Remm Oil Services Limited V. Ephraim Amara (2006)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

In a motion dated the 29th day of August 2004 and filed on the 31st day of August 2004, the Applicant who is the Defendant/Judgment Debtor at the trial court seeks the following reliefs from this court:-

“1 …abandoned.

2. An Order that the writ of attachment/execution issued out of the River State High Court during the pendency of the Defendant/Appellant/Application’s

i. Notice of Appeal,

ii. Motion for stay of Execution file in the Court of Appeal on 28/6/2004 and

iii. Third party interpleader Summons (PHC/129/2004) AND motion for stay of Execution (in the Lower Court) be set aside.

3. An Order that the illegal and unlawful attachment/execution of the judgment on 14th of November, 2003 pursuant to the said writ of attachment execution and which was done during the pendency of the Defendant/Appellant/Applicant’s i. Notice of Appeal and ii Motion for Stay of Execute be set aside.
4. An Order that the illegal and unlawful auction sale of the Defendant/Appellant/Applicant’s and innocent third parties’ goods and chattels on 28th of June, 2004 which was done on the same day the Motion for stay of execution in the Lower court was dismissed by that Court i.e. 28/8/2004 and during the pendency of the Defendant/Appellant/Applicant’s i. Notice of Appeal, ii Motion for Stay of Execution filed in the court of Appeal on 28/6/2004 and iii. A third party Interpleader Summons (PHC/129/2004) in the Lower Court be set aside.
5. An order that the Defendant/Appellant/Applicant’s and other innocent third parties’ aforesaid goods and chattels be released to them or in the alternative deposited with the Deputy chief Registrar of this Court pending the hearing of the above appeal.
6. An order that further steps in execution of the judgment appealed against from be stayed pending the hearing of the above appeals.
7. An order that the Defendant/Appellant/Applicant enter into a Bank bond or guarantee from a reputable Bank guaranteeing payment/satisfaction of the judgment debt upon the determination of the Appeal already filed.

8… Abandons

9. Such other…

The application is supported by an affidavit of sixty paragraphs (60) to which are annexed 16 Exhibits marked, Exh. A, 1-16….

Also annexed in support is a 78 paragraphs affidavit in reply to the Respondent’s counter affidavit to the main affidavit in support of the motion. The reply is filed on the 15th October 2004 to which are annexed some documents marked Exh. 17, 17a, 17b, and 18. A further affidavit of 16 paragraphs was also filed on the 2nd November 2004, to which are annexed Exh. 19(1), 19(2), 20, 21, and 21 respectively.

For the Respondent/Judgment Creditor, a counter affidavit of 106 paragraphs (one hundred and six) was filed on the 25/09/04. Annexed to the counter affidavit are 19 Exhibits marked Exhs A – 711. Also filed by the Respondent on the 15th November 2004 is a Reply to the Reply of the Applicant’s reply to the Respondent’s counter affidavit. The said reply is of 64 paragraphs.

All the affidavits filed in support of the application are deposed to by Uko Ochihu, male, Nigeria citizen and legal practitioner of. No. 48, Forces Avenue Old GRA, Port Harcourt. The counter affidavit and reply filed for the Respondent were both deposed to by the Respondent. Ephraim Amara, male, Christian, Nigeria Citizen of No. 40 Aba Road Businessman.

I have painstakingly perused all the affidavits filed by both parties in support of their respective arguments.

By the depositions in the affidavits for the Applicant and particularly paragraphs 4, 5, 7, 39 and 39 of the counter-affidavit of the Respondent, the following facts stand uncontroverted between the two parties that:-

1. On the 9th April 2003, the Hon. justice Mary Odili of the Rivers state Judiciary (now of the court of Appeal) pronounced Judgment for the Respondent and against the Applicant in the sum of Ten Million Naira (10, 000.000 00) being damages for malicious and wrongful dismissal.
2. On the 14th April 2004, the Applicant filed an appeal against the said Judgment and also filed a motion for the stay of the execution of the Judgment.
3. On the 13th November 2003, the Applicant’s motion for stay was struck out for non-prosecution.
4. On the 14th November 2003, the Applicant filed another motion (refilled) for stay of Execution.
5. On the same 14th November 2003 and a day after the motion for stay was struck out, the Judgment of the court was executed at the premises of the Applicant at Trans-Amadi Industrial Layout Port Harcourt
6. On the 28th June 2004, the motion for the stay of Execution was dismissed by the trial Court.
7. On the same 28th June 2004, the Applicant filed a motion for stay of the Execution of the Judgment before the court of appeal.
8. The goods of the Applicant which had been attached and brought to the High Court premises upon a writ of fiera ficais were auctioned on the same 2th June 2004.

We shall refer to the contentious issues in the course of the Judgment.