MR. Ifeanyi E. E. Job Nwaudo & Anor V. MR. Job MBA & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A.(Delivering the Leading Judgment)

This Appeal is sequel to the Ruling of the Honourable Justice T.U. Uzokwe sitting at the Aba Division of the High Court of Justice, Abia State which Ruling was delivered on the 7th day of March, 2013 granting the 2nd Respondent herein who was Plaintiff/Judgment-creditor€™s Application by way of Motion on Notice for an Order of the Court to attach for sale the immovable property of the Defendant/Judgment Debtor/Respondent (now the 1st Respondent in his Appeal), comprising the entire Bungalow together with the appurtenances situate at and known as No. 20 Aguwa Avenue Off Ovom Street, Ogbor Hill, Aba.

The Application was supported by an Affidavit of nine paragraphs and the Applicant/Judgment. Creditiror€™s Learned Counsel€™s Address. Annexed to the Affidavit was Exhibit €˜A€™ captioned; €œForm 29 RECEIPT TO BE BGIVEN BY BAILIFF OR. 1 R 5€ issued in favour of Ijieoma O. Ijieoma under Writ (or Order) (or Warrant) dated 2nd May 2006 in Suit A/272/2005 between Offia Enyinnaya (plaintiff) and Job Mba (Defendant) the said Ijieoma O. Ijioma having paid the sum of N74,400.00 (Seventy Four Thousand Four Hundred Naira) through auction sale conducted by the Trial Court on 1/11/2007. The moveable property of the Judgment-Debtor (now 1st Respondent) which was sold to the said Ijioma is stated on top of the Receipt to be 1 (one) old fridge. See pages 31 €“ 36 of the Records.

On the 8th day of October, 2012 when the Application was to be heard by the Learned Trial Judge, none of the parties appeared in Court including their Legal representatives/Counsel. The Court then remarked: €œCOURT: In the absence of the parties and their Counsel without any letter to the Court explaining their absence, this Suit is hereby struck out.€ See page 38 of the Records.

By a motion on Notice dated the 18th day of October, 2012 and filed on the 19th October, 2012, Afamefuna O. Uchendu Esq sought for orders setting aside the earlier order made on 8th October 2012 striking out the Applicant€™s earlier motion for leave to levy execution on the immovable property of the Defendant/Judgment €“ Debtor (now 1st Respondent) comprising the entire property as aforementioned in the Motion and to relist the above mentioned motion on Notice struck out on 8th October, 2012 for non-appearance of parties/diligent prosecution. That motion to set aside and to re-list was supported by an affidavit of 11 paragraphs deposed to by the Applicant (the Judgment-Creditor) (now 2nd Respondent) and a Written Address by Learned Counsel for the Judgment €“Creditor. There was also an Affidavit of service deposed to by David Kalu the Office Assistance to the Learned Counsel to the Judgment-Creditor/Applicant in that motion which was to the effect that on the 19th of October, 2012, he served a copy of the said Motion to relist on the Defendant/Judgment-Debtor for which he acknowledged receipt through his (Judgment-Debtor€™s) wife one Mrs. Glory, a copy of which was annexed as Exhibit €˜A€™.

On the 13th day of February, 2013 when the said Motion to set aside and relist was to be heard, the Applicant and his Counsel were present while the Defendant/Judgment-Debtor and his Counsel were absent. The Court having satisfied itself that there was indeed an Affidavit of service of the Motion Paper on the Defendant/Judgment-Debtor/Respondent, at page 65 of the Court€™s file and the Clerk of Court having also intimated the Court that there was no letter from the Defendant/Judgment Debtor/Respondent, the Court remarked: €œCourt: Learned Counsel for the Claimant/Judgment €“Creditor/Applicant is therefore at liberty to proceed to move his motion.€ Upon this directive of the Learned Trial Judge, the Learned Counsel for the Judgment-Creditor/Applicant then moved the Motion and the Court ruled thus:

€œOrder as prayed the Motion relisted shall be adjourned to the 5/3/13 for hearing. Order: Hearing Notice to issue to the Defendant/Judgment-Debtor/Respondent.€

It has to be noted that before this Application was heard and granted on 13th Feb. 2013, the Court had sat on the 17th day of December, 2012 for that purpose but the Learned Trial Judge upon discovering that there was no affidavit of service in the Court€™s file even though parties were recorded to have been present, adjourned the Motion to that 13th of February, 2013 for hearing and report of service of the Motion. See pages 39 €“ 48 of the Records.

It does not appear from Records whether the Court actually sat on the 5th day of March, 2013 as scheduled. However, it was not until the 7th day of March, 2013, that Court again sat for the purpose of considering the Application for leave to levy execution on the immovable property of the 1st Respondent/Judgment-Debtor. On that day parties were said to be present in Court and Kelechi Eze Esq appeared for the Claimant/Judgment-Creditor/Applicant. There was no representation for the Defendant/Judgment-Debtor. The Clerk of Court intimated the Court that there was no letter from Counsel to the Defendant/Judgment-Debtor/Respondent.

Defendant on his part told the Court that: €œI saw my Counsel this Monday and I paid him. His name is Anaga Kalu.€

Upon the above development, the Learned Counsel for the Judgment-Creditor/Applicant (now 2nd Respondent in this Appeal) moved the Motion and informed the Court that Defendant-Judgment-Debtor did not file anything in reaction to their Application an assertion which the Registrar of Court Mrs. Joy Okorie confirmed thus: €œMy Lord I have equally perused the case file and there is no Counter-Affidavit or anything in reaction to the motion.€

In the light of the above disclosures the Learned Trial Judge Ruled at page 52 of the Records inter alia:

€œRULING: Order as prayed. Moreso as the Defendant and his Counsel did not bother to react to or oppose this Application.

ORDER: The Bailiffs of this Court are therefore hereby ordered to proceed forthwith to levy execution on the immovable property of the Defendant/Judgment-Debtor/Respondent comprising the entire bungalow together with the appurtenances situate at and known as No. 20 Agwa Avenue, Off Ovom Street, Ogbor Hill, Aba after Observing all decent rules of procedure.€ See page 53 of the Records for the enrolled order of the Lower Court in this respect.