Umar Farouq Musa V. Sikon Synergies Limited & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

By the writ of Summons and statement of claim filed at the High Court of Kaduna State, the 1st Respondent in this appeal as the plaintiff claimed jointly and severally against two defendants, now 2nd and 3rd Respondents an amount of N14,360,000.00 as debt which they (defendants) failed or neglected to pay despite repeated demands as well as the cost of the suit.

In that suit No. KDH/KAD/414/2011 the defendants did not file any statement of defence and upon the application of the plaintiff for Summary judgment the trial Court delivered judgment on 12/5/11 granting the amount claimed by the plaintiff with costs of N20,000.00.

The plaintiff subsequently applied for order of Court to levy execution on the immovable property of the 2nd defendant, located at No. 21, Birni Gwari Road Rigasa Kaduna State for the purpose of satisfying the judgment. The application was by way of a motion on notice dated 25/11/11 and was supported by affidavit of five paragraphs and four annextures. In the brief ruling delivered on 8/12/11, the learned trial judge granted the plaintiffs prayer and the execution was

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carried out whereby the immovable property attached was sold, and consequent upon which one Umar Farouq Musa commenced interpleader proceedings on 2nd March, 2012 claiming title to and ownership of the house attached and the consequential order setting aside the said attachment as well as the sale of the house No. B99 Birni Gwari Road, Rigasa Kaduna which the judgment creditor referred to as No.21 Birni Gwari Road Rigasa Kaduna. The applicant also prayed for the release of the property to him.

In the ruling on the interpleader application delivered on 21/9/12, the learned trial judge after making reference to the essence of the interpleader summons held at pages 140 – 141 of the record of appeal that;

“The judgment creditor contested the issue and presented two issues of competency of the application, One of the issues was that the sale had already become absolute before the Sheriff was made aware of this Summons and the second being that this interpleader was issued by Counsel and not Court and so is not competent, and the 3rd being absence of the buyer as a necessary party?

On the issue of issuance of the interpleader summons, I have

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seen the said document titled interpleader summons and it is clear that the summons was not issued by this Court. The summons was rather signed by the learned Counsel.

In the circumstance, this proceeding cannot be competent and it would be a waste of time to proceed to determine a matter where the summons has been issued by the Court and consequently the Court lacks jurisdiction.

In the circumstance this application is struck out for being incompetent.”

Against the foregoing ruling of the High Court of Kaduna State, the Appellant who felt dissatisfied gave Notice of Appeal dated 21st September, 2012 with seven grounds of appeal, and in pursuance thereof, the Appellant’s Brief of Argument prepared by M. T. Mohammed, Esq. of Counsel was filed on 4/12/12 while the 1st Respondent’s Brief of Argument settled by Ikechukwu Anyalewechi, Esq. filed on 13/8/15 was deemed properly filed on 5/11/15. The sole issue formulated by the learned Counsel for the Appellant from the seven grounds of appeal is;