Leedo Presidential Motel Ltd. Vs Bank Of The North Limited And Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

M.E. Ogundare., Jsc.

This is an appeal against the judgment of the Court of Appeal (Kaduna Division) given on 5th December, 1991 in which that court dismissed the appellant’s appeal to it.

The appellant was a customer of the 1st respondent bank and was owing the bank some amount. The bank sued the appellant in the High Court of Kano State claiming the amount owing it by the appellant. Consent judgment was entered in the suit on 17/8/87 in favour of the bank against the appellant in the sum of N508,336.12 plus 15% (per centum) interest per annum from 18/3/87 to 16/8/87 and 10% (per centum) per annum from 17/8/87 until the judgment debt was fully liquidated. The court also awarded N1,300.00 costs in favour of the bank. On 6/6/88, the bank through its counsel, moved the court ex parte for leave, pursuant to section 44 of the Sheriffs and Civil Process Law, Cap 123 Laws of Northern Nigeria, 1963 (applicable in Kano State), to attach and sell the immovable properties of the appellant situated at Hotoro G.R.A covered by certificate of occupancy No. LKN/RES/RC/82/162 and plot No. 114/116 Airport Road Exten-sion No-mans-land, Kano. It was deposed in the affidavit in support of the ex parte motion that the appellant had only paid the sum of N50,000.00 out of the judgment debt and that bailiffs made several attempts to attach the movable properties of the appellant without success. Leave was granted as prayed.

After the grant of leave to sell the appellant’s immovable properties in satisfaction of the judgment-debt, the appellant, on 4/7/88, moved the court by way of motion on notice for instalmental payment of the judgment-debt. The motion was opposed by the 1st respondent bank for the reason that leave to sell immovable properties of the appellant had been obtained. In a ruling delivered on 5/7/88, the motion for instalmental payment was dismissed. It would appear that notwith-standing the dismissal of appellant’s motion, the parties entered into a private agreement whereby the appellant was to liquidate the judgment debt by instalmental payments. The appellant had paid a substantial part of the judgment debt when on 5/4/90 the appellant’s real property at G.R.A was sold to the 2nd respondent pursuant to the leave to sell granted ex parte by the court on 4/7/88, almost 2 years before. The appellant, on 20/4/90, brought the motion leading to this appeal praying the court for the following orders;

An order extending the time within which to apply to set aside the order granting leave to sell the immovable property of the judgment debtor cowered by certificate of occupancy No. 114/RES/IRC/82/ 1621

An order setting aside the leave of the court to sell the immovable property.

An order setting aside the execution of the judgment and sale of the immovable property of the judgment debtor.

An order staying further proceedings/steps in respect of the property.

An order that the judgment debtor’s property be restored to him.

Any further or other orders.”

The motion was brought under Order 2 rule 10 and Order 5 rule 8 of the Judgment Enforcement Rules, section 47 of the Sheriff and Civil Process Law, Order 8 rules 7 and 11, Order 47 rule 2 of the Kano State High Court (Civil Procedure) Rules 1988 and section 33 of the Constitution of the Federal Republic of Nigeria, 1979.

The penultimate paragraphs of the affidavit of Michael Ihunde, the manag-ing director of the appellant company, in support of the motion read:

2. That I know as a fact that judgment was given in favour of the judgment creditor against the judgment debtor in the sum of N508,336.12 and interest thereon at the rate of 15% per annum from 7th March, 1987 to 17th August, 1987 and thereafter at 10% court’s rate plus N1,300.00 costs on I7th August, 1987.
3. That between 17th August 1987 and 20th June 1988 when this court granted the judgment creditor leave to sell the judgment debtor’s immovable property covered by certificate of occupancy number 114/RES/IRC/82/1621 in satisfaction of the judgment sum, the judgment debtor had made some payment to the judgment creditor which was not disclosed to the court by the judgment creditor.
4. That the judgment creditor did not put the judgment debtor on notice in respect of the application for leave to sell the judgment debtor’s immovable property.
5. That on the 5th day of April, 1980 the bailiffs of this court sold the judgment debtor’s immovable property situate along Hassan Kastina Street Hotoro and covered by certificate of occupancy No. I I4/RES/IRC/82/1621.
6. That the advertisement of the said sale was not brought to the notice of the judgment debtor until three days before the sale took place.
7. That prior to the sale of the property, there was an understanding between the judgment creditor and the judgment debtor that the judgment debt would be liquidated instalmentally pursuant to which understanding the judgment debtor made payment totalling more than N400,000.00 as –
8. That apart from the above payments, the judgment debtor has made other payments amount to more than N100,000.00
9. That these payments were not made known to the court before the sale of the judgment debtor’s immovable property.
10. That the immovable property now sold houses my family of about fifteen persons and it is the only residential premises owned by the judgment debtor and assigned to me for residential purposes.
11. That the said property was purported to have been sold at about N350,000.00 whereas its open market value as shown on Exhibit 801 annexed hereto is about N870,000.00.
12. That the judgment debtor was not given any opportunity to know how much was outstanding against it and upon the dismissal of her application to restrain the sale of the property of 5th April, 1990, the bailiffs rushed and sold the property the same day.
13. That if the judgment debtor had been given the opportunity to pay after the dismissal of the application referred to in paragraph 12 hereof, a would have paid whatever was outstanding against it.
14. That the judgment debtor is ready and willing to pay whatever is outstanding against it if made known to it.”

In his further affidavit in support of the motion, Mr. Ihunde deposed, inter alia as follows:

That I have received the judgment debtor’s statement of account from the judgment creditors and discovered that some of the lodgments made in liquidation of the judgment debtor’s indebtedness were not reflected on the statement of account particularly: