Argos Nigeria Ltd. & Anor. V. Alhaji M. D. Umar & Anor. (2002)

LawGlobal-Hub Lead Judgment Report

R.D. MUHAMMAD, J.C.A.

The applicants, who are the appellants in this appeal, brought this application asking for the following reliefs:

1. An order setting aside the writ of attachment dated the 11th day of July, 2001 signed by Justice Tanimu Zailani of the Kaduna High Court of Justice sitting at Kaduna as same is an abuse of process and issued without regard to the provision of Sherrifs and Civil Process Act.
2. An order directing the release of the appellants/applicants goods and chattels attached on the 8th August, 2001 and 13th December, 2001 respectively attached pending the hearing and determination of the hearing of the appeal entered at the Kaduna Court of Appeal.
3. An order restraining the respondents from further attaching the appellants/applicants goods and chattels acting pursuant to the said writ of attachment dated 11th July, 2001 pending the hearing and determination of this application.
4. An order restraining the respondents from selling, disposing and or auctioning of the appellants/applicants goods, properties and chattels attached on the 8th August, 2001 and 13th December, 2001 respectively pending the determination of this application and or substantive appeal.
5. Such further order(s) as this honourable court may deem fit to make in the circumstances.”

The application is supported by a 6 paragraphs affidavit and an affidavit of urgency of 13 paragraphs. The applicants also filed a further and better affidavit of 7 paragraphs. The respondents on the other hand filed a counter-affidavit of 7 paragraphs and another 7 paragraphs further counter-affidavit.

The facts that gave rise to these proceedings are that the 1st respondent herein instituted an action against the applicants herein at the Kaduna State High Court claiming the following:-

“1. The sum of N2.6 million being the outstanding balance of moneys collected for the supply of granite and marbles and which were not supplied.

2. The plaintiff further claims interest at the rate of 10% on the said sum of N2.6 million from 30/4/2000 when the defendant issued a bank cheque which was returned unpaid to date of judgment and thereafter interest to accrue at the rate of 5% until judgment is satisfied.”

The suit was brought and placed under the undefended list. The appellants sought and were granted extension of time to file their notice of intention to defend the suit. After hearing arguments from counsel to the parties, in a reserved ruling, the learned trial Judge held that the appellants don’t have any defence on the merit. He therefore entered judgment in favour of the respondents. This is what he said:-

“The totality of the respective averments of the parties established the claims of the plaintiff except for the 10% interest from 30/4/2000. The basis for the interest has not been established as required by law. The plaintiff is definitely entitled to the refund of the N2.6m. The defendants have not shown defence on the merit. Accordingly, I enter judgment for the plaintiff against the defendants in the sum of N2.6m with an interest at the rate of 10% per annum from today until the judgment sum is fully liquidated. I also award N1,500 cost for filing this case against the defendants.”

The appellants, being dissatisfied with this decision, they appealed to this court. The ruling of the lower court was delivered on 26/6/2001 and the appellant’s notice of appeal was filed on 28/6/2001 i.e. only two days after the ruling was delivered. On that same 28/6/2001, the appellants filed a motion on notice praying for an order staying the execution of the judgment given on 26/6/2001 pending the determination of the appeal filed. This motion was fixed for hearing on 17th day of July, 2001.

However, during the pendency of this motion and before the date it was fixed for hearing, a writ of attachment and sale of goods was issued by the Judge on the 11th July, 2001. The motion for stay was subsequently heard on the day it was fixed for hearing, i.e. 17/7/2001. Ruling was reserved. The ruling was eventually delivered on 7th day of August, 2001. The motion was dismissed. On the very day this ruling was delivered, the registrar signed judgments form 41 for the sale of the appellant’s moveable property.

It was then the applicants filed this motion, the subject of this ruling. I have at the beginning of this ruling produced in their entirety the reliefs being sought by the applicants. There is no need to reproduce them again. The learned senior counsel for the applicants while moving the motion submitted that the writ of attachment issued on 11/7/2001 is an abuse of the court’s process. He submitted that the writ of attachment and sale of goods was irregularly obtained as it was issued without due regard to the provision of the Sherrifs and Civil Process Act. He further submitted that the said writ was issued while the ruling for the application was pending after the court had heard counsel arguments on the motion for stay of execution. He also submitted that the writ of sale was taken out on 7/8/2001 the very day the Judge delivered the ruling. He submitted that this was contrary to Order 4 rule 1(2) of the Judgments (Enforcement) Rules which stipulated that it should be issued 3 days after the ruling and referred to the case of Union Bank Nig. Ltd. v. Fajebi Foods (1994) 5 NWLR (Pt. 344) 325 at 345.

The learned senior counsel also submitted there was no proof that the goods attached were sold. The Deputy Sherrif was given the power of sale and that there was no affidavit by the Deputy Sherrif that the goods have been sold. He said the respondents were aware of this motion, but went ahead to say they sold the property. He submitted that the court has a duty to ensure that it is not faced with fait accompli. He referred to Fabunmi v. Oyewusi (1992) 1 NWLR (Pt. 215) 35 at 45. He urged the court to grant the application.

Counsel for the respondent opposed the motion. He submitted that parties are bound by their affidavit and that the learned Senior Advocate was wrong to have stated things which were outside the affidavit they filed. He submitted that Order 4 rule 1(2) does not apply to our present case because the judgment was delivered on 26/6/01 and the writ was signed on 11/7/01. He also submitted that the goods attached have been sold and that he was not served with the motion dated 18/12/2001 until on the 16th January, 2002. He urged the court to refuse the application.

Under normal circumstances, this court will not set aside the issuance of a writ of attachment which has been levied or executed. However, in certain circumstances where the issuance of a writ of execution or attachment amounts to an abuse of the court’s process or over-reaching the other party, execution that has been carried out can be set aside. The Supreme Court in Vaswani Trading Company v. Savalakh & Co. (1972) 12 SC 77 stated at page 82:-

“…the court and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the court to assume that role. In Sanni v. Odesanya (supra), in circumstances not dissimilar, this court ordered the setting aside of the writ of possession already executed and returned the parties to the original status quo pending the determination of the substantive motion for stay of execution”