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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