Union Bank of Nigeria Plc. V. Ikechukwu Onuorah & Ors. (2007)

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MARY U. PETER-ODILI, J.C.A.

 On the 24th day of January, 1995 the Hon. Justice Saleh Chief Judge of the Abuja High Court entered Judgment in favour of the 1st and 2nd Respondents herein. Dissatisfied with the said Judgment, the Appellant appealed to this Court by a Notice of Appeal dated 30th January, 1995 and filed in the Registry of the Lower Court. That Notice of Appeal was amended by leave of the Court of Appeal on 11th of March 1997.

FACTS

The 1st Respondent, Ikechukwu Onuarah is a Director or Proprietor and Financial Director of a Company known as Patcos Nigeria Limited. The 3rd Respondent is the Deputy Sheriff of the High Court of the Federal Capital Territory, Abuja. The 2nd Respondent was dragged into this action by the 1st Respondent on the ground that a property belonging to the 2nd Respondent was wrongly attached in Execution of the Judgment sometime in 1989 in which the Appellant obtained judgment against the company called PATCOS NIGERIA LIMITED in suit NO. FCT/HC/CV/129/89.

When the said Pateos Nigeria Limited failed to satisfy the Judgment sum, the Appellant applied to the 3rd Respondent to cause a writ of Attachment to issue in execution of the said Judgment. In the course of levying execution a Mercedes Benz Saloon car with Registration No. LA4M along with a block moulding machine were attached in satisfaction of the judgment debt.

The 1st Respondent who is the Director and sole shareholder of the said Patcos Nigeria Limited was aggrieved by the attachment alleging that the properties attached belonged to him and the 2nd Respondent and not to Patcos Nigeria Limited. To challenge the attachment, the 1st Respondent filed a motion on Notice NO:M/906/93. This motion was however struck out by the High Court. Thereafter the 3rd Respondent auctioned the properties and the 1st Respondent filed suit NO:FCT/HC/CV/80/94, Ikechukwu Onuorah & John Gada v. Union Bank of Nigeria Plc & Sheriff High Court, Abuja.

By his Statement of claim the 1st Respondent claimed against the Appellant and the 3rd Respondent:

(a) A declaration that the purported sale is irregular, invalid, null and void and very fraudulent.

(b) Court Order for delivery by Defendant to plaintiffs the properties or their values.

(c) Court Order on defendants to pay jointly and severally N1 million being special and general damages for wrong occasioned by illegal attachment.

In the court below the 1st Respondent was the sole witness for the plaintiff and he stated that when he came back from a journey on 7/12/93, he visited his site where he discovered that his vehicle and block making machine had been removed by the Appellant and 3rd Respondent (1st and 2nd Defendants respectively). He thereafter went to the High Court where he saw the properties as attached in execution. 1st Respondent claimed that at the time of the attachment he was not personally indebted to the Appellant and so he filed a motion alleging that he was not a judgment debtor. That the block making machine was the property of 2nd Respondent on hire. 1st Respondent admitted that he is the sole signatory to the account of Patcos Nigeria limited with the Appellant, Union Bank Plc and that his company Patcos Nigeria Limited was indeed indebted to the Appellant.

The Defendant contended before the trial High Court that the 1st Respondent’s properties were attached in satisfaction of the Judgment in his favour against the company where the 1st Respondent was the sole director and signatory to the Account (Patcos Nigeria Limited); the Appellant proceeded against the properties because the 1st Respondent and Patcos were more or less one.

The Defendant had further contended that the Suit No: FCT/HC/CV/80/94 leading up to his present Appeal was not properly constituted as the 1st and 2nd Respondents as plaintiffs failed to fulfill the condition precedent as enshrined in Section 34(1), (2), (3) of the Sheriff and Civil Process Act Cap 407 LFN. That the action was premature and so the court lacked jurisdiction to entertain the same.

The learned trial Judge had held in the judgment: