the records.
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Mr. Dawud, learned counsel for the Respondents referred
this Court to paragraphs f, g, h, I, j, k, L, m, n, o, p, q, r, s, t
at pages 45 47 of the records. The learned counsel further
referred the Court to the ruling of the trial Court in Motion
No. BOHC/MG/CV/02m/2014 at pages 18 to 24, particularly
its holding at page 24 of the records to agree with the
learned counsel for the Appellant that the orders in the
ruling were declaratory in nature. However, Mr. Dawud
invited the Court to the holding of the trial Court in the
ruling that any action taken pursuant to the judgment in
Suit No. BQHC/MG/CV/61/2011 and the attachment order
were all set aside. He then submitted that the auction of
the A.B.M. Filling Station was set aside by the said ruling of
the trial Court and he urged this Court to so hold.
The learned counsel for the 1st Respondent argued that it
was for the fact that the auction was set aside that the 1st
Respondent applied to the 5th Respondent to return A.B.M.
filling station to him being the owner of the said property.
Consequent upon the application made, the 5th Respondent
returned the A.B.M. filling station to the 1st Respondent.
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He submitted therefore that the act of the 5th Respondent
was right in law. He referred to: Section 41 (1); 44 (1) of
the 1999 Constitution of the Federal Republic of Nigeria as
amended to further submit that no citizen may be deprived
of his property without due process of law. He also referred
to: SALEH V. MONGUNO & ORS (2006) (SUPRA) AT
PP 44 TO 45.
He finally urged the Court to hold that the returning of the
A.B.M. Filling Station to the 1st Respondent was proper in
Law.
RESOLUTION OF ISSUE 2
The parties are ad idem that there is a distinction between
an excutory judgment and declaratory judgment. Equally
there is no dispute that the decision in Motion No.
BOHC/MG/CV/02m/2014; is declaratory in nature. The
law is very well settled that in an action, whatever its
nature and no matter how it is framed, the party who
approaches the Court obtains the order he seeks. The order
may be declaratory or executory. It is executory where the
order declares the rights of the party before the Court and
then proceeds to enjoin the Defendant to act in a certain
way. It is declaratory when it merely proclaims the
existence of a legal
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relationship, but contains no specific order to be carried
out by or enforced against the Defendant. CARRENA &
ORS V. AKINLASE & ORS. (2008) LPELR – 833 (SC);
AKUNNIA V. A.G ANAMBRA STATE & ORS.
Furthermore, whilst an executory judgment is capable of
immediate enforcement, a declaratory judgment gives no
such right. The right which a declaratory judgment confers
on the Plaintiff can only be enforceable if another and
subsequent judgment, howbeit relying on the rights it
declared, so decrees. Such a subsequent judgment
conferring the power of execution is executory. The date of
enforceability must be the date of the subsequent
(executory) judgment and not the earlier judgment, which
is merely declaratory. OGUNLADE V. ADELEYE (1992)
LPELR – 2340 (SC).
The Appellant’s contention herein is that the enforcement
of the declaratory decision of the trial Court was void. The
trial Court agreed with the Appellant that the act was
improper but voidable and not void ab initio. Since a
declaratory order confers unenforceable right to a party
except and until there is a subsequent executory judgment
that makes the earlier
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enforceable at such a later date the executory judgment
was entered. It means by the ruling of the trial court in
Motion No. BOHC/MG/CV/02m/2014; there was nothing for
the 5th Respondent to enforce; and there being nothing,
the 5th Respondent executed nothing meaning that any
purported execution of a non-executory judgment was null
and void as the same was not in existence. I therefore do
not agree with the learned trial Judge that the act of the
5th Respondent in handing over possession of the A.B.M.
Filling Station to the 1st Respondent based on the
declaratory decision of the trial Court without a subsequent
decision decreeing the execution of the declarations of
r i g h t s i n t h e r u l i n g i n M o t i o n N o .
BOHC/MG/CV/02m/2014 is merely voidable. I hold that the
act is void in law moreso since I had earlier on in this
judgment held that the Appellant was not privy to the party
in Motion No. BOHC/MG/CV/02m/2014; and was therefore
not bound by its ruling. The argument of the 1st
Respondent that the fact that the trial Court set aside the
judgment in suit No. BOHC/MG/CV/61/2011 and the
ensuing order that led to the auction of the filling station
made the act of the 5th
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Respondent valid flies in the face of the fact that the said
order setting aside the auction did not make the
declaratory orders sought for by the 1st Respondent and so
granted by the trial Court executory in that the order
setting aside the auction and other acts did not direct nor
contain a specific order to be carried out by or enforced
against the parties on who the Appellant was alleged to be
privy to.
From all I have said above, I also resolve issue 2 in favour
of the Appellant.
The appeal therefore possesses merits and the same
succeeds and is allowed. I therefore set aside the judgment
of the High Court o f Borno State , in Sui t No:
BOHC/MG/CV/25/17 delivered on 15th January, 2018.
Consequently, I make the following declarations:
1. A declaration that the Claimant has purchased an
A.B.M Filling station of Bama Road Maiduguri in an
auction sale conducted by the 5th Defendant on
09/05/2017 in execution of a judgment in Suit No.
BOHC/MG/CV/61/2011 OF 22/10/2012
2. A declaration that the Claimant is not a party to the
ruling in motion No. BOHC/MG/CV/02M/2014 which
s e t a s i d e t h e j u d g m e n t i n S u i t N o .
BOHC/MG/CV/61/2011 OF 22/10/2012.
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3. A declaration that the action of 5th Defendant
a c t i n g o n t h e r u l i n g i n M o t i o n N o .
BOHC/MG/CV/02M/2014 of taking over the A.B.M
Filling Station from the Claimant and handed it over
to the 1st Defendant is illegal, void and abuse of
Judicial process
4. An order directing the 5th Defendant to reverse the
parties to their position before the purported
e n f o r c e m e n t o f a r u l i n g i n M o t i o n N o .
BOHC/MG/CV/02M/2014 on 15/03/2017.
I make no other as to cost.
TANI YUSUF HASSAN, J.C.A.: I read in draft the
judgment just delivered by my learned brother,
UCHECHUKWU ONYEMENAM, JCA. I agree with the
reasoning and conclusion allowing the appeal.
MUSDASHIRU NASIRU ONIYANGI, J.C.A.: I have read
in draf t the judgment of my learned brother ,
UCHECHUKWU ONYEMENAM, JCA just delivered and
I agree with the reasoning and conclusions reached that
there is merit in this appeal and should be allowed. I allow
the appeal and abide by the consequential declarations
therein.
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Appearances:
K.M. Haruna, Esq.For Appellant(s)
M.Y. Usman, Esq. holding the brief of K.A. Dawudfor 1st Respondent.
Z. Hamza for the 2nd and 3rd Respondents ForRespondent(s)
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