Chief M. O. Olatunji V. Owena Bank of Nigeria Plc & Anor (2002)

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OKUNOLA, J.C.A. 

This is an appeal against the interlocutory decision of D. F. Babalola J., of Ekiti State High Court sitting at Ado Ekiti upon an application by the respondents to set aside the execution of the judgment of the court carried out against the respondents.

The facts of this case briefly put were as follows:

The plaintiff/judgment/creditor/appellant was the respondent while the respondents were the defendants/judgment debtors at the Ado Ekiti High Court. The appellant was a businessman and owner of a Saw mill factory at Iddo Ekiti. On 13th August, 1997 the 1st respondent appointed and caused the 2nd respondent, who claimed to be a licensed auctioner, to remove, at gun point (police gun men) at his Saw mill equipments. The appellant demanded for the return of the equipment without success. He sued at Ado Ekiti High Court for return of the equipment and damages for wrongful, illegal and unconstitutional conducts. Hon. Justice D. F. Babalola, in his judgment, declined to order the return of the equipment but awarded damages of N30,793,000.00. The judgment creditor immediately after the judgment applied for writ of execution which was issued but was not served until 7 days after i.e. 21/3/2000 – 27/3/2000.

The 1st respondent accepted service of the writ of execution and issued its own draft for Thirty Million Seven Hundred and Ninety Three Thousand Naira. The respondents, thereafter filed an application asking the court to set aside the execution of the judgment on the “ground that the said execution was conducted illegally, unlawfully and or in flagrant violation of law calculated to over reach the decision of this court in motion for stay filed and pending in this court”

The learned trial Judge concluded on the ground of the application thus:

“Even though there is a clear evidence from the Registry’s stamp on the notice of appeal and motion on notice for stay of execution filed by the judgment debtor/applicant that the two papers were filed timeously on 21st March, 2000, there is no evidence that the two papers were brought to the knowledge of the judgment creditor before execution was levied on the property of the judgment debtor/applicant on 27th March, 2000. In the same manner, there is no clear evidence that the writ of attachment was signed after the notice of appeal and the motion on notice for stay of execution had been filed on the 21st March, 2000. Therefore, the writ of execution levied by the judgment creditor on the property of the judgment debtor/applicant on the 27th March, 2000 can not on those two grounds be set aside” (See pages 30-31, 1-15 of the records)

The learned trial Judge in a reserved ruling dismissed the grounds of objection in the motion but set aside the execution on the ground that the issuance of the writ of execution violates Order IV rule 1(2) of the Judgment (Enforcement) Rules, Cap. 407, Laws of the Federation, 1990 (Vol. XXII).

Dissatisfied with this decision, the appellant herein filed a notice of appeal dated 24th May, 2000 which contained 3 grounds of appeal but later amended to 2 grounds of appeal. From these two grounds of appeal, the appellant has formulated the following two issues for determination in this appeal, viz:

1. Whether the learned trial Judge acted lawfully when he granted a relief not claimed before him in the motion paper.
2. Whether the writ of attachment for sums of money, which was signed on 21/3/2000 and executed on 27/3/2000, was irregular and unawful.

Before dealing with the two issues raised in this by the appellant, I need to observe that the respondent in the respondent’s brief at paragraph 30. I raised by way of objection in limine that the grounds of appeal upon which appellant’s brief is premised in grossly incompetent as a consequence of which it should be struck out for the following reasons:

Ground 1

The appellant ground 1 is couched as follows:

“1. The learned trial Judge erred in law when he held as follows:

“The writ of execution issued in this case on 21st day of March, 2000 and the execution levied on the judgment debtor on the 27 March, 2000 are hereby set aside for mere irregularity”