Fiom Nsa & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment)

At the Calabar Division of the High Court of Cross River State, the Appellant filed a motion on notice on 19th June, 2009 in Suit No. HC/491/2000 for the following orders:

“1. AN ORDER substituting Elizabeth Etim Eneyo of No. 22 Chamley Street, Calabar for deceased defendant/judgment Debtor/Applicant who died in 2007.

2. AN ORDER setting aside the Ruling/Order made by this Honourable Court on 19th May, 2008 in the absence of the defendant who plaintiffs/judgment creditors knew was dead and which the Court said the dead defendant should not come again for an order for the same purpose.
3. AN ORDER extending time within which the defendant/judgment debtor/applicant can pay the judgment debt in this suit.
4. AN ORDER deeming the judgment debt of N375,000 plus N5,000 cost paid into court out of the three months granted by court as Paid within time.
5. AN ORDER for judgment creditors to collect the judgment sum of N375,000 plus cost of N5,000 paid to the registrar of the High Court, Calabar for collection by the said judgment creditors.
6. AN ORDER staying execution of the judgment until this motion is heard and determined.”

The lower court delivered its Ruling on 29th June, 2009 and granted prayer no.1 for substitution, while the remaining 5 prayers were refused.

The appellant was dissatisfied with that ruling and appealed on the three grounds contained in the Notice of Appeal on pages 61-63 of the Records of Appeal.

The motion of the appellant was sequel to the judgment of the lower court in Suit No. HC/491/2000 delivered on 5/2/2006 (pages 1-5 of the Records) which judgment shows that the respondents were the plaintiffs in that suit while one Madam Elizabeth Okon Asuawanaso Duke was the defendant. The Respondents had sought possession of the premises described as No. 22 Chamley Street, Calabar allegedly conveyed to them by the defendant or payment of N375,000 as cost of the property and expenses thereon. The court ordered the defendant to pay the amount of N375,000 with N5,000 cost to the respondent within 3 months failing which the respondents were to take possession.

The defendant/judgment debtor, Madam Elizabeth Okon Asuawanaso Duke could not fully pay the debt within three months before she died and following which there had been protracted processes and proceedings in respect of the judgment-debt before the appellant eventually filed the motion of 19th June, 2009 the ruling of which led to this appeal.

In the Appellant’s Brief of Argument, two issues were formulated for determination as follows:

1. Whether it was proper for the Respondents (judgment creditors) to be allowed to levy execution of the judgment when the judgment debtor was dead and known to the Respondents who should have first substituted a beneficiary of the estate of the deceased judgment debtor before levying execution.

Alternatively

Whether the substitution of the appellant in the suit on her application is only to enable Respondents levy execution over the property of the deceased judgment debtor in the judgment without affording the substituted appellant the right and privileges as a Party in the suit.

2. Whether the trial judge exercised his discretion judiciously and judicially when he refused to extend time for the payment of the judgment debt of N380,000 which had already been paid into the High Court Registry for the Judgment Creditors/Respondents to collect and particularly when appellant was not initially a party in the suit or bound by the strict adherence to the payment of the judgment sum within the three months.”

At the hearing of this appeal appellant’s counsel referred to page 3 of his Brief and pointed out that he had abandoned ground 1 of the Grounds of Appeal bothering on the issue of substitution and that the ground remained abandoned, leaving him with two grounds of appeal from which the two issues where distilled.

on issue one, the learned counsel argued that the trial court failed to consider in its ruling of 29/6/2009 that the judgment debtor had died and that her death without substitution of a living person affected the execution of the judgment as any execution without such substitution remains incompetent and invalid. He argued that the lower court lacked jurisdiction to make the order for execution when there was no judgment debtor. He said the substitution of the appellant was to give life to the suit and not to make the respondents to levy execution or possess the deceased judgment-debtor’s property. He further argued that the appellant who was substituted did not enjoy the privilege of being a party which she could have only enjoyed through the granting of the other reliefs moreso that the judgment debt had been paid to court.

on the second issue the learned counsel submitted that the three months period allowed by the lower court in the judgment of 15th February, 2006 .was not an extension of time and was not a stay of execution while the application for stay was not for a further stay.

He contended that the ruling of 19th May, 2008 which the lower court echoed in his ruling now under appeal was itself made without jurisdiction and therefore a nullity having been made when there was no judgment debtor, citing Aburaheem vs. Olufeagba (2007) All FWLR (Pt. 360) 1502. According to the learned counsel, the prayers of the appellant were within the exercise of the lower courts discretion which that court failed to exercise judicially and judiciously in the circumstances of the case. He cited Soloye vs. Sonibara (2002) FWLR (Pt. 95) 221; Oformata vs. Onwuzuligbo (2002) FWLR (Pt. 89) 1246.