Skye Bank (Nigeria) PLC V. Seph Investment Limited & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision/Ruling of G. E. Oladoke J. in the High Court of Osun State, sitting at Ile-Ife delivered on 13/2/2007.

The Appellant as Plaintiff took out a Writ of Summons in the High Court of Justice Ogun State, Ijebu Ode Judicial Division against the Respondents and secured judgment in the said Court on 3/3/2004 per Hon. Justice T. Ibikunle in the following terms.

“Accordingly Plaintiff succeeds against the Defendant on all its claims.

Judgment is entered in favour of the Plaintiff for the sum of N16,304,217.72 with interest as claimed and it is also ordered that the Plaintiff has the power of sale of the 3rd Defendant’s property covered by a Legal Mortgage Exhibit “C”. Cost of N10,000 awarded against the Defendants.”

? Consequent upon the judgment, the Court sold the Respondent Petro Filling Station at Sagamu for N5.5 Million Naira, thus leaving a debit balance of over N10 Million Naira still unpaid by the Respondents judgment debtors.

?The Appellant later located other properties of the

Respondents in Ile-Ife and went ahead on 11/12/2006 to file an application in the High Court of Osun State, Ile-Ife.

“For an Order of this Honourable Court to levy the execution of the judgment delivered on the 30th day of March, 2004, in suit HC7/75/2002 on the immovable property of the 3rd Defendant i.e. SEGFAR PETROLEUM AND GAS LIMITED situate, lying and being at Toll Point Ibadan/Ife Expressway, Ile-Ife, Osun State.”

The Respondents filed a counter-affidavit that the judgment of the Ogun State High Court did not permit execution of any other property except the mortgaged property. In a ruling delivered on 13/2/2007, the learned trial Judge refused the application to attach and sell on the grounds that to do so will amount to amending the judgment of the Ogun State High Court.

In the words of the learned trial Judge at page 21 of the record:

“I must say agreeing with the learned counsel to the Respondents that the judgment is clear and straight forward and not ambiguous in any form. To grant this application is to amend and alter the statement of claim and the judgment of my learned brother T. Ibikunle Adesalu

J. of the High Court of Justice, Ijebu-ode and to exercise an Appellate jurisdiction on the said judgment of which I am not competent to do and agreeing with the learned counsel to the Respondents suicidal and sacrilegious. (sic). Furthermore, this will amount to judicial recklessness on my part. I will not or never embark on such a suicidal voyage.

I must say that the property sought to be attached for sale having not been contained in the said Exhibits ‘A’ and ‘B’ as the judgment was specific on what property to be sold. I do not have the power to add the property contained in the application to it. I lack jurisdiction to do so. In the circumstance the application is hereby refused and the same accordingly dismissed. No order as to cost.”