IN RE: ASAGH v.
(2020)LCN/14282(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, June 17, 2020
CA/MK/161/2013
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
MRS. HANNAH UNUM APPELANT(S)
And
- THE CHIEF REGISTRAR HIGH COURT OF JUSTICE BENUE STATE 2. THE REGISTRAR (LITIGATION) HIGH COURT OF JUSTICE BENUE STATE 3. THE CHIEF BAILIFF HIGH COURT OF JUSTICE BENUE STATE 4. ADAH GODWIN ESQ 5. JULIUS UYER RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT MUST BE CAUTIOUS NOT TO MAKE A PRONOUNCEMENT OR OBSERVATION ON A MATTER WHICH MAY AMOUNT TO PRE-JDUGNG THE ISSUES TO BE DECIDED SUBSEQUENTLY BY THE TRIAL COURT
The law is trite that a Court must be cautious not to make a pronouncement or observation on a matter which may amount to pre-determining or pre-judging the issues to be decided subsequently by the trial Court. See Agip (Nig) Ltd. v. Agip Petroli Int. (2010) 5 NWLR 5 (Pt. 1187) 348. I am duly guided. Based on all the foregoing, the conclusion I arrive at is that, this Appeal is meritorious. PER AGUBE, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Benue State, sitting at Makurdi, delivered by Hon. Justice A. O. Onum on the 13th of March, 2013 wherein the lower Court dismissed the suit of the Applicant (now Appellant) for lacking in merit.
Dissatisfied with the decision of the lower Court, the Appellant invoked the jurisdiction of this Court by filing a Notice of Appeal on the 26th of March, 2013 containing six (6) Grounds which I reproduce without their particulars below, to wit:
“GROUND ONE:
The entire decision/ruling is against the weight of evidence.
GROUND TWO:
The learned trial Judge erred in law when he held that “In most instances such conflicts can only be resolved through oral evidence, the onus is usually on the Plaintiff or Applicant, as the case may be, to start by calling such oral evidence as the Court is not under any obligation to arrange for such evidence since that would be to enter into the arena of judicial conflict”.
GROUND THREE:
The Learned Trial Court erred in law when he held that “the document
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prima facie shows that the “the Defendant/Judgment debtor” was present when the execution was levied and did sign the inventory of the items taken by the bailiffs in the course of that execution”.
GROUND FOUR:
The learned Trial Court erred in law when he held that Exhibits ‘A’ and ‘B’ were public documents and only certified true copies were admissible.
GROUND FIVE:
The Learned Trial Court erred in law when he refused to consider the issues raised for determination based on the reliefs prayed for on the face of the Originating process of the Plaintiff/Applicant to wit:
(a) Whether or not the writ of attachment and sales of goods executed on the 26th of July, 2012 was irregular and proper.
(b) Whether the Respondents can sell the properties attached based on irregular and improper execution.
(c) Whether the said attached properties can be released to the Applicant, and went on to hold that “for this same reason I also determine the other issues against the Plaintiff”.
GROUND SIX:
The learned Trial Court erred when he refused to rule on the receipts for the
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items taken in execution of the judgment and rather stated that the said receipts are not of essence here as the proceedings is not an inter pleader process.
STATEMENT OF FACT:
The Appellant (Applicant at the lower Court), by way Originating Motion instituted an action on the 19th of October, 2012 against the Respondents wherein she sought the following reliefs at page 2 of the Record of Appeal to wit:
“(1) An ORDER of Court setting aside the execution of the writ of attachment and sale of goods made no (sic) the 26-0702012 in Judgment Form 4, 5, 6, 27 and 41 against the Judgment debtor/deceased.
2. An ORDER declaring the said execution of the wit of attachment and sale of goods against the judgment debtor/deceased as null and void and of no effect.
3. An ORDER of Court setting aside the execution of the Writ of Attachment and sale of Goods as a nullity.
4. An ORDER stopping the Public Auction Sale of the 2nd, 3rd, 4th and 5th Respondents scheduled for the 23rd/10/2012 at noon at the High Court Premises Makurdi.
5. An ORDER releasing the goods and movable properties attached forthwith to the Applicant.
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AND for any other Order(s) the Honourable Court may deem fit to make in the circumstances.
The Respondents obtained leave of the lower Court and filed a Counter affidavit and Written Address in opposition to the motion which was deemed properly filed and served on the 21st of November, 2012. This necessitated the Appellant to file a Further Affidavit and reply on points of law. The Appellant’s Further Affidavit was deemed properly filed on the 6th of December, 2012. The lower Court heard the motion through the 6th, 13th and 18th of December, 2012 and on the 13th of March, 2013, judgment on the application was delivered wherein the lower Court dismissed the Appellant’s motion. The Appellant dissatisfied with the Judgment of the lower Court, filed this present Appeal.
Predicated on the grounds of appeal enumerated above, the Appellant’s in her Brief of Argument filed on the 18th of July, 2013 and settled by Chief (Mrs.) Caroline Mbafan Ekpendu, distilled four (4) Issues for determination to wit:
a) Whether from the facts and evidence before the lower Court, the appellant had satisfactorily established that the Judgment-Debtor died before
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the execution of the judgment against him. (Grounds 1, 2, & 3).
b) Whether Exhibits ‘A’ and ‘B’ (Medical Certificate of Cause of Death and Certificate of Death) are public documents requiring certification to be admissible (Ground 4).
c) Whether the learned trial judge was correct in dismissing the appellant’s application without considering the Issues for determination based on the reliefs prayed for on the face of the Originating Process (Ground 5).
d) Whether the receipts for the items taken in execution of the Judgment of the lower Court were not relevant to the application, subject matter of this appeal (Ground 6)”.
Surprisingly, the Respondents have not filed any Brief in this appeal. This necessitated the Appellant on the 8th of August, 2015 to file a Motion for this Honourable Court to hear the Appeal on the Appellant’s Brief. The Motion was moved and granted by this Honourable Court on the 4th of July, 2016.
As a general rule, the Respondents’ failure to file their Brief of Argument may amount to the Respondents being deemed to have admitted the veracity of everything stated
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in the Appellant’s brief. Just as there is an exception to every general rule, one also abounds here and that is to the effect that the absence of the Respondents’ Brief will not place the Appellant at an undue advantage. The reason for this is not far-fetched as the Respondents already have a judgment of the Court below in their favour; and findings of a lower Court are presumed correct until set aside.
It is pertinent to state that the only sanction which a Respondent who fails to file his Brief will confront is that such Respondent will not be heard in oral argument except by the leave of this Court. This notwithstanding, the Appellant still has to win on the strength of his case presented on appeal and not on technicality or inadvertence of an indolent Respondent. See IWUAGOLU v. AZYKA (2007) 5 NWLR (Pt. 1028) 613.
At the hearing of this appeal, learned Counsel to the Appellant, Chief (Mrs.) Caroline Mbafan Ekpendu, adopted the Appellant’s Brief of Argument.
APPELLANT’S ARGUMENT ON ISSUE ONE:
Learned Counsel for the Appellant contends that contrary to the trial Judge decision, there was abundant, credible and
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uncontroverted evidence before the lower Court to show that the Judgment-Debtor was indeed dead before the execution for which the Appellant is challenging. Learned Counsel has also referred this Honourable Court to the affidavit evidence attached to the Originating Motion which according to her, establishes the irrefutable position on when the Judgment-Debtor/Deceased died. Learned Counsel is of the firm view that the Respondents never denied the death of the Judgment-Debtor/Deceased but only challenged the date of the death even when they failed to prove the Judgment-Debtor/Deceased was alive. Learned Counsel submits that the Appellant having satisfied the required burden of proof, same shifted to the Respondents.
Learned Counsel for the Appellant also contends that despite the plethora of uncontroverted and unchallenged documentary evidence before the lower Court which established that the Judgment-Debtor/Deceased was dead, the learned trial Judge turned a blind eye and swept them under the carpet without due consideration. It is the argument of the Appellant that if the trial Judge had considered her evidence, the lower Court would not have come to
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the conclusion that oral evidence was necessary. Learned Counsel in reliance on EIMSKIP LTD v. EXQUISITE INDUSTRIES LTD (2003) 4 NWLR (Pt 809) 88 SC, DANA IMPEX LTD v. AWUKAM (2006) 3 NWLR (Pt 968) 54 CA and BAWA v. PHENIAS (2007) 4 NWLR (Pt 1024) 251 submits that there were abundant documentary evidence to resolve the conflicts in the affidavits before the lower Court which the learned trial Judge should have relied on instead of stating that oral evidence was not called to resolve the conflicts.
Learned Counsel has argued that the finding of the lower Court with regards to the signature on Exhibit ‘E’ (Writ of Attachment and Sale of Goods) was in error because there exist overwhelming evidence to show that the Judgment-Debtor being dead, could not have been able to sign. Learned Counsel argues that the purported signature is forged and accordingly urged this Honourable Court to determine this Issue in the Appellants favour.
APPELLANT’S ARGUMENT ON ISSUE TWO:
Learned Counsel for the Appellant argues that Exhibit ‘A’ which is the Certificate of Cause of Death issued from a private hospital does not qualify as a
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public document as completed in Section 102 and 103 of the Evidence Act 2011. In reliance on UKANA v COP (1995) 8 NWLR (Pt 416) 705 CA and IOANNOU v DETETRUOU (1952) 1 A.E.R P179 learned Counsel argues that Exhibit ‘A’ is from a private hospital which is not an official body or sovereign authority and was issued by a private doctor who is not a Public Officer. As such, the Exhibit ‘A’ does not require the formalities of public document for it to be admissible as a private document. Learned Counsel further argues that Exhibit ‘B’ which is the Certificate of Death issued by the National Population Commission on the presentation of Exhibit ‘A’, is also not a public document despite the fact that it was issued by a public body because it was issued for the use and benefit of the Appellant and not for the general public. Learned Counsel also urged that this issue be resolved in favour of the Appellant.
APPELLANT’S ARGUMENT ON ISSUE THREE:
Learned Counsel for the Appellant has argued that the inability of the lower Court to distinctly consider her issues formulated, made the lower Court not to properly
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evaluate the evidence before her. It is the position of the Appellant that this occasioned a miscarriage of justice and this Honourable Court is urged to resolve this Issue in favour of the Appellant.
APPELLANT’S ARGUMENT ON ISSUE FOUR:
Learned Counsel for the Appellant in relying on Order 43 Rule 1 of the Benue State High Court (Civil Procedure) Rules 2007 and Civil Procedure in Nigeria by Fidelis Nwadialo (SAN) contends that the Appellant is not under liability whatsoever to the Respondents to institute inter pleader proceedings. In support of her argument, learned Counsel has also referred this Honourable Court to paragraph 3 (j) and (k) of the Further Affidavit filed in response to the Respondents’ Counter Affidavit. The Appellant contends that inter pleader proceedings as contemplated by the trial Judge was wholly unnecessary. She further contends that the provision of Order 11 Rule 17 of the Judgment (Enforcement) Rules was not complied with in executing the lower Court’s judgment which vitiated the entire execution. She argues that since the judgment was to be executed against the estate of the deceased, an application ought
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to have been made and granted to that effect before the said execution and attachment of goods. She submits that the execution was therefore, illegal and urged this Honourable Court to allow the Appeal and set aside the judgment of the lower Court dismissing the Appellant’s application and set aside the execution and release the goods and moveable properties attached.
RESOLUTION OF ISSUES
Upon a calm perusal of the Record of Appeal, the facts of this case and submissions of the learned Counsel to the Appellant on the Four Issues distilled for determination; I am of the considered view that this Appeal is meritorious and there is no use going to the resolution of Issues. I derive my stance from the fact that the Judgment purportedly executed was that of the High Court, Benue State of Nigeria, Holden at Makurdi Judicial Division which was delivered per Honourable Justice A.O. Onum in Suit No. MHC/300/2009, on the 31st day of May, 2012.
It would be recalled that the Respondent herein as Plaintiff in the said Court claimed the sum of N4, 000,000.00 and 10% interest thereon by way of damages from the Defendant who was then Dr. TYOVER KENNETH
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UNUM for an alleged contract for the supply of GLND fertilizer which the Defendant failed to discharge, having allegedly duped the Plaintiff/Respondent of the said amount while the Defendant pretended that he was a Native Doctor and Co-ordinator of “GLND Products including GLND Fertilizer” for several States of the Federation.
Upon hearing the parties at the Trial/taking Written Submissions of their respective learned Counsel, the learned Trial Judge held in his judgment (see page 13 of the Records) that:
“From the foregoing considerations, I am satisfied that the Plaintiff has established her entitlement to the sum of N4,000,000.00 from the Defendant as money-had-and-received on account of a business transaction that has totally failed. I accordingly hereby enter Judgment for the Plaintiff against the Defendant for the said sum. I also Order in line with the claim of Plaintiff and Order 35 R.4 of the Benue State High Court (Civil Procedure) Rules, 2007; that the Defendant shall pay interest on the Judgment sum at the rate of 10 per centum per annum from the day of this Judgment until the entire sum is fully and finally liquidated.
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This shall be the Judgment of the Court in this case.”
Pursuant to the above Judgment of the learned trial Judge, the Plaintiff (now Respondent) levied execution of same through the Officers of the High Court who issued a Writ of Attachment and Sale of Goods dated 25th July, 2012 following the Respondent’s Application for that purpose made on the 24th day of July, 2012. See pages 35 and 37 of the Records and page 54 thereof where pursuant to Judgment Forms 4, 5, 6, 27 and 41 (Writ of Attachment and Sale of Goods), containing the inventory of the goods attached can be found. That inventory was allegedly signed by the Deceased/Judgment-Debtor and witnesses on the date of attachment/execution which was 26th of July, 2012.
Following the execution, it would appear that the present Appellant protested same and the advertisement for the public auction Sale of the attached property of the Judgment-Debtor as can be gleaned from page 15 of the Records which is a letter captioned “RE: PROTEST AGAINST ILLEGAL ATTACHMENT OF LATE DR. KENNETH TYOVER UNUM’S PROPERTIES” dated 10th October, 2012 from the office of the Chief Registrar of
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the High Court of Benue State, addressed to Chief (Mrs.) C.M. Ekpendu of Mbafan Ekpendu & Co. Chambers; the learned Counsel in this Appeal. From the tone of the letter, T.M. Shija Esq. Director of Litigation on behalf of the Chief Registrar upon receipt of the Letter of Protest against the illegal attachment of Late Dr. Kenneth Tyover Umum’s property which letter was dated the 31st day of July, 2012, replied that he was directed by the Honourable Chief Judge to inform the Appellant’s Counsel that investigation into the learned Counsel’s complaint revealed that contrary to her complaint, the execution of the Judgment was properly carried out in the presence of Police Officers and Occupants of the premises in accordance with the Court Order.
The learned Counsel was then advised by the Director of Litigation that since she had already prepared the process for appropriate legal redress, the issue of jurisdiction of the Court to deliver the judgment and all other issues she felt aggrieved about should be reserved for Appeal as an administrative intervention would not be proper in the circumstance. Further to this letter therefore, the
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Appellant who is the wife of the Deceased/Judgment-Debtor apart from filing the Motion which is the subject of this Appeal on behalf of the Deceased/Judgment-Debtor, also filed Appeal Number: CA/MK/32/2015 before this Honourable Court. We were availed the Judgment of this Honourable Court delivered on the 30th day of January, 2018 per J.H. Sankey, JCA with O.A. Otisi and J.E. Ekanem, JJCA concurring that the Appeal against the Judgment of the High Court of Benue State sitting at Makurdi Judicial Division in Suit No. MHC/300/2009 delivered on 31st May, 2020 per Onum, J; was meritorious.
For the avoidance of doubt, the learned Presiding Justice at pages 20 to 21 of the said Judgment had held thus:
“The Appellant having been adjudged to have been denied fair hearing, there is no further need to consider and determine issues one and three framed by the Appellant for the determination of the Appeal. The law is trite that a Court must be cautious not to make a pronouncement or observation on a matter which may amount to pre-determining or pre-judging the issues to be decided subsequently by the trial Court. See Agip (Nig) Ltd. v. Agip Petroli Int.
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(2010) 5 NWLR 5 (Pt. 1187) 348. I am duly guided. Based on all the foregoing, the conclusion I arrive at is that, this Appeal is meritorious.
Accordingly, the Judgment of the High Court of Justice, Benue State, in Suit No. MHC/300/2009 between Mrs. Hannah Unum v. Elizabeth Asagh delivered on May 31, 2012 by Onum, J.
This Suit is hereby remitted to the Chief Judge of the High Court of Justice, Benue State to be tried de novo before another Judge of Benue State High Court, other than Onum, J; is hereby set aside. Parties are ordered to bear their costs”.
In my humble opinion, since it is the self-same decision of Onum, J. in Suit No. MHC/300/2009 that its execution was sought to be set aside which the learned Trial Judge refused so to do, thus warranting this Appeal, I reiterate that even without resolving whatever issues were distilled from the Grounds of Appeal raised by the Appellant, (which is needless), there was therefore nothing to execute as this Court had on the 30th of January, 2018 declared the said Executed Judgment a nullity and ordered trial de novo before another Judge.
This must have explained the apparent absence of the
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Respondent and her refusal to file any process or defend this Appeal. I therefore abide by the Judgment of my learned brothers in Appeal No: CA/MK/32/2015 and hold that the Substantive Suit being a nullity, the purported Order of the Court below for the execution of his Judgment and the Writ of Attachment as well as Sale of the attached goods made on the 26th of July, 2012 in Judgment Forms 4, 5, 6, 27 and 41 against the Judgment-Debtor/Deceased be hereby set aside for being illegal, null and void and of no effect whatsoever, for we cannot put something on nothing and expect it to stand. See Sken Consult vs. Sekondey Ukey and Mcfoy vs. U.A.C. (1962) A.C. 152.
In the same vein, the Appellant’s and Judgment-Debtor/Deceased goods which were purportedly attached as a result of the void Judgment should be released to the Appellant pending the determination of the Suit at the lower Court.
The cost of this Suit is assessed at N50, 000.00 in favour of the Respondent/Judgment-Creditor.
ONYEKACHI AJA OTISI, J.C.A.: I had the benefit of reading in advance a draft copy of the lead Judgment in this appeal written by my learned Brother, Ignatius Igwe
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Agube, JCA, in which the appeal was allowed. I agree with the resolution of the issues arising for determination. I will only make few comments for emphasis.
This Court in a judgment delivered on 30/1/2018 in Appeal No: CA/MK/32/2015, arising from Suit No: MHC/300/2009, allowed the appeal therein and remitted the case back to the Honourable Chief Judge of Benue State for reassignment to enable the case be heard and determined on the merit. The instant appeal was lodged against the execution of the judgment of the lower Court in Suit No: MHC/300/2009. The valid levy of execution of a judgment must be based on a valid judgment or order of Court. Any execution levied upon a judgment that has been adjudged to be a nullity is itself a null act, this is simply because one cannot build something on nothing and expect it to stand, it will collapse; UAC V. Macfoy (1961) 3 All ER 1169; In Re: Apeh & Ors (2017) LPELR-42035(SC).
In this circumstance, the execution that was based on a judgment in Suit No: MHC/300/2009, which this Court had set aside in CA/MK/32/2015, was a null act. The orders made by this Court in CA/MK/32/2015 to ensure the
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substantive matter is heard on the merit, stands. A valid execution can only be premised on orders made following the re-hearing of the substantive matter.
For this reason and for the fuller reasons given in the lead Judgment, I also allow this appeal and abide by the orders made therein.
JOSEPH EYO EKANEM, J.C.A.: I read a copy of the judgment of my learned brother, Agube, JCA. I agree with the reasoning and conclusion therein. I abide by the consequential orders made therein.
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Appearances:
Chief (Mrs.) Caroline Mbafan Ekpendu JP, with him, S.H. Kange, Esq. For Appellant(s)
No appearance for all the Respondents For Respondent(s)
