ADEOSUN v. AINA
(2020)LCN/14913(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, December 15, 2020
CA/IB/304/2017
RATIO
LAND LAW: GOVERNING PROVISION FOR LEVYING EXECUTION ON IMMOVABLE PROPERTY
There is no gainsaying in the fact that the governing Provision for levying execution on immovable property is Section 44 of the Sheriff and Civil Process Act which provides as follows:-
“If sufficient movable property of the Judgment Debtor can be found in FCT, Abuja or the state as the case may be to satisfy the Judgment and costs of execution, execution shall not issue against his immovable property but if no movable property of the Judgment Debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the Judgment and the cost of execution and the Judgment Debtor is the owner of the immovable property, the Judgment creditor may apply to the Court for a Writ of Execution against the immovable property of the Judgment Debtor and Execution may issue from the Court against the immovable property of the Judgment Debtor in accordance with the Provision of the Act and any Rule made hereunder”.
The requirement of the provision set out above are that before execution could be levied against immovable property of a Judgment Debtor, the following conditions must be satisfied.
(a) The movable property of a Judgment Debtor must be insufficient to satisfy the Judgment Debt and costs of the Execution.
(b) Reasonable diligence must have been exercised to trace the movable property with no success.
(c) It must be established that the Judgment Debtor is the owner of the immovable property.
See the following cases :-
– LEEDO PRESIDENTIAL HOTEL LTD. VS. BANK OF THE NORTH LIMITED & ANOTHER (1998) 10 NWLR PART 570 PAGE 353.
– MUTUAL AID SOCIETY LTD VS. OGONADE (1975) NMLR PAGE 118.
– OSUNKWO VS. UGBOGBO (1966) NMLR PAGE 184. PER JIMI OLUKAYODE BADA, J.C.A.
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
- NURENI ADEOSUN APPELANT(S)
And
MADAM ADEOLA AINA RESPONDENT(S)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of Ogun State High Court Abeokuta Judicial Division IN SUIT NO: AB/119/2015 – BETWEEN: MADAM ADEOLA AINA VS. MR. NURENI ADEOSUN delivered on the 28th day of February 2017.
Briefly, the facts of this case are that, there was a breach of contract pursuant to which the Respondent sued the Appellant.
The Trial Court entered Judgment in favour of the Respondent for the sum of (₦1,200,000.00) One Million Two Hundred Thousand Naira with (10%) ten percent interest on the Judgment sum until the final liquidation.
After the Judgment, the Appellant voluntarily offered to pay the debt by installments through the Court. After the payment of (₦200,000.00) Two Hundred Thousand Naira the Appellant defaulted and on 24/11/2016, the Respondent filed an Application to levy execution on the immovable property of the Appellant.
Prior to the institution of the case at the Trial Court on 15/6/2015, the Appellant had on 16/12/2014 voluntarily prepared and signed an undertaking, donating documents of his immovable
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property which he under his own hand and signature described as “my house” (see page 11 of the Record of Appeal).
The Respondent later brought an Application to levy execution on the Judgment debt by attaching the Immovable Property of the Appellant. The Appellant now filed a Counter Affidavit and a written address where it was argued that the immovable property in question is a joint property of both the Appellant and his wife.
The Trial Court granted the Application of the Respondent, being an Order levying execution on the immovable property of the Appellant.
The Appellant who is dissatisfied with the Ruling of the Trial Court appealed to this Court.
The Learned Counsel for the Appellant formulated a sole issue for the determination of this Appeal. The said issue is reproduced as follows:-
“Whether in the light of Section 44 of the Sheriff and Civil Process Act Chapter 407 Laws of the Federation of the Federal Republic of Nigeria 1990, the Learned Trial Judge erred in Law when he held that the Appellant written – Address in support of the Counter Affidavit to the Respondent Motion on Notice dated
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23/3/2016 and filed on the 24th day of March, 2016 does not provide any cogent or satisfactory reason why the Respondent Application should not be granted”.
In his own case, the Learned Counsel for the Respondent also formulated a sole issue for the determination of the Appeal.
The said issue is reproduced as follows:-
“Whether in the light of available evidence, the Learned Trial Judge erred in law when he held that the Appellant did not provide cogent or satisfactory reason why the Respondents’ Application should not be granted.”
At the hearing of this Appeal on 10/11/2020 the Learned Counsel for the Appellant stated that the Appeal is against the Ruling of Ogun State High Court of Justice sitting in Abeokuta and delivered on 28/2/2017.
The Notice of Appeal was filed on 7/3/2017. The Record of Appeal was transmitted on 1/8/2017 and deemed as properly transmitted on 17/10/2019.
The Appellants’ Brief of Argument was filed on 12/12/2019 and it was deemed as properly filed on 27/1/2020.
Learned Counsel for the Appellant adopted and relied on the Appellants’ Brief of Argument in
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urging that the Appeal be allowed and the Ruling of the Trial Court set aside.
In his own case, the Learned Counsel for the Respondent referred to the Respondents’ Brief of Argument filed on 16/1/2020 and deemed properly filed on 27/1/2020.
He adopted and relied on the said Respondents’ Brief in urging that this Appeal be dismissed.
I have perused the issues formulated for the determination of the Appeal by Counsel for both parties and I am of the view that the issue formulated for the determination of the Appeal by Counsel for the parties are more or less the same but I will rely on the issue formulated for the determination of the Appeal on behalf of the Respondent, in view of the fact that it is apt in the determination of the Appeal.
ISSUE FOR THE DETERMINATION OF THE APPEAL
“Whether in the light of available evidence, the Learned Trial Judge erred in law when he held that the Appellant did not provide cogent or satisfactory reason why the Respondent’s Application should not be granted.”
The Learned Counsel for the Appellant relied on Section 44 of the Sheriff and Civil Process Act Chapter 407 Laws of the Federation of Nigeria 1990.
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He also relied on the following cases:- BAYERO VS. F. M. B. N. PLC. (1998) 2 NWLR PART 538 PAGE 509 AT 526 – 527. It was submitted on behalf of the Appellant that considering the fact that immovable property in question is jointly owned by the Appellant and his wife, which is contained in the Appellants’ Counter Affidavit to the Respondents’ Motion on Notice which the Respondent failed to contradict. It was submitted that the Learned Trial Judge was wrong in granting the Respondents’ Application. He urged that this Appeal be allowed.
The Learned Counsel for the Respondent conceded that the governing provision for levying execution on immovable property is Section 44 of the Sheriff and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990. And the property to be attached shall be owned by the Judgment Debtor.
Learned Counsel for the Respondent referred to the Application for leave to levy execution on the immovable property of the Appellant and the Affidavit filed along with the Motion, more particularly paragraph 16 on page 73 of the Record of Appeal.
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He contended that the undertaking made on page 77 of the Record of Appeal was made voluntarily. “Part of the undertaking made by the Defendant/Judgment Debtor/Appellant dated 16/12/2014 was that he pledged to surrender the receipt of his house to the President…”
The Learned Counsel for the Respondent submitted that the Appellant never raised the issue of joint ownership since 15/6/2016 when the issue was first brought up by the Respondent.
He urged that this issue be resolved in favour of the Respondent and dismiss the Appeal.
RESOLUTION
There is no gainsaying in the fact that the governing Provision for levying execution on immovable property is Section 44 of the Sheriff and Civil Process Act which provides as follows:-
“If sufficient movable property of the Judgment Debtor can be found in FCT, Abuja or the state as the case may be to satisfy the Judgment and costs of execution, execution shall not issue against his immovable property but if no movable property of the Judgment Debtor can with reasonable diligence be found, or if such property
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is insufficient to satisfy the Judgment and the cost of execution and the Judgment Debtor is the owner of the immovable property, the Judgment creditor may apply to the Court for a Writ of Execution against the immovable property of the Judgment Debtor and Execution may issue from the Court against the immovable property of the Judgment Debtor in accordance with the Provision of the Act and any Rule made hereunder”.
The requirement of the provision set out above are that before execution could be levied against immovable property of a Judgment Debtor, the following conditions must be satisfied.
(a) The movable property of a Judgment Debtor must be insufficient to satisfy the Judgment Debt and costs of the Execution.
(b) Reasonable diligence must have been exercised to trace the movable property with no success.
(c) It must be established that the Judgment Debtor is the owner of the immovable property.
See the following cases :-
– LEEDO PRESIDENTIAL HOTEL LTD. VS. BANK OF THE NORTH LIMITED & ANOTHER (1998) 10 NWLR PART 570 PAGE 353.
– MUTUAL AID SOCIETY LTD VS. OGONADE (1975) NMLR PAGE 118.
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– OSUNKWO VS. UGBOGBO (1966) NMLR PAGE 184.
A careful reading of the Record of Appeal would reveal that the Respondent on 24/11/2016 filed her Application for leave to levy execution on the immovable property of the Appellant (See pages 70 – 71 of the Record of Appeal).
Paragraph 16 of the Affidavit filed along with the Motion (See page 73 of the Record of Appeal) reads thus:-
“That the Defendant/Judgment Debtor/Respondent in his undertaking dated 16/12/2014 pledged to surrender the receipt of his house. A copy of the undertaking made by the Defendant/Judgment Debtor is attached as Exhibit C”.
The undertaking on page 77 lines 11 and 12 of the Record of Appeal, voluntarily made by the Appellant reads in part “…I DO PLEGGE TO SURRENDER THE RECEIPT OF MY OWN HOUSE TO THE PRESIDENT…….”
In view of the foregoing, I agree with the submission of Learned Counsel for the Respondent that the following presumptions/conclusions can be safely drawn from the Appellants’ willful pledge of the documents of his property:
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(1) That the pledge is a gentleman’s undertaking that the property should be forfeited should he default in payment of his debt. This is the sole reason for the pledge in the first place.
(2) That calling the property “my own house “meant exactly those words.
(3) That the Appellant would not have pledged the property if it is not his own.
(4) The Appellants’ deposition in the Counter Affidavit of 1/12/2016 and filed on 9/12/2016 was made two years after he made the undertaking made on 16/12/2014.
(5) That the Counter Affidavit dated 7/12/2016 which was filed on 9/12/2016 where it was deposed that the property in question is a joint property of the Appellant and his wife is an afterthought and a shallow attempt at frustrating the Judgment of the Trial Court.
I am of the view that the Appellant by his Affidavit of 16/12/2014 showed that he owns the property in question, therefore his Counter Affidavit of 7/12/2016 is really an afterthought and an attempt to escape from the long arm of the law. He is not allowed to approbate and reprobate. His contention that the property in question is a joint property
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of himself and his wife cannot be believed in the circumstances of this case.
My investable conclusion is that the Learned Trial Judge was right when he held that the Appellant did not provide cogent or satisfactory reason why the Respondents’ Application for execution should not be granted.
The sole issue in this Appeal is therefore resolved in favour of the Respondent against the Appellant.
It is my view that this Appeal lacks merit and it is hereby dismissed.
The Ruling of the Trial Court in Suit No: AB/119/2015: BETWEEN MADAM ADEOLA AINA VS. MR. NURENI ADEOSUN delivered on 28th day of February 2017 is hereby affirmed.
The Respondent is entitled to cost which is fixed at (₦100,000.00) One Hundred Thousand Naira against the Appellant.
Appeal Dismissed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the Judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.
My learned brother has concisely and conclusively resolved the sole issue that presented itself for determination in this appeal. Upon a careful consideration, I agree that this appeal
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has no merit. It is hereby dismissed.
I abide by the order on costs.
FOLASADE AYODEJI OJO, J.C.A.: I have had the opportunity to read before now the lead judgment delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. His Lordship has dealt exhaustively with and resolved the germane issue for determination in this appeal. I have nothing more useful to add.
I agree that this appeal lacks merit and should be dismissed. It is also accordingly dismissed by me.
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Appearances:
A. O. OGUNGBEMI For Appellant(s)
KAYODE ADEREMI, with him, EMMANUEL ELIJAH ESQ. For Respondent(s)
