Asims (Nig.) Limited & Anor V. Lower Benue River Basin Development Authority & Ors.(2001)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

In the original suit, the Plateau State High Court sitting at Keffi (then of Plateau State) entered a partial judgment in favour of the appellants (as plaintiffs) for the sum of N1,096,750.00 as damages plus N420.00 costs. The respondents (as defendants) filed an appeal against the judgment and made part payment of N500,000.00 of the judgment debt. Before paying the balance however, the appellants levied execution and attached some 7 vehicles of the respondents. The amount realised was N865,200.00 which was added to the N500,000.00 and paid to the plaintiffs as judgment sum. The defendants were dissatisfied and appealed to the Court of Appeal. The Court of Appeal allowed the appeal on 30/10/92 and set aside the judgment of the trial court. The respondents then filed a motion on notice pursuant to Order II Rule 10 of the Judgments (Enforcement) Rules 1963 praying for the following reliefs:

“1. An Order directing the respondents herein to return all the items taken in execution in this case plus N500,000.00 cash back to this honourable court for onward transmission to the applicants and/or

2. Alternatively, an order directing the respondent to return the sum of N1,182,200.00 (made up of

N685,200.00 being proceeds from the sales of the goods attached) to the applicants herein and/or

3. Alternatively, an order directing the respondents to return the sum of one million and ninety seven thousand, one hundred and seventy naira (N1,097,170.00) being the judgment debt plus costs to them.

And for such further order or orders as this honourable court may deem fit to make in the circumstances.”

After taking arguments on the motion by the respective parties, the learned trial Judge ruled in favour of the applicants. He granted the motion and ordered the respondents to pay to the applicants the judgment debt in the sum of N1,097,170.00 plus costs paid to the respondents. Dissatisfied with the above ruling the respondents (now appellants) appealed to this court on three grounds. Shorn of their particulars, the grounds read as follows:

“1. The honourable Judge misdirected himself in law by holding that the application was brought under the proper law.

2. The honourable trial Judge erred in law in awarding a total sum of N39,016.00 as costs for applicant counsel’s thirteen appearances.
3. The honourable trial Judge erred in law when he ordered the refund of the proceeds of sale of the attached properties instead of a retrial.”

Parties filed and exchanged briefs of arguments. In his brief, learned counsel for the appellants formulated three issues:

“(i) Whether wrong law is the same as non-existent law and of the same effect?.

(ii) Assuming Order II rule 10 Judgments (Enforcement) Rules 1963 is proper law, does it confer on the lower court the power to make the orders it made?.

(iii) Whether cost can be awarded without basis for same?.”

The learned SAN for the respondents adopted the issues formulated by the appellants’ counsel. The respondents were not in court on the hearing date nor their counsel. They were however deemed under Order 6 rule 9 (e) of our Rules, to have argued their appeal as presented in the brief.

Learned counsel for the appellant on his issue No.1 submitted that wrong law is not the same as non existent law and do not have same effect. So, bringing an application under a wrong law is curable because the law does exist but there was a mistake in stating it correctly and is not fatal to an application if well grounded. But where the law or provision under which an application is brought is repealed or no longer has a place in the statute books, the law becomes dead and non-existent. Anything done or purported to be done under such a non-existent law is null ab initio and of no effect. Learned counsel argued that Order II rule 10 of the Judgments (Enforcement) Rules, 1963 under which the application was brought was non-existent. The only effective law, he argued is Cap. 407 of 1990 Laws of the Federation. On that premise, the application ought to be dismissed. He cited the cases of Zimit v. Mahmoud (1993) 1 NWLR (Pt. 267) 71 at 92. Udofia v. Christ Apostolic Church (1992) 5 NWLR (Pt. 242) 437 at 445.

On issue No.2, learned counsel for the appellant submits that Order II rule 10 Judgments (Enforcement) Rules, 1963 only provided for the mode of bringing the application as an interlocutory application. Again, after setting aside the judgment, the honourable court(Court of Appeal) was asking that a retrial be undertaken. The appellants failed to so initiate.