Alfa Kamoru Salawu V. Mrs. Z. S. Adebanke & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

MODUPE FASANMI, J.C.A.

This is an appeal against the ruling of the High Court of Justice Oyo State delivered on 12th July 2002, The Appellant was the 1st Respondent before the lower court while the 1st Respondent was the Applicant in suit No. 1/172/2000. The relief sought for at the lower Court was for an order setting aside the sale of the Judgment debtor/Applicant’s immovable property situate, lying and being at No. 10, Salawu Street, New Gbagi, Ibadan Oyo State for non-compliance with the legal procedures for sale.

The 1st Respondent filed the application dated 19th March 2002 while the Appellant filed a counter affidavit dated 23rd of May 2002. The application was argued on the 7th June 2002 and ruling was delivered on 12th July 2002. The purported sale of the 1st Respondent’s property on the 12th of March 2002 was set aside by the lower court. The Appellant being dissatisfied with the said ruling thereafter appealed to this court by its notice of appeal dated 15th July 2002 containing 3 grounds of appeal. In the Appellant’s brief of argument dated and filed on the 26th of July 2004 but was deemed, properly filed and served on the 17th of May 2005, 3 issues were formulated for determination as follows:

(1) Whether the learned trial judge as a court of coordinate jurisdiction could validly treat as non-existent a positive order of the Chief Judge of Oyo State of 21/1/2001 ordering the attachment and sale of the 1st Respondent’s property lying being and situate at 10 Salawu Street, New Ife Road in view of her failure to liquidate the judgment debt in this case.

(2) Whether by virtue of the ruling of the learned lower court Judge delivered on 12th Oct. 2001, that a default in one instalment will make the entire debt realizable, it is open to the Court, to set aside a sale carried out pursuant to a standing and positive order of court of coordinate jurisdiction which was never set aside at any time.

(3) Whether inspite of the order of the then Chief Judge of Oyo State Hon. Mr. Justice Moshood Adio (of 21/01/01) the Appellant upon any default in the instalmental payment ought to begin all over, the process of attaching the MOVABLE property of the Respondent before moving against the IMMOVABLE property as posited by the trial Judge in her ruling, by filing a fresh application to attach immovable property.

Learned Counsel for the Appellant distilled Issue 1 from grounds A & B of the grounds of appeal. He distilled issue 2 from grounds B & C of the grounds of appeal and issue 3 from grounds B and C of the grounds of appeal respectively.

Learned Counsel for the 1st Respondent in his brief of argument before this Court dated and filed 16th of June 05 formulated three issues for determination thus:-

(i) Whether the trial Court was not justified in granting the application for the setting aside of the purported sale of the 1st Respondent’s property situate lying and being at No. 10 Salawu Street, New Ife Road, Ibadan for non-compliance with the laid down procedures.

(ii) Whether at the time of the purported sale the order of the learned Chief Judge of Oyo State made on 10/1/2001 has not been overtaken by the subsequent order for instalmental payment made on 12th Oct. 2001 by the lower Court

(iii) Whether upon the default of payment of an instalmental payment by the 1st Respondent the Appellant ought not to have commenced fresh steps to attach the 1st Respondent’s property on the outstanding judgment debt.

The learned Counsel for the 2nd Respondent in his brief of argument filed before this court on 13th of Sept, 05 but deemed properly filed and served on 29th of June 06 associates and adopts the three issues formulated by the Appellant in his brief or argument and in addition formulated three other issues for determination as follows:-

(1) Whether or not the order of Hon, Justice I.S Yerima made on 12/10/2001 has the effect of reviewing the order of Hon, Chief Judge of Oyo State, Justice M.O. Adio (as he then was) made on 10/1/2001.

(2) Whether or not the purported reduction in judgment debt in this case will affect the sale of the 1st Respondent’s immovable property.

(3) Whether or not the 1st Respondent was put on adequate notice in the circumstance of this case before the sale of her immovable property,

Going by the issues formulated by the Appellant from the grounds of appeal, it is glaring that they are proliferated. A party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. Learned Counsel for the Appellant as I have earlier observed, distilled issue 1 from Grounds A & B of the grounds of appeal; issue2 from grounds B & C of the appeal and issue 3 from grounds B and C of the grounds of appeal. While learned Counsel for the 2nd Respondent after adopting the three issues formulated by the Appellant’s Counsel in addition formulated three other issues. In short he has formulated six issues out of three grounds of appeal filed by the Appellant.

The law has condemned the practice by some Counsel in formulating more issues than the grounds of appeal. The practice has always been to have less number of issues than the grounds of appeal as the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity, See the cases of UGO VS. OBIEKWE (1989) 1 N.W.L.R Part 99 at page 566; A.G. BENDEL STATE VS. AIDEYAN (1989) 4 N.W.L.R Part 118 at 646; OGOYI VS. UMAGBA (1995) 9 N.W.L.R Part 419 at 283; IBIKUNLE VS. LAWANI (2007) 3 N.W.L.R Part 1022 page 580 at 590 – 591 paras H – H and YADIS (NIG.) LTD VS. G.M.L.C. LTD (2007) 14 N.W.L.R Part 1055 page 584 at page 612 paras D – F.

Learned Counsel formulating issues for determination must ensure always that the formulation of issues for determination is not merely consistent with and within the scope and confines of the grounds of appeal relied upon but also that they should not be prolix and proliferate as to be more in number than the grounds of appeal on which they are based. In the appeal at hand, Appellant distilled issues 2 and 3 from ground B while the 2nd Respondent altogether distilled 6 issues from the 3 grounds of appeal i.e after adopting the 3 issues distilled by the Appellant also distilled 3 other issues in addition to the 3 issues earlier adopted. This practice is highly undesirable and cannot be tolerated any longer. See ANIE & ORS. VS. CHIEF UZORKA & ORS (1993) 8 N.W.L.R Part 309 at page 1 where the Supreme Court observed:

“……..”It is wrong for Counsel to formulate issues for determination in excess of the grounds of appeal filed. Indeed it is now a very well established principle of law that except in special cases where the grounds of appeal so dictate, it is undesirable to formulate an issue in respect of each ground of appeal.”

From the issues filed by the Appellant, the 1st and 2nd Respondents, it seems to me and correctly too that the issues for determination in this appeal are as highlighted in the 1st Respondents brief of argument. The Appellant’s issues and 2nd Respondent issues are completely swallowed up in the 1st Respondent’s issues 1 & 2 for determination. I shall determine this appeal based on issues 1 & 2 distilled by the 1st Respondent as they deal with the substantive issues in controversy in the appeal filed. Issue 3 of the 1st Respondent’s brief is swallowed up in issues 1 & 2 as it is clear from the facts of this case that the crux of the dispute between the parties revolves round the non-compliance with the provisions of Order 7 rule 6 subrules 1 & 3 of the Sheriff and Civil Process Act, Cap 407 Laws of Federation of Nig. 1990 or Order 7 rule 6 sub-rules 1 & 3 of the Judgments (Enforcement rules), Sheriffs and Civil process Cap 117 Laws of Oyo State. Appellate Courts would merge any repeated issues for determination into a single issue where they relate to the same ground of appeal. See AJAGUNGBADE III VS. LANIYI (1999) 13 N.W.L.R Part 633 at 92 and STATE VS. OKOYE (2007) 16 N.W.L.R Part 1061 page 607 paras C – D.

On Issue 1,

Whether the trial Court was not justified in granting the application for the setting aside of the purported sale of the 1st Respondent’s property situate lying and being at no 10 Salawu Street, New Ife Road, Ibadan for non-compliance with the laid down procedures.

Learned Counsel for the Appellant submitted that the learned trial Judge was in error to have shut her eyes to an existing and subsisting order of the Chief Judge of Oyo State delivered on 10/1/2001 granting leave to the Judgment Creditor/Appellant to proceed to sell the 1st Respondent’s property at 10 Salawu Street, New Ife Road, Ibadan in view of her failure to liquidate the judgment debt. He submitted that the order was never set aside and for the learned trial Judge to ridicule this order by describing it as unenforceable tantamounts to an unnecessary engagement in judicial activism based on faulty legal principles. The 1st Respondent complaint of irregularities in the sale, lack of notice and sale at gross under value were not proved. He referred to the cases of AKPUONU VS. BEAKART OVERSEAS & 2 OTHERS (2000) 12 W.R.N page 162 at 168; ALHAJI NAKYANKA VS. ALHAJI MAIKINA (1977) 6 S.C AT 51. He submitted that no irregularity was proved let alone that the Respondent sustained any injury as a result of the said irregularity. He argued that there was no need to have a fresh notice of sale since the earlier notice of sale was never withdrawn or cancelled by anyone. He urged the Court to resolve issue 1 in favour of the Appellant.

2nd Respondent adopted the argument of the Appellant that an order of Court subsists until it is set aside. He referred to the case of HYDROWORKS LTD VS. RIMI LOCAL GOVT (2002) 1 N.W.L.R Part 749 page 564 at 579 para F. He went further to state that in the absence of a statutory provision, one judge has no power to set aside or vary the order of another Judge of concurrent jurisdiction. He urged the Court to resolve the issue in favour of the Appellant.

Learned Counsel for the 1st Respondent in his brief of argument submitted that the subsequent grant of the 1st Respondent’s motion for instalmental payment on the 12th of Oct. 2001 upon which the 1st Respondent effected a down payment of N50,000.00 and the 2nd instalmental payment of N20,000.00 which then became payable, the Appellant has no legal right to have attached the immovable property without filing the necessary paper to the Court indicating the amount being owed by the 1st Respondent to the Appellant, upon which her immovable property could be attached. He referred to the case of MERCANTILE BANK OF NIGERIA PLC VS. NWOBODO (2000) 3 N.W.L.R Part 648 page 297 at 304 where the Court of Appeal held as follows:

“For Section 44 of the Sheriffs and Civil Process Act to apply, it must be established by the Judgment Creditor:-

(a) That no movable property of the Judgment debtor can with reasonable diligence be found to satisfy the Judgment debt and costs.

(b) That even if such movable property of the judgment debtor can be found, it is insufficient to satisfy the Judgment debt and costs and

(c) That the Judgment debtor is the owner of the immovable property upon which execution is sought to be levied.”

Since the appellant did not comply with the regulatory rules guiding the attachment of immovable property, the lower court was justified in setting aside the purported execution of the Judgment which was given after a due and proper consideration of the affidavits and oral submission of the learned Counsel for the Appellant and the 1st Respondent. Learned Counsel urged the court to resolve this issue against the Appellant.

Order 7 rule 6 sub-rules 1 & 3 of the Sheriff and Civil Process Act, Cap 407 Laws of Federation of Nigeria 1990 is in pari materia with Order 7 rule 6 sub-rules 1 & 3 of the Judgments (Enforcement) Rules Sheriffs and Civil Process Cap 117 Law of Oyo State 1978. It provides hereunder:

“No immovable property attached shall be sold for the purpose of satisfying the writ of execution until the expiration of at least fifteen days next following the day on which the property has been attached unless the person whose property has been attached so requests in writing

Provided that the Sheriff may, if he is unable from want of time to complete the sale, adjourn the sale for a period of not more than three days and so on as often as may be necessary

And provided further that the court may, if it thinks fit direct that the sale shall be postponed for any time not exceeding twenty eight days after the attachment”

Subrule 3 provides:

“Notice of the day and hour of sale of any immovable property attached shall be published 14 days at least before the day of such sale by being pasted in a conspicuous place upon the land attached.

It is true that an order of the Court of competent jurisdiction is valid until otherwise set aside. See KALAGBOR VS. I.N.E.C (2009) ALL F.W.L.R Part 1339 at 1353 para A.

However I observed from the record that the day the notice of the sale of the immovable property of the 1st Respondent at No 10 Salawu Street, New Ife Road, Ibadan Oyo State was pasted was not disclosed on the auction notice at page 14 of the record. 1st Respondent also deposed to it in para 20 of the affidavit in support of the application for setting aside the sale of the immovable property stated above. For the avoidance of doubt, para 20 of the 1st Respondent’s affidavit in support of her application at the lower Court States:

“That the Applicant’s property was fraudulently sold according to N.O.O. Oke Esq. because:-

(a) No notice was pasted for requisite number of days

(b) No application to attach the immovable property of the Applicant was filed or granted after the consideration of the application for instalmental payment brought by the Applicant.”

In a situation where immovable property of a Judgment debtor is to be attached, the Judgment debtor is entitled to be put on notice through an application made by the judgment creditor to the court for leave to attach the immovable property of the 1st Respondent moreso as the debt had been substantially reduced from the original sum when the whole judgment debt was still outstanding. This was not done. Instead Appellant relied on the earlier leave granted by Adio J and caused exhibits C, E, and G to be issued. If the Appellant sought to rely on the order of Adio J as to the issue of leave granted on the 10th of Jan. 2001, why the need to take out Exhibit C signed by Yerima J? This is because he knew that the writ of FIFA that was issued subsequent to Adio J’s order was out dated because there was order for instalmental payment granted to the 1st Respondent on the 12th Oct. 2001. Since the situation had changed considerably, there was the need to seek for leave at this point to attach the 1st Respondent’s immovable property.

Exhibit C which is the execution of writ against land i.e form 38 was argued by the Appellant as enough notice to the 1st Respondent. See para 14 of the counter affidavit where he said:

“That the notice of attachment in form 38 as pasted on the property by the Court Sheriff on 21/1/2002 herewith attached as Exhibit C”

A writ of attachment issued before the expiration of the prescribed 15 days window period is done in futility See JULIUS BERGER (NIG) PLC VS. T.R. COMMERCIAL BANK (2007) 1 N.W.L.R Part 1016 page 540 at 550 and ADEBAYO VS. OKONKWO (2002) 8 N.W.L.R Part 768 page 1 at 24.

In the absence of any formal application from the Court by way of motion on notice for leave to attach the immovable property of the 1st Respondent, I hold that mere pasting of form 38 and auction notice on the premises of the 1st Respondent at No. 10 Salawu Street, New Ife Road, Ibadan do not amount to effective notice under the Sheriff and Civil Process Act and Judgment Enforcement Rules, In effect the notice of execution and the writ of FIFA are null and void.

A wrongful or irregular execution of a writ of attachment is liable to be set aside by the trial court. See MANUFACTURERS MERCHANT BANK LTD VS. JOHN EDGE AND COM. NIG. LTD (1997) 10 N.W.L.R Part 524 page 309 at 312 and PAVEX INT. CO. LTD VS. I.B.W.A. (1994) 5 N.W.L.R Part 347 at 687.

The Respondent has not denied that the amount contained in the writ of FIFA was N20,000.00 more than what was actually outstanding. Exhibit H acknowledging the receipt of N20,000.00 from the 1st Respondent was collected without prejudice to steps being taken in the suit which steps were not disclosed to the 1st Respondent nor the writ of FIFA amended to reflect the correct indebtedness. This is wrong and it goes to the root of the issue in the application for setting aside the sale.

The Supreme Court in the case of LEEDO PRESIDENTIAL MOTEL LTD VS. BANK OF THE NORTH has listed out what a Judgment creditor must prove to entitle him to dispose of the immovable property of the Judgment debtor. These are:

“(a) Pursuant to Section 44 of the Sheriff and Civil Process Law he must show by evidence what steps if any have already been taken to enforce the Judgment and with what effect;

(b) What sum remains under the Judgment;

(c) There is no movable property of the judgment debtor or more sufficient enough to satisfy the judgment debt can be found.”

It is fair and just that the judgment debtor be put on notice as the civil rights and obligation of the Judgment debtor must be considered and such cannot be made behind her without breaching her Constitutional right to fair hearing of the 1999 Constitution. 1st Respondent should be heard on the crucial issue as to whether or not, she still has within the Courts jurisdiction, enough movable property to satisfy the judgment debt. This will accord with the rules of natural justice and fair hearing.

The documents relied upon by the Appellant have not proved or do not amount to effective notice under the Sheriff and Civil Process Act and the Judgment Enforcement Rules. The trial court has rightly set aside the sale of the 1st Respondent’s immovable property for irregularity. See also KACHALLA VS. BANKI (2001) 10 N.W.L.R Part 721 at 442 particularly at 446. See also Section 47 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990.

In the instant appeal the purported report of the Sheriff of the High Court on the movable properties of the 1st Respondent dated 29/8/2000 purportedly attached as exhibit A in para 4 of the Appellant’s counter affidavit at the lower Court does not exist even though it was deposed to. The deposition does not carry any weight in the absence of the report as an exhibit.

Appellant has failed woefully to show by evidence what steps if any he has taken to attach the movable property of the 1st Respondent to satisfy the judgment debt and cost;

B. That even if such movable property of the Judgment debtor can be found, it is insufficient to satisfy the Judgment debt and costs and

C. What sum remains under the judgment.

The sale was executed on the 12th March 2002 the day the auction notice was pasted as there was no motion on notice for leave to attach the immovable property of the 1st Respondent at No 10 Salawu Street New Ife Road, Ibadan Oyo State. The lower court was justified in setting aside the purported execution of the judgment which was given after a due and proper consideration of the affidavits and the oral submissions for the Appellant and the 1st Respondent. Issue one is hereby resolved against the Appellant.

Issue 2

Whether at the time of the purported sale the order of the learned Chief Judge of Oyo State made on 10/1/2001 has not been overtaken by the subsequent order for instalmental payment made on 12th day of October, 2001 by the lower Court.

Learned Counsel for the Appellant on issue 2 submits that the trial Judge was clearly in error to have held that the whole process ought to begin afresh despite the fact that the enabling order of sale was never set aside in the first place. He referred to the case of G.C. AKPUNONU VS. BEAKART OVERSEAS AND 2 OTHERS (2000) 12 W.R.N page 162 at 168 – 169 paragraphs 35 – 10. He argued that since the order of the Court by the Chief Judge Hon. Justice Adio, made on 10/1/2001 was never set aside, the learned trial Judge pronouncement tantamounts to an unnecessary engagement in judicial activism. The conditional stay dated 12th Oct. 2001 could not in any way constitute a waiver of their right derived from an existing order dated 10th Jan. 2001 and that the lower Court was wrong in setting aside a valid order. He urged the Court to resolve the issue in favour of the Appellant.

Learned Counsel for the 1st Respondent submitted that the Appellant was given judgment by the lower Court on the 17th of May 2000 consequent upon which the 1st Respondent appealed against it. Appellant’s Counsel moved the motion for the attachment of the immovable property of the 1st Respondent and same was granted on the 10th of Jan. 2001. Upon the withdrawal of the appeal to the Court of Appeal, 1st Respondent filed a motion for the instalmental payment of the judgment debt and this was granted on the 12th of Oct 2001. Learned Counsel submitted that by the grant of the subsequent application for instalmental payments, the earlier order for the attachment of the immovable property had been overtaken by the new event and became unenforceable due to the variation in the amount owed upon which the application granted on 10 Jan. 2001 was predicated and the subsequent payment of N50,000.00 and additional N20,000.00 by the 1st Respondent before she defaulted.

Although it is uncontroverted that the order made on the 10th day of Jan. 2001 was not appealed against or set aside, the Appellant waived the right of enforcement of the order by conceding to the fresh order of 12th Oct. 2001 for instalmental payments thereby altering the position of the parties. Learned Counsel submitted that the case of G.C AKPUNONU VS. BEAKART OVERSEAS & 2 OTHERS (2000) 12 W.R.N. 162 AT 163 CITED BY the Appellant is not relevant and therefore inapplicable to this case. He urged the Court to resolve the issue against the Appellant.

Learned Counsel for the 2nd Respondent adopted the submission of the Appellant’s Counsel on this issue and in addition argued that there was evidence before the lower Court that the 1st Respondent defaulted on a number of occasions in payment of instalment as ordered by the Justice I.S. Yerima, thus making the whole debt due. Learned Counsel referred to the cases of OBIOHA VS. IBERO (1994) 1 N.W.L.R Part 322 page 503 at 532 paras B-G and 534 para G ratio 7 and HYDROWORKS LTD VS. RIMI LOCAL GOVT. (2002) 1 N.W.L.R Part 749 page 564 at 579 para F. He submitted that there was no need to ask for a fresh order of the same Court to attach the property of the 1st Respondent, one having been granted and which decision had to be enforced through the normal process created by the practice and procedure of the Court. He urged the Court to resolve the issue in favour of the Appellant.

As I have earlier noted, an order of the Court of competent jurisdiction is valid until otherwise set aside. See KALAGBOR VS. I.N.E.C supra. The trial Court granted the 1st Respondent’s prayer for instalmental payment of the Judgment debt on the 12th of Oct. 2001. Since the parties had the knowledge of the existence of the order made on 10/1/2001 but decided to concede to another application which was granted on the 12th Oct. 2001, none of the parties will be allowed to approbate and reprobate at the same time by resorting to the earlier order which has become inoperative. The subsequent order for instalmental payment takes precedence over the earlier order made on the 10th of Jan. 2001 for the attachment of the immovable property of the 1st Respondent.

I quite agree with the learned Counsel for the 1st Respondent that the case of G.C. AKPUNONU VS. BEAKART OVERSEAS & 2 OTHERS supra cited by the Appellant & 2nd Respondent’s Counsel is not relevant and it is inapplicable to the appeal at hand. The case relates to an application for stay of execution which prevented a party from moving the motion for attachment but upon the failure of the motion for stay of execution, the motion for attachment was argued. In the instant appeal, the application for the attachment of immovable property has been moved and argued but not enforced until the motion for instalmental payment was argued and granted thereby making the earlier order unenforceable. Issue 2 is also resolved against the Appellant.

Finally the appeal lacks merit and it is hereby dismissed. The ruling of the lower Court setting aside the sale of 1st Respondent’s immovable property situate, lying and being at No. 10, Salawu Street for noncompliance with the legal procedures for sale is hereby affirmed by me.

The cost of N30,000.00 is hereby awarded in favour of the 1st Respondent.

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Other Citations: (2009)LCN/3445(CA)