Alpha Properties International Limited V. Nigeria Deposit Insurance Corporation & Ors (2005)

LawGlobal-Hub Lead Judgment Report

M.D. MUHAMMAD, J.C.A.

The first respondent in this appeal, as liquidator/ receiver of Alpha Merchant Bank Plc, instituted suit No. FBFM/ZIN/CV/34/97 at the Lagos Zone of the Failed Banks (Recovery of Debts) and Financial Malpractices Tribunal against the 2nd, 3rd respondents and the appellant herein for the recovery of the sum of one million four hundred and twenty one thousand, and eighty six dollars ($1,421,086.00) and one hundred and ninety million, two hundred and eighty two thousand, four hundred naira (190,282,400.00) respectively owed to the ailing bank by the 2nd respondent. 1st and 2nd respondents reached an amicable settlement and following the terms of settlement executed by both, the tribunal on 18th March 1998 entered a consent judgment thereon.

The 1st respondent as the judgment creditor/applicant, by a motion on notice pursuant to order 9 rules 1 and 2, order 43 rule 7(2) of the lower court’s rules and order 7 rule 2 of the Judgment (Enforcement) Rules asked for the lower court’s orders for the enforcement of the consent judgment of the tribunal. Having found the application meritorious, the court on 19th December 2003, ordered thus:

“That leave is hereby granted to the applicant/judgment creditor to execute the judgment of the tribunal delivered in this case on the 18th of March, 1998, by way of a writ of possession commanding the Sheriff of this court to enter the 3rd respondent/judgment Debtor’s hotel project made up of 400 rooms located at Plot A, Victoria Island Shopping Complex, Ahmadu Bello way, Lagos, delineated and shown verged RED on survey plan No. LD/D/LD/204A at the Lands Registry, Alausa, Lagos, in compliance with the terms of the consent judgment entered into on 18th March, 1998, and give possession thereof to the applicant/judgment creditor herein who by virtue of the judgment of the Tribunal dated 18th March is entitled to possession of the premises.

That the Sheriff of this court is further directed to in furtherance of vesting possession of the premises in the applicant/judgment creditor on behalf of the 3rd respondent/judgment debtor herein, execute all necessary deeds, documents or instrument for the transfer of title in the property to the applicant/judgment creditor.”

Being dissatisfied with these orders, the 3rd respondent to the application has appealed from same on an amended notice containing two grounds.

Parties have filed and exchanged briefs and same have been adopted as arguments in the appeal. Counsel also addressed court orally thereby highlighting particular points in parties’ briefs. A lone issue has been formulated in the appellant’s brief as having arisen for the determination of the appeal. The issue reads:

“Whether it was proper for the trial judge in the Federal High Court Lagos to have changed, amended or altered on the 19th of December, 2003, a judgment delivered almost six years earlier by changing the parties i.e (1st respondent judgment/debtor to read 3rd respondent) and by christening the 3rd respondent as a judgment/debtor when no award was made against the 3rd respondent and who did not sign or consent to the terms of settlement made on 10th February, 1998.”

A single issue has similarly been formulated in the 1st respondent’s brief of argument considered to have arisen for the determination of the appeal. The issue reads:

“Whether the learned trial judge is empowered to grant leave to the 1st respondent herein an applicant to ex-ecute the judgment of the court dated 18th March, 1998, by way of writ of possession and directing the sheriff of the court to execute all necessary deeds, documents, or instruments for the transfer of title in the property to the 1st respondent herein as applicant/judgment creditor.”

The 2nd respondent in the appeal, the judgment debtor and signatory to the terms of settlement leading to the consent judgment of 18th March, 1998, has adopted the issue formulated in the appellant’s brief as having arisen for the determination of the appeal.

The issue formulated in the 3rd respondent’s brief for the determination, of the appeal however, reads:

“Whether the learned trial judge was right in making orders for the enforcement of the consent judgment, dated 18th March, 1998, against the appellant as 3rd respondent/judgment debtor when the appellant is neither a consenting party to the terms of settlement nor made liable under the judgment.”

Learned Senior Counsel for the appellant’s argument of the appeal has been full of zest and gusto. The argument of the lone issue has been from two perspectives.