MR. E. I. Ijewere V. MR. Augustus Eribo (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

The Respondent herein as Plaintiff instituted suit no. HIGU/12/97 in the High Court of Edo State holden at Iguobazuwa against a company, Majekodunmi Ventures Ltd: as 1st Defendant and the appellant herein as 2nd defendant claiming as follows:

“1. An order of this Honourable court setting aside the Deed of sublease dated 6/9/93 made between Mr. Crosby Osadolor Eribo (Attorney of the Administratrix and Administrator of the Estate of Late Chief E.E. Eribo) of the one part and 1st Defendant of the other part and registered as instrument No 25 in volume 839 of the Land Registry in the office at Benin City for:-

a) Breach of terms of the Deed of sublease by the 1st Defendant and/or

b) Frustration of the intervening act of insolvency of 1st Defendant and appointment of 2nd defendant as manager/Receiver in respect of the 1st defendant

2. An order that the 1st defendant return to the plaintiff documents of title handed over to the 1st Defendant in respect of all that piece or parcel of farmland described in the schedule attached to the said deed of sublease.
3. An order of perpetual injunction restraining the defendants, their servants and/or agents from further occupation and managing of the said piece or parcel of farmland.

The parties settled out of court leading to the entering of a consent judgment duly signed by the parties and their counsel. The terms of settlement read thus:

TERMS OF SETTLEMENT

TAKE NOTICE that the parties to this suit in consultation with their respective counsel have freely and willingly agreed to settle all the issues arising from this suit in terms following:

1. That the total indebtedness of the 1st Defendant to the Plaintiff is in the sum of N4, 125,000.00 (Four million one hundred and twenty-five thousand naira only) made up as follows:

a. Balance outstanding on lease = N3,625,000.00

b. Compensation for delayed Payment = 500,000.00

4,125,000.00

2. That the 1st defendant shall pay an initial deposit of N1 million on or before 31st July 1998.
3. That the outstanding balance shall be paid by equal monthly installment and shall be fully liquidated on or before 31st May, 1999.
4. That interest shall be paid on the outstanding balance at the rate of 15% per annum. (interest shall be calculated on the reducing balance) …….”

Pursuant to a Certificate of judgment which was registered at the High Court of Lagos State, Lagos Judicial Division as NRJ/25/98 (page 20-23 of the Record), the Respondent herein levied execution on the assets of the Appellant who was the 2nd Defendant in the lower court when judgment was entered against the 1st defendant only.

The Appellant alleged that the Respondent in purported execution of the aforesaid judgment with a fully armed policeman and 15 other persons stormed into his office at 106/110 Lewis street on 10/3/99; seized his Mercedes Benz Car Reg No: DE 230 KJA, and forcibly collected from him a Union Bank Cheque for the sum of N1 million and cash of N125, 000.00.

The appellant, the very next day, on 11/3/99 filed a Motion on Notice supported by an Affidavit with three exhibits KA1 – KA3 and an affidavit of urgency seeking, inter alia, to set aside the execution and the restoration of his assets seized in execution of the judgment obtained against the 1st defendant. The Appellant later filed a Notice of Further relief by which he sought for the restoration of his seized assets as well as the setting aside of the Registration of the Certificate of Judgment. (See Pages 10-11 of the Record).