Adejumo Fam (Nigeria) Limited & Anor V. Reuben a. Arimokwu (1994)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The appellants sued one J. N. Otele in a Lagos High Court in Suit NO. LD/1403/86 claiming as follows:-

“(1) The Plaintiffs claim is for the sum of N80, 700.00 (Eighty Thousand Seven Hundred Naira). The net sum of money taken by the Defendant from the 1st and 2nd Plaintiff Company between January and October, 1982 plus interest at the rate of 10% per annum until the full sum is satisfied.

(2) An order that the Defendant’s building at Orubor Street Boji Boji Agbor Bendel State which on the Defendant’s own admission was built with the stolen monies, be sold in order to satisfy the judgment debt.”

The appellants were given judgment as per their first leg of claim on the 2nd day of November, 1987. The trial court made no order in respect of the 2nd head of claim. The appellants registered the judgment of the Lagos High Court in the High Court of Agbor now in Delta State for the purpose of levying execution by the sale of the landed property of the judgment debtor situated in Agbor.

The appellant were granted leave to levy execution by the High Court Agbor and in the process of doing so the present respondent brought interpleader proceedings against the appellants to the effect that he had bought the property being attached, (NO.5, Orubor Street, Agbor) from Mr. J. N. Otele since 25th day of February, 1987 and was entitled to Statutory right of occupancy in respect of the same. He prayed the court to set aside the writ of execution and to restrain the appellants from taking possession of the property.

The appellants filed a defence to the interpleader summons to the effect that the judgment debtor stole their money and used it to build the property being attached. In paragraph 11 of their defence they averred as follows:-

“11. The Judgment creditors shall contend that the purported sale of the property by the Judgment Debtor to the Claimant on the 25th day of February 1987, was fraudulent in that the Judgment Debtor knew he had no title to the said property and so could not pass any to the Claimant.”

The respondent and his witnesses gave evidence to show that the judgment debtor who testified as P.W.3 sold the disputed property to him as far back as 25th February, 1987 for the same N60, 000.00 and he was handed over the documents of sale and the keys of the house and had been in possession ever since.

One Rasaki Adejumo gave evidence on behalf of the appellants that the judgment debtor embezzled N95,000.00 of their money and was reported to the police. He was tried by a Magistrate court in Lagos and convicted and sentenced to a term of imprisonment. Later the appellants sued him for the recovery of their money and obtained judgment on the 2nd day of November, 1987. It was pursuant to that judgment that they were levying execution for the sale of the dispute property.

D.W.1 D.S.P. Kayode Ogungbe gave evidence for the appellants on how he investigated the case of stealing against the judgment debtor, recorded statements from him and persecuted him. He identified the statements recorded from the judgment debtor as Exhibits 10 to 15. He also tendered Exhibits 15 to 20. He said that in the course of his investigation he went to Agbor and saw the disputed property which he was satisfied belonged to the judgment debtor.

In a reserved judgment, the trial Judge found against the appellants and ordered the release of the attached property to the respondent. It is against this judgment that the appellants have appealed to this court on two grounds of appeal which read:-

(a) The decision is against the weight of evidence.

(b) The learned trial Judge erred in law when it released the building (subject of litigation) from attachment;