Livestock Feeds Plc. V. Alhaji Rabiu Umaru Funtua & Anor. (2005)

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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

1. 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.

2. 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.
3. 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.
4. 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:-