AFRICAN INTERNATIONAL BANK LIMITED V. EDUCATION TAX FUND
(2010)LCN/3610(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of March, 2010
CA/A/201/05
RATIO
PROCEDURE: WHAT SHOULD AN AFFIDAVIT CONTAIN IN RELATION TO GARNISHEE PROCEEDINGS
In Leedo Vs Bank of the North (Supra) Page 382 (e) the Supreme Court adopted the observation of Mohammed J.C.A in Bayero Vs F.M.B (1998) 2 NWLR Part 538 Page 509 and held-
“It is not enough for the affidavit to contain a bare averment that no movable property can with reasonable diligence be found, it is for the court not the Defendant to say whether reasonable diligence has been exercised. The affidavit must therefore contain evidence of what has been done to discover the Judgment Debtor’s movable property.
See-Osunkwo Vs Ugbogbo (1966) NMLR Page 184, Mutual Aid Society Limited Vs Ogonade (1975) NMLR Page 118, Opubor Vs Demiruru 5. E.N.L.R Page 27.” PER JIMI OLUKAYODE BADA, JCA
WORDS AND PHRASES: MEANING OF REASONABLE DILIGENCE
‘Reasonable diligence’ has been interpreted to mean fair proper and due degree of care. See- Leedo Residential Motel vs. Bank of the North Ltd. (supra). PER JIMI OLUKAYODE BADA, JCA
JUSTICES:
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO SODIPE Justice of The Court of Appeal of Nigeria
Between
AFRICAN INTERNATIONAL BANK LIMITED – Appellant(s)
AND
EDUCATION TAX FUND – Respondent(s)
DELIVERED BY JIMI OLUKAYODE BADA, JCA: This is an appeal against the Ruling of the Federal High Court sitting in Abuja in Suit No FHC/ABJ/CS/239/2004 which was delivered on the 6th day of April, 2005.
Briefly the facts of the case are that the Respondent herein commenced this action by way of writ of summons under the undefended list procedure on the 20th day of May, 2004 before the Federal High Court sitting at Abuja. The trial court delivered judgment in the sum of (N51,726,027.40k) Fifty-One Million Seven Hundred and Twenty-Six Thousand Twenty Seven Naira and Forty Kobo against the Appellant on the 13th day of December, 2004. Thereafter the Respondent filed a motion on notice seeking, inter alia an order granting leave to the Respondent to attach and sell the Appellant’s immovable property. The said application was granted on the 6th day of April, 2005.
Dissatisfied with the Ruling of the trial court the Appellant now appealed to this court.
The Learned Senior Counsel for the Appellant formulated a lone issue for determination set out as follows:-
“Whether or not the learned trial court rightly exercised its discretion in granting the respondent’s application seeking to attach and sell appellant’s immovable property.”
The Learned Counsel for the Respondent did not formulate any issue for determination.
At the hearing, Learned Senior Counsel for the Appellant referred to the Appellant’s brief of argument filed on 28/11/2005. She adopted and relied on the said brief of argument in urging the court to allow the appeal.
The Learned Counsel for the Respondent also referred to the Respondent’s brief of argument filed on 30/11/05. He adopted the said brief of argument in urging that the appeal be dismissed.
The learned counsel for the Respondent agreed with the lone issue formulated by Learned Counsel for the Appellant.
In the circumstance, I will determine this appeal on the said lone issue.
Whether or not the learned trial court rightly exercised its discretion in granting the Respondent’s application seeking to attach and sell the Appellant’s immovable property.
The Respondent had before the trial court by a motion on notice dated the 7th January, 2005 and brought pursuant to Section 44 of the Sheriffs and Civil Process Act Cap. 407 laws of the Federation of Nigeria 1990 and one inherent powers of the court sought for the following orders:-
“(1) An order granting leave to the Judgment Creditor/Applicant to attach and sell pursuant to the judgment of this court delivered on 13/12/04 on the judgment.
Debtor/Respondent’s immovable property to wit: AIB Plaza, AIB Terrace off Akin Adesola Street, Victoria Island, Lagos.
(2) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.”
The said application was supported by an 8 paragraph affidavit and leave was thereafter granted as prayed.
The Learned Senior Counsel for the Appellant submitted that an application of this nature is not granted as a matter of course, she went further that it is an application which seeks the exercise of the discretionary powers of the court in the applicant’s favour and that consequently, it is incumbent on the applicant to place before court adequate materials and or facts to enable the court exercise its discretion in its favour. He relied on the case of Leedo vs. Bank of the North (1998) 10 NWLR Part 570 Page 353 at 379.
She submitted that a perusal of the affidavit in support of the application would show that sufficient good reasons for the honourable court to exercise its discretion in favour of the respondent were not placed before the trial court. The Learned Senior Counsel for the Appellant went further in her submission that by virtue of Order IV rule 16(1) & (2) of the judgment Enforcement Rules, leave of court must be obtained to levy execution against the immovable properties of a Judgment debtor. He also referred to Section 44 of the Sheriffs and Civil Process Act and contended that the judgment creditor was duty bound to show by way of affidavit evidence that it exercised reasonable diligence in locating the movable properties of the judgment debtor and that such property was insufficient to satisfy the judgment debt and that it is only thereafter that the Judgment creditor can apply to the court to move against the immovable properties of the Judgment Creditor.
She referred to paragraphs 4 to 8 of the Respondent’s affidavit in support of the application and submitted that the said depositions are full of contractions.
She submitted that an applicant will not be allowed to approbate and reprobate and must be consistent in setting out its case.
He relied on the case of Ajide Kelani (1985) 3 NWLR Part 12 Page 248 at 269.
The Learned Senior Counsel went further in her submissions that where there are inconsistent depositions, the court must be slow in concluding on the veracity of the facts deposed by the deponent. He relied on the case of:- Momoh vs. Vab Petroleum Inc. (2000) 4 NWLR Part 654 Page 534 at 546(h) to 547(e).
She also submitted that the facts in the affidavit fell short of the requirements of the law. He argued further that the affidavit failed to show that any reasonable diligence was exercised in locating and attaching the movable properties of the Judgment Debtor.
It was finally submitted on behalf of the Appellant that the trial court failed in its duty and she urged this court to answer the sole issue for determination in the negative.
On the other hand Learned Counsel for the Respondent conceded that Section 44 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 imposes a duty on the Judgment Creditor/Applicant to establish that there is no movable property to attach by its own efforts. He relied on the case of Leedo Residential Motel vs. Bank of the North (supra).
He went further in his submission that the affidavit in support of the application showed that the respondent has discharged its duty of establishing that appellant has no movable property to levy the judgment upon.
The Learned Counsel for the Respondent also stated that appellant was represented by counsel at the hearing of the motion and the appellant neither filed a counter affidavit nor opposed on point of law.
He finally urged that the appeal be dismissed.
The application by the Respondent at the lower court was for leave to attach and sell respondent’s immovable property to wit. AIB Plaza, AIB Terrace off Akin Adesola Street, Victoria Island, Lagos. The application was supported by an eight paragraph affidavit. Pertinent paragraphs of the said affidavit are as follows:-
“3(a) …
(b) that the said Mr. I. Ukim and their counsel Larry S. Esq., carried out several investigations as to what movable properties of the judgment. Debtor/Respondent to levy execution on and found none;
(c) that no valuable movable properties of the Judgment Debtor/Respondent were found at its Tofa House, Central Business District, Abuja Branch, nor at its 6gbomosho Street, Area 8 Garki-Abuja branch;
(d) that on or about 23-12-04, Larry, S. Esq took his investigation to Lagos where he further discovered that there are no movable properties of the Judgment Debtor/Respondent to execute the judgment of this court on;
(e) that all he found at the Judgment Debtor/Respondent’s headquarters at AIB Plaza, AIB Terrace, Off Akin Adesola Street, Victoria Island, Lagos were tattered furniture and nothing valuable in any way to defray any reasonable part of the judgment debt; and
(f) that the headquarters building known and described as AIB Plaza, AIB Terrace, Off Akin Adesola Street, Victoria Island, Lagos belongs to the Judgment Debtor/Respondent, and stands as the only property of value that If attached and sold would defray the judgment debt in this suit;
4. That apart from serving the judgment on the Judgment Debtor/Respondent, the Judgment Creditor/Applicant counsel has made efforts to see officers of the bank as well as their counsel to see whether they are willing to pay, all to no avail.
5. That the Judgment Debtor/Respondent is unperturbed knowing they have no movable properties to be attached.
6. That at the moment, there are no cash or money related transactions going on in any of the branches (including the headquarters) of the judgment Debtor/Respondent.
7. That it is in the interest of justice for this application to be granted as a refusal of this application will render this judgment worthless given the ailing or comatose state of the Judgment Debtor/Respondent.
8. That I swear to this Oath believing its contents to be true and correct and in accordance with the Oaths Act, 1990”
The said application was granted by the lower court. It has been contended on behalf of the Appellant that the Respondent did not show sufficient good reasons in the affidavit in support of the application for the lower court to have exercises its discretion in its favour.
Learned Senior Counsel for the appellant submitted that the leave granted by the lower court to the Respondent to sell the Appellant’s immovable property was not in accordance with the law and she urged that this appeal be allowed on that basis.
The Sheriffs and Civil Process Act Cap 407 laws of the Federation of Nigeria 1990 and Judgment Enforcement Rules made thereunder regulate the process of execution and provides for conditions which must be met by a Judgment creditor seeking to execute a Judgment.
By virtue of Order IV Rules 16(1) and (2) of the Judgment Enforcement Rules, leave of court must be obtained to levy execution against the immovable properties of a Judgment debtor.
In addition, Section 44 of the Sheriffs and Civil Process Act provides as follows:-
“If sufficient movable property of the Judgment debtor can be found in the Federal Capital Territory, Abuja or the State as the case may be to satisfy the Judgment and costs and the costs of execution, execution shall not issue against his immovable property, but if no immovable property of the Judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the Judgment and costs and the costs of execution, and the Judgment debtor is the owner of any immovable property, the Judgment Creditor may apply to the court for writ of execution against the immovable property of the Judgment debtor and execution may issue by the court against the immovable property of the Judgment debtor in accordance with the provisions of this Act, and any rules made thereunder.
From the provisions of the law set out above, it is clear that the Judgment creditor was duty bound to show by way of affidavit evidence that it exercised reasonable diligence in locating the movable properties of the Judgment Debtor, and that such property was insufficient to satisfy the Judgment Debt. It is only thereafter that the Judgment creditor can apply to the court to move against the immovable properties of the Judgment Debtor. In Leedo Vs Bank of the North (Supra) Page 382 (e) the Supreme Court adopted the observation of Mohammed J.C.A in Bayero Vs F.M.B (1998) 2 NWLR Part 538 Page 509 and held-
“It is not enough for the affidavit to contain a bare averment that no movable property can with reasonable diligence be found, it is for the court not the Defendant to say whether reasonable diligence has been exercised. The affidavit must therefore contain evidence of what has been done to discover the Judgment Debtor’s movable property.
See-Osunkwo Vs Ugbogbo (1966) NMLR Page 184, Mutual Aid Society Limited Vs Ogonade (1975) NMLR Page 118, Opubor Vs Demiruru 5. E.N.L.R Page 27.”
In the instant case, the evidence relied upon by the learned trial Judge in granting the application could be found in paragraphs (3) (b), (c), (d), (e) and (0 (4),(5) (6) and (7) of the affidavit in support set out earlier in this Judgment.
The affidavit evidence relied upon by the lower court in coming to its decision to grant the application in my humble view showed that the respondent has discharged the duty placed on it to establish that the appellant has no movable properties to levy the Judgment upon. In fact by the depositions in the said affidavit the respondent has exercised reasonable diligence in its search for movable properties belonging to the appellant.
‘Reasonable diligence’ has been interpreted to mean fair proper and due degree of care. See- Leedo Residential Motel vs. Bank of the North Ltd. (supra).
Another important point in support of the position of the Respondent is that the Appellant was represented by counsel at the hearing of the application at the lower court. The appellant neither filed a counter affidavit nor opposed the application. On page 87 of the records, Appellant’s counsel Mr Okeaya-Inneh said:-
“In view of the circumstances of this case, we are unable to object to this application. ”
The fact that there was no counter affidavit and the Learned Counsel for the appellant did not oppose the application at the lower court showed that the Respondent had been fair to the Appellant who is the judgment debtor and it had been given the opportunity of being heard on the crucial issue as to whether or not it still has within the lower court’s jurisdiction, enough movable property to satisfy the Judgment debt. This is in accordance with the rules of natural Justice and the constitutional right of fair hearing guaranteed under the 1999 constitution of the Federal Republic of Nigeria.
Furthermore on this point, in the absence of a counter affidavit against the deposition in the Respondent’s supporting affidavit, it is my view that all the facts on the efforts of the Respondent made in the search for movable properties of the appellant are true, undisputed and admitted. See the following cases:-
Aiomale Vs Yaduat No 2 (1991) 5 SCN1 Page 178 at 184.
Badeio Vs Federal Ministry of Education (1996) 8 NWLR Page 15.
The affidavit evidence in support of the application at the lower court revealed all necessary facts, particulars and necessary ingredients which enabled the lower court to be persuaded in granting the application. In effect the affidavit in support of the application met the purpose it was meant to serve. See Edet vs. Chief of Air Staff (1994) 2 NWIR Part 234 Page 41.
In view of the foregoing the lone issue in this appeal is resolved in favour of the Respondent and against the Appellant.
In the final analysis, it is my view that the leave granted by this lower court was a judicious and judicial exercise of discretion in accordance with the law. I therefore have no reason to intervene with the decision of the Learned trial Judge.
This appeal lacks merit and it is hereby dismissed. The Respondent is entitled to costs which is fixed at (N50,000.00) Fifty Thousand Naira against the Appellant.
ABDU ABOKI, J.C.A.: I had the privilege of reading m advance the Judgment just delivered by my learned brother, Jimi Olukayode Bada J.C.A. I agree with him that this Appeal lacks merit, ought to be dismissed and is hereby dismissed accordingly. I also abide by the consequential Order made therein as to costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I agree.
Appearances
Mrs O.O. Soyebo SAN;
Miss O. Balogun;
Femi Adegboyega
M.F. Akamode For Appellant
AND
S.Larry with him
Miss T.Tabai For Respondent
