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

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

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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:-

“Whether the application for and the issuance of a Writ of Execution of Judgment for sum of money payable under a judgment immediately after delivery of judgment is invalid under the Sheriffs and Civil Process Act or the Rules made there under.”

The respondent’s issue is not different from the one submitted by the appellant. It is submitted by the learned counsel for the appellant that a judgment of a court becomes effective and can be enforced from the moment of its pronouncement, until the judgment or order is vacated, discharged or set aside by the court or a superior court on appeal. Learned counsel relies and cites the cases of Intercontractors [Nig] Ltd v. UAC of Nigeria Ltd. [1988] 2 NWLR (Pt 76) 303, Bank of West Africa v. NIPC Ltd. [1962] LLR 31, Olayinka v. Elusanmi [1971] 1 NMLR 227.

It is further submitted that the provisions of section 20 (1) – (3) of the Sheriffs and Civil (Process) Act, give the right to a judgment creditor and entitles him to recover judgment forth-with by an application to the registrar for a writ of attachment and sale of attached goods, unless the judgment stipulates a particular date or time of payment. It is further argued that in view of the clear meaning of the words in the Act in section 20 (1) – (3), Order IV Rule 1 (2) of the Rules does not apply for money payable under a judgment and if it did, it is in conflict with section 20(1) and where a conflict exists between a substantive law the rule or order in a subsidiary legislation must give way. See In Re Fletcher [1956] CH 28. It is further added that the practice in England with respect to the recovery of money supports the provision of Section 20 of the Act. See Order 45 Rule 1(6) of the Supreme Court Practice 1985. See also HALSBURY’s LAWS OF ENGLAND 3rd edition, Volume 22 paragraph 1658. Writ of FIFA may issue immediately whenever a judgment is pronounced without notice to the judgment debtor see Land Creditor Company of Ireland v. Fermoy [1870] L.R 4 CH 323, Hopton v. Robertson [1884] W.N. 77, 23 QBD 126. Re a Solicitor [1884] 33 W.R. 131. It is further stressed that, where right and remedies co-exist in the same statute such as in sections 20 – 23 of the Sheriffs and Civil Process Act one cannot be disassociated from the other. See Eguamwense v. Amaghizemwen [1993] 9 NWLR (Pt 315). 1 Q 23 Order iv rule 1(1) and (2) relate only to possession of land and does not extend to the execution of judgment where money was only  involved.

The provisions of Order IV Rules 1(2) cannot be used or involved to restrict, abridge or inhibit or redirect the provisions of the substantive law. The Rules made under a statute cannot take away rights expressly conferred in a substantive statute. See Total Nigeria Plc v. Moshood Adeleye Akinpelu and Others [2000] 21 WRN 76. The learned counsel for the respondent on the other hand submit that the relevant statutory provisions to this appeal are sections 20(1) and 20(2) of the Sheriffs and Civil [Process] Act Cap 407 LFN 1990 and Order IV Rule 1 (2) of the Judgment [Enforcement] Rules made under Cap 407 LFN 1990. It is submitted that a judgment creditor cannot proceed forthwith on the same day on which the judgment was delivered to issue a writ of attachment pursuant to section 20(2) unless the judgment debtor has defaulted or failed to pay the judgment sum. It is again submitted that section 20(1) is only permissive or discretionary in the sense that it only permits the recovery of the judgment sum by the judgment creditor. This is to be distinguished from the mandatory provisions of section 20(2) dealing with the duty imposed on the Registrar, who “shall cause Writ of Attachment to be issued.” It is again argued that there are other provisions of the Act, which provide for time and manner for levying execution and effect must be given to those provisions.

The provisions of order IV Rules (1) and 4 of the Judgment (Enforcement) Rules are designed to complement and explain the provisions of the Act and they form integral part of it. It is again submitted that if the court upholds the appellant’s contention, it will lead to absurdity in the sense that if a judgment creditor is to proceed to levy execution immediately on all the judgment debtors’ assets even on the judgment debtor’s immovable properties this will definitely go against the grain that it is only after no movable assets are available to satisfy the judgment debt, it may then proceed against the immovable assets. It is further submitted that by the clear provisions of Order IV rule (2), the appellant must comply with the provisions of the order and the “process%

Other Citation: (1972) LCN/1575(SC)

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