Union Bank of Nigeria Ltd V. Chief Edamkue & Anor (2003)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A.

This is a hydra-headed motion with as many as 9 prayers all dealing with attachment in execution of an equipment and or a threatened attachment. It is sequel to the judgment of the Rivers State High Court sitting in Port Harcourt delivered by E. N. T. Karte J. on 2/5/2003. A motion for stay of execution of the said judgment was refused on 2/6/2003 by Ebete .J.

The applicants being dissatisfied with the said judgment had appealed to this court. The motion for stay, having been refused, the applicant resorted to this court filing the current motion on 3/6/2003. The previous motion for stay of execution of the judgment filed on 2/6/2003 was withdrawn on the date of hearing whereupon counsel relied on that filed on 3/6/2003. The reliefs sought in that application are as follows:

An order or declaration that the issuance of the writ of attachment in respect of the judgment of the lower court dated 2/5/03 by the Respondent and the Deputy Sheriff of the High Court of Rivers State and or their agents or servant on or about 2/6/03 before the expiration of 15 days after the refusal of the Appellant’s motion for stay of execution by the lower court on 2/6/03, contrary to Order 3 Rule 3(3) of the Court of Appeal Rules, is unlawful and amounts to an abuse of court process.

An order or declaration that the execution of the writ of attachment in respect of the judgment of the lower court dated 2/5/03 before the Respondent and the Deputy Sheriff of the High Court of River State and or their agents or servants on or about 2.6.03 before the expiration of 15 days after the refusal of the Appellant’s motion for stay of execution by the lower court on 2/6/03 is unlawful and amount to an abuse of court process.

iii. An order setting aside the issuance of the aforesaid writ execution of the aforesaid judgment for being irregular and unlawful.

An order setting aside the execution of the aforesaid judgment which was purportedly levied by the Respondents and Deputy Sheriff of the High Court of River and/or their servant agents at the Appellant’s Area Office at Trans Amadi Industrial Layout on 6/6/03.

An order for stay or suspension of further execution of the aforesaid judgment by the Respondent and the Deputy Sheriff of the High Court of Rivers State and/or their servants or agent pending the hearing and determination of the appeal filed by the Appellant against the aforesaid judgment.

An order restraining the respondents and the Deputy Sheriff of the High Court of Rivers State and their servants and agents from taking any further step or action for the purpose of executing the aforesaid judgment pending the hearing and determination of the appeal filed against the judgment by the Appellant.

vii. An order restraining the Respondent and the Deputy Sheriff of the High Court of River State from selling, auctioning or otherwise disposing of the Appellant’s properties, goods and chattel and from spending the monies which were unlawfully and irregularly attached and carried away from the Appellant’s premises at Trans Amadi Industrial Layout by the Respondents and the Deputy Sheriff of the High Court of Rivers State in flagrant and violent breach of the Appellant’s right under Order 3 Rule 3(3) of the Court of Appeal Rules.

viii. An order directing the Respondent and the Deputy Sheriff of the High Court of Rivers State to release forthwith to the Appellant all of its properties, goods and chattel which were attached during the aforesaid execution of judgment which was levied against the Appellant at its aforesaid premises on 2/6/03.

An order directing the Respondent and the Deputy Sheriff of the High Court of Rivers State to release forthwith to the Appellant all the sums of money, which were attached during the aforesaid execution of judgment which was levied irregularly and unlawful against the Appellant at its aforesaid premises on 2/6/03″.

The application was supported by an affidavit of 17 paragraph with the notice and grounds of appeal attached. The applicants deposed to a further affidavit filed on 5/6/2003, which they captioned 2nd Affidavit in support of the Notice of Motion dated 3/6/03. Apparently, the 2nd affidavit had not been served on Mr. Nwosu for the respondent but he chose to be served in court and continued with the case to ensure the matter was heard on time.

In moving the motion, Mr. Ayo Ajayi for the applicant relied on all averments in the affidavit and further affidavit. He decided to move prayers 1-4 together. In his argument on those arms, counsel said they were collectively for an order that the issuance and execution of the writ of attachment on 2/6/2003 were unlawful and an abuse of court process. The writ of attachment was annexed as Exhibit C. Counsel maintained that going by Section 18 of the Court of Appeal Rules, where an application for stay of execution is refused by the lower court; the applicant has a further opportunity of filing a similar application within 15 days from the date of dismissal of the former application. Counsel in that regard referred to the case of Union Bank of Nigeria v. Fajebe v Fajebe Poultry Farm and Ors (1994) 5 N.W.L.R. (Pt 344) page 325 at pages 345-346 paragraphs D-E.