Ini Okon Utuk V. The Official Liquidator (Utuks Construction and Marketing Company Ltd.) & Anor. (2008)

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JEAN OMOKRI, J.C.A.

This is an appeal against the decision of G. G. Ezekwe, J., of the Federal High Court, sitting at Uyo in Suit No. FHC/CA/M 1/93 delivered on 7/5/96.

The gist of this case on appeal is that sometimes ago, the Utuks Construction and Marketing Company Ltd. ran into lean times. To keep a float it sold off three 30 tonnes Fiat Tipper bucket to the 2nd respondent, Traman Nigeria Ltd. Instead of giving the tipper buckets to the 2nd Respondent company sold the to other person. The 2nd respondent consequent sued for the return of the items in suit NO. HU/112/92. Judgment was entered in favour of the 2nd respondent. The Court in its judgment ordered the 1st respondent to return the three No. 30 tonnes fiat tipper buckets to the 2nd respondent. Unable to comply with the orders of the court, the 2nd respondent brought an application for the payment of the money equivalent of the items. The application was granted by the court and it was ordered that the sum of N1,774,400.00 be paid to the 2nd respondent.

In the interim, the appellant who was originally not a party to the proceedings brought an application praying that he be subsisted for his deceased’s father in the proceedings. That application was granted and the present appellant was subsisted by the order of the court dated 25/9/95. The court also granted a stay of execution in the judgment in Suit No. HU/112/92 until the final determination of the winding up proceedings against the judgment debtor, Utuks Construction and Marketing Co. Ltd.

After the winding up of the company, the 2nd respondent wrote to the 1st respondent to pay the judgment debt of N1.7 million. In response, the 1st respondent caused certain properties of the company to be valued and then brought an application ex parte before the court for leave to settle the judgment debt by transferring the assets of the company so valued to the 2nd respondent in full and final satisfaction of the debt of N1.7 million. The properties are:

1. 26 Oron Road, Uyo

2. 4 William Street, Uyo ,

3. 8 Barracks Road, Uyo

4. Ikot Ekpene Road, Uyo, Opposite Shopping Centre, Uyo

5. 194 ikot Ekpene Road, Uyo

6. Land at Ekpobot Street, Uyo

The Federal High Court, Calabar, presided over by Adu- Kafarati J. granted the application. Subsequently, the appellant who had obtained leave to substitute his late father, brought an application to set aside the order transferring the assets of the company to settle the judgment debt of N 1.7 million. That application was heard by G. C. Ezekwe, J., who dismissed the application on the ground that he cannot set aside the judgment of Abdu-Kafarati, J., being a court of Co-ordinate jurisdiction.

Dissatisfied with the decision of the G. C. Ezekwe, J., 1st appellant appealed to this Court on 1/7/96 filing 5 grounds of appeal in his notice and grounds of appeal.

In the appellant’s brief of argument dated on 6/6/97 and filed 9/6/97 and deemed filed on 10/6/97, the appellant distilled 3 issues from the 5 grounds of appeal. The 3 issues for determination are as follows: