African International Bank Limited V. Education Tax Fund (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

DELIVERED BY JIMI OLUKAYODE BADA, JCA

This is an appeal against the Ruling of the Federal High Court sitting in Abuja in Suit No FHC/ABJ/CS/239/2004 which was delivered on the 6th day of April, 2005.

Briefly the facts of the case are that the Respondent herein commenced this action by way of writ of summons under the undefended list procedure on the 20th day of May, 2004 before the Federal High Court sitting at Abuja. The trial court delivered judgment in the sum of (N51,726,027.40k) Fifty-One Million Seven Hundred and Twenty-Six Thousand Twenty Seven Naira and Forty Kobo against the Appellant on the 13th day of December, 2004. Thereafter the Respondent filed a motion on notice seeking, inter alia an order granting leave to the Respondent to attach and sell the Appellant’s immovable property. The said application was granted on the 6th day of April, 2005.

Dissatisfied with the Ruling of the trial court the Appellant now appealed to this court.

The Learned Senior Counsel for the Appellant formulated a lone issue for determination set out as follows:-

“Whether or not the learned trial court rightly exercised its discretion in granting the respondent’s application seeking to attach and sell appellant’s immovable property.”

The Learned Counsel for the Respondent did not formulate any issue for determination.

At the hearing, Learned Senior Counsel for the Appellant referred to the Appellant’s brief of argument filed on 28/11/2005. She adopted and relied on the said brief of argument in urging the court to allow the appeal.

The Learned Counsel for the Respondent also referred to the Respondent’s brief of argument filed on 30/11/05. He adopted the said brief of argument in urging that the appeal be dismissed.

The learned counsel for the Respondent agreed with the lone issue formulated by Learned Counsel for the Appellant.

In the circumstance, I will determine this appeal on the said lone issue.

Whether or not the learned trial court rightly exercised its discretion in granting the Respondent’s application seeking to attach and sell the Appellant’s immovable property.

The Respondent had before the trial court by a motion on notice dated the 7th January, 2005 and brought pursuant to Section 44 of the Sheriffs and Civil Process Act Cap. 407 laws of the Federation of Nigeria 1990 and one inherent powers of the court sought for the following orders:-

“(1) An order granting leave to the Judgment Creditor/Applicant to attach and sell pursuant to the judgment of this court delivered on 13/12/04 on the judgment.