Ifeanyi Nwankwu & Anor. V. Oraegbunam Anieto, Esq (2001)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

This is an interlocutory appeal, against the decision of Hon. Justice J.C.N. Ugwu CJ, of the Enugu state High Court, dated 20th April, 2000. The decision was against the defendants, who before us, are and will hereinafter, be called the appellants. The plaintiff at the lower court is and will for the purpose of this appeal, be called the respondent. The facts of the case in the instant appeal are very brief, and are hereunder stated.

Following a judgment for the sum of N676,386.27k, awarded against the appellants, by the Anambra State High Court, sitting at Onitsha. Respondent being the beneficiary, registered the judgment at the Enugu State High Court, in suit No. E/4CJ/99. Consequently, 1st appellant’s car with Registration No. CY539KJA was attached. By a notice of motion, dated 16th, but filed on the 27th day of December, 1999, the appellants’ prayed the lower court for an order, setting aside the writ of execution, the notice of attachment and other processes issued thereto, as being fraudulent. Appellants also prayed that the sale of the attached vehicle be stayed and or suspended.

During the pendency of this motion, the appellants applied to the Enugu State Sheriff, pursuant to S.26 of the Sheriff and Civil Process Act for the interim release of the attached vehicle on bond to the 1st appellant. The appellants were obliged.

The respondent filed a notice of motion, dated 31/1/2000, seeking the dismissal of appellants’ earlier motion that had remained pending for incompetence.

Eventually, the two applications matured for hearing on 20th April, 2000. On that date, after the case had been called up and counsel’s appearance announced, the court proceeded to make a mandatory order, against the appellants for the production of the attached vehicle or payment of the judgment debt in court. The appellants were dissatisfied with the order so made, and have come up with the instant appeal.

Briefs of argument have been filed and exchanged. The appellants have in their briefs and distilled from their two grounds of appeal, formulated two issues for the determination of the appeal. These are:

“(1) Whether it was right for the learned Chief Judge, to suo motu make an order for production of motor vehicle, Peugeot 504 Station Wagon with Reg. No. CY 539 KJA or payment of judgment debt of N676,386.27 into court, when there was pending application in restrain and in absence of any prayer to that effect?

(2) Whether it was right for the learned Chief Judge, to make an order for production of the said motor – vehicle or payment of judgment debt against, the appellants without heating from them, or given them opportunity to be heard on the matter?”

The respondent, also has two issues as arising for the determination of the appeal. The issues are:

“(1) Whether the learned trial Judge’s order for production of the attached vehicle to court, before he could go into the merits of the motions pending before him was solicited for or not.

(2) Whether the learned trial Judge’s order for production of the attached vehicle to court, before he could go into the merits of the motions pending before him was lawful assuming, but not conceding that the order made by the learned judge was unsolicited for.”

Under the first issue, the appellant’s counsel argued that on the day the order appealed against was made, the only known business before the court was the applications, that had matured for hearing.

There was no prayer in respect of the order made by the court. The correct approach was for the court to consider the applications before it, which approach would have resolved the matter one way or the other. It is trite, learned Counsel submitted, that an order of court that had not been prayed for cannot be sustained. The order must be deemed to have been given without the necessary jurisdiction. Relying on, amongst others, Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257, (1993) 10 SCNJ 1; Edebiri v. Edebiri (1997) 4 NWLR (Pt.498) 165, (1997) 4 SCNJ 177 at 190; Kalio v. Daniel-Kalio (1975) 2 SC 15, we were urged by learned Counsel to allow the appeal on this note.