Gabriel Olatunde V.obafemi Awolowo University & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division, which had on the 23rd day of November, 1989 allowed the appeal by the claimant/respondent from the decision of Lajide. J., sitting at IIe-Ife in the Ife Judicial Division of the High Court of Justice, Oyo State.

The issue in controversy between the parties arose from an interpleader proceeding. This was as a result of the attachment by the plaintiff judgment creditor/appellant of a 25 ton Manchetta Placenza Italy plant/vehicle, one of a number of chattels which, at all material times, were owned by the defendant/judgment debtor/respondent. It was the case of the claimant/respondent, relying on a provision of the building contract. Exhibit A. between it and the defendant/judgment debtor/respondent, otherwise also referred to as the contractor, that it had a special legal interest in the said plant/vehicle and that it was entitled to retain possession and the use thereof until the completion of the building project in issue.

I think it will be necessary at his stage to sumarise briefly the salient facts of this case as presented before the trial court. The judgment creditor had on the 24th September. 1984 obtained judgment against the judgment debtor in the sum of N7,875.00 in Suit No. HIF/66/83. The non-satisfaction of this judgment debt led to the issuance of a writ of fieri facias at the instance of the judgment creditor for execution against the moveable property of the judgment debtor.

Pursuant to the said writ of fieri facias, the Manchetta Piacenta-Italy vehicle of the judgment debtor. the subject matter of this proceeding, was duly attached on the 15th day of October, 1984. The said vehicle was parked on the claimant’s Ile-Ife construction site at the time of its attachment. It was at this stage that the claimant initiated an interpleader proceeding asserting its right of ownership to the vehicle.

The claimant’s assertion of title to this vehicle was based on the fact that by virtue of the agreement. Exhibit A. made on the 21st April. 1982, it engaged the judgment debtor. to erect to completion an accelerator building at its permanent site at lle-Ife at a cost of N4.8 million. Pursuant to this agreement, the claimant paid the judgment debtor an advance mobilization fee of N480.000.00. It was also an express term of Exhibit A that the project would be completed within 85 weeks.

The claimant’s case was that the judgment debtor did not proceed diligently and timeously with the execution of the project as it was required to do under the agreement. As a result, the claimant, relying on a provision or the agreement, determined the contract by a letter dated the 18th December, 1983 some three weeks after the project ought to have been completed. The claimant then contended that by virtue of another clause of Exhibit A, it was entitled upon its lawful determination of the contract to retain all the building equipments and plants, including the vehicle in issue, deposited on the building site by the judgment debtor. It was its case that the judgment debtor was given due notice of the determination of the contract as provided for in Exhibit A. The claimant thus asserted a special property in the vehicle under the provisions of the said Exhibit A.

The judgment creditor, for his own part, deposed that the judgment debtor was at all material times the bonafide owner or the attached property. He submitted that he had every legal right pursuant to the provisions of section 13(1) of the Sheriffs and Civil Process Law, Cap. 117. Vol. VI Laws of Oyo State, to recover his judgment debt by levying execution on the moveable property of the said judgment debtor as he lawfully did in the present case. He claimed that he had a better right at law and in equity to the vehicle in issue than the claimant and that the burden of proof was on the claimant to establish better title to the attached property. He also submitted that the contract, Exhibit A, was not lawfully determined by the claimant in accordance with its terms and that in the circumstance, the right to lien claimed under the contract was premature as the same had not accrued.

At the conclusion of hearing. the learned trial Judge, Lajide, J., in a considered judgment delivered on the 26th September. 1985 dismissed the case of the claimant, holding that the judgment creditor had a better title to the vehicle than the claimant. He also held that the claimant’s determination of the contract was not in accordance with Exhibit A and that as such, it’s right over the vehicle in dispute had not vested in it.

Dissatisfied with this decision of the trial court. the claimant appealed to the Court of Appeal, Ibadan Division, which on the 23rd day November, 1989 allowed the appeal and upheld it’s interest over the property in issue. The judgment creditor, hereinafter also simply called the plaintiff/appellant has now appealed to this court against the said decision of the Court of Appeal.

Pursuant to the rules of this court, the claimant, hereinafter also referred to as the University and the plaintiff/appellant, through their respective counsel, filed and exchanged their written briefs of argument. In the plaintiff/appellants brief of argument, the following four issues are set out as arising for determination in this appeal, namely:-

(1) Whether the Court of Appeal was right in holding in effect that sub clause 25(i)(d) does not govern the whole of clause 25(i) of Exhibit ‘A’.

(2) Whether from the circumstances of this case it could be said that the claimant/respondent had a lien in the vehicle, the subject matter of these proceedings.

(3) Whether it could be said that the judgment/debtor had waived any defect in the way the contract was determined and if so whether any such waiver could bind the plaintiff/appellant.