ASRACO NIGERIA LIMITED & ANOR V. TRADE BANK PLC
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of March, 2002
RABID DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
1 ASRACO NIGERIA LIMITED
2. ALHAJI SHEHU RABIU Appellant(s)
TRADE BANK PLC Respondent(s)
OMAGE, J.C.A. (Delivering the Leading Judgment): In this appeal, the judgment debtor seeks an order of court to set aside the order of attachment and sale of the immovable property of the judgment debtor. The order of attachment and sale was made by the Kano State High Court on 7th August, 2000. The judgment debtor was dissatisfied with the order of court and filed an appeal thereof on three grounds. Only one issue is formulated from the three grounds which reads;
“whether the respondent as applicant in the court below satisfied the provisions of the law as laid down by section 44 of the Sheriffs and Civil Process Act, Cap. 407, Law of the Federation. Order 4, rule 16 of the
judgment enforcement rules and section 43 of the sheriff and civil laws of Kano State before the learned trial Judge granted its application for leave to attach and sell the 2nd appellants immovable property.”
The appellant’s brief was field on 31/11/2000. The appellant file also a reply brief on 31/11/00 both of which he adopted on 21/1/02. The respondent file his brief after the prayer for extension of time on 12/4/01. In his brief, the respondent submitted that the appellants sole issue does not properly represent the issue to be determined in the appeal. In the respondents brief, he formulated what he considered the proper issue, when he submitted thus;
“Having regard to the entire contents of the affidavit evidence in this case, and counsels submission in support of respondent’s motion on notice dated 23rd June, 2000 thereof was the court below right in granting the respondents leave to attach and sell the immovable property of the 2nd appellant and if not, has the appellants suffered any miscarriage of justice thereby.”
The respondents averred that the issue above is formulated from grounds 1, 2 & 3 in the notice of appeal. In my view the sole issue formulated by the appellant is only on ground 2 of the ground of appeal contained on page 54 of the records; at page 52. There is nothing contained in the appellants sole issue, about miscarriage of justice although ground thereof spoke of miscarriage of justice it is not in the issue formulated. It is evident from the appellants sole issue that his complaint is against the order of the court below for its failure to observe in toto the provisions of section 44 of the Sheriffs and Civil Process Act, Cap. 407. The contents of which are in pari materia with section 43 of the Sheriffs and Civil Process Law, Cap. 135, and with Order 4 rule 16, of the judgment enforcement rule Kano State. This deals with the condition for sale of immovable property. Since therefore the appellants sole issue does not relate to any other two grounds of appeal filed, the appellant will be deemed to have abandoned the two grounds of appeal which his issue does not reflect these are issues 1 & 3. The only issues formulated by the respondent encompassed the three grounds of appeal filed by the appellant. The respondents only issue therefore exceeds the issue formulated by the appellant. Not only that, while in the appellant’s 3rd grounds of appeal, the appellant did not advert to the alleged error of court below in misdirecting himself on the counsels submission the respondent took and formulated in his issue in alleged positive failure of the said courts ruling thereon and said it was right.
The issue was not contested at all in the appellants brief; as the appellant brief was not on that. For the above reason, it can be held that not having filed any grounds of appeal, the respondent issue included in his point of contest on argument issue in the appeal and to that extent the issue of the respondent is only relevant in only some material respect. It is the rule that the issue formulated must derive from the ground of appeal filed. When therefore the appellants issue is limited to only one ground of appeal, the other grounds are deemed to be abandoned. See Philip Obiora v. Paul Osele (1989) 1 NWLR (Pt. 97) 279, respondent issue should be so limited. See Emeghara v. Health Management Board of Imo State & 2 Ors. (1987) 2 NWLR (Pt. 56) 330.
The facts of the case is as follows. The record of proceedings filed by the appellant does not show this, but the respondents brief shows that the respondent commenced proceedings in the Kano State High Court against the appellant for recovery of the sum of N86,257,726.68. The said sum of over eighty six million, is stated to be for the recovery of the outstanding debt balance in the account, of over draft facilities granted to the appellant, of N40 million Naira, and of an additional sum of N46,726, 000.00 contrived to take from the respondents account by the appellant. Because of the failure of the appellant to pay the said amount, the respondents commenced the action in the Kano State High Court and claimed in addition interest at the agreed rate of N30. The action was commenced by the undefended list procedure the defendant, now appellant filed a notice of intention to defend. At the preliminary hearing under the undefended list, the court below, before transferring the other part of the claim for hearing on the general cause list, made a finding on which he ordered judgment of N50 million against the appellant in favour of the respondent subsequently the respondent on obtaining the judgment of N50 million filed an application to attach and sell the immovable property of the appellant. The court below made the order as prayed.
The printed record shows that the order of court to attach and sell the immovable property of the appellant was made on 7/8/2000.
It is against this order of court of 7/8/2000, that the appellant has appealed, after obtaining the leave of the court below. As recorded above, the appellant formulated one issue for determination and it is my understanding that the sole issue is based on ground 2 of the ground of appeal. Nothing in the issue reflects grounds 1 and 3. In his brief, the appellant submitted that the prayer of the respondent which read as is stated below does not comply with the provisions of Order 4 rule 16 of the judgment enforcement rules of Kano State, which provisions are contained in the Sheriffs and Civil Process Law Cap. of Kano State, both laws are the same as in section 44, Sheriffs and Civil Process Act, Laws of the Federation of Nigeria.
The application of the respondent in the court below reads:
“An order granting leave to the applicant to attach and sell the immovable property of the judgment debtor.
Covered by the Kano State Certificate of Occupancy No RES/RC/88/37 on which the applicant has an equitable mortgage and any other property(ies) of the respondent to satisfy the judgment debt.” etc.
In the affidavit in support of the motion the respondent deposed thus:
(f) “That the respondent deposed to the fact that they do not have money in their account with Universal Trust Bank PLC and the Citizen International Bank PLC and that they do not have or maintain with any other bank.
(g) That the respondent further deposed to the fact that they do not have other property than the one, the second respondent mortgaged into the applicant, but refused to process the perfect consent and registration thereof.
(h) That a lot of investigation and search have been made by the bailiff of the court and the staff of the applicant to locate other property of the respondent, but their efforts have not yielded any result.
(i) That he discovered from the processes filed in this suit No … instituted by the 2nd respondent at the Federal High Court Kano that the respondent or either of them is indebted to some other creditors who are likely to take over the only property of the respondent sought to be attached by this application, because some of the movable properties such as motor vehicle the applicant was banking before the last ruling in this case are no longer available.”
It is the submission of the appellant in this presents that the order of court of 7/8/2000, which is founded on the submission and affidavit of the respondent herein as stated above is not justified by failure of its compliance with the rules of the Sheriffs and Civil Process Law. It reads section 43:
“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 costs of execution, execution shall not issue against his immovable property but no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and costs of execution and the judgment debtor is the owner of any immovable property the judgment creditor may apply to the court for a writ of execution against the immovable property of the judgment debtor.” etc.
The appellant submitted that the observation in the judgment of the court below shows that the court was aware of the requirement to obtain order to sell immovable property when the trial court wrote in his judgment thus:
‘The argument of the Mr Dada was that the judgment creditors ought to have gone against the movable goods of the judgment debtor first and it is only when the money realised from the sale of such goods is not sufficient to cover the judgment sum that will entitle the judgment creditor to move against the immovable property of the judgment debtor. etc I want to say that I believed what the bailiff had said, I also agree with Mr. Muhammad’s submission that even if movable properties are found within the jurisdiction and same are sold the money to be realized therefore will be insufficient to pay the judgment sum.” etc.
The appellant submitted that the court in the ruling ordering the sale of the property had relied:
(i) On the evidence of the bailiff, who purported to have executed on the movable property of the judgment debtor.
(ii) The submission of the respondent counsel, who in his address says, even if the movable property could be found the appellant submitted that the two expression on which the court relied on to grant an order to sell the immovable property of the appellant do not meet or comply with the requirements contained in the law, Sheriffs and Civil Process Law, Cap. 39.
But that the learned trial court was in error, because the requirements and condition for sale of immovable property include; an affidavit of satisfaction and proof of the execution.
(a) By sale of the movable property of the judgment debtor.
(b) The exercise of a reasonable diligence in finding the movable property of the judgment debtor. This is not the affidavit of the judgment debtor or the statement of the bailiff, and the submissions of the appellant counsel.
The appellant urged the court to set aside the order of court below of 7/8/00 and for dismissal of the respondents application in the court below. I have written above that, the only issue formulated by the respondent exceeds the sole issue proposed in his brief by the appellant. I now deal with the portion of the respondents issue which is based on the complaint of the appellant which alleges a breach of the provision of section 43 of the Sheriffs and Civil Process Law.
The respondent submitted that the deposition of the appellant in his affidavit in support of the motion which seeks the order of the court to enable him pay the judgment of N50 million by payment of N2 million monthly contain legal averments namely. The averments the respondent submitted are now in the nature of an estoppel, because the appellant cannot subsequently deny them. Among the deposition is one which says the appellant’s movable properties had been executed and that the house in which he resides is the only landed property he has and that it is on mortgage to the respondent bank. That the appellant has no money in any of the banks named.
The respondent submitted that in view of the above deposition of his situation by the appellant himself he was not obliged to go further to prove the sale of appellants movable properties to satisfy the requirement of section 43 of Cap. 39 of the Kano State Sheriffs and Civil Process Law. The respondent urged this court to affirm decision of the court below, and issue on this score an order to affirm the said decision of the court below on the admission of the appellant, in the court below. The respondent submitted that the court below arrived at a correct decision on a wrong conclusion. In his reply to the respondents brief, the appellant agreed that the court below relied on a wrong conclusion as result of which its decision is necessarily wrong. The appellant urged the court to set aside the order of the court below dated 7/8/00.
In this appeal, the salient and different issue to be determined is not as in any previous decision on whether the order was made in the absence of the respondent, now appellant. No, the appellant was present in the court, when the order for attachment and sale of his immovable property was made. The order dated 7/8/2000 followed an application of the respondent to attach and sell the immovable property of the appellant subsequent to the application of the appellant to pay the judgment debt by N2 million monthly. The application to attach and sell the immovable property of the appellant was therefore made when the appellant was said to have failed to comply with the order of court to pay N2 million monthly. The issue to be determined in this appeal is at the first glance is whether or not the order of court of 7/8/2000 was made in compliance with the provisions of section 44 Sheriffs and Civil Process Law, specifically whether the court was satisfied according to the relevant section, that the onus on the applicant for attachment and sale has been discharged before the order for sale of the immovable property
of the judgment debtor was made. In this connection and with reference of the requirement in the rule in the Sheriffs and Civil Process Law Kano State as to whether the applicant now respondent has shown a reasonable diligence in exhausting or of providing admissible evidence of the exhaustion and sale of the movable property of the judgment debtor before proceedings to apply for the sale of the immovable property of the appellant for the enforcement of the judgment obtained in respondent’s favour against the appellant.
Section 44 of the Sheriffs and Civil Process Law clearly placed on the applicant for an order for attachment and sale of an immovable property for the realisation of a judgment debt; a duty to
(a) attach and sell first the movable property of the judgment debtor. It is on the exhaustion of the movable property and debt remains or where no more movable is available that the judgment creditor may.
(b) apply for the sale of immovable property. See Osunkwo v. Ugbogbo (1966) NMLR (Pt. 184).
In making the application the applicant must show that he has with reasonable diligence searched and ensured that no movable property exists anywhere else. Once the judgment creditor satisfied the court that there is no movable property to attach he becomes entitled to leave for the issue of a writ against immovable property of the judgment debtor. See Mutual Aids Society Ltd v. Ogonade (1957) NNLR 118. Implicit in the two conditions above which must be satisfied, and established before the court is the discharged of the onus imposed by the law on the respondent, by his own efforts not the effort or report of others who are not applicant for leave to attach.
In Leedo Presidential Motel v. B.O.N Ltd reported in (1998) 10 NWLR (Pt. 570) 353. The Supreme Court directed that in the absence of procedure in the application of the provisions in the Sheriffs and Civil Process Law and said for the procedure to be followed such information of the efforts made by the applicant be given in an affidavit in support of the motion seeking an order of court to attach.
In the instant appeal, the learned trial court relied on the contents of the affidavit of the appellant made in another proceeding which the respondent herein submitted created an estoppel. In placing reliance on those averments the respondent is not absolved from the duty to investigate the existence of the appellants immovable property in the case therefore there is no evidence by, the respondent to discharge the onus placed upon him. In his ruling allowing the sale of movable property the learned trial court showed that he believed the testimony of the bailiff that there no longer exist any movable property. The court relied on the statement of the bailiff it is clear that the respondent provided no evidence by affidavit of any effort or of any diligence made to verify sale of immovable property value property of the judgment debtor. In that case, the respondent has not discharged his duty and he is not entitled to the order for leave to sell. The bailiff is not shown the provision of the law the need to discharge any onus. The provision of the law must be complied with, even the court cannot deviate from the provisions of the law, since it has a duty to enforce it. See Alashe v. Olori Ilu (1964) 1 All NLR 390 at 397 S.C. It is pertinent to observe here that the compliance with the provisions of the law which requires reasonable diligence in searching for movable property of a judgment debtor as contained in the Sheriffs and Civil Process Law is essential for the security of an individual citizen.
Though he is a debtor, reasonable care should be taken not to deny him peremptorily of a roof over his head. The requirement seeks to avoid destitution of the judgment debtor if it can be helped. It is for this reason that the Supreme Court in its judgment supra defined the implication of “reasonable diligence in the search for movable property in Leedo Presidential Motel v. B.O.N Ltd Supra. In the case the court interpreted “reasonable diligence” to mean: “fair, proper and due degree of care” such diligence as expected of a man who took ordinary care and it is a corollary of reasonable care.” In the instant appeal, the respondent has not shown that he took any care, not to talk of a reasonable care. The respondent merely provided for acceptance by the court the deposition contained in a previous affidavit dated 7/7/2000 had denied vide page 23-26 of the printed record. For the above reasons, can it be justly said that the respondent complied with the provision of the Sheriffs and Civil Process Law section 43 of Kano State. Can it be said that the respondent by himself discharge the onus to provide evidence of proof of the exhaustion and sale of the immovable property of the judgment debt. My view is he did not and I so rule. The respondent has not discharged the onus in the court below of his own efforts rather he relied on the appellant affidavit to that on more movable property of the appellant remains before the respondent obtained the order to sell and attach the appellant’s property. In particular because the respondent failed to show any diligence whatsoever before he sought an order for sale of the immovable property of the judgment debtor the respondent has not complied with the provision of section 44 of the Sheriffs and Civil Process Law, Kano State and the court was in error to act on such evidence. The order for attachment made on 7th August, 2000 by the Honourable Justice Saka Yusuf of the Kano State High Court is hereby set aside, and the said application of the respondent for attachment and sale of the appellants immovable property being incompetent is struck out.
The appeal succeeds. I make no order for costs.
R.D. MUHAMMAD, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Omage, JCA. He has thoroughly dealt with all the issues raised in this appeal. I agree with his reasoning and conclusion. It is clear that the respondent did not comply with the provisions of the Sheriffs and Civil Process Law.
The lower court was in error to have issued the writ of attachment.
The said writ of attachment is hereby set aside. The appeal succeeds and is hereby allowed. I abide by the consequential order made in the leading judgment.
UMOREN, J.C.A. I have read in draft the lead judgment of my learned brother V.A.O. Omage, JCA just delivered. I agree with his reasoning and conclusion.
I abide by any order made therein including order as to costs.
O.A. DadaFor Appellant
Kayode Olatunji (with him, E.S. Mohammed,For Respondent