Chief M. O. Olatunji Vs Owena Bank Plc & Anor (1972)

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DAHIRU MUSDAPHER, JSC. 

The appellant herein was the plaintiff, he was an owner of a Saw Mill Factory at Ado Ekiti. On the 13th of August, 199/, the first respondent herein appointed and instructed the second respondent a licensed auctioneer, to remove Vi et armis all the Saw Mill equipments. The appellant demanded the return of the equipment without success. He sued at Ado Ekiti High Court for the return of the equipments and for damages for wrongful and illegal removal of the equipments.

The High Court in its judgment delivered on the 21/3/2000, did not order for the return of the equipments but awarded damages in the sum of N30,793,000.00 in favour of the appellant against the respondents. The appellant as the judgment creditor immediately on the same date i.e 21/3/2000 applied for a writ of execution of the judgment to enforce the payment of the judgment debt. The writ was issued on the same day but was served on the 1st respondent on the 27/3/2000. The 1st respondent accepted the service of the writ and issued its own bank draft for the total sum of the judgment debt aforesaid. On the 28th day of March 2000 the respondents herein as applicants filed a Motion on Notice praying for:

“An Order of Court setting aside the execution of judgment levied by the plaintiff/judgment creditor/respondent in this suit on 27th day of March, 2000, on the ground that the said execution was conducted illegally, unlawfully and/or flagrant violation of law calculated to overreach the decision of this court in Motion for stay filed and pending in this Court.”

It appears that the respondents had on the same 21/3/2000 filed a motion to stay the execution of the judgment pending appeal which was also filed on the same date. It was the motion to set aside the execution of the judgment on which the 1st respondent had issued a cheque in settlement thereof that resulted in this appeal. The learned trial judge in his consideration of the Motion to set aside the execution of the judgment held:-

“ I hold that the requirement of Order IV Rule 1(2) of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation was not complied with in this case before the Writ of Execution was PAGE| 3 issued. The Writ of Execution in this case ought not to have been issued on the 21st day of March, 2000 the very day the judgment of the court was delivered. The Writ of Execution issued in this case on the 21st day of March, 2000 and the execution levied  on the 27th March, 2000 are hereby set aside .”

The appellant felt unhappy with the ruling and filed a Notice of Appeal. The Court of Appeal Ilorin in its consideration of the matter before it discussed the following provisions:-

(i) Section 20 Sheriffs and Civil Process Act.

(ii) Section 94(1) Sheriffs and Civil Process Act.

(iii) Order IV Rules 1(2), 5 and 16 of the judgment [Enforcement] Rules.

(iv) Section 2 part I Judgment [Enforcement] Rules. The Court of Appeal considered two issues.

It is the second issue that is concerned in this appeal. The second issue reads thus:-

“Whether the Writ of Attachment for sum of money, which was signed on 21/3/2000 and executed on 27/3/2000, was irregular and unlawful.”

In its judgment, the Court of Appeal resolved issue No. 2 recited above against the appellant. It held that issuance and the execution of the writ of attachment was irregular and unlawful. It is against the judgment that the appellant has now further appealed to this Court. The Notice of Appeal filed contained two grounds of appeal. In his brief for the appellant, the learned counsel has identified the following issue as arising for the determination of the appeal. The issue reads:-