West African Cotton Ltd. & Anor. V. Alhaji Bako Maiwada (2007)

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

This is an appeal against the judgment of the High Court of Katsina State, Funtua Judicial division delivered on 5/5/04 in respect of interpleader proceedings. The appellants were judgment creditors in Suit No. KTH/FT/23/98: West African Cotton Ltd. vs Alhaji Ahmadu Yankara. Pursuant to leave of court obtained on 17/11/03 the immovable property of the judgment debtor, Alhaji Yankara, situate at Yankara Market was attached in satisfaction of the judgment debt. A date was fixed for the auction of the said property. Prior to the date fixed for the auction, the respondent in this appeal filed an originating summons dated 4/2/03 but filed on 11/3/04 seeking the determination of the following questions:

1. “Whether the judgment debtor still retains ownership of the property situate a (sic) lying (at) Yankara Market opposite Police Outpost Yankara now sought to be attached and sold by the judgment creditor in fulfilment of the judgment of this Court delivered on 25/11/98 between the judgment creditor and judgment debtor.

2. If the answer to the above question is in the negative, a declaration that the judgment creditors cannot sell the properties in question in fulfilment of the judgment of this court delivered on 25/11/98 between the judgment creditors and the judgment debtor.

3. A consequential order directing the Sheriff and/or any of his legal representative(s) and/or his staff to release forthwith any hold on the properties in question.

4. A further order directing the sheriff and/or his legal representatives and/or his staff to withdraw and cancel all NOTICE(S) of auction sale of the properties in question.

5. And for such order and/or further orders as this Honourable Court may deem fit to make in the circumstances.”

The originating summons was supported by a 14-paragraph affidavit with two exhibits annexed thereto, wherein he claimed ownership of the attached property. The appellants filed a 6-paragraph counter affidavit in response to the originating summons wherein they contended that the property still belonged to the judgment debtor. After hearing submissions from learned counsel to the parties, the learned trial Judge on 5/5/04 entered judgment in favour of the c1aimanUrespondent.

At page 13 of the record he held:

‘This Court have (sic) been called upon to determine whether or not the property in question having been sold to the claimant by the defendant can now be auctioned to realise a debt owned (sic) by the defendant.

Therefore since no Court has declared Exhibits A and B null and void the present suit is not the appropriate avenue to so declare the exhibits. Accordingly I hereby order the Sheriff and/or any of his legal representatives and/or staff to release further with (sic) any hold on the property in question. They are also directed to withdraw and cancel all notice of auction sale of the properties namely the property situated and lying at Yankara market opposite Police Outpost Yankara.”

The appellants being dissatisfied with the judgment filed a notice of appeal dated 14/5/04 and filed on 1715/04 containing three grounds of appeal. The grounds of appeal are as follows:

1. The learned trial Judge erred in law to have admitted Exhibits A and B in evidence.

PARTICULARS OF ERROR: