Theodore Emmanuel Charles Owoo & Ors V. Mrs. Umo Asuquo Edet & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

On the 25/3/2011, this court had in appeal No. CA/C/39/2010 from the decision of the High Court of Cross River State, Calabar in Suit No. HC/54/2007, awarded damages of Three Million and Fifty Naira (N3,000,050.00) against the Appellants and in favour of the 1st Respondent. Pursuant to the said award of damages, the 1st Respondent applied for and a writ of fifae was issued by the High Court against the movable property of the Appellants on the 27/6/2011.

Appellants’ property were attached on the 9/11/2011 in execution of the writ of fifae and in reaction, the Appellants filed a motion before the High Court on the 22/11/2011 praying that the execution levied, be set aside primarily on the grounds that they were not served with the writ of fifae before the execution and it was obtained by gross misrepresentation of facts.

The 1st Respondent opposed the Appellants’ motion and also raised a preliminary objection on the jurisdiction of the High Court to entertain it, which was upheld in the ruling delivered on the 17/7/2012. This appeal is against that ruling by the High Court brought vide a Notice and grounds of appeal dated and filed on the 9/8/2012. The three (3) grounds set out on the notice of appeal are brief and as follows:

GROUND NO.1

The learned trial judge erred when she held that the High Court was functus officio when it came to enforcing the judgment of the Court of Appeal.

PARTICULARS OF ERROR

1. This ruling goes against Order 19 Rule 5 of the Court of Appeal Rules 2011 which lays down the procedure for the enforceability of the judgment of either the High Court or Court of Appeal.
2. The High Court, as a matter of practice, enforces the judgment of the Court of Appeal, as was done in the instant case.

GROUND 2

The learned trial judge erred in law when she failed to take into consideration all the issues that were raised before her by the Applicants for determination.

PARTICULARS OF ERROR

1. The Applicants, in urging for the purported execution by the High Court to be set aside, placed before the learned trial judge a plethora of authorities in support of the application. None was considered or analysed
2. The learned trial judge is obliged to give rationes decidendi for either refusing or allowing an application that has been forcefully argued before her by both counsel.
3. The Applicants were thus denied a fair hearing.

GROUND 3

The learned trial judge erred in law and caused a miscarriage in justice when she failed to hear both the application and the preliminary objection.

PARTICULARS OF ERROR

1. It would have been prudent for the learned trial judge to hear both the application of the Applicants to set aside the unlawful execution of judgment and the preliminary objection.

In the Appellants’ brief settled by Charles E. Duke, Esq., of counsel for the Appellants filed on the 9/10/12, the following two (2) issues were listed for determination:-