Dale Power Systems Plc V. Witt & Busch Limited & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
This is an appeal against the ruling of Alabi J. of the Lagos State High Court which was delivered on the 21st of April 2004 in which he set aside the execution of the judgment of that Court and directed the Deputy Sheriff to release the ten generating sets that were attached to the 2nd Respondent herein.
The facts that gave rise to this appeal are simple and straight forward and are ably set out in the parties’ briefs of argument. I will therefore recount them briefly in this judgment.
On the 6th of June 1997, the Appellant herein obtained a judgment against the first Respondent at the High Court of England in the sum of ?160.534.70 plus ?61,653.88 interest on the judgment sum. On the 15th September 1997, the Appellant applied to the High Court of Lagos State for an order of registration of the foreign judgment in accordance with the provisions of the Reciprocal Enforcement of Judgment Ordinance, Cap 175 Laws of the Federation of Nigerian 1958 and Rules made pursuant thereto. This application was granted and the foreign judgment was accordingly registered on the 13th October 1997. The1st Respondent made several attempts to have the judgment set aside without success.
On the 28th of February 2003, the Appellant levied execution against the 1st Respondent and ten generating sets were attached.
By an application dated and filed on the 15th April 2003, the 2nd Respondent herein claimed ownership of the ten generating sets that were attached. The Appellant filed a counter affidavit dated 5th of May 2003.
The learned trial Judge heard argument on the application and in a considered ruling, which was delivered on the 21st of April 2004, the ten generating sets were ordered to be released to the 2nd Respondent forthwith on the ground that the 2nd Respondent has established its ownership over them.
The Appellant, being dissatisfied and aggrieved with the ruling aforesaid has appealed to this Court. Its notice of Appeal dated and filed on the 21st of April 2004 contains two grounds of appeal. These grounds
without their particulars read as follows: –
“1. The Learned trial Judge erred in law when he held that the 2nd Respondent and not the 1st Respondent owns the power generators attached further to the execution levied on the 1st Respondent and thereby set aside the attachment of the said generators, a decision which occasioned a miscarriage of justice.
- The Ruling was against the weight of evidence.”
Parties filed and exchanged briefs of argument. From the two grounds of appeal, the Appellant formulated two issues for determination of this appeal. These issues read as follows: –
“1. Whether the lower Court was correct in holding that the 2nd Respondent and not the 1st Respondent
is the owner of the attached power generators further to the execution levied against the 1st Respondent on 28th February 2003.
- Whether the fact that the Judge did not rule on the admissibility of exhibit A attached to the affidavit in support of the 2nd Respondent’s application dated 15th April 2003 has not occasioned a serious miscarriage of justice against the Appellant.”
The Respondent adopted the Appellant’s first issue for determination of this appeal and then filed a preliminary objection challenging the validity of the Appellant’s second issue on the ground that same is not covered by and/or derived from any of the grounds of appeal herein.
This appeal came up for hearing on the 10th of May 2007. Agbu Esq. of counsel for the Appellant identified the Appellant’s brief of argument, which is dated and filed on The 15th March 2006, and the Appellant’s reply brief dated 22nd February 2007, and filed on 23rd February 2007. Learned counsel adopted the two briefs and relied on all the argument contained therein. Adesanya Esq. of counsel for the Respondent identified the Respondent’s brief of argument dated and filed on the 16th January 2007, but deemed tiled on the 18th January 2007. Learned counsel also adopted the Respondent’s brief of argument and urged the Court to dismiss the appeal.
At page 4 of the Respondent’s brief a preliminary objection is extensively argued. There is however no evidence on record that a notice of preliminary objection was filed and three clear days notice was given to the Appellant before the Appeal was heard. Order three Rule 15(1) of the Court of Appeal Rules 2002 provides that a Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
The Respondent also failed to argue the preliminary objection before or during the oral hearing of the appeal. In Oforkire v Maduike (2003) 5 NWLR (Pt 812) 166 at 178, the Supreme Court in a lead judgment by Othman Mohammed JSC said:
“I agree with the Learned Counsel that a party in the Court of Appeal having a preliminary objection against any of the grounds of appeal must give the Appellant three days notice before the objection is heard. The notice of preliminary objection can be given in the Respondent’s brief, but a party filing it, in the brief must ask the Court for leave to move the notice of objection before the oral hearing of the appeal commences, otherwise it will be deemed to have been waived and therefore abandoned.”
See Nsirim v. Nsirim (1990) 3 NWLR (Pt 138) 285.
The Preliminary objection at page 4 of the respondent brief has not been raised properly and that may be the reason why the Respondent abandoned it. I therefore discountenance with the said preliminary objection.
However, I have taken a careful look at the Appellant’s 2nd issue and I am of the firm view that the said issue is not related to any of the grounds of appeal. The law is settled that issues for determination in an appeal must be formulated in concrete terms and must be related to the grounds of appeal filed.
See Iwuoha v NIPOST Ltd (2003)8 NWLR (Pt. 822)308 at 332: Shittu v Fashawe (2005)7 SC (Pt. 11) 107; Nasco Mgt. Services Ltd V A.N. Amaku Trans. Ltd (2003)2 NWLR (Pt. 290 at 311 paragraph B-C.
Mr. Atoyebi, learned counsel for the Appellant submitted at page 12 of the Appellant’s brief that the 2nd issue is formulated from the 2nd ground of appeal. The 2nd ground of appeal complained that the ruling of the lower Court is against the weight of evidence. This ground of appeal, which is generally referred to as the omnibus, or general ground of appeal complains against the assessment and ascription of probative value to evidence admitted or accepted by the Court. The quarrel is that the Court has drawn wrong conclusion from accepted or proved facts. See Eki v Giwa (1977) 11 nscc 96; Fashanu v Adekoya (1974) 1 All NLR (Pt. 1) 35.
The 2nd issue which the Appellant framed is at variance with the 2nd ground of appeal. This issue complains about the inability of the learned trial judge to rule on the admissibility of exhibit A attached to the affidavit in support of the 2nd Respondent’s application dated 15th April 2003. Even at the risk of repetition, the 2nd issue formulated by Appellant is here under reproduced thus: –
“Whether the fact that the lower Court did not rule on the admissibility of exhibit A and indeed other exhibits attached to the affidavit in support of the 2nd Respondent’s application at the lower Court dated 15th April 2003 occasioned a miscarriage of justice against the Appellant:”
A document upon which a ruling on its admissibility was not given, cannot constitute an evidence upon which the ruling of the Court can be weighed. A wrongful admission or rejection of document has nothing to do with a general ground that a ruling is against the weight of evidence. I have noted the argument of the learned counsel for the Appellant that exhibit A which is a National Electric Power Authority clearance certificate along with other documents, ought to have been certified because they are public documents and that their non certification rendered them inadmissible. A ruling on this issue will definitely have nothing to do with the weight of evidence.
From the foregoing the Appellant’s issue 2 clearly does not arise from any of the grounds of appeal. Same therefore and all the argument canvassed therein are hereby struck out.
On issue one, Atoyebi Esq. of counsel for the Appellant submitted that the learned trial Judge erred completely when he ruled that the generating sets belonged to the Respondent without proper consideration of the depositions in the Appellant’s counter affidavit. Learned counsel referred to the advertisement in the Guardian Newspaper of 20th February 2003 where the 1st Respondent advertised the sale of generators belonging to it and a visit to the premises of the 1st Respondent by the Appellant before levying execution and contends that if these facts were taken into account, the Court would have arrived at a different decision. Learned counsel insists that the generators advertised in the Guardian Newspaper were the ones attached on the 28th February 2003.
On the claim of the 2nd Respondent that the generators were bought with a loan granted by one Colonel Douglass, Learned counsel submitted that the said Colonel Douglass is a Director in the 1st and 2nd Respondents and he is also a Director/Owner of Cross Group Holdings International, the company that issued the invoice for the importation of generators and the company listed on the Bill of Lading both attached to the 2nd Respondent’s verifying Affidavit. Because of the connection of Douglass to the 1st and 2nd Respondents, learned counsel contended that every documents attached as exhibits to the 2nd Respondent’s affidavits were made up to frustrate the Appellant’s right to justice and to create artificial transactions in respect of the 1st Respondent’s generators.
On the averment by the 2nd Respondent that the generators that were advertised for sale were the ones subject to a mortgage between Colonel Douglass and the 1st Respondent, Learned Counsel submitted that that cannot be true because the mortgaged generators were meant for use and not for sale and that the purported mortgage prohibits the sale of the mortgaged generators.
Finally, learned counsel urged this Court to set aside the ruling of the learned trial Judge because the exhibits relied upon in support of the 2nd Respondent’s application were wrongfully admitted and formed the basis why the learned trial Judge ruled that the generators belonged to the 2nd Respondent.
In reply to the issues raised by the Appellant, Ogunsanya Esq. of counsel for the 2nd Respondent submitted that the ten generating sets were stored in the 2nd Respondent’s warehouse at its office at Union Dicon Salt House Itire, Lagos State. This, the learned counsel submitted is a conclusive prove that the generating sets were in possession of the 2nd Respondent and the onus was on the Appellant to prove that the generators do not belong to the 2nd Respondent and that onus was not discharged. In a further argument, learned counsel submitted that the generating sets advertised by the 1st Respondent have no nexus to the generating sets attached by the Appellant and that an advertisement in a newspaper cannot be sufficient proof of ownership of properly. Finally Learned Counsel urged the court to dismiss the appeal on the ground that the 2nd Respondent has placed more credible proofs of ownership of the ten generating sets before the trial Court and on the balance of probability, its case weighs more than that of the Appellant.
The Appellant’s reply brief on this issue is a repetition of its argument in the brief of argument and therefore carries no weight.
In interpleader proceedings, where parties’ affidavits are in conflict, oral evidence should be called to resolve such conflict unless there is documentary evidence which can fit the contradictory evidence one way or the other. Where the depositions in affidavits of contesting parties’ conflict, the Court is not allowed to prefer one deposition to the other. In cases of such conflict, the only course open to the Court in order to resolve the conflict is to hear oral evidence. See Eimskip Ltd. V. Exquisite Ind Ltd (2003) 4 NWLR (pt. 809)88 at 121-122 paragraphs H-C; Atanda v. Olarenwaju (1988) 4 NWLR (Pt. 89)394; Military Administrator Federal Housing Authority v. Aro (1991) 1 NWLR (pt. 168)405; Okere v. Nlem (1992) 4 NWLR (pt. 234) 132 and Momoh v. Vab Petroleum Inc. (2000) 4 NWLR (pt. 654)534.
In the instant case the parties’ affidavits are conflicting and one of the bonds of contention is that Exhibit A-E annexed to the supporting affidavit were made in order to frustrate the enforcement of the judgment under reference and that the 1st Respondent had acquired the 2nd Respondent. The issues raised in the supporting affidavit and the counter affidavit could have only been resolved through a full trial, but the learned trial Judge in his wisdom decided to rule on the depositions on the parties affidavits.
In Ishiaq v. Ehitor (2003) 10 NWLR (pt. 828) 221 at 242 paragraphs A-B this Court said: –
“I am strongly of the view that the learned trial Judge has shown a wrongful exercise of the discretion as he acted under a misconception of law that where an action based on affidavits evidence and where the affidavits are irreconcilably in conflict the rule of law is mandatory that oral evidence be taken, onus is on the Court to take oral evidence even where neither of the parties applied that the evidence be taken.”
However non of the parties raised any objection to the procedure adopted at the trial Court, and the Appellant having not raised the issue of the procedure adopted at the lower Court has rightly refrained from raising it before this Court. My comment on the issue of procedure is meant to highlight the law and same has no bearing on this appeal.
The main issue to be determined in this appeal is whether the learned trial Judge rightly ruled that the 2nd Respondent is the owner of the ten generating sets which were attached on the 28th February, 2003.
In an interpleader proceedings the burden of establishing ownership of the attached goods is on the applicant. In the instant appeal the applicant apart from the deposition in the verifying affidavit that the generating sets were stored in its warehouse located at Union Dicon Salt House, it also annexed exhibits A-E to the affidavit in support of its application. Exhibit A is the NEPA clearance certificate to import designated capacities of generators. Exhibit B is the invoice for the 14 generators imported, exhibit C is the Bill of Lading for the consignment, exhibit D is the invoice from the shippers to the claimant while exhibit E is the Clean Report of Inspection. All these documents bear the name of the 2nd Respondent. In the further affidavit of the 2nd Respondent, mentioned was made of the advertisement in the Guardian Newspaper of 20th February 2003 which the Respondent deposed that that advertisement was in respect of a consignment of 24 generators of various capacity imported into Nigeria by one Col. (RTD) Douglass in favour of the judgment debtor against which a Chattel mortgage was created. Copies of the Deed of Mortgage enumerating the subject of the mortgage in a schedule, together with the registration certificate of the chattel mortgage are attached and marked exhibit “A’ and ‘B’.
The Appellant’s claim that the ten generating sets belong to the 1st Respondent is founded on the advertisement in the Guardian Newspaper of 20th February 2003 and a visit to the premises jointly occupied by the 1st and 2nd Respondents by one Tola Oshodi. In order to appreciate the issues raised
by the Appellant at the lower Court, I wish to reproduce certain paragraphs of its counter affidavit as follows: –
“4. I read in the newspaper a few years ago that the judgment Debtor company herein had been acquired as a wholly owned subsidiary of the claimant herein.
- I am informed by Tola Oshodi who has personally visited the offices of the claimant and Judgment
debtor and I verily believe him that the head offices of the Judgment Debtor herein and the claimant herein, operate from that same factory complex at Itire in Lagos State.
- I am informed by Tola Oshodi and I verily believe that the Judgment Debtor company is engaged in the
business of the importation and sale of power generators.
- I know as a fact having seen several advertorials of the Claimant in the newspapers and billboards that the claimant company is engaged in the business of bulk Importation, re-bagging and sale of iodized salt.
- I verily believe that the claimant is not engaged in the business of importation of power generating sets as suggested by the claimant’s verifying affidavit.”
The depositions contained in the aforementioned paragraphs are general and speculative. At paragraph 4, the newspaper and the year of publication are not provided. Even if these are provided, the documents of acquisition should be provided to concretise the allegation of acquisition of the 2nd Respondent by the 1st Respondent. Who is Tola Oshodi that is mentioned at paragraph 57, When and where was the information contained in that paragraph given to the deponent. Paragraph 7 is speculative. Those advertorials, Newspaper and billboards are not particularized. The business of a company, in absence of admission by its directors can only be established by producing its articles of Association which primarily set forth the purposes of the incorporation of the company including its duration rights and liabilities of share holders and directors, classes of stock, etc. The source of belief at paragraph 8 is not stated. This is the same pattern that is followed throughout the remaining paragraphs of the counter affidavit. The assertion by the Appellant that the documents, exhibit A-E annexed to the supporting affidavit were made to frustrate the execution of the judgment is speculative and a Court of law cannot rely on such evidence.
In civil cases, the burden of proving a particular fact is upon the party who asserts it and who will fail if no evidence is called upon the issue, regard being had to any presumption, which may arise from the pleadings of the parties. This onus is not static. It continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom judgment will be given if no further evidence is proffered. See A. G. Lagos State v. Purification Tech. (Nig) Ltd (2003) 16 NWLR (pt. 845) 1; E.I. B. Building Soc. Ltd v. Adebayo (2003) 11 NWLR (pt. 832) 497; F. A. T. B. Ltd v. Partnership Inv. Co. Ltd (2003) 19 NWLR (PT. 851) 35 at 67.
From the depositions in the 2nd Respondent’s verifying affidavit and the documents annexed thereto, the 2nd Respondent has proved its case on the balance of probabilities. The burden definitely had shifted to the Appellant who failed to discharge that burden of proof.
On the issue of whether the NEPA clearance certificate, exhibit A is a pubic document, Section 109 of the Evidence Act is very clear on this. This section provides as follows: –
“The following documents are public documents;
(a) documents forming the acts or records of the acts:
(i) of the sovereign authority
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere
(b) Public records kept in Nigeria of private documents.”
See C. C. B. Nig, Ltd v. Odogwu (1990) 3 NWLR (pt. 140) 646; Ntegwuile v. Otuo (2001) 6 SC 2 NWLR Agagu v. Dawodu (1990) 7 NWLR (pt. 160) 56: Cardoso v. Daniel (1986) 2 NWLR (pt. 20) 1.
From the provision of the evidence Act which I have set out above, a clearance certificate issued to an individual either by a government functionary or a private body does not fall within the documents categorized as public documents. For a document to be admissible as public document, it should not only be available for public inspection, but should also have been brought into existence for that purpose. See Loannow v. Demetriow (1952) 1 AER 179: ONIMISI UKANA v. Commissioner of Police B/S (1959) 8 NWLR (pt. 416) 705. From the above I am satisfied that the clearance certificate exhibit A, and all other documents annexed to the verifying affidavit in support of the 2nd Respondent’s application are private documents which need not be certified before their admission. The 2nd Respondent’s application was decided on affidavit evidence. There was absence of a procedure through which a document could be tendered and either rejected or admitted. The issue of ruling on the admissibility of evidence does not arise. All the documents annexed to the affidavit filed were already before the Court. The Court’s exercise of its jurisdiction to consider exhibit A in its ruling was justified and I am not in a position to disturb the ruling of the lower Court as same has not occasioned a miscarriage of justice. I also agree with the learned trial Judge that there is no nexus between the advertisement in the Guardian newspaper of 20th February 2003 and the generating sets that were attached on the 28th February 2003. There is nothing in the advertisement that distinguishes the generators referred to from other generators of the same make. Clearly the Appellant cannot rely on the newspaper advertisement to ascribe the ownership of the generators attached to the 1st Respondent. There is no duty on the 2nd Respondent to explain the circumstances surrounding the advertisement in the Guardian of 20th February 2003. The issue of whether the advertisement concerns 24 generators or creation of mortgage in favour of the 1st Respondent is of no consequence, since those transactions were directed against the 1st Respondent who file no papers before the lower Court.
In as much as this Court frowns at the attitude of the 1st Respondent in its failure to obey a judgment which was obtained way back in 1996 in England and was subsequently registered in this country on the 13th of October 1997, it will amount to travesty of justice to allow a seizure of goods that have been clearly proved to belong to a party other than the judgment debtor. I accordingly resolve the only issue in this appeal in favour of the Respondent and ground one upon which it is formulated is hereby dismissed.
On the whole this appeal is dismissed as it is lacking in merit. The ruling of the lower Court is accordingly affirmed. I award no cost.
Other Citations: (2007)LCN/2614(CA)
