Livestock Feeds Plc. V. Alhaji Rabiu Umaru Funtua & Anor. (2005)
LawGlobal-Hub Lead Judgment Report
BA’ABA, J.C.A.
This is an appeal against the ruling of the Kaduna State High Court, delivered on the 1st day of February, 2002, by Abiriyi, J. contained at pages 64 – 68 of the printed record in respect of an application dated 10/1/2002 for an order setting aside the sale of moveable items of the appellant as the judgment debtor carried out by the deputy chief registrar, Kaduna State High Court at the instance of the 1st respondent. The application was argued by the counsel to the parties and in its reserved and considered ruling delivered on 1/2/2002, the learned trial Judge inter alia held:-
“Notwithstanding the striking out of the paragraphs referred to above, I find no basis for granting the application. It is accordingly hereby dismissed.”
The background facts of the case, leading to this appeal briefly are as follows: The 1st respondent, Alhaji Rabiu Umar Funtua, is a businessman, trading in the name and style of “Alhaji Umaru Yaro & Sons” was the plaintiff before the trial Court. The plaintiff was approached by the defendant now the appellant to supply maize to the defendant vide a document dated 3rd August, 2000 requesting for a supply of raw material. Upon a full assurance of prompt payment four weeks after delivery of the maize, the respondent quickly made a truck-load supply of the maize measuring 143,240 metric tons at N14,520.00 per ton to the appellant which amounted to N2,076,980.00.
After the supply by the respondent as requested by the appellant, the appellant reneged on the agreement for the payment within four weeks after delivery. The appellant made a total instalmental payment of N640,000.00 only leaving a balance of N1,436,980.00. According to the respondent, the appellant made several verbal and written undertakings to offset the entire sum without fulfilling any of the undertakings hence the institution of the action against the appellant by a writ of summons dated 12/2/2001 under the undefended list. Subsequently, judgment was given against the appellant in the sum N1,436,980.00 in favour of the 1st respondent on 23/3/01. An instalmental payment of the sum of =N=200,000,00 per month was made by an order of the trial Court on 11/5/2001 on the application of the appellant as judgment debtor/applicant.
As a result of non-compliance with the order of the instalmental payment made by the trial Court at the instance of the appellant, the judgment creditor/respondent caused the attachment of some moveable properties of the appellant which were sold by auction resulting in the application by the appellant to set aside the said sale of the moveable items. The learned trial Judge refused and dismissed the said application leading to this appeal.
Being dissatisfied with the ruling of the learned trial Judge, the appellant appealed to this court. By its notice of appeal dated 7/2/2002 filed on 4/3/2002, containing four grounds of appeal at pages 69-71 of the printed record.
The four grounds of appeal without their pat1iculars are as follows:-
“Grounds of appeal
- Error of law
The Kaduna State High Court (Hon. J. Abiriyi) erred in law, when he refused to uphold the appellant’s point that the Judgment creditor and the deputy sheriff are bound to give to the Judgment debtor (the appellant) the notice as to the date, time and place where the sale shall be carried out at least twenty four hours to the time of sale. Order v. Rule 6(1) & (3), Sheriff & Civil Process Act Cap 407 Laws of the Federation.
That Order V, Rule 6(1) & (3) of the Sheriff and Civil Process Act Cap 407, is not relevant to this application.
- The learned trial Judge erred in law, when he held that, “by the provision of Section 20(2) Sheriff & Civil Process Law, Cap 141, Laws of Kaduna State there is no need for recourse to the court where there is a breach in the payment of instal mental payment.
- The learned trial Judge erred in law, when he held that, “paragraph 4b, i, j, n & o of the respondents’ counter affidavit should be struck out because they are not backed by documentary evidence, yet I find no basis for granting the application. It is accordingly hereby struck out.
- The learned trial Judge misdirected himself in law, when he held that the case of Barclays Bank DCO v. Madam T. Adedapo (1962) 2 All N.L.R. 64 referred to another WACA decision which was based on a rule of court which has no equivalent in our court.”
In accordance with the rules of practice and procedure of this court briefs of argument were filed by the appellant, the 1st respondent and a reply by the appellant. The 2nd respondent however did not file a brief. When the appeal came up for hearing on 6/4/05, only the learned Counsel for the 1st respondent was in court.
Learned Counsel for the respondent adopted and relied on the 1st respondents brief. As the appellant’s brief had been filed, the appeal of the appellant was deemed argued in accordance with Order 6 Rule 9(5) of the Rules of this court.
The appellant in his brief dated 20/3/2002 filed same date formulated the following issues for determination in this appeal:-
“1. Whether the learned trial Judge was not in error by validating the sale of the appellant’s attached moveable properties purportedly sold on the Thursday 20th December, 2001 with the pendency of appellant’s motion on notice filed and handed over to the 2nd respondent on Tuesday 18th day of December, 2001.
- Whether the learned trial Judge was not in error when he held that the Provisions of Order V 6(1) & (3) of the Sheriffs & Civil Process Act (Cap 407) Laws of the Federation on notice of sale of attached properties is not relevant to the application, while also refusing to invoke a similar provisions in the Sheriffs and Civil Process Law Cap 141 Laws of Kaduna State, i.e. Section 28(4) & Section 29(1).
- Whether the learned trial Judge was not in error, when he held that ‘by the provisions of section 20(2) Sheriff & Civil Process Law, Cap 141 Laws of Kaduna State, there was no need for recourse to the Court, where there is a breach in the instalmental payment.
- Whether the learned trial Judge was not in error by not holding that the respondent has not discharged the burden of proof placed on them by section 147 & 149(D) of the Evidence Act after striking out paragraphs 4(b),(i),(j),(n),(o) of the respondent’s counter affidavit as being baseless.”
The 1st respondent on the other hand, formulated two issues at pages 4-5 of the 1st respondent’s brief as follows:-
“1. Whether the learned trial Judge was correct in striking out paragraphs 4(b) (i) (j) (n) (0) of the 1st respondent counter affidavit filed on 22nd January, 2002 at page 56 to 57 of record of appeal.
- Whether the learned trial Judge was right to have refused to set aside the sale of moveable items of the appellant being the reason for this appeal.”
The 1st respondent at page 5 of the 1st respondent’s brief raised a preliminary objection which reads:-
“Notice is hereby given by the 1st respondent that he intends, at the hearing of this appeal, to rely upon the following preliminary objection as to the competence of ground 1 on the following grounds:-
a. The said ground of appeal did not arise from the decision of the trial Court against which this appeal was filed.
The said ground raises fresh points of law that were not canvassed at the trial Court. See pages 61, 63 and 66 – 68 of the record of appeal.”
Although, the learned Counsel for the 1st respondent incorporated his notice of preliminary objection which is not dated in the respondent’s brief of argument contained at page 5 – 7 of the respondent’s brief, it does not appear that the 1st respondent filed a formal notice of preliminary objection in accordance with Order 3 Rule 15(1) of the rules of this court because none is contained in the file.
Order 3 Rule 15(1) of the rules of this court which provides for the filing of the notice of preliminary objection reads as follows:
15(1) “A respondent intending to rely upon a preliminary objection to the heating 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.”
A party in this court having a preliminary objection against any of the grounds of appeal must give the appellant three clear days notice before the objection is heard. See Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166 at 178.
In considering a preliminary objection the first point to begin with is the propriety of raising a preliminary objection in the brief of argument without the filing of a formal notice thereof at least three days before the hearing of the appeal and without proffering oral argument on it. See Nsirim v. Nsirim (1990) 5 S.C.N.J. 174 at pages 182 – 183; (1990) 3 NWLR (Pt.138) 285; O.S.H.C. v. Ogunsola (2000) 14 NWLR (Pt.687) 431 at 440. It is clear from the provisions of Order 3 Rule 15(1) of the rules of this court that the filing of the notice of preliminary objection by a respondent intending to raise an objection to the competence of grounds of appeal three days before the hearing of the appeal, is mandatory and non-compliance with the said provisions by a respondent is fatal to the objection. I hold the view that the failure of the 1st respondent to file his notice of preliminary objection in compliance with the said rule has rendered the objection incompetent consequently the preliminary objection is hereby discountenanced.
However, from a careful examination of the appellant’s first ground of appeal, it is clear that the ground does not relate or arise from the judgment.
A ground of appeal must stem from the ratio decidendi of the judgment or ruling and not any extraneous matter nor obiter dictum of the court.
It may be pertinent to examine the ratio decidendi sought to be attacked on the first ground of appeal by reading the relevant portion of the ruling in determining whether the issue relates or arose from the judgment. See Babalola v. The State (1989) 4 NWLR (Pt.115) 264,294, GHB Obatoyinbo v. E. Fagbola Oshatoba (1996) 5 NWLR (Pt.450) at 531. 549; Nnanna v. Onyenakuchi (2000) 15 NWLR (Pt.689) 92.Clearly, the first issue formulated by the appellant as well as the first issue formulated by the 1st respondent who did not file a cross appeal but relied on the appellant’s grounds of appeal are incompetent and must be struck out.
It is the law of the brief or brief writing that issues must be formulated from the grounds of appeal. They must be based or related or arisen from the grounds of appeal. See Madumori v. Okafor (1996) 4 NWLR (Pt.445)637 at 644. An issue for determination in an appeal must arise from the ground or grounds of appeal. Where an issue for determination is not predicated on any ground of appeal, the issue becomes incompetent and is liable to be struck out. See Osinupebi v. Shuaibu (1982) 7 SC.104 at 110 – 111. In the instant appeal, I hold that the first ground of appeal which does not relate or arise from the ruling is incompetent and the first ground is hereby struck out as the law is settled that a ground that is not competent must be struck out. See Ideh v. Onyedese (1997) 8 NWLR (Pt.518) 610, R.E.A. vs. Aswani iles Ltd. (1991) 2 NWLR (Pt.176) 639; R.S.C.E. v. Omubo (1992) 8 NWLR (Pt.260) 456.
Also, the 1st respondent’s first issue which is not formulated from the appellant’s ground of appeal is equally incompetent as it has no ground to stand on as required by the rules of brief writing.
It therefore follows that the first ground of appeal as well as the submission canvassed based on the said ground are incompetent and must be discountenanced. The same thing applies to the first issue formulated by the 1st respondent as well as the submission canvassed based on the incompetent first issue.
Ground of appeal number one of the appellants’ brief is struck out so also the first issue in the 1st respondent’s brief.
After a careful examination of the remaining three grounds of appeal and the second, third and fourth issues formulated therefrom and the second issue formulated in the 1st respondent’s brief which is now the only remaining issue, I adopt the 1st respondent’s remaining sole issue for the determination of this appeal as the issue is all encompassing and sufficient to dispose of the appeal.
On the second issue formulated by the appellant, learned Counsel for the appellant, A.T. Kehinde Esq., referred to page 68 of the printed record and submitted that the provisions of the Sheriffs and Civil Process Act, Cap 407 Laws of the Federation is applicable at the trial Court because the trial court is a creation of the Laws of the Federation of Nigeria. According to the learned Counsel for the appellant, the onus of proof of the particulars of the notice of sale, pasting of the notice and service of the notice of sale and other conditions precedent to the sale lies on the respondent and that this ought to be satisfied through the affidavit evidence of the respondent but the respondent has failed to do so by his affidavit.
Reference was made to the Sheriffs and Civil Process Act of the Federation as well as the Sherrifs and Civil Process Laws of the Kaduna State of Nigeria Cap 141 and the case of Bayero v. Crusader Insurance Co. Ltd. (1998) 6 NWLR (Pt.553) 214 at 226 by the learned Counsel for the appellant in support of his case.
Concluding his submissions on issue No.2, learned Counsel for the appellant submitted that the sale of the appellant’s property without proven notice of sale is null and void and of no effect, and urged the court to set aside the said sale.
It is argued in support of the third issue by the learned Counsel that the learned trial Court did not make an order as to when the issuance of the writ of attachment/execution will take place while making the order of the instalmental payment dated 15/5/2001. In that connection, he referred the court to page 68 of the printed record in support of his argument.
Learned Counsel further submitted that there is nothing in the record to show when the respondent applied for the issuance of the writ of attachment.
It is further argued that since the writ of attachment dated 4/7/2001 and 6/11/2001 contained at pages 44 – 47 of the record, contained the total outstanding against the appellant of N1,436,001.00, it shows that the amount of N630,000.00 already paid to the respondent had not been taken into consideration. He referred the court to pages 40 – 43 of the record of appeal. It is contended by the learned Counsel for the appellant that the respondents should have gone back to the court to disclose how much has been paid to them in order for the court to issue a fresh writ of attachment specifically the outstanding amount due.
In conclusion, learned Counsel argued that the execution of the judgment was wrong and there was no justification. See Bhojson Plc. v. Daniel – Kalio (2000) FWLR (Pt.14) 2357 at 2363 – 2368; Barclay’s Bank D.C.O. v. Madam T. Adedapo (1962) 2 All N.L.R. 64; Skenconsult Nig. Ltd. v. Godwin S. Ukey (1981) 1 Sc. 6 at 25 and urged the court to answer the third issue in the negative.
On the fourth issue as to whether the learned trial Judge was not in error after striking out paragraphs 4(b),(i),(j),(n), (o) of the respondent’s counter affidavit by not holding therefrom that the respondent did not discharge the burden of proof placed on them by section 147 of the Evidence Act and also by not invoking the provisions of section 149(b) of the Evidence Act and referred to the portion of the judgment of the learned trial Judge at page 68 lines 21 – 27 of the printed record.
He further argued that the paragraphs struck out by the learned trial Court goes to the root of the burden of proof placed on the respondent. Learned Counsel referred the court to pages 60 – 62 of the record and submitted that since the root of the case of the respondent’s case has been struck out, the only alternative left for the trial Court was to decide on the uncontroverted evidence of the appellant.
Relying on the authority of Alh. Audu Maigoro v. Alh. Mohammed Bashir (2000) 11 NWLR (Pt.679) 453, (2000) FWLR 553 at 563, learned Counsel argued that a court can act on the evidence properly placed before the court by the parties in a case.
The counsel to the appellant referred to a number of cases in support of his submission and urged the court to allow the appeal.
Learned Counsel for the 1st respondent, Sule Shuaibu Esq., on the 1st respondent’s second issue which is now the sole issue of the respondent having struck out the 1st respondent’s first issue, stated that the crux of the matter in the appeal is the refusal of the learned trial Judge to set aside the sale of the moveable items of the appellant.
In support of the sole issue, it is argued by the learned Counsel for the respondent that for the sale of a judgment debtor’s properties, the appellant herein to be set aside, the appellant must not only prove that there was material irregularities in the conduct of the sale but also he sustained substantial injuries by reason of such irregularities.
See Akpononu v. Beakraft Overseas (2000) 12 NWLR (Pt.682) 553 at 561.
He relied on paragraphs 4 of the 1st respondent’s counter-affidavit and stated that the appellant was duly notified and was aware of the date of the sale of its moveable properties. Learned Counsel for the 1st respondent further argued that assuming, but without conceding that there was irregularities in the conduct of the sale of the appellant’s attached moveable items, the appellant has the onus of proving the irregularities but it has failed to do so. He therefore urged the court to uphold the sale of the immoveable items of the appellant as the judgment debtor.
In conclusion, learned Counsel for the 1st respondent urged the court to dismiss the appeal.
In determining and resolving the 1st respondent’s only remaining sole issue (second issue) as to whether the learned trial Judge was right to have refused to set aside the sale of the moveable items of the appellant being reason for this appeal, it is pertinent to reproduce the application as well as the relevant averments in the supporting affidavit as well as the counter-affidavit.
By a motion dated the 10th day of January, 2002, filed same date the appellant as applicant prayed the court for the following orders:-
- An Order setting aside the sale of moveable items of the judgment debtor carried out by the respondent for being irregular and in contravention of the law.
- And for further or other orders as this court may deem fit to make in the circumstances.”
The motion was supported by a six paragraph affidavit deposed to by one Austine Oseh, of No.3, Kanta Road, Kaduna, the Litigation Secretary in the firm of Akinlolu Kehinde & Co. Solicitors to the appellant as applicant and a further affidavit of four paragraphs deposed to by the same deponent. In my view, the relevant paragraphs of the affidavit are as follows:-
“2. That I have the authority of my employers and that of the applicant to depose to this affidavit.
- That I was informed by Umaru Yila, the Kaduna Mill Branch Manager for the applicant this the 10/1/2002 at about 10.30 a.m. at my office and in the course of my duties and I verily believed him to be true as follows:-
(a) That judgment was entered for the respondent in this case in the sum of N1,436,980.00 (One million four hundred and thirty six thousand, nine hundred and eight naira only).
(b) That thereafter, the Court ordered the payment of the judgment sum on a monthly instalment of N200,000.00.
(c) That upon the said order the applicant paid the respondent the sum of N630,000.00 leaving the balance of N806,980.00 outstanding.
(d) When the applicant could not make further payment, the respondent executed the said judgment and carted away all valuables in the applicant’s premises and therefore grounded the administrative and marketing exercise of the applicant. Copies of the items attached by the respondent are hereby attached as exhibit A & B respectively.
(e) That upon the said attachment, the applicant brought a motion dated 18/11/2001 which said motion was fixed for hearing on the 17/12/2001 for hearing.
(f) That on the said date the applicant’s solicitors were not available hence an application for adjournment sent to the court on the said date.
(g) Notwithstanding the letter the Court struck out the said application upon which the applicant filed another motion on the 18/12/2001.
(h) While the applicant’s motion of 18/12/2001 was awaiting hearing date from the court the respondent mischievously went ahead and sold the said properties without due regards to the pending application and enabling laws that regulate the sales of moveable items attached pursuance to judgment.
(i) That the respondent was fully aware of the pendency of the said motion of 18/12/2001.
(j) That the applicant did not have any notice of the purported sale of the properties.
(k) That no auction sale of the property was conducted by the respondents.
(l) That the purported sales was done by the respondents malafide.
(m) That the value of the said properties were far above the outstanding judgment sum in favour of the respondents.
(n) That the respondents have succeeded in paralyzing the administrative and indeed marketing exercise of the applicant.
(o) That the applicant is willing and ready to pay the outstanding judgment sum to the respondent.
(p) That the failure of the applicant to pay the judgment sum as at when due was not deliberate as same was communicated to the respondent timeously due to the financial crisis facing the applicant at that point in time.
(4) That Justice of this case demands the grant of the application.”
A counter-affidavit was filed by the respondent containing six paragraphs affidavit deposed to by one Rashidat Bello of S.11 Ibrahim Taiwo Road, Kaduna, the secretary in the firm of Messrs Mamman Nasir & Co., solicitors to the respondent. The averments in the following paragraphs appear relevant:-
“3. That I have the permission of both my employers and the respondents to make this oath.
- That I have been informed of the following facts by the respondent and my employers and I verily believe the information as true and correct thus:-
a. That they have seen and read a copy of the applicant motion dated 18th November, 2001.
b. That it is in the usual habit of the applicant to file frivolous and vexatious motions as the one dated 17th July, 2001 but struck out by this court.
c. That the applicant is deliberately frustrating the respondents from reaping the fruits of their judgment of this court.
d. That both motions dated 17th July, and 28th November, 2001 respectively were never served on the respondents.
e. That it was my employers, particularly Suleiman Shuaibu Esq., that went to the registry of this court to collect copy of the motion dated 28th November, 2001 wherein he discovered that the case comes up on the 14th December, 2001.
f. That since the order of this court in favour of the applicant for instalmental payment of the judgment sum, the respondents has never paid as at when due.
g. That out of the total judgment sum of N1,436.80 excluding the interests accrued thereon, the respondent has paid only six hundred thousand naira N600,000.00 only.
h. That even with the annoying way and manner adopted by the applicant in payment of the instalments, the respondents have had to take steps to make the applicant realize the consequences of disobedience of this court order before the said N600,000.00 could even be realized so far.
I. That the applicant has so far issued dud cheques to the respondent knowing fully well that it had no such money in its account.
J. That counsel personally handling the case was informed by the applicant accountant that the dud cheques were variously issued not only to frustrate the respondents but to delay any action on attachment of the applicant’s moveable properties.
k. That the judgment sum is attracting interests as awarded by this court and unless this court allows the bailiffs to sell/dispose of the moveable properties attached, the respondents hope of realizing its judgment sum will be dashed.
l. That the moveable properties of the applicant attached are not implement of work and do not in any way hamper the applicant’s production.
m. That the applicant by the order of this court for instalmental payment ought to have paid off the entire judgment sum with the accumulated interests and cost of execution since end of September, 2001.
n. That the applicant is not making any efforts to payoff the judgment sum in this suit as it has many creditors who have on occasions also attached their moveable properties.”
After the application was argued the learned trial Judge in his ruling at page 68 of the record of appeal, held:-
“Mr. Kehinde the learned Counsel for the applicant did not have recourse to section 20(2) of the Sheriffs and Civil Process Law Cap 141 the Laws of Kaduna State.
By this provision, there is apparently no need for recourse to the court where there is a breach in the payment of any instalments.
Learned Counsel for the applicant referred this court to Order 6 Rules 1 and 3 of Sheriffs and Civil Process Act and the case of Bayero v. Crusader Insurance Co. Ltd. I agree entirely with Mr. Shuaibu that Order 6 Rules 1 and 3 are not relevant or applicable to this application and the case of Bayero v. Crusader Insurance Co., deals with sale of immoveable property and not moveable property as in this case.
I agree entirely with Kehinde that paragraphs 4(b) (i) (j) (n) (o) of the counter-affidavit should be struck out as they are baseless as they are not backed by documentary evidence.
Notwithstanding the striking out of the paragraphs referred to above. I find no basis for granting the application. It is accordingly hereby dismissed.”
Section 20(2) of the Sheriffs and Civil Process Law, Laws of the Kaduna State of Nigeria Cap.141 of 1991, reads:-
20(2) “On any such default, execution or successive executions may issue for the whole of the said sum of money and costs then remaining unpaid, or for such part thereof as the court may order, either at the time of making the original order or at any subsequent time.”
Although, the learned Counsel for the appellant claimed that no order of attachment was made by the learned trial Judge at the time the application for the instalmental payment was made, he failed to support the claim by exhibiting the ruling to his affidavit in support or the further affidavit in compliance with the provision of section 132 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990. He however referred the court to pages 44 – 46 of the record of appeal containing two notices of attachment dated 4/7/2001 and 9/11/2001 respectively, even though he had earlier argued that no writ of attachment was ever issued.
Since the appellant as applicant was seeking for the indulgence of the court by his application, it is incumbent upon him to place all the necessary materials before the court to enable the court exercise its discretion in his favour. See N.A Williams & Ors. v. Hope-Rising Voluntary Funds Society (1982) 1-2 SC. (Pt.1 & 2) 145 at 153.
The appellant has also failed by his affidavit to substantiate his claim that the attached items were under valued at the sale as well as the fact that there was non-compliance with the Sheriffs and Civil Process Law in attaching the items and conducting the sale. It is not sufficient for an applicant to rely on mere averments, the averments must be substantiated by exhibiting the relevant materials, for the averment to be credible.
Since the appellant appears to be ignorant of the amount realized from the sale of the items which can easily be obtained from the trial Court, how can he arrive at the conclusion that the items sold were under valued?
The Supreme Court of Nigeria in the case of G.C. Akpunonu v. Beakraft Overseas (2000) 12 NWLR (Pt.682) 553 at 561., referred to the court by the learned Counsel for the 1st respondent per Kutigi, J.S.C, held.
“On the state of the facts as stated above, I am inclined to agree with the lower courts that the sale by auction of appellant’s immoveable properties was done in accordance with the law. I also agree with them that the properties were not undervalued because there was no such evidence anywhere before the trial Court. Moreover, for the sale to be set aside the appellant must not only prove that there was material irregularity in the conduct of the sale but also that he sustained substantial injury by reason of such irregularity. See for example section 46 of the Sheriffs and Civil Process Law, Cap 118 Laws of the Eastern Nigeria, 1963. Alh. Nakyauta v. Alhaji Maikima (1977) 6 Sc. 51 Government of Ashanti v. Korkor (1938) 4 WACA 83.”
It is not every mistake or error in judgment that will result in an appeal being allowed. It is only when the error is substantial in that it had occasioned a miscarriage of Justice in that case an appellate court is bound to interfere. See Onhonda v. Ekpechi (2003) 17 NWLR (Pt.849) 326 at 351.
It appears to me that the appellant wanted to benefit from his wrongful acts of defaulting in the payment of the instalmental payment made by the trial Court on the appellant’s application inspite of his conduct of disobeying the trial court order, thereby unnecessarily delaying the payment of the judgment debt.
It is trite law that the grant of an application such as the one in this appeal under consideration is at the discretion of the trial court but it is a discretion that must be exercised judicially and judiciously.
See Aboderin v. Morakinyo (1968) NMLR 179.
An appellate court would not generally, question the exercise of discretion of the trial Judge merely because it would have exercised the discretion in a different way, if it had been in a position of the trial court. It would however do so if as a result of such exercise in Justice is meted out to either of the parties or that the trial Judge gave no weight or gave insufficient weight to important consideration. See Solanke v. Ajibola (1968) 1 All NLR 46; Saffieddine v. C.O.P (1965) 1 All NLR 54 at 56 – 57. Enekebe vs. Enekebe (1964) 1 All NLR 102; Charles Osento & Co. v. Johnson (1942) A. C. 130, 138.
In the light of the above, I agree with the submission of the learned Counsel for the 1st respondent that contrary to the submission of the learned Counsel for the appellant, the onus is on the appellant to prove the irregularity in the conduct of the sale of the moveable item which the learned Counsel has failed to do. I therefore resolved the only issue adopted by me in the determination of this appeal in the affirmative in that the learned trial Judge was right in refusing to set aside the said sale.
In the instant appeal, the appellant has failed to prove any irregularity let alone that he had sustained any injury as a result of the irregularity.
In my opinion, the learned trial Judge has admiringly determined the application and I have no reason whatsoever to interfere with the ruling.
In the result, the appeal lacks merit, and is accordingly dismissed. The ruling of the learned trial Judge, Abiriyi, J, delivered on 1/2/2000 is hereby affirmed by me. I award costs to the 1st respondent assessed at N5,000.00 against the appellant.
Other Citations: (2005)LCN/1761(CA)
