Chief M. O. Olatunji V. Owena Bank of Nigeria Plc & Anor (2002)
LawGlobal-Hub Lead Judgment Report
OKUNOLA, J.C.A.
This is an appeal against the interlocutory decision of D. F. Babalola J., of Ekiti State High Court sitting at Ado Ekiti upon an application by the respondents to set aside the execution of the judgment of the court carried out against the respondents.
The facts of this case briefly put were as follows:
The plaintiff/judgment/creditor/appellant was the respondent while the respondents were the defendants/judgment debtors at the Ado Ekiti High Court. The appellant was a businessman and owner of a Saw mill factory at Iddo Ekiti. On 13th August, 1997 the 1st respondent appointed and caused the 2nd respondent, who claimed to be a licensed auctioner, to remove, at gun point (police gun men) at his Saw mill equipments. The appellant demanded for the return of the equipment without success. He sued at Ado Ekiti High Court for return of the equipment and damages for wrongful, illegal and unconstitutional conducts. Hon. Justice D. F. Babalola, in his judgment, declined to order the return of the equipment but awarded damages of N30,793,000.00. The judgment creditor immediately after the judgment applied for writ of execution which was issued but was not served until 7 days after i.e. 21/3/2000 – 27/3/2000.
The 1st respondent accepted service of the writ of execution and issued its own draft for Thirty Million Seven Hundred and Ninety Three Thousand Naira. The respondents, thereafter filed an application asking the court to set aside the execution of the judgment on the “ground that the said execution was conducted illegally, unlawfully and or in flagrant violation of law calculated to over reach the decision of this court in motion for stay filed and pending in this court”
The learned trial Judge concluded on the ground of the application thus:
“Even though there is a clear evidence from the Registry’s stamp on the notice of appeal and motion on notice for stay of execution filed by the judgment debtor/applicant that the two papers were filed timeously on 21st March, 2000, there is no evidence that the two papers were brought to the knowledge of the judgment creditor before execution was levied on the property of the judgment debtor/applicant on 27th March, 2000. In the same manner, there is no clear evidence that the writ of attachment was signed after the notice of appeal and the motion on notice for stay of execution had been filed on the 21st March, 2000. Therefore, the writ of execution levied by the judgment creditor on the property of the judgment debtor/applicant on the 27th March, 2000 can not on those two grounds be set aside” (See pages 30-31, 1-15 of the records)
The learned trial Judge in a reserved ruling dismissed the grounds of objection in the motion but set aside the execution on the ground that the issuance of the writ of execution violates Order IV rule 1(2) of the Judgment (Enforcement) Rules, Cap. 407, Laws of the Federation, 1990 (Vol. XXII).
Dissatisfied with this decision, the appellant herein filed a notice of appeal dated 24th May, 2000 which contained 3 grounds of appeal but later amended to 2 grounds of appeal. From these two grounds of appeal, the appellant has formulated the following two issues for determination in this appeal, viz:
- Whether the learned trial Judge acted lawfully when he granted a relief not claimed before him in the motion paper.
- Whether the writ of attachment for sums of money, which was signed on 21/3/2000 and executed on 27/3/2000, was irregular and unawful.
Before dealing with the two issues raised in this by the appellant, I need to observe that the respondent in the respondent’s brief at paragraph 30. I raised by way of objection in limine that the grounds of appeal upon which appellant’s brief is premised in grossly incompetent as a consequence of which it should be struck out for the following reasons:
Ground 1
The appellant ground 1 is couched as follows:
“1. The learned trial Judge erred in law when he held as follows:
“The writ of execution issued in this case on 21st day of March, 2000 and the execution levied on the judgment debtor on the 27 March, 2000 are hereby set aside for mere irregularity”
PARTICULARS OF ERROR IN LAW
- The court granted to the applicant more than what the applicant claimed”.
Learned counsel to the respondent submitted at pages 2-3 of the respondent brief that this grounds lacks the prerequisite particulars prescribed by Order 3 rule 2 (2) of the Court of Appeal Rules. Learned counsel submitted further that since this ground which alleges error of law is lacking in particular and the nature of the error not being clearly stated, the ground is therefore incompetent. According to learned counsel ground one as drafted only showed or recapitulated what the trial Judge held; while the only particular stated in support of it is extremely nebulous, incohate and equivocal. It ought to go further to show in absolute particularity what the applicant was granted in excess of her claim. Failing thus, the court is urged to strike out the ground as being incompetent. Learned counsel cited in support of this contention the cases of Giwa-Amu v. Guardian Newspaper Ltd. (1999)8 NWLR (Pt. 616) 568 at 578 Paragraph B to G and Chukwe v. FHA (1999) 10 NWLR (Pt. 624) 574 where at 581 it was held thus:
“Generally an appellant filing a ground of appeal alleging a misdirection or error in law, must supply the particulars of error he is relying on. The particulars must be clearly stated and must be specific so as to give sufficient notice to the respondent to enable him prepare his reply brief.”
In both the submission of counsel and the ruling of the trial court. See pages 20 to 32 of the records, no mention was made of section 20 of the Sheriffs and Civil Process Act talk less of the lower court taking a decision on the issue, nor interpreting Order IV rule 1 (1) and (2) of the Judgment Enforcement Rule. He submitted that an appeal to be competent presupposes the existence of some decisions appealed against. In the absence of a decision on a point, there cannot possibly be an appeal against what had not been decided against a party. Learned counsel therefore submitted that for a ground of appeal to be competent presupposes the existence of some decisions appealed against. In the absence of a decision on a point, there cannot possibly be an appeal against what had not been decided against a party. Learned counsel therefore submitted that for a ground of appeal to be competent, it must arise from the judgment appealed against. Counsel cited also Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531 at 549 paragraph F. It is the submission of counsel that this ground does not arise from any decision of the lower court and should be struck out.
By way of reply, learned counsel to the appellant on page 1 paragraph 2.01 of the appellant reply brief on ground 1 submitted that a ground of appeal is expected to be a succint and concise statement upon which the appellant intends to rely without any argument or narrative. Thus, in construing any ground of appeal the court is expected to construe the totality of the ground and the particulars, counsel therefore submitted that ground 1, complained about, by the respondent, sufficiently, discloses reasonable ground of appeal. Learned counsel cited in support the case of Union Bank of Nig. Plc v. Aminu Ishola (2001) 15 NWLR (Pt.735) 47, (2001) 41 WRN 77.
As to whether ground one arose from the judgment, learned counsel contended that the issue in this appeal relates to the interpretation and application of the Sheriff and Civil Process Act, Cap. 407, Laws of the Federation, 1990 and the rules made thereon to the respondents application as to whether the issuance of writ of attachment on the same date the judgment was delivered was lawful. He contended that the learned trial Judge, with respect, in interpreting the rules of the Sheriffs and Civil Process Act was expected to consider the entire Act and the rules hence an argument that the trial Judge failed to properly consider the law in interpreting the rule or that the decision is contrary to a decision of a superior court on the same matter does not constitute a new issue. Indeed, the learned trial Judge concluded his decision when he said,
“Finally I hold that the requirement of Order 4 rule 1(2) of the Sheriffs and Civil process Act, Cap. 407 Laws of the Federation was not complied with in this case before the writ of execution was issued” Page 32, 10-13.”
Learned counsel submitted that ground 1 of appeal arose from the decision of the learned trial Judge.
I have considered the arguments of both learned counsel to the parties on this ground of objection viz-a-vis the records and the prevailing law. I am of the considered view that ground 1 arose from the judgment in the instant case and not otherwise. In the circumstance the preliminary objection lacks merit and it is accordingly overruled.
Having disposed of the preliminary objection it is necessary to consider the issues formulated by the appellant for determination in the main appeal supra. The respondent disagreed with the appellant on the two issues based on the notice of preliminary objection which has now been overruled. Learned counsel to the respondent in the alternative joined issues with the two issues formulated by the appellant. See pages 4-9 of the respondent’s brief. It is therefore necessary to observe that both parties filed their respective briefs of argument on the main appeal. When this appeal came up for hearing, both learned counsel to the parties adopted and relied on the respective briefs filed in support of their clients position on the appeal. Learned counsel to the appellant, Chief A. S. Awomolo, SAN leading Miss K. O. Jaiyeola and Mr. Balogun adopted and relied on the amended brief of the appellant filed herein on 6/11/200 I and the appellant’s reply brief deemed filed herein on 22/11/2001. Learned SAN on next adjourned date 10/12/2001 adopted the additional list of authorities filed in court after his initial submission which he mentioned had been served on learned counsel to the respondent. On confirmation of receipt, by the learned respondent counsel, the court accepted the authorities which were IBWA Ltd. v. Pavex Int. Nig. Ltd. (2000) 7 NWLR (Pt. 663) 105 p. 130 A-E SC in respect of issue No. 1 contained on paragraph 6.06 at page 5 of the appellant’s brief; Total Nig. Plc. v. Moshood Akinpelu & Anor. (2000) 21 WRN 76 CA in respect of paragraph 7.06 at pages 16-17 of the appellant’s brief on issue No.2; Bhojsons Plc. v. Danied Kalio (2000) FWLR (Pt.14) 2356 p. 2367 paras. B-D (CA) in respect of issue No.2 on paragraph 7.27 at page 17 of the appellant’s brief. Learned leading counsel to the appellant urged the court to allow the appeal.
By way of reply on 14/1/2002 when this appeal came up for continuation, learned leading counsel to the respondent Chief A. A. Adeniyi leading R. W. Ekundayo, Esq., adopted and relies on the respondent’s brief filed herein on 27/6/2001. Counsel raised a preliminary objection in the said brief and also filed an application relating to the same objection. He relied on the argument formulated on the preliminary objection as contained in the said brief. Learned counsel said he had nothing to add. I urged the court to dismiss the appeal.
By way of further reply, leading counsel to the appellant Chief Awomolo, SAN adopted and relied on the appellant’s reply brief filed on 24/10/2001. It is intended to consider the submissions of both learned counsel to the parties on the two issues formulated by the appellant viz-a-viz the records and the prevailing law. On the issue No.1 which is centred on whether the learned trial Judge acted lawfully when he granted a relief not claimed before him in the motion paper, both learned leading counsel to the parties have made copious submissions both in their briefs of argument as well as viva voce before us. The appellant’s counsel argued in the positive while the respondents counsel argued in the negative.
To answer this poser it is necessary to have a short glance through the records so as to see the relief claimed as well as what was granted by the lower court.
Having gone through the records it is clear in the instant appeal that the motion before the trial court specifically claimed for “setting aside the execution of judgment levied on 27th March, 2000, on the ground that the said execution was conducted illegally, unlawfully and or flagrant violation of law calculated to over reach the decision of this court in motion for stay filed and pending in the court.
It can be observed from the records that the learned trial Judge refused this prayer in its entirety and no appeal was lodged against it. What was granted by the learned trial Judge was “setting aside the issuance of the writ of execution on 21st March, 2000”.
From both the relief claimed and that granted both outlined and underlined above, it is clear that what was granted by the learned trial Judge was a relief not claimed for in the motion paper or contained in the affidavit in support of the motion. The poser here is whether the court acted lawfully when he granted a relief not claimed before him in the motion paper?
This poser had come before the apex court in this country in a plethora of cases to the effect that the court is bound by the relief in a motion paper and no matter how inelegantly drafted, cannot grant more or differently from that claimed in the motion.
Ekpenyong & Ors. v. Nyong & Anor (1975) 2 SC 71; (1977) NSCC 28 at page 32; where Ibekwe, J.S.C. (of blessed memory) in the leading judgment of the court had this to say:
“Be that as it may, we cannot but take the view that the order made by Knoffrey, J., in his ruling of 26th June, 1972 is manifestly wrong and it therefore cannot stand.
Secondly, we think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such relief. It is trite law that the court is without the power to award to a claimant which he did not claim. The principle of law has time and again, been stated and restated by this court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law but good sense”. The Supreme Court in recent decisions emphatically depricated courts granting reliefs outside that on the body motion. The court held that it is beyond the jurisdiction of the court to recast, rearrange or reconstruct the reliefs in a motion with a view to granting a relief at all cost”.
See Ezeonwu v. Onyechi (1996) 9 NWLR (Pt. 438) 499 p.520, Pp. 521 and 529; Oodo Ogoyi v. Emmanuel Umegba & Anor. (1995) 9 NWLR (Pt.419) 283, (1995) 10 SCNJ 55; Anthony O. Iyamu Edebiri v. Doleyi Osewa Edebiri & Ors. (1997) 4 NWLR (Pt.498) 165, (1997) 4 SCNJ 177; Jumaire Maiwada Kofar Jatau v. Inno Mohammed Mailafiya (1998) 1 NWLR (Pt.535) 682, (1998) 1 SCNJ 48; Nnayelugo C. Odukwe v. Mrs. Abel N. Ogunbiyi (1998) 8 NWLR (Pt.561) 339, (1998) 6 SCNJ 102, Abiodun Adelaja Ors. v. Yesufu Alade & Anar. (1999) 6 NWLR (Pt.608) 544, (1999) 4 SCNJ 225; Henry O. Awoniyi & Ors. v. The Reg. Trustees of the Rosicrucian Order. Amorc (NIGERIA) (2000) 10 NWLR (Pt.676) 522, (2000) 6 SCNJ 141; Nurudeen Adebisi Adeye & Ors. v. Chief Sanni Agbatogun Adesanya & Ors. (2001) 6 NWLR (Pt.708) 1; (2000) 2 SCNJ 79 all cited and considered in Olalomi Industries Ltd. v. Nigeria Industrial Development Bank unreported Court of Appeal decision in CA/IL/6/2001 delivered at Ilorin on 10/12/2001.
In the light of the foregoing authorities moreso since the relief sought by the appellant at the court below shows that his complaint is about the execution of the writ simpliciter, it has nothing to do with the issue of the writ of attachment. In the circumstance the learned trial Judge was in error to have taken into account the writ which was issued on 21/3/2000 which was the date the judgment was delivered pursuant to Order IV rule 2 of the Sheriffs and Civil Process Act. Being irregular it was voidable at the instance of the parties. However, from the prayer highlighted supra, no request was made to set it aside on the ground that it was irregular or voidable. The application of the respondent prayed for an order setting aside the execution of the judgment. What the learned trial Judge did was setting aside the issuance of the writ of attachment fieri facias and the execution of judgment carried out on 27th March, 2000. The learned trial Judge was therefore in error and acted in excess of his jurisdiction to have set it aside on the ground other than what was prayed. In the circumstances I resolve this issue in favour of the appellant and against the respondent.
With respect to issue No.2 which deals with whether the writ of attachment for sums of money which was signed on 21/3/2000 and executed on 27/3/2000 was irregular and unlawful, both learned counsel to the parties addressed the court copiously both in their respective briefs and viva voce. Learned counsel to the appellant by way of summary on page 17 paragraph 8.00 III & IV 08 of the appellant’s brief submitted that if the learned trial Judge had adverted his mind to the provisions of Section 20 of the Sheriffs & Civil Processes Act, he would have decided that Order IV rule 1(2) of the Judgment (Enforcement) Rules is irrelevant for the purpose of execution of judgment for sums of money. Learned counsel further submitted that if the learned trial Judge had considered the provisions of section 94(i) of the Sheriffs & Civil Process Act, he would have found that enforcement of judgment for money is expressly excluded from the rules contained therein.
By way of reply, learned counsel to the respondent contended that what arose for consideration at the lower court was the issue of the application of Order IV rules 1(2) of the Judgment Enforcement Rules which the learned trial Judge used to annul the writ of execution issued.
However and inspite of the above learned counsel submitted that the provisions of Order IV rule 1(2) applied to money judgment for the reasons enumerated hereunder.
(i) Order IV of the rule is titled “issue of process” and by the side-note it specifically provides “Period to elapse after judgment.”
(ii) By its subrule 2 it prohibits the issuance of any other process until after the expiration of three day from the day judgment is given
(iii) Similarly its rule 5 allows a judgment creditor to apply to the registrar of a lower court to enforce any judgment whilst its rule 16 makes provision for the attachment and sale of immovable property in satisfaction of a judgment debt.
I have considered the submissions of both learned counsel to the parties on this issue viz-a-viz the records and the prevailing law. In my view, the submission of the appellant in his brief that Order IV and indeed all its rule do not apply to money judgment appears misconceived. This view is fortified by the interpretation given to the word “process” in section 2 of part 1 of the rules. It states thus:
“Process includes writ of interim attachment, warrant to arrest an absconding defendant, warrant to arrest a ship, and judgment summons”
(underlining mine).
Thus, contrary to the appellant’s submission the use of the word includes shows that the word process includes other forms of processes not listed with those stated thereunder. It is therefore contrary to the above statutory definition for the appellant to submit that the Order IV rule 1 (2) does not apply to money judgment. In the circumstance, I hold that the provision applies to money judgment as in the instant case and that the provision of section 20(1) of the Sheriffs and Civil Process Act is not in any way inconsistent with the provisions of Order IV rules 1 (2) of the Enforcement Rules made thereunder. What is more Order IV only provides for procedure to give effect to section 20(1). The section states
“Any sum of money payable under a judgment of a court may be recovered, in case of default or failure of payment thereof forthwith or at the time or times and in the manner thereby directed, by execution against the goods and chattel and the immovable property of the judgment debtor in accordance with the provisions of this Act.”
(Italics mine).
In the light of the foregoing, I hold that the provisions of Order IV of the Enforcement Rules only prescribed the times and manner execution against the goods and chattels and immovable property of the judgment debtor could be done. It is therefore consistent with the provision of section 20(1) of the Act and gives effect and meaning to it. That Order IV rule 1(2) applies to all other judgment other than judgment for writ of possession. In the circumstance, this issue No.2 is resolved against the appellant.
In sum, appeal is allowed in part. I make no order as to costs.
Other Citations: (2002)LCN/1122(CA)
