G.C Akpunonu & Ors V. Beakart Overseas & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

This is an appeal against the decision of the Court of Appeal delivered on 28th February 1995, dismissing Appellant’s appeal against the Ruling of Aba High Court dated 7/7/92 refusing Appellant’s application for an order to set aside the sale of Appellant’s immovable properties pursuant to a writ of Execution.

The facts giving rise to this appeal arose between 1977 and 1978 when the 1st Respondent sold goods to the Appellant on credit. The goods had been shipped to him. The Appellant cleared the goods from the Wharf , sold them and refused to pay the 1st Respondent despite repeated demands. In suit No. A/237/81 the 1st Respondent sued the Appellant in the High Court claiming BF24, 949.031 (Belgian Francs) equivalent to N623.725,78 being the total price of goods sold and delivered to the Appellant. The Appellant did not contest the suit, on 15/4/82 the High Court entered judgment in favour of the 1st Respondent for the sum of N623,725.78 with N120.00 costs. The Appellant paid only the costs. He did not appeal against the judgment. I shall have more to say on this later.

Five months after the judgment, the Appellant on 17/9/82 filed a Motion in the High Court asking for a stay of execution of the court’s judgment and for instalmental payment of the judgment debt. In its Ruling, the High Court dismissed the application saying that it would amount to frustrating the judgment of the court. On 18/4/83 the Appellant filed another motion for a stay of execution. The application was dismissed only on 8/7/85. On 24/7/85 he filed yet another motion in the High Court to substitute fresh figures of N363.903.34 for the judgment debt. The motion was also dismissed on 27/3/86. Subsequently on 8/8/86 Appellant’s movable properties were attached.

The Appellant who remained undaunted on 13/8/86 by Motion on Notice applied to the Court of Appeal for the following reliefs:

(a) Stay of execution of the judgment of High Court of Imo State, Aba, Aba Judicial Division dated 15/4/82 pending appeal.

(b) Extension of time within which to appeal against the said judgment of 15/4/82.

In its Ruling delivered on 25/11/86, the Court of Appeal ordered as follows:

“(i) That Extension of time is hereby granted as sought until 20th December, 1986 with N25.00 costs to the Respondent.

(ii) It is further ordered that the stay of execution of the judgment debt outstanding since April 1982 be stayed subject to this condition that the sum of N350,000.00 be paid to the Respondent on or before 31st December, 1986. The balance due shall be paid half yearly at the rate of N50,000.00 until the debt is disposed off. Costs of this application is assessed at N100.00 to the Respondent.

The Appellant woefully failed to comply with any of the orders given by the Court of Appeal above. It later became necessary to sell Appellant’s attached movable properties as earlier mentioned. These were sold and the proceeds thereon were grossly insufficient to satisfy the judgment debt. Consequently the 1st Respondent filed a Motion on Notice in the High Court for leave to attach and sell Appellant’s immovable properties. The application was granted on 23/6/89 on the condition that the properties “shall not be sold on or before 31/12/89” being the date when last half yearly instalmental payment ordered by the Court of Appeal above would have become due and payable. To prevent the sale taking place, the Appellant on 9/11/90 paid the sum of N371,000.00 as part payment, leaving the outstanding balance of N251.973.78 to be paid.

Smelling imminent sale of his immovable properties, the Appellant on 12/10/91 filed an application in the High Court praying for the following reliefs-

(a) To suspend the execution of the balance of judgment debt of N251,973.78.

(b) That the balance of the judgment debt be liquidated by N5,000.00 monthly instalment or on the payment by the Federal Ministry of Defence the debt of N2,000,000.00 which the applicant is being owed.