Dale Power Systems Plc V. Witt & Busch Limited & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

This is an appeal against the ruling of Alabi J. of the Lagos State High Court which was delivered on the 21st of April 2004 in which he set aside the execution of the judgment of that Court and directed the Deputy Sheriff to release the ten generating sets that were attached to the 2nd Respondent herein.

The facts that gave rise to this appeal are simple and straight forward and are ably set out in the parties’ briefs of argument. I will therefore recount them briefly in this judgment.

On the 6th of June 1997, the Appellant herein obtained a judgment against the first Respondent at the High Court of England in the sum of ?160.534.70 plus ?61,653.88 interest on the judgment sum. On the 15th September 1997, the Appellant applied to the High Court of Lagos State for an order of registration of the foreign judgment in accordance with the provisions of the Reciprocal Enforcement of Judgment Ordinance, Cap 175 Laws of the Federation of Nigerian 1958 and Rules made pursuant thereto. This application was granted and the foreign judgment was accordingly registered on the 13th October 1997. The1st Respondent made several attempts to have the judgment set aside without success.

On the 28th of February 2003, the Appellant levied execution against the 1st Respondent and ten generating sets were attached.

By an application dated and filed on the 15th April 2003, the 2nd Respondent herein claimed ownership of the ten generating sets that were attached. The Appellant filed a counter affidavit dated 5th of May 2003.

The learned trial Judge heard argument on the application and in a considered ruling, which was delivered on the 21st of April 2004, the ten generating sets were ordered to be released to the 2nd Respondent forthwith on the ground that the 2nd Respondent has established its ownership over them.

The Appellant, being dissatisfied and aggrieved with the ruling aforesaid has appealed to this Court. Its notice of Appeal dated and filed on the 21st of April 2004 contains two grounds of appeal. These grounds

without their particulars read as follows: –

“1. The Learned trial Judge erred in law when he held that the 2nd Respondent and not the 1st Respondent owns the power generators attached further to the execution levied on the 1st Respondent and thereby set aside the attachment of the said generators, a decision which occasioned a miscarriage of justice.

2. The Ruling was against the weight of evidence.”

Parties filed and exchanged briefs of argument. From the two grounds of appeal, the Appellant formulated two issues for determination of this appeal. These issues read as follows: –

“1. Whether the lower Court was correct in holding that the 2nd Respondent and not the 1st Respondent

is the owner of the attached power generators further to the execution levied against the 1st Respondent on 28th February 2003.

2. Whether the fact that the Judge did not rule on the admissibility of exhibit A attached to the affidavit in support of the 2nd Respondent’s application dated 15th April 2003 has not occasioned a serious miscarriage of justice against the Appellant.”

The Respondent adopted the Appellant’s first issue for determination of this appeal and then filed a preliminary objection challenging the validity of the Appellant’s second issue on the ground that same is not covered by and/or derived from any of the grounds of appeal herein.