CaseLaw
Cole V. Jibunoh & Ors (2016) CLR 1(a) (SC)
Judgement delivered on January, 15th 2016
Brief
Facts
This appeal is against the judgment of the Court of Appeal, Lagos Division (the Court below), delivered on 17th November, 2005 which after hearing the appeal found that the suit was caught by the doctrine of Res Judicata and it finally dismissed the appeal.
Briefly put, the facts of the case giving rise to this appeal are that a suit with No.ID/1082/90 namely Rev. C.L.M Fajemirokun (the 2nd Respondent herein) vs Mrs. Titilayo Cole (appellant herein, was earlier filed and tried by Lagos High court (Ikeja Division) in which the 2nd Respondent herein was successful and he obtained judgment in the sum of #169,000.00 against the present appellant, who was the defendant in that suit. Sequel to that a Writ of Attachment was filed for purpose of execution, of the judgment to cover the judgment debt against the appellant's moveable property. After the execution, only a sum of #15,812.50k was recovered which was obviously short of the judgment debt due to the 2nd Respondent. That being the case, the 2nd Respondent/ judgment creditor applied to the trial court to issue Writ of Attachment and subsequently for the sale of the judgment debtor's/immovable property to cover the outstanding judgment debt. There upon, the trial High Court attached the landed property of the judgment debtor situate at No.23 Osipitan Street, Bariga, Lagos. Despite the order for attachment the appellant as judgment debtor, neglected or refused to pay the judgment debt. Instead, the appellant/judgment debtor chose to file a motion on notice on 24/4/1994 seeking the court to set aside the Writ of Attachment. The motion on notice was heard and ultimately dismissed by the trial court.
Following the dismissal of the motion of the appellant, the Deputy Sheriff of the Lagos State High Court now 3rd Respondent herein, issued a Public Notice of Auction Sale by advertising the sale of the said landed property of the judgment debtor/appellant. On 23/11/94 the sale of the property was conducted publicly and the property was sold at a cost of #450,000 to the 1st Respondent herein, who happened to be the highest bidder and he was later issued with Certificate of Purchase after 21 days from the date of the saIe.
Aggrieved by the sale of her property, the judgment debtor/appellant herein, decided to institute a fresh action as suit No/ID/3228/94 of 13/1/1994 challenging the sale and seeking a declaration annulling the sale for same being void. In his reaction to the Writ of summons, the 1st Respondent filed a 'Notice of Preliminary Objection' challenging the jurisdiction of the trial court principally, on the ground that the issue raised in the latter suit (No/ID/3228/94) had been raised and determined earlier in the former suit i.e No/ID/1082/90 and that the sale of the property had become absolute in the light of the provisions of Sheriff and Civil Process Act. Upon taking or hearing the Preliminary Objection, the learned trial judge dismissed the Preliminary Objection because according to him, the nature of the action did not relate to the provision of Sheriff and Civil Process Act.
Dissatisfied with the finding of the trial judge, the 1st Respondent herein, appealed to the court below. On 4/10/2005, the court below delivered its judgment allowing the appeal. The appellant thereupon became piqued by the decision of the court below, hence she appealed to this court.