Hydroworks Limited V. Rimi Local Government (2001)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an appeal against the decision of Katsina State High Court of Justice, sitting in Katsina, wherein the appellant applied under Order 46 rule 1 of the Katsina State High Court (Civil Procedure) Rules for the following order:-

(1) An order directing the deputy sheriff of the High Court to levy execution on the assets of the respondent in satisfaction of the judgment of the High Court in the sum of N4,249,109.99 in suit No. KTH/8UL/98.”

A copy of the certificate of judgment was attached to the affidavit in support and marked as exhibit A and B. There is a further and better affidavit with 2 attachments.

The application is opposed by a counter affidavit. I cannot find authority for bringing this application pursuance of Order 46 rule 1 of the Katsina State High Court (Civil Procedure) Rules Cap. 60 of the Laws of Katsina State of Nigeria, 1991. The applicant’s remedy lies in Sheriffs and Civil Process Law Cap. 125 of the Laws of Katsina State of Nigeria 1991. Section 19(2) thereof provides for the procedure for levying execution of judgment or orders for sum of money. It reads as follows:-

“(2) The registrar on the application of the judgment creditor shall cause to be issued a writ of attachment and sale whereby the sheriff shall be empowered to levy or cause to be levied by distress and sale of goods and chattels, wherever they may be found within the division or district of the court, the money payable under the judgment and the costs of the execution.”

The judgment sought to be executed was “in the sum of N459,910.99 and 25% interest from May, 1997 until the judgment sum was fully liquidated” obtained under the undefended list. The judgment delivered by Sanusi, J. (as he then was) was not executed until his elevation to the exalted position of the Justice, Court of Appeal.

He was consequently not available to sign or endorse the writ of execution in respect of the judgment. It is not clear from the record why another Judge of that court was not assigned to endorse the writ of execution.

The respondent did not appeal against the judgment nor apply for a stay of execution of the judgment. It however made some installmental payments at various dates totaling N350,000.0 thereby leaving an outstanding balance of N109,910.00 plus the interest of 25% unpaid. The installmental part payment were made between May and September, 1998. Thereafter the respondent refused or failed to make further payment. In exasperation, the applicant took the present step, seeking execution of the judgment by way of motion on notice which had been struck out by the learned trial Judge. In arriving at its decision the learned trial Judge inter alia reasoned as follows:

“It should be noted that though the date of judgment was 1st April, 1998, the payment of the debt was put at May 1997 however as it had been agreed by both parties that the sum of N350,000.00k was paid in 3 installments any further calculation of interest ought to be done less than amount already paid, including the N109, 910.99 paid on 1/7/2000”.

The applicant was displeased with the order striking out his application to execute the judgment. Being unhappy and dissatisfied had appealed to his court on 3 grounds of appeal including the general ground. Briefs of argument which were adopted and relied upon on the day fixed for hearing, were filed and exchange. They were settled at the appellant’s brief, appellant’s reply and respondent brief of argument. In each brief issues for determination were formulated.

In the appellant’s brief, 3 issues were identified as calling for determination. The issues are setout immediately hereunder:-

(1) Whether the lower court (High Court of Justice No. 5 of Katsina State) ever evaluated the affidavit evidence or was correct in its evaluation of the affidavit evidence placed before it.

(2) Whether the lower court could question, review or sit on appeal over the subsisting judgment of the High Court of justice No. 2. Katsina State which awarded 25% interest on the judgment sum “from May, 1997 until the judgment is fully liquidated”.