Victoria Akut & Ors v. Victor Rwang & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSLIM SULE HASSAN, JCA (Delivering the leading judgment)

This is an appeal against the decision of the Kaduna State High Court sitting at Kafanchan delivered by Hon. Justice S. S Daka in suit No. KDH/KAF/72/2013, on the 4th day of April, 2016, wherein the trial court dismissed the appellants’ motion on notice dated 15th November, 2015, seeking to set aside the order of court granting the 1st to 11th respondents leave to attach the 12th to 13th respondents/judgment debtors’ plot measuring 4,500 square meters lying and situate at along Ungwar Rimi opposite Jema’a Bakery, Kafanchan.

The appellants were the applicants, while the 1st respondents were the 1st to 11th respondents responding to the application, and the 12th and 13th respondents were equally 12th – 13th respondents to the application at the trial court. The appellants being aggrieved with the decision of the trial court in dismissing their motion, had appealed against same to this court vide his notice of appeal dated 4th day of April, 2016 and filed on the same date.

The notice of appeal which challenged the decision of the trial court on three grounds found at pages 186 – 188 of the record. The appellant sought the leave of this court which was granted on the 3rd day of November, 2016, and filed an amended notice of appeal on the 16th of October, 2016.

The record of appeal was compiled and transmitted to this court on the 22nd of September, 2016, but deemed properly transmitted to this court on the 17th of September, 2020.

The appellant’s brief dated the 11th of January, 2017, was filed on the 8th of February, 2017, but deemed properly filed on the 13th of February, 2017, and further deemed on the 17th of September, 2020.

The 1st – 11th respondents’ brief of argument dated the 9th of March, 2017, was filed on the same date, but deemed properly filed and served on the 17th of September, 2020. The 12th to 13th respondent did not file any brief. The appellants upon receipt of the 1st – 11th respondents’ brief did not file any reply brief.

At the hearing of the appeal, counsel to both appellants and the 1st – 11th respondents adopted their respective briefs upon which this court reserved the appeal for judgment.

This appeal emanated from the decision of the Kaduna High Court sitting at Kafanchan hereinafter referred to as the trial court. The appellants who were the applicants are seeking the following reliefs as captured on the face of their motion paper:

1. An order of this honorable court setting aside the order of court for attachment and sale, if any, in respect of the properties known and situate at Ungwan Rimi Road covered by Certificates of Occupancy KCH/A/000474 and ZKTFA/0015 measuring 0.09 Hectares and 3,500 square meters belonging to Anabawa Global Services Ltd and subsequently transferred to the applicants herein.
2. An order of this honorable court setting aside the auction notice issued in respect of the property situate at Ungwan Rimi Road, Kafanchan, slated for 2nd day of October, 2015 and restraining the registrar or any officer of the court from carrying out any sale whatsoever in respect of the auction notice pasted on the 28/9/15 for sale on 2/10/15.
3. And for such further consequential order(s) as this honorable court may consider just and appropriate in the circumstances of this case.

The grounds upon which the application was made were copiously stated on the face of the motion paper, and the trial court upon consideration of the merit of the application, dismissed the said motion for lacking in merit, hence, this appeal.

Brief statement of facts

The brief facts of the case leading to this appeal as contained in the affidavit evidence before the trial court is that the appellants are beneficiaries of monetary judgment sum against the 12th to 13th respondent in suit No. KDH/KAF/130/2013, KDH/KAF/89/2013 and KDH/KAF/75/2013 totalling the sum of N13,298,600.00. While the 1st to 11th respondents are equally beneficiaries of monetary judgment against the 12th to 13th respondents in suit No. KDH/KAF/72/2013, in the sum of N43,700,000.00.

According to appellants’ affidavit, the parties beneficiaries of the judgment against the 12th and 13th respondent agreed to sell the properties of the 12th to 13th respondent located at Ungwan Rimi Road covered by Certificates of Occupancy KCH/A/000474 and ZKTF/A/0015 measuring 0.09 hectares and 3,500 square meters belonging to Anabawa Global Services Ltd, and the sale was concluded and the counsel to the 1st to 11th respondent got paid into his corporate account for his client the sum of N5,160,000, only for the counsel to the 1st to 11th respondents to come round again and attach the property sold for auction by order of court, even though the auction notice stated a completely different property. It is on that premise that the appellants filed the application to set aside the writ of attachment and the auction notice.

The 1st to 11th respondents filed a counter-affidavit to the application and contended that the appellants are first and most importantly not parties to suit No. KKDH/KAF/72/2013 and they have not appeal the decision of the court in that suit.