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EZEUZOR v. MBANUGO (2020)

EZEUZOR v. MBANUGO

(2020)LCN/14310(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Monday, June 15, 2020

CA/AW/75/2003

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

MRS. MARIA NONYE EZEUZOR (Substituted By Order Of Court Of 31/10/2016) APPELANT(S)

And

MRS. EUNICE MBANUGO (Substituted By Order Of Court Of 31/10/16) RESPONDENT(S)

RATIO

WHETHER OR NOT LEAVE OF COURT IS REQUIRED TO APPEAL ON A FRESH ISSUE OF LAW WHICH WAS NOT RAISED OR CANVASSED BEFORE THE LOWER COURT

The trite position of the law is that where an appellant is appealing on a fresh issue of law which was not raised or canvassed before the lower Court then leave of Court is a sine qua non for such an issue to be raised and considered at the appellate Court. In Olalomi Industries Ltd v. Nigerian Industrial Development Bank Ltd(2009) LPELR – 2564 (SC) the Apex Court, per Fabiyi, JSC, held thus:
“I need to say it that a fresh point of law means an issue which was not canvassed at the lower Court and pronounced upon thereat. See FBN Plc v. ACB Ltd (2006) 1 NWLR (Pt. 962) 438 at 461 – 462. Fresh issue must be basically on point of law and must be raised with leave of Court. See Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227.”  PER SANGA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

This is because jurisdiction being a threshold issue is so fundamental that any proceedings conducted without jurisdiction by a Court is null and void. No act of waiver, or act that may be seen to have that effect can confer jurisdiction to validate such proceedings. See FRN & Anor. v. Ifegwu (2003) 5 SCNJ 217 at 252 – 253. In Customary Court of Appeal Benue State v. Abura Tsegba & Ors. (2010) LPELR – 4009 (CA) this Court, per Ndukwe-Anyanwu, JCA, held thus:
“When a party seek to file and argue any fresh issue in the Appellate Court, he must first seek and obtain leave of Court before filing such an issue. An appellant will not be allowed to raise a point or issue that was not raised or argued at the trial Court, but where the issue has to do with jurisdiction of the Court, it can be raised at any anytime and even on appeal for the first time without leave… The general rule is that leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie arguable appeal. Alamieyeseigha vs. Chief Justice of Nigeria (2005) 1 NWLR Pt. 906 page 60; Kigo (Nig.) Ltd vs. Holman Brothers (Nig.) Ltd (1980) 5 – 7 SC page 62; Ojora vs. Odunsi (1964) 1 All NLR page 55…” (Underlined for emphasis). PER SANGA, J.C.A.

DEFINITION OF A “POWER OF ATTORNEY”

Power of Attorney is a written instrument whereby a person as principal or donor appoints another as his agent or donee. It confers authority to perform certain specific acts or kinds of acts on behalf of the principal. See Abubakar v. Waziri &Ors (2008) 6 -7 SC (Pt. 82) at 106. The mere fact that a power of attorney confers, transfers, limited, charges or alienates any title to the donee is not per se an alienation or parting with possession. So it is categorized as a document of delegation. It is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power to any person, including himself then there is alienation. See Ude v. Nwara (1993) 2 NWLR (pt. 278) 638 at 665. PER SANGA, J.C.A.

WHETHER OR NOT THE COURT SHOULD CONSIDER WHETHER THE MAIN RELIEF  OUGHT TO SUCCEED BEFORE RESORTING TO THE CONSIDERATION OF THE ALTERNATIVE RELIEF

In Mr. Archibong Nkana v. Abimbola Hundeyin (2018) LPELR – 43757 (CA) this Court held, inter alia, that:
“The law is that where a claim or relief is in the alternative, the Court should first consider whether the main/principal relief ought to succeed before resorting to the consideration and grant of the alternative relief. It is after the Court found that for any reason, it cannot grant the principal claim that the alternative relief would be resorted to…”PER SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Respondent as Plaintiff sued the Appellant as Defendant before the High Court of Anambra State, Onitsha Judicial Division in Suit No: 0/699/97 claiming against the Defendant via a Writ of Summons and Statement of Claim dated 28/11/97 for the following reliefs:
1. Possession of one Flat of 3 bedrooms with appurtenances situate at No. 12 Old Cemetery Road, Onitsha.
2. N90,300 arrears of rent for the period of January, 1979 – October, 1997.
3. Mesne profit at the rate of N2,500 from 1st November 1997 until possession is given up.
4. An Order of Court that the Defendant puts the apartment in a tenantable condition while giving up possession of same. (pages 1 to 2 of the records of appeal).

​At pages 7 to 9 of the Records, the trial Court issued a Summons for recovery of possession on 2/12/97. The Appellant was summoned to appear before the lower Court on 5/2/98 to answer to the claim. It directed the Appellant (if he admits the whole or part of the claim and desire time for payment or giving possession) to send to the Registrar of the Court an admission of the

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claim. But filing the admission does not relieve the Appellant from appearing in Court. The Appellant in response wrote a letter dated 5/2/98 through his counsel (to the Assistant Chief Registrar) admitting the claim and asked for time to pay the rent. (page 13 of the records). On the same date (5/2/98) the case was called up for hearing before the lower Court. In view of the Appellant’s letter admitting the claim and asking for time to pay the rent, learned counsel to the Respondent applied for judgment on the face of the claim pursuant to Order 8 Rules 13 of the Anambra State High Court (Civil Procedure) Rules 1988.

The Lower Court entered judgment as per the Writ and granted the Respondent’s claim, it also awarded cost of N1,500 in favour of the Respondent, (page 24 of the Records). On 19/2/98, the Respondent applied for the issuance of a Writ of Execution against the Appellant in respect to the judgment for possession and for recovery of the sum of N101,800 representing N90,300 arrears of rent, N10,000 Mesne profit from November 1997 to February 1998 and cost of N1,500 (pages 4 to 5 of the Records).

On 4/3/98, the lower Court issued a

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warrant for possession of the premises and for recovery of the sum of N101,800 plus N45,000 fees on issue of Writ. By a Notice of Attachment dated 4/3/98, the Registrar of the lower Court attached the goods and chattels of the Appellant. (pages 4 -5 of the Records). The Appellant filed a Motion on 25/3/98 before the lower seeking for an Order setting aside its judgment delivered on 5/2/98 and an order for stay of Execution of the said judgment. The motion was fixed for hearing on 26/05/98. On that date, the Appellant abandoned his motion to set aside the judgment and stay of execution. He filed another motion on 26/5/98 for: (a) extension of time to give up possession of the premises (b) an order for instalmental payment of the arrears of rent and cost awarded (c) stay of execution of the judgment pending the determination of the motion. The lower Court fixed 14/7/98 for hearing the motion. (Pages 14 – 16 of the Records).

Appellant’s motion for extension of time came up for hearing on 22/7/98 and 6/10/98, but the Appellant and his counsel were absent in Court to move the motion. On 6/10/98, learned counsel to the Respondent applied that the

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motion be struck out and the learned trial Judge granted the oral application by striking out the motion (page 25 of the Records). The motion having been struck out on 8/10/98, the Deputy Sheriff of the lower Court levied execution against the appellant for: possession, arrears of rent and mesne profit. The Deputy Sheriff recovered some items while levying execution which were subsequently auctioned for N10,000 (pages 19 – 21 of the Records).

On 29/10/1998, the Respondent applied for the issuance of another Writ of Execution against the Appellant for the sum of N120,045 representing N20,000 mesne profit (from March to October, 1998), N100,000 cost of repairs of the flat and N45,00 fees on issue of Writ. This amount is in addition to the N101,800 owed the Respondent by the Appellant thus bringing the total sum to N221,090 (pages 9(a) to 9(b) of the Record).

The Respondent then filed another motion on 7/12/98 before the lower Court seeking for the following reliefs:
A. An order under the Sheriff and Civil Process Act, 1990 for the attachment and sale of immovable properties of the Appellant namely: No. 19 Ifejika Street, Onitsha and

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Premises known as Top Petrol Ltd No. 88 Limca Road, Onitsha in order to satisfy the judgment in the suit;
Or in the alternative:
B. An Order appointing the Assistant Chief Registrar/Deputy Sheriff, High Court, Onitsha, Manager and Receiver of rents from tenants at No. 19 Ifejika Street, Onitsha and the premises known as Top Petrol No. 88 Limca Road Onitsha pending the satisfaction of the judgment debt and cost of repair in the suit.
Or in the Alternative:
C. An order appointing J.A.P Okaro & Associates, No. 4 Obanye Street, Onitsha Managers and Receivers of the rent accruing from No. 19 Ifejika Street, Onitsha and premises known as Top Petrol Limca Road, Onitsha pending the satisfaction of the judgment debt and costs in the action. (pages 17 to 23 of the record of appeal).

The case came up for hearing on 9/5/2000 and parties were present in Court. The Appellant, as at that date, did not file a counter affidavit to the motion for attachment. Learned counsel to the respondent moved the lower Court in terms of the motion paper. The lower Court adjourned to 20/6/2000 for reply by learned counsel to the Appellant. On that date learned

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counsel to the Appellant was in Court but the Respondent’s counsel was not in Court, he wrote a letter seeking for stand down of the matter. The Court, however, adjourned the matter to 26/9/2000, for reply by the Appellant. But the Appellant still did not file any counter affidavit in opposition to the Motion.

On 26/9/2000, the matter came up for hearing before another judge. The said motion for attachment was thus called up for hearing de novo. Learned counsel to the Respondent moved their Motion for attachment and sale of immovable properties of the Appellant to satisfy the judgment debt. The Appellant who was in Court applied for adjournment. It was refused by the learned trial Judge. The Appellant then informed the lower Court that he had no reply to make. The learned trial Judge reserved the matter for ruling. On 3/10/2000, the learned trial Judge delivered his ruling and made an order for Writ of Execution to be issued against the immovable properties of the Appellant as contained on the Motion paper. (pages 32 to 35 of the Records).

The Appellant was aggrieved by the ruling, so he filed a Notice of Appeal on 5/10/2000 containing two

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grounds of appeal. He later filed an Amended Notice of Appeal on 18/11/2016 but deemed as properly filed and served on 14/2/2017 containing 10 grounds of appeal. The Appellant filed a Further Amended Notice of Appeal on 15/3/20 but deemed on 23/03/2020. The Records of Appeal was compiled and transmitted to this Court on 28th May, 2003. The Appellant’s brief of argument was settled by J.E.O. Ogbuli Esq., and filed on 20/2/2017. The appellant later filed an Amended Brief of Argument on 13/04/2018 but deemed as properly filed and served on 1/7/2019. Appellant formulated four issues out of the 11 grounds of appeal which are quoted hereunder:
1. Whether the ruling of his Lordship Ernest-Egbuna J., was competent in view of the pendency of the appellant’s motion to set aside the judgment and stay of execution of the said judgment dated 25/3/98 and in the Court’s file on the date of the said ruling.
2. Whether the learned trial Judge afforded the appellant fair hearing in refusing the appellant’s application for adjournment to enable his counsel to come and reply to the respondent’s motion for attachment of his immovable

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properties in the special circumstance of this case.
3. Whether Suit No: 0/699/97, was properly filed, prosecuted and judgment delivered, including ruling of 10/3/98 in the absence of filing or tendering of the Power of Attorney which was alleged to have been donated by the Plaintiff’s Attorney by the Plaintiff in this case.
4. Whether the learned trial Judge was right in ordering a Writ of Attachment of the appellant’s immovable properties to issue with the options available to him in the special circumstance of this particular case.

The Respondent’s brief of Argument was prepared by Tochukwu Odo, Esq. It was filed on 23rd September, 2019. Learned counsel to the Respondent also filed a Notice of Preliminary Objection on 24th September, 2019. The said Notice of Preliminary Objection is based on the following grounds:
1. The Appellant did not raise any issue for determination from grounds 2, 4, 5, 7 and 9 of the amended notice of and grounds of appeal. These grounds are deemed to have been abandoned and we urge the Court to strike out the said grounds of appeal.
2. Ground 6 of the amended notice of appeal raises for

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the first time on appeal, without leave of Court, a new issue not raised in the lower Court.
3. Issue 1 of the amended appellant’s brief is neither limited by circumscribed nor fall within the scope of the grounds of appeal.

Learned counsel to the Respondent encompassed his argument of the Notice of Preliminary Objection in his respondent’s brief at paragraphs 4.0 to 4.14 (pages 6 to 9) of the brief of argument. Learned counsel to the Respondent then formulated two issue for determination as follows:
1. Whether the lower Court gave the appellant the opportunity to be heard and to present his case before it delivered its ruling on 3rd October, 2000?
2. Whether the lower Court was right when it made the order that a Writ of Attachment should be issued against the immovable properties of the Appellant?

Before I consider the issues canvassed by learned counsel, I will consider and decide the point raised by the Respondent in their preliminary objection. I took particular notice of the fact that the Appellant did not file a Reply Brief to counter the Respondent’s preliminary objection. While adopting their respective

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briefs of argument on 23/3/2020, learned counsel to the Appellant in response to the Respondent’s preliminary objection conceded that no issues were formulated from grounds 2, 4, 5, 6 and 9 but issue 1 was formulated from ground 11 of their Further Amended notice of Appeal. Be that as it may, I will consider the said Notice of Preliminary Objection on its merit.

The first point of objection argued by the learned counsel to the Respondent in the Notice of Preliminary Objection is that the respondent is objecting to the competence of ground 6 of the Amended Notice of Appeal on the grounds that it raises, for the first time on appeal, without leave of Court a new issue not canvassed before the lower Court. Learned counsel quoted ground 6 of the Amended Notice of appeal which reads thus:
“The learned trial Judge of the High Court erred in law when it (sic: he) delivered ruling on 3rd day of October, 200 ordering that a Writ of Execution to issue against No. 19 Ifejika Street Onitsha and Top Petrol of No. 88 Limca Road, Onitsha without assuring himself that there are evidence of proper parties in the case and thereby occasioned a miscarriage of justice.”

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Learned counsel submitted that the record of appeal does not show that there was any objection raised by the Appellant at the lower Court as to proper parties before the Court or as to the appearance of the Respondent by his attorney. That the record does not show that the Appellant raised any objection that the Respondent failed to tender power of Attorney in proof of his authority to sue, or to the jurisdiction of the lower Court to entertain the suit. That as soon as the Appellant received the summons for possession, he submitted to the jurisdiction of the Court, admitted the claim and requested for time to vacate and pay the arrears of rent.

Learned counsel submitted further that while the issue of jurisdiction can be raised at any time, even for the first time on appeal, where such issue was not canvassed and pronounced on by the lower Court, then the condition precedent for raising same for the first time on appeal is that the Appellant must seek and obtain the leave of Court to raise that issue. Cited: Olalomi Industries Ltd v. Nigerian Industrial Development Bank Ltd (2009) LPELR – 2564 (SC); (2009) 16 NWLR (Pt. 1167)

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266; (2009) 7 SC, 94; Emespo J. Continental Ltd v. Automotor France S.A. (2016) LPELR-42232 (CA) 10 – 11. Learned counsel to the Respondent urge the Court to strike out ground 6 of the Appellant’s Notice of Appeal and issue 3 formulated from the said ground of appeal for failure to seek and obtain leave of this Court before raising same for the first time on appeal.

Finding:
I have considered this point of objection by the Respondent. The trite position of the law is that where an appellant is appealing on a fresh issue of law which was not raised or canvassed before the lower Court then leave of Court is a sine qua non for such an issue to be raised and considered at the appellate Court. In Olalomi Industries Ltd v. Nigerian Industrial Development Bank Ltd(2009) LPELR – 2564 (SC) the Apex Court, per Fabiyi, JSC, held thus:
“I need to say it that a fresh point of law means an issue which was not canvassed at the lower Court and pronounced upon thereat. See FBN Plc v. ACB Ltd (2006) 1 NWLR (Pt. 962) 438 at 461 – 462. Fresh issue must be basically on point of law and must be raised with leave of Court. See Ezukwu v. Ukachukwu

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(2004) 17 NWLR (Pt. 902) 227.”

However, where the issue raised on appeal has to do with jurisdiction of the Court then leave of Court may not be necessary. This is because jurisdiction being a threshold issue is so fundamental that any proceedings conducted without jurisdiction by a Court is null and void. No act of waiver, or act that may be seen to have that effect can confer jurisdiction to validate such proceedings. See FRN & Anor. v. Ifegwu (2003) 5 SCNJ 217 at 252 – 253. In Customary Court of Appeal Benue State v. Abura Tsegba & Ors. (2010) LPELR – 4009 (CA) this Court, per Ndukwe-Anyanwu, JCA, held thus:
“When a party seek to file and argue any fresh issue in the Appellate Court, he must first seek and obtain leave of Court before filing such an issue. An appellant will not be allowed to raise a point or issue that was not raised or argued at the trial Court, but where the issue has to do with jurisdiction of the Court, it can be raised at any anytime and even on appeal for the first time without leave… The general rule is that leave to appeal will be granted where the grounds of appeal raise

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issues of general importance or a novel point of law or where the grounds show a prima facie arguable appeal. Alamieyeseigha vs. Chief Justice of Nigeria (2005) 1 NWLR Pt. 906 page 60; Kigo (Nig.) Ltd vs. Holman Brothers (Nig.) Ltd (1980) 5 – 7 SC page 62; Ojora vs. Odunsi (1964) 1 All NLR page 55…” (Underlined for emphasis).
The Supreme Court also pronounced on whether jurisdiction can be raised at any time and stage in Chief Iyhejee Elugbe v. Chief Emimigbe Omokhafe & Ors (2004) LPELR – 1121 (SC) per Oguntade, JSC, as follows:
“The issue of a jurisdiction of a Court to entertain a matter is very important in all forms of litigation. It is a threshold issue. It can be raised at any stage of the proceedings and even for the first time on appeal. See Adesanya v. President (1981) 2 NCLR 358 and FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113.”
See also Chief John Ehimigbai Omokhafe v. Chief John Ilavbaoje Iboyi Esekhomo (1993) LPELR – 2649 (SC) per Kabiri-Whyte, JSC.
​It is my findings that ground 6 of the Further Amended Notice of Appeal is competent because it raises fresh issue of jurisdiction of

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the lower Court to issue an order for Writ of Execution to be issued against the immovable properties of appellant at this Court without seeking for leave. Where a ground of appeal challenges the jurisdiction of the lower Court for the first time on appeal leave of the Court may not be necessary since jurisdiction being a threshold issue is so fundamental that it can be raised for the first time on appeal even before the Supreme Court. See FRN v. Ifegwu (supra) and Customary Court of Appeal Benue State v. Abura Tsegba (supra). This point of objection cannot be granted it is hereby refused.

Learned counsel to the Respondent argued the next point of objection that the Appellant listed ground 9 of the amended notice of appeal as one of the grounds from which issue 1 was formulated. I have noted above that on 23rd March, 2020, while adopting their brief of argument learned counsel to the Appellant informed the Court that their issue 1 was distilled from ground 11 of the Appellant’s Further Amended Notice of Appeal which we deemed as properly filed and served that day. Unfortunately for the Respondent, his entire arguments on the Notice of Preliminary

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Objection is based on the Amended Notice of Appeal filed on 18/10/2018 which is no longer the extant notice of appeal. Therefore, the arguments in the said Notice of Preliminary Objection having been overtaken by event is hereby discountenanced. But before I conclude the issue of the Preliminary Objection, I have to also comment on the submission by learned counsel to the Appellant on 23/3/2020 that they did not formulate any issue from grounds 2, 4, 5, 6 and 9 of the grounds of appeal. In view of this admission, the said grounds 2, 4, 5, 6 and 9 of the Appellant’s Further Amended Notice of Appeal having been abandoned are hereby struck out. I will now consider the appeal on its merit.
Issue 1 canvassed by the Appellant is:
Whether the ruling of his Lordship Ernest-Egbuna J., was competent in view of the pendency of the appellant’s motion to set aside the judgment and stay of execution of the said judgment dated 25/3/98 and in the Court’s file on the date of the said ruling.

In his submission while arguing this issue, learned counsel to the Appellant contended that his client had a motion for setting aside the judgment of the

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trial Court and for stay of execution of the said judgment that was pending in that Court’s file on the very day the learned trial Judge heard and granted the respondent’s motion for attachment and sale of appellant’s properties and later signed the Writ of Attachment and subsequent sale. That it is the duty of a trial Judge before whom a matter is pending to ensure that there is no pending application in the Court’s file at the time of determining the final fate of the parties on the issues before him. Cited: S.C.E.N. v. Nwosu (2008) FWLR (Pt. 413) 1399 at 1441; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Nnamani v. Nnamani (1996) 3 NWLR (Pt. 438) 591; Abiara v. Reg. T.M.C.N (2007) 11 NWLR (pt. 1045) 280 at 297 – 298; Ndika v. Chiejina (2003) 1 NWLR (Pt. 802) 451and Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652.

Learned counsel urged the Court to resolve this issue in favour of the Appellant and set aside the decision by the learned trial Judge and the consequential orders thereat.

In his submission on this issue learned counsel to the Respondent submitted that the Records of the lower Court shows

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clearly that after judgment was entered upon admission of claim by the Appellant on 25/3/1998, the said Appellant filed a Motion to set aside the judgment delivered on 5/2/1998 and for stay of execution of the judgment. However, on 25/5/1998, the Appellant abandoned the motion dated 25/3/1998 and file a motion for extension of time to deliver possession, for instalmental payment of the rent due and for stay of execution of the judgment. That by this latter motion, the Appellant was seeking to comply with the judgment delivered on 5/2/1998 which he earlier applied to set aside.

That by seeking for extension of time to give up possession and for instalmental payment, the Appellant is abandoning the reliefs he was seeking in the earlier motion filed on 25/3/98 to set aside the judgment. That this second motion is also seeking for stay of execution in the motion for extension of time filed on 26/5/1998. Learned counsel cited: Action Congress of Nigeria & Anor. v. Mr. Martin Amaewhule & Ors. (2011) LPELR – 14264 (CA); Abue v. Egbelo & Ors (2017) LPELR – 43483 (CA); Ojigho v. Mukoro (2013) LPELR – 20871 (CA) and Bellview Airlines Ltd v. Carter Harris

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(2016) LPELR 40989 (CA).

Learned counsel urged the Court to hold that the motion filed on 25/3/1998 to set aside the judgment of 25/2/98 for stay of execution was abandoned and overtaken by the Motion filed on 26/5/98 for extension of time to deliver possession and for stay of execution. That this is for the simple reason that the Appellant could not be seeking for extension of time to comply with the same judgment he was seeking to set aside. That the Appellant cannot blow hot and cold at the same time. Cited: Lawal v. Hon. Commissioner For Lands, Housing & Survey Oyo State (2013) LPELR – 21114 (CA). He urged the Court to resolve this issue in favour of the Respondent.

Finding on Issue One:
I have already stated the brief facts that gave rise to filing this appeal which encompassed the facts that gave rise to raising this issue but in order to get a clear picture of the shenanigans by the Appellant, I will rehash the facts again hereunder.

By a summons for recovery of possession of premises and recovery of the sum of N101,800.00 dated 2/12/1997, the lower Court summoned the Appellant as Defendant to appear

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before it on 5/2/1998 to answer to the claim by the Respondent as Plaintiff. The summons directed the Appellant, if he admitted the whole or part of the claim and desire time for payment or giving possession, to send to the Registrar an admission of the claim. But that filing the admission does not relieve the Appellant from appearing in Court. (see pages 7 – 9 of the Records). At page 13 of the Records, learned counsel to the Appellant wrote a letter to the Registrar dated 5/2/98 wherein he stated on behalf of his client inter alia that:
“The defendant Chief Ezeuzor has hired and perfected our brief to appear in the above matter to defend him. He does not intend to pursue the matter but simply to be given time to pay the rent…”

On 5/2/98, the matter came up for hearing. In the light of the Appellant counsel’s letter admitting the claim learned counsel to the Respondent applied for judgment on the face of the claim pursuant to Order 8 Rule 13 of the Anambra State High Court (Civil Procedure) Rules 1988. The lower Court entered judgment as per the writ and granted the Respondent’s claim with cost of N1,500 in

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favour of the Respondent as shown at page 24 of the record of appeal. The Appellant did not appeal against the judgment. On 19/2/98 the Respondent applied for the issuance of a Writ of Execution against the Appellant in respect of the judgment for possession and for recovery of the sum of N101,800 (page 3 of the Records). On 4/3/98 the lower Court issued a warrant for possession of premises and recovery of the said sum of N101,800 plus N45.00 fees on issue of Writ. By a Notice of Attachment dated 4/3/98 the Registrar of the lower Court attached the goods and chattels of the Appellant (pages 4 – 5 of the Records). The Appellant did not appeal the judgment.

The Appellant then filed a motion dated 25/3/1998 seeking for the following reliefs:
1. Order setting aside the judgment of the Court entered on the 5th day of February, 1998.
2. An order staying the execution of the judgment order until this motion is determined (page 10 of the Records).

On 26/5/98, the date fixed for hearing the Appellant’s Motion to set aside dated 25/3/1998, he abandoned that motion and filed another one dated 26/5/98 seeking for the following reliefs:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

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  1. Extension of time within which to give up possession of the premises, the subject matter in this case.
    2. For instalmental payment of the arrears of rent and costs awarded in the judgment of 5th day of February, 1998.
    3. Staying the execution of the judgment of Court pending the determination of this application. (Page 14 of the Records).

At paragraphs 4 and 5 of the supporting affidavit, the Appellant deposed that:
4. That I did not contest the case and did not want to unnecessarily waste the time of the Court.
5. That I was expecting the sum of N500,000.00 (Five Hundred Thousand Naira) from the contract I did for Shell (Nig.) Ltd.” (Page 15 of the records).

This motion by the Appellant was called up on two adjournments on 22/7/1998 and 6/10/1998 but both Appellant and his counsel were absent without reason. On 6/10/98, learned counsel to the Respondent applied for the said motion to be struck out for want of diligent prosecution by the Appellant and the lower Court granted the application. That motion having been struck out on 8/10/1998, the Deputy Sheriff of the lower Court levied execution against the Appellant for

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possession, arrears of rent and mesne profit.

Upon considering the facts as narrated above, this issue canvassed by the Appellant is now clear. What he is now saying is that his motion filed on 25/3/1998 to set aside the judgment delivered on 5/2/98 was still pending when he threw in the towel and filed the motion dated 26/5/1998 for extension of time to give up possession of the premises and for instalmental payment of the arrears of rent and cost awarded against him in the judgment of 5/2/98 which he never challenged by way of appeal. It is obvious that the Appellant abandoned the earlier motion dated 25/3/1998 wherein he was seeking the lower Court to set aside its earlier judgment and stay the execution of the judgment order when he filed another motion on 25/3/1998 wherein he seek for extension of time to surrender possession of the premises, the subject matter in dispute and for instalmental payment of the arrears of rent and costs awarded against him.
In Abue v. Egbelo & Ors. (supra) this Court held thus:
“In law, abandonment signifies the relinquishing or giving up of a claim, proceeding with intent of never again re-asserting

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  1. Synonymically, it is to back out, discard, discontinue or to chicken out.
    Usually, it is indicative of the fact that a line of action conceived and commenced is suddenly dropped. The evidence or sign of abandonment is when one gets passive or deliberately back down from following the line of action.”
    It is clear from the record of the lower Court that the Appellant conceded to the claim by the Respondent and judgment was entered upon admission of the claim on 5/2/1998. On 25/3/1998, the Appellant filed a motion to set aside the said judgment and for stay of execution. On 26/5/1998, the same Appellant abandoned the earlier motion filed on 25/3/1998 when he applied for extension of time to deliver possession of the property in dispute and for instalmental payment of the arrears of rent and costs. By the latter motion the Appellant was seeking to comply with the same judgment delivered on 5/2/1998 which he earlier applied to set aside. Moreover, when the appellant filed the latter motion he made no effort to draw the attention of the lower Court to the earlier motion. By this failure, the Appellant is deemed to have abandoned the earlier

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motion. In Ojigho v. Mukoro (2013) LPELR – 20871 (CA), this Court held per Ogunwumiju, JCA, that:
“There is no doubt that it is the duty of the applicant in a motion to draw the attention of the Court to that motion so that the Court can hear and determine same. Where the applicant does not draw the attention of the Court to his pending motion, he must be deemed to have abandoned same.”
It is my finding on this issue that the motion dated and filed on 25/3/1998 to set aside the judgment of 5/2/1998 and for stay of execution was abandoned and overtaken by the motion dated and filed on 26/5/1998 for extension of time to give up possession for instalmental payment of arrears of rent and costs awarded and stay of execution of the judgment delivered on 5/2/1998. This is for the simple reason that the Appellant could not be seeking for extension of time to comply with the judgment delivered on 5/2/1998 and at the same time seeking to set aside the said judgment. That would amount to blowing hot and cold or to approbate and reprobate at the same time. See SCOA Nigeria Plc v. Chief Ali Maged Taan & Ors (2018) LPELR – 44545 (CA);

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Federal Republic of Nigeria v. Faith Iweka (2011) LPELR – 9350 (SC). This issue is answered in the positive, the ruling by the lower Court on 3rd October, 2000, was competent since the Appellant’s motion filed on 25th March, 1998, seeking to set aside the judgment delivered by the lower Court on 5/2/1998 was deemed abandoned by the Appellant. This issue is resolved against the Appellant.

The second issue canvassed by learned counsel to the Appellant is:
Whether the learned trial Judge afforded the appellant fair hearing in refusing his application for adjournment to enable his counsel to come and reply to the respondent’s motion for attachment of his immovable properties in the special circumstance of this case.

While arguing this issue, learned counsel to the Appellant submitted that on 20/6/2000, the matter came up for hearing before Iyizoba J., (as he then was) of the High Court of Anambra State sitting at Onitsha. On that date learned counsel to the Respondent was absent in Court but wrote a letter for stand down to 2:pm. By 2:pm, he was not in Court so learned counsel to the Appellant drew the attention of the Court and the

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matter was adjourned to 26/9/2000. On 26/9/2000, the matter came up before another judge Ernest Egbuna J., the Appellant was in Court but his counsel was absent. The Court allowed learned counsel to the Respondent move his motion dated 25/3/1998. That the Appellant applied for adjournment to enable his counsel come and reply. The learned trial Judge refused the application and adjourned the matter for ruling. That the Appellant’s side was not heard before the lower Court delivered its ruling. The appellant is now contending that he was denied his constitutionally guaranteed right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Cited: Bill Construction Company v. Imani & Sons Ltd/Shell Trustees Ltd (2006) NWLR (sic) (Pt. 1013) 1 at 12; N.A.C.B Ltd v. Obadiah (2004) 4 NWLR (Pt. 863) 326; Bamgboye v. University of Ilorin (1999) 3 NWLR (Pt. 622) 290.

Learned counsel submitted that one of the cardinal pillars of fair hearing is Audi Alterem Partem. You must hear the other side. That the true test of fair hearing is the impression of a reasonable person present in Court during

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trial. Whether from his observation, justice has been done in the case. Cited: Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151. That granting or refusing an application for adjournment is totally at the discretion of the Court. But the exercise of that discretion must be done judiciously and judicially else the right of the litigant might be infringed. That in taking that decision the Court must consider the circumstances of the case. Cited Salu v. Egeibon 6 SCNJ (sic) page 233 at 235; NPA v. Construzoni SPA (1974) 12 SC 31 at 91 and Iwuoha v. Okoroike (1996) 2 NWLR (Pt. 429) 231 at 251.

That while agreeing that applications for adjournments are not granted as of right or for the asking but it must not be used to drive litigants from the seat of justice. That in this case, the trial Court found solace only on the fact that the case was fixed for hearing on that day. That in Iwuoha v. Okoroike (supra), Edozie, JCA, (as he then was) agreed that adjournments are within the discretion of the Court which an Appellate Court ought not to interfere with, except in exceptional circumstances. That the refusal of the Appellant’s application for adjournment

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nullifies the entire proceedings as it is in breach of his fundamental right to fair hearing. That the fact that the matter was adjourned to 3/10/2000 before another judge does not mean that it must go on act all cost given the special circumstance of this case. Cited: Tukur v. Government of Gongola State (1988) 1 NWLR (pt. 168) 39 at 43; Anisiubu v. Emodi (1975) 25 C 9 (sic); Nwadike v. Nwadike (1987) 4 NWLR (pt. 65) 394 and Ceekay Traders Ltd v. General Motors Ltd. (1992) 2 NWLR (Pt. 222) 132 at 162.

Learned counsel urged the Court to resolve this issue in favour of the Appellant.

In his submission on this issue, learned counsel to the Respondent submitted that the submission by the Appellant that he was not given fair hearing is not correct. That the Appellant was served with summons for possession dated 2/12/1997 summoning him to appear in Court on 5/2/98. The summons directed him to file his defence or counter claim within 8 days or pay any admitted part of the claim into the Registry of the Court.(page 7 of the Record). That the summons also directed the Appellant, if he admits the whole or part of the claim and desire time for payment or

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giving possession, he should send the admission to the Registrar within 8 days. (page 8 of the Records). That the Appellant admitted the claim as per the letter by his counsel dated 5/2/98 (page 13 of the Records). Learned counsel to the Respondent then applied for judgment in view of the admission of liability by the Appellant pursuant to Order 8 Rule 13 (1) of the High Court Rules of Anambra State, 1988.

Learned counsel to the Respondent submitted that the Appellant, having admitted the claim and not having entered an appearance, the lower Court had no option but to enter judgment in favour of the Respondent. As for the submission by the Appellant that he was denied fair hearing by the lower Court, learned counsel to the Respondent asked a pertinent question: In the circumstances of this case and given the behavior of the Appellant, can it be said the lower Court denied him fair hearing? Learned counsel answered by submitting that after admitting the claim and the lower Court entered judgment against him, instead of taking steps to pay the debt, the appellant started playing games with the lower Court by filing frivolous applications. Learned counsel

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referred to the motions filed by the Appellant on 25/3/1998 for stay of execution which was fixed for 26/5/98 for hearing. On that date, the appellant filed another motion seeking for extension of time to give up possession, instalmental payment and stay of execution.

Learned counsel submitted that the judgment entered on 5/2/98 on the Appellant’s admission of claim amounts to a consent judgment and it could only be set aside with leave of the lower Court that delivered the judgment or by filing a fresh suit on grounds of fraud, mistake or any vice. Cited: Octs Educational Services Ltd v. Padson Industries Ltd & Anor (2012) LPELR – 14069 (CA); Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) 123.

That after the Appellant filed the second motion for extension of time to deliver possession, instalmental payment of the rent and stay of execution, the matter came up for hearing twice on 22/7/98 and 6/10/98 but the Appellant and his counsel were absent and so the motion was not moved on both dates. So on 6/10/98, the learned counsel to the Respondent urged the Court to strike out the motion and the learned trial Judge struck out the motion. That

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on 7/12/98, the Respondent filed a motion for attachment and sale of Appellant’s immovable properties, or in the alternative, for the lower Court to appoint a receiver/manager of the rent from the property. That, that motion was called up on eight consecutive adjournments over a period of two years as follows: 13/4/99, 11/5/99, 15/6/99, 20/9/99, 21/3/2000, 9/5/2000, 20/6/2000 and 29/9/2000. That the Appellant also failed to file a counter affidavit and written submission in opposition to the motion for attachment. That Appellant was issued hearing notice on 21/3/2000, for hearing of the motion on 9/5/2000. On that date, the Appellant was in Court when the motion was moved and adjourned to 20/6/2000 for him to reply. Appellant and his counsel were in Court on that date but still failed to file any response to the motion for attachment.

Learned counsel concluded his submission on this issue by stating that having been given ample time and opportunity to present his case and filed his counter affidavit opposing the motion for attachment and sale, and he failed to do so the Appellant cannot be heard to complain of lack of fair hearing. That it is

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immaterial that on 26/9/2000 when the motion was heard, only the Appellant was in Court without his counsel. Cited: Darma v. Eco Bank Plc (2017) LPELR – 41663 (SC); CBN v. Interstella Communications Ltd & Ors (2017) LPELR – 43940 (SC) and Ardo v. INEC & Ors (2017) LPELR – 41919 (SC). Learned counsel urged the Court to resolve this issue in favour of the Respondent.

Finding on Issue Two:
I have carefully considered the submission by learned counsel to the parties on this issue. The law is trite that a litigant deserves to be accorded his constitutionally guaranteed right to fair hearing as enshrined by Section 36(1) of the 1999 Constitution (as amended). But where a litigant set out to dribble the Court in order to frustrate the cause of justice he cannot be heard to complain of denial of fair hearing. It is my view that the lower Court displayed an amazing degree of tolerance and patience toward the Appellant that even the proverbial patience of Job was challenged. Here is a Defendant (Appellant) who was served a motion dated 7/12/1998 for the attachment and sale of his immovable properties or in the alternative for the lower

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Court to appoint a receiver/manager of the rent from the property. That motion was called up eight (8) times over a period of two years – 13/4/1999, 11/5/1999, 15/6/1999. 20/9/1999, 21/3/2000, 9/5/2000, 26/6/2000 and 26/9/2000. After eight adjournments within two years the Appellant deliberately failed to file a counter affidavit or written submission in opposition to the motion. The lower Court ordered hearing notice to issue on the Appellant on 21/3/2000 for the hearing of the said motion on 9/5/2000. The Appellant was in Court that date. The learned trial Judge adjourned the matter to 20/6/2000 for the Appellant to reply. On the said 20/6/2000, both the Appellant and his counsel were in Court but still failed to file any response to the motion to attach his immovable property.
​The Appellant was given ample time and opportunity to present his case and file his counter affidavit in opposition to the said motion but he failed to do so. Can he now be heard complaining that he was not accorded right to fair hearing? I answer in the negative, hcane not. It is immaterial that on 26/9/2000 when the motion was heard only the Appellant was in Court without

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his counsel. This show of indolence by the Appellant to counter a motion seeking to attach his immovable properties is mind boggling and beyond comprehension. Yet the same Appellant has the temerity to appeal that decision by the lower Court wherein it granted the said motion on 26/9/2000.
From the record of appeal, the Appellant and his counsel were in Court on 13/4/1999, the first time the motion came up for hearing. They were also in Court on 20/6/2000 when the lower Court adjourned the matter to 26/9/2000 for hearing. The record also showed that hearing notice was issued on the Appellant on 21/3/2000 by which he came to Court on 9/5/2000 and 20/6/200 (pages 28 – 29 of the record of appeal).
In Alhaji Auwalu Darma v. Eco Bank Nigeria Limited (2017) LPELR- 41663 (SC), the apex Court held thus:
“…This Court per Ogunbiyi, JSC, in Nicholas Chukwujekwu Ukachukwu v. PDP &Ors. (2014) LPELR – 22115 (SC) has adroitly restated that principle thus: “The duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a

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party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do is to take it to the water, he cannot force it to drink the water. The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from the lack of water…”
See also Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 427 at 621 – 622. In the case at hand, the appellant who has himself seen the appellant’s brief, admitted being severally served with hearing notices to attend Court and trial, cannot in law assert the denial of fair hearing. See Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443”, Per Muhammad, JSC, (pages 25 – 27 paragraphs E – F).
The apex Court held further that:
“…The Constitution and the law only requires that an opportunity be given to a party

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to present his case before a decision is taken against him. It does not allow a party the luxury of holding his adversary and the Court to ransom, to willy-nilly wait for that party to come to Court when he pleases to make out his case. No! The law and the Courts give equal opportunities and failure by any of the litigants to appreciate this leads to damning consequences…”
It is my finding on this issue that the lower Court was right in its ruling wherein it issued an order of execution against the immovable properties of the Appellant. The lower Court gave the Appellant every opportunity to present his case before it delivered its ruling on 3/10/2000. The Appellant’s failure to make use of the opportunity given to him to put forward, his defence before the lower Court was his fault alone, he cannot now be heard to be shifting the consequences of his failure on the lower Court. See Akinlolu v. State (2017) LPELR 42670 (SC); CBN v. Interstella Communications Ltd. & Ors. (supra). I resolve this issue against the Appellant.

The third issue canvassed by the Appellant is:
Whether Suit No: 0/699/97, was properly filed, prosecuted and

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judgment delivered, including ruling of 10/3/98 in the absence of filing or tendering of the Power of Attorney which was alleged to have been donated to the Plaintiff’s Attorney by the Plaintiff in this case.

The kernel of the Appellant’s submission on this issue is that this suit was instituted by the Respondent through his Attorney Bosa Anyaeji Esq., who filed the originating processes in that capacity. That neither the Respondent nor his Attorney testified or tendered, filed or exhibited the said Power of Attorney which authorized him to commence this suit. That in the absence of any evidence of Power of Attorney granted to the said Bosah Anyaeji, the case is not properly constituted and any judgment emanating therefrom is incompetent. That the Respondent did not stated that he authorized Mr. Anyaeji, to represent him or the extent of his authority if so made. That Section 5 of the Land Instrument Registration Act makes it mandatory for an action affecting land to be in writing. Thus, the present Power of Attorney cannot be oral. Learned counsel urged the Court to “set aside this appeal on this point”.

Learned counsel to

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the Respondent in response to this issue submitted that judgment was entered against the Appellant pursuant to Order 8 Rule 13(1) of the High Court (Civil Procedure) Rules of Anambra State 1988, for failure of the Respondent to enter appearance. That the Respondent is equally entitled to judgment pursuant to Order 23 Rule 14 of the Rules (supra) upon the admission of the claim by the Appellant without waiting for hearing and determination of the case. That tendering of Power of Attorney by Mr. Anyaeji, would have been required during hearing as part of the evidence by the Respondent to prove his claim. That with the admission of the claim by the Appellant no further proof nor tendering of any document was necessary.

Finding on Issue Three:
Upon considering the submission by learned counsel on this issue, it is my finding that the Appellant in his desperation to save himself from the quagmire he willingly plunged himself is ready to fly any kite and grasp even a straw in order to avoid drowning. To start with, this issue was never raised by the Appellant before the trial Court. It was raised for the first time before this Court without leave of Court

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which renders it incompetent.

Power of Attorney is a written instrument whereby a person as principal or donor appoints another as his agent or donee. It confers authority to perform certain specific acts or kinds of acts on behalf of the principal. See Abubakar v. Waziri &Ors (2008) 6 -7 SC (Pt. 82) at 106. The mere fact that a power of attorney confers, transfers, limited, charges or alienates any title to the donee is not per se an alienation or parting with possession. So it is categorized as a document of delegation. It is only after, by virtue of the power of attorney, the donee leases or conveys the property, the subject of the power to any person, including himself then there is alienation. See Ude v. Nwara (1993) 2 NWLR (pt. 278) 638 at 665.
It is clear therefore, that the power of attorney being alluded to by the Appellant in this issue does not confer any title to the donee therefore, it does not go to the root of title to the property in dispute. The submission by learned counsel to the Appellant that it goes to the jurisdiction of the lower Court is a misconception of the position of the law and it is hereby discountenanced. I would have

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disposed of this issue in the Notice of Preliminary Objection by the Respondent but the arguments were based on the Amended Notice of Appeal which were replaced by a Further Amended Notice of Appeal by the Appellant filed on 15/03/2020, but deemed by this Court as duly filed and served on 23/3/2020.

The Appellant’s argument on this issue is also misconceived because he, ab initio, admitted liability to the Respondent’s claim. There was no hearing whereby the donee of the Power of Attorney can tender or exhibit the document before the lower Court. Thus the tendering of the power of attorney by Mr. Bosah Anyaeji would have been required during hearing as part of the evidence to prove the Respondent’s claim. But with the admission of the claim by the Appellant no further proof nor tendering of document was necessary. See Alhaji Yakubu Abba v. Ahmad Wakilin Vijay (2018) LPELR 44749 (CA). I also resolve this issue against the Appellant.

Issue Four formulated by the Appellant is:
Whether the learned trial Judge was right in ordering a Writ of Attachment of the appellant’s immovable properties to issue with the options available

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to him in the special circumstance of this particular case.

While arguing this issue, learned counsel to the Appellant blamed the learned trial Judge for choosing the first option which is: Attachment and sale of the immovable properties of the Appellant. That he should have chosen the second or third option of appointing Chief Registrar/Deputy Sheriff of the High Court as receiver/manager of the properties or appointing J.A.P. Okaro and Associates as receiver/manager over the same properties. That by choosing the first option, the learned trial Judge did not exercise his discretion judicially and judiciously. That if the lower Court chose option 2 or 3 to manage the properties, then two months rent would have been more than enough to satisfy the judgment sum. Cited: Olumegbon v. Kareem & Ors. (2002) FWLR (Pt. 107) 1145 at 1152; Olusanya v. Osineye (2002) FWLR (Pt. 108) 1462 at 1495 and NIDB Ltd. v. Ambe Board Mills Nigeria Ltd (2002) FWLR (pt. 128) 1246.

That the alternative options open to the learned trial Judge of appointing receivers to manage the two mentioned properties of the appellant is more than adequate to meet the justice of the case.

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That the exercise of the discretion by the lower Court which ordered the sale of two properties whose monthly incomes are about enough to pay the judgment debt is perverse and it is an appropriate case for this Court to step in and set same aside. Learned counsel urged the Court to set aside the order of the lower Court dated 3/10/2000 and all consequential orders thereat and remit the case back to the High Court for rehearing of the motion filed on 7/12/98.

In response to the submission by learned counsel to the Appellant, learned counsel to the Respondent submitted that the assertion by the Appellant in his submission that two months rent from the two properties attached can pay the judgment sum is just an after-thought. That if that is true then why did the Appellant refused to pay the judgment sum two years after the motion for attachment was filed before it was heard? That the Appellant did not challenged the order for the attachment and sale of the properties. That in Agidigbi v. Agidigbi (1996) 6 NWLR (Pt. 454) 300 at 313, the Supreme Court held that where a claim by a party to a suit succeeds and the Court grants same there will be no need to

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consider any alternative claim thereto. That it is only after the first or principal relief is considered and it seemed impossible to be granted or refused that the Court can proceed to consider the alternative claim. Cited: Mohammed Tukur v. Maryam Umar Yar’dua & Ors (2011) LPELR – 8824 (CA), Standard Trust Bank v. Ezenwa Anumnu (2008) 14 NWLR (Pt. 1106) 125. Learned counsel urged the Court to hold that the lower Court was right when it made the Order that a Writ of Attachment should be issued against the immovable properties of the Appellant.

Finding on Issue Four:
I have considered the submission by the learned counsel on this issue. I also associate myself with the submission by learned counsel to the Respondent that the entire submission by learned counsel to the Appellant on this issue is an after-thought. The Appellant is bragging that two months rent from the attached properties is enough to pay the judgment sum and that the learned trial Judge ought to have granted the alternative relief by appointing managers and or receivers of the attached properties. The Appellant did not explain why he refused to pay the judgment debt

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for more than two years after the motion for attachment was filed before it was heard and granted. Moreover, the application for an order for the attachment and sale of the properties of the appellant was never challenged by the said appellant. No process was filed by the Appellant or even an oral application suggesting to the lower Court that there was no need to grant the principal relief since the judgment debt could be satisfied by granting the alternative prayers. The Appellant did not also deem it necessary to inform the lower Court that two months rent from the attached properties could satisfy the judgment debt.

No evidence was adduced by the Appellant before the lower Court as to the amount of rent realizable from his properties that could satisfy the judgment debt and how long it would take to satisfy same. The only evidence before the lower Court is the depositions of Bosah Anyaeji, in the supporting affidavit to the motion for attachment. The law is trite that it is only where the principal reliefs is considered and it seemed impossible to grant that the Court would consider the alternative claim. In Mr. Archibong Nkana v. Abimbola Hundeyin

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(2018) LPELR – 43757 (CA) this Court held, inter alia, that:
“The law is that where a claim or relief is in the alternative, the Court should first consider whether the main/principal relief ought to succeed before resorting to the consideration and grant of the alternative relief. It is after the Court found that for any reason, it cannot grant the principal claim that the alternative relief would be resorted to…”

It is my finding on this that the decision by the learned trial Judge to grant the principal relief was not perverse having found that the Respondent had satisfied the conditions required for the grant of the said principal relief. I also resolve this issue against the Appellant.

Consequent upon my findings in respect to the four issues canvassed by the Appellant, it is my judgment that this appeal lacks merit. It is hereby dismissed. The Judgment delivered by the lower Court on 5th February, 1998; in Suit No: 0/699/97 and the consequential Ruling delivered on 3rd October, 2000 for a Writ of Attachment and sale of the Appellant’s properties namely; No: 19 Ifejika Street, Onitsha and premises known as Top

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Petrol Ltd., No. 88 Limca Road, Onitsha in order to satisfy the judgment debt in this suit is affirmed by me. I also award costs of N10,000.00 against the Appellant in favour of the Respondent.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I was served with a draft copy of the lead judgment prepared by my learned brother B.G SANGA, JCA.

I agree with his reasoning and conclusion that this appeal is unmeritorious and should be dismissed.
I hereby affirm the judgment of the Court below in suit No. 0/699/97.

I abide by the order as to costs made by my learned Brother in the lead judgment.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
​I agree with his reasoning and conclusion.
I also dismiss the appeal.
I abide by the consequential order made as to costs.

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Appearances:

J.E.O. OGBULI, Esq. For Appellant(s)

TOCHUKWU ODO, Esq. For Respondent(s)