Adejumo Fam (Nigeria) Limited & Anor V. Reuben a. Arimokwu (1994)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The appellants sued one J. N. Otele in a Lagos High Court in Suit NO. LD/1403/86 claiming as follows:-

“(1) The Plaintiffs claim is for the sum of N80, 700.00 (Eighty Thousand Seven Hundred Naira). The net sum of money taken by the Defendant from the 1st and 2nd Plaintiff Company between January and October, 1982 plus interest at the rate of 10% per annum until the full sum is satisfied.

(2) An order that the Defendant’s building at Orubor Street Boji Boji Agbor Bendel State which on the Defendant’s own admission was built with the stolen monies, be sold in order to satisfy the judgment debt.”

The appellants were given judgment as per their first leg of claim on the 2nd day of November, 1987. The trial court made no order in respect of the 2nd head of claim. The appellants registered the judgment of the Lagos High Court in the High Court of Agbor now in Delta State for the purpose of levying execution by the sale of the landed property of the judgment debtor situated in Agbor.

The appellant were granted leave to levy execution by the High Court Agbor and in the process of doing so the present respondent brought interpleader proceedings against the appellants to the effect that he had bought the property being attached, (NO.5, Orubor Street, Agbor) from Mr. J. N. Otele since 25th day of February, 1987 and was entitled to Statutory right of occupancy in respect of the same. He prayed the court to set aside the writ of execution and to restrain the appellants from taking possession of the property.

The appellants filed a defence to the interpleader summons to the effect that the judgment debtor stole their money and used it to build the property being attached. In paragraph 11 of their defence they averred as follows:-

“11. The Judgment creditors shall contend that the purported sale of the property by the Judgment Debtor to the Claimant on the 25th day of February 1987, was fraudulent in that the Judgment Debtor knew he had no title to the said property and so could not pass any to the Claimant.”

The respondent and his witnesses gave evidence to show that the judgment debtor who testified as P.W.3 sold the disputed property to him as far back as 25th February, 1987 for the same N60, 000.00 and he was handed over the documents of sale and the keys of the house and had been in possession ever since.

One Rasaki Adejumo gave evidence on behalf of the appellants that the judgment debtor embezzled N95,000.00 of their money and was reported to the police. He was tried by a Magistrate court in Lagos and convicted and sentenced to a term of imprisonment. Later the appellants sued him for the recovery of their money and obtained judgment on the 2nd day of November, 1987. It was pursuant to that judgment that they were levying execution for the sale of the dispute property.

D.W.1 D.S.P. Kayode Ogungbe gave evidence for the appellants on how he investigated the case of stealing against the judgment debtor, recorded statements from him and persecuted him. He identified the statements recorded from the judgment debtor as Exhibits 10 to 15. He also tendered Exhibits 15 to 20. He said that in the course of his investigation he went to Agbor and saw the disputed property which he was satisfied belonged to the judgment debtor.

In a reserved judgment, the trial Judge found against the appellants and ordered the release of the attached property to the respondent. It is against this judgment that the appellants have appealed to this court on two grounds of appeal which read:-

(a) The decision is against the weight of evidence.

(b) The learned trial Judge erred in law when it released the building (subject of litigation) from attachment;

when:-
(i) There was no valid sale of the same property between the judgment debtor and the claimant/respondent, the consent of the Governor not having been sought in accordance with S.22 of the Land Use Act, 1978.

(ii) The Judgment Debtor had no property (having admitted using the monies of the Judgment Creditor fraudulently to build the said house) to pass on to the Claimant/Respondent, for the maxim is nemo dat quod non habet.”

In accordance with the Rules of Court, the appellants filed a brief of argument in which 3 issues for determination were formulated as follows:-

“(a) Whether, as at the date of the purported sale of the property to the claimant, that is 25th February, 1987, Mr. J.N. Otele was in a position to pass any title at all?

(b) What is the proper interpretation and application of the case of Rabiu Jinadu v. Raphael A.S. Babaoye (1966) 2 ALL N.L.R. 241?

(c) Whether the contradictions in the evidence of the claimant’s witnesses were not enough to render their case unreliable and so disentitle him to judgment.”

The respondent filed a brief in which he identified 3 issues for determination as follows:-

“1. Whether as at the time of ATTACHMENT Mr. REUBEN ARIMOKU was validly in possession of the property ATTACHED.

2. Whether the building could revert to the judgment creditor without the orders of the Court if part of the stolen money was used for building the house attached.

3. Whether the sale of the building was in fraud of creditors.

The 2nd issue for determination formulated by the appellants is not supported by any grounds of appeal and it is trite law that any issue that does not flow from a ground of appeal is not a proper issue and must be discountenanced. See the case of Alhaji Chief Abu Momodu and Others Vs. His Highness Alhaji A. J. Momoh and others (1991) 1 N.W.L.R. (Pt. 169) 608 at pages 620 to 621.Accordingly I strike out the 2nd issue.

The principal issue is the first issue formulated in the appellants’ brief and supported by the first issue in the respondent’s brief. The learned counsel for the appellants submitted that the judgment debtor, Jonathan Otele was found guilty of stealing money from the appellants and convicted by a Lagos Chief Magistrate on the 4th of October, 1985 as shown in Exhibit 21. The said Otele had admitted that he used the stolen money to build the disputed house. As a result of the judgment of the Magistrate Court, the appellants sued the judgment debtor and obtained judgment against him on the 2nd of November, 1987. Prior to this judgment, he had instructed his younger brother to sell the disputed property to the respondent.

The learned counsel submitted that the judgment debtor could not be allowed to reap the benefit of his fraud and could not validly sell the disputed property to the respondent, since according to him the nature of the relationship between the judgment debtor and the appellants is one of employee/employer with a tinge of trust relationship.

In reply to this, the respondent’s counsel submitted that the Lagos High Court gave judgment for the appellants in the sum of N80,700.00 but failed to pronounce on the appellants’ request that the attached property be sold in satisfaction thereof. It follows therefore that as at the time of the sale of the property to the respondent there was no encumbrance on it. There was nothing to stop the judgment debtor from selling the property to the respondent.
Further more, the property was sold on the 25th day of February, 1987 while the writ of execution was being levied on the 27th of November, 1987 long after the property has been sold.

It was argued that whatever admission the judgment debtor made in a criminal matter would not divest him of his property sought to be attached. If it were otherwise, the appellants would not have gone to the Lagos High Court to obtain judgment against the judgment debtor after the criminal case. It was argued that the judgment debtor had validly passed title in the disputed property to the respondent.
On the evidence before the trial court, it is without dispute that the disputed property was sold to the respondent as far back as the 25th of February, 1987. At that time the judgment, sought to be executed had not even been given. In fact that judgment was not delivered until the 2nd of November, 1987 and the attachment was being done in November, 1989.
The appellants apart from tendering documents to show that the judgment debtor confessed that he used part of the stolen money in the construction of the disputed property, led no evidence whatsoever that they had a better claim to the attached property than the respondent. If the judgment of the Igbosere Chief Magistrate court created a lien on the attached property why was it necessary for the appellants to go to the High Court of Lagos State claiming a sum of money from the judgment debtor and asking for an order that the attached property be sold? The Lagos High Court declined to make any order for the sale of the attached property.
In my view, the learned trial judge was perfectly right in holding that at the time of the attachment, the disputed property was validly in possession of the respondent and was no more in the possession of the judgment debtor to be attached.
All the arguments of the learned counsel for the appellants regarding trust relationship between judgment debtor and the appellants and the tracing of trust property are merely fanciful but totally irrelevant to the facts of the present case.

On the 3rd issue the learned counsel for the appellants complained that the trial judge did not properly evaluate the evidence before finding in favour of the respondent. He highlighted the error made by the trial judge when he said in his judgment that D.W.1 under cross-examination said that he was satisfied that the house shown him was owned by the judgment debtor and he sold it to P.W.4 when in fact the witness said he was not satisfied that the house was sold to Ideh (P.W.4).
This was clearly a mistake on the part of the trial judge. Be that as it may, it was a very minor mistake. Indeed, the case of the claimant was hardly controverted in the court below. The evidence of the appellants’ witness and the appellants’ representative did not dislodge the fact that the judgment debtor sold his landed property to the respondent who was never a party to any of the disputes between the appellants and the judgment debtor prior to the judgment which was being executed.

In other words, the case of the respondent before the court below was overwhelming and I have no cause to interfere with the decision of the trial court which has not been shown to be unreasonable or perverse. See the cases of A.G. Lagos State v. Sowande (1992) 8 N.W.L.R. (Pt. 261) 589 and Madubuonwu v. Nnalue (1992) 8 N.W.L.R. (pt. 260) 440.
Consequently, I see no merit whatsoever in this appeal which is hereby dismissed with N700.00 costs against the appellants in favour of the respondent.

Other Citations: (1994)LCN/0213(CA)