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IYINOMEN v. OGBEMUDIA (2022)

IYINOMEN v. OGBEMUDIA

(2022)LCN/16922(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, July 28, 2022

CA/B/218/2019

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

MRS. DEBORAH IYINOMEN APPELANT(S)

And

MR. SAMUEL OGBEMUDIA RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN EVALUATE  DOCUMENTARY EVIDENCE 

It is settled law that an Appellate Court is in as good position as the trial Court in the evaluation of documentary evidence. See Gonze (Nig) Ltd v. Nigeria Educational Research & Development Council & Ors (2005) LPELR 1332 (SC) P. 11 para A, Oloye v. State (2014) LPELR 22545 (CA) P. 35 Paras F–G, Iwuoha & Anor. v. NIPOST Ltd & Anor (2003) LPELR–1569 (SC) P. 29 Paras B–D. PER ABUNDAGA, J.C.A.

CONDITIONS THAT MUST BE MET BEFORE LEAVE CAN BE GRANTED TO ATTACH THE IMMOVABLE PROPERTY OF A JUDGMENT DEBTOR

Now the application was brought under Section 44 of the Sheriffs and Civil Process Act, which provides thus:
44. 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 cost of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the Court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the Court against the immovable property of the judgment debtor in accordance with the provisions of this Act, and any rules made thereunder: Provided that where the judgment has been obtained in a magistrate’s Court execution shall not issue out of the magistrate’s Court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.
Section 44 of the Sheriffs and Civil Process Act, as can be seen, prescribes conditions that must be met before leave can be granted to attach the immovable property of a judgment debtor. If the wordings of the Section is properly appreciated, it can be seen that generally, execution shall not be levied against the immovable property of judgment debtor. The right to do so avails by way of exception rather than the rule. And it is this exception that metamorphoses to a condition precedent; which is that, if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and the costs of execution, and the judgment debtor is the owner of any immovable property. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of High Court of Edo State delivered by Hon. Justice J. O. Okeaya-Inneh in Suit No. HEK/MISC/4/2018 on 21st February, 2019.

​The circumstances leading to the application and eventual ruling as projected by the Applicant/Appellant in his resume in the appellant’s brief of argument is that the Appellant and Respondent entered into a consent judgment at the Magistrate Court in Suit No. MEK/26/2016 dated 17/7/2017. They agreed on the terms of settlement that if the defendant defaulted to pay monthly installment for three months, the entire debt shall be due for payment. That the defendant paid for the month of August and September on 13/10/2017. Further payments were made on 31/1/2018 after defaulting to pay for the month of October, November, December and January, 2018. Therefore, the Plaintiff/Judgment creditor applied for a writ to enforce the consent judgment at the Magistrate Court, Ekpoma. Execution was levied against the moveable property of the defendant/judgment debtor, and the sum of N91,000.00 (Ninety-one thousand Naira) only was realized from the sale of the moveable property by the bailiff which the judgment debtor witnessed having been served. The judgment debtor filed a motion at the Magistrate Court for an order of Court to vacate the writ of attachment issued by the Court through his counsel, which motion was subsequently withdrawn. The judgment creditor thereafter applied to the High Court (the lower Court) by way of motion on notice for leave to attach the moveable property of the defendant (Respondent herein) in line with Section 44 of the Sheriffs and Civil Process Act, LFN 1990.

The judgment debtor on being served filed a counter affidavit in opposition. The motion was subsequently moved, and argued, and in his ruling, the learned trial Judge refused to grant the Appellant leave to attach the immoveable property of the Respondent as applied.

​The Appellant was aggrieved by this ruling, and hence this appeal, the notice of which was filed on 29th March, 2019.
The notice and grounds of appeal are as follows:
1. GROUND 1
The learned trial Judge erred in law when she refused to evaluate the proper issue before the Court for the determination of a motion of this nature.
PARTICULARS OF ERRORS:
Failure to evaluate the following condition to wit:
a. The step already taken to enforce the judgment, the amount outstanding. That the immovable property of the Judgment Debtor is not sufficient to satisfy the debt.
b. The learned trial Judge went to consider the conditions for the issuance of writ of execution which had already been completed when there is no appeal before her to that effect.
2. GROUND 2
That the learned trial Judge erred in law when she held that that the condition precedent to the grant of this application has not been fulfilled and it will amount to abuse of Court process to do so.
PARTICULARS OF ERROR:
a. The Judgment Debtor’s Counter Affidavit is not an appeal for setting aside the execution already done.
3. The ruling is against the weight of evidence.

​The record of appeal was compiled and transmitted on 11/4/19. Consequently, the appeal was duly entered, the Appellant as required by the Court of Appeal Rules, 2016 (the Rules then applicable at the material time) filed her brief of argument, settled by C. U. Ibhafidon, Esq, on 9/5/2019, and upon being served the Respondent’s brief of argument filed her reply brief on 26/6/2019 and deemed properly filed and served on 11/6/2022. S. A. Uwagbale, Esq who settled the Respondent’s brief of argument filed same on 11/6/2019.

The appeal was fixed for hearing on 16/6/2022, whereat E. E. Ighalo and C. O. Omanzegie who represented the Appellant and Respondent respectively adopted their briefs of argument.

The Appellant distilled three issues for determination. The issues are:
1. Whether the Judge did not erred (sic) in law when she refused to evaluate the proper issue before the Court for the determination of a motion of this nature.
2. Whether in the absence of an appeal the High Court was right in refusing to grant leave to attach the immovable property of the Respondent.
3. Whether the learned Judge did not erred (sic) in law when she held that the condition precedent to grant of this application has not been fulfilled and it will amount to abuse of Court process to do so.
Issue one was argued alone, while issues 2 and 3 were argued together.

On issue one, it was submitted by counsel for the Appellant that the learned trial Judge failed to evaluate the proper issue before the Court. He submitted that leave of Court cannot be granted as a matter of course. It was argued that under Section 44 of the Sheriffs and Civil Process Act, the judgment debtor must be the owner of the immovable property. Counsel contended that the affidavit in support of the motion for leave to attach the immovable property must satisfy the Court of the steps already taken, if any to enforce the judgment, the effect, the amount of the judgment debt outstanding and that throughout the state no movable property of the judgment debtor, or non-sufficient to satisfy the debt could with reasonable diligence be found. The affidavit, learned counsel expatiated must therefore contain evidence of what has been done to discover the judgment debtor’s movable property. Counsel therefore submitted that having satisfied the conditions, the Appellant ought to have been granted the leave he applied for to attach the immovable property of the Respondent. Commenting on the ruling of the lower Court where the learned trial Judge held that the fact of the payment made by the Respondent was not challenged, counsel pointed out that the Appellant filed a further affidavit to challenge the said payment in Exhibit “BB”.

Arguing issues 2 and 3, it was submitted that the judgment debtor’s counter affidavit is not an appeal for setting aside the execution which had already been carried out, even if he conceded (even though he was not so conceding) that execution was wrongly issued against the judgment debtor. Counsel relied on the case of Akinyemi vs. Soyanwo (2006) 4 FWLR page 6511 at p 6514 ration 2 and 3. It was therefore contended for the Appellant that in the absence of an appeal or an application to set aside the writ of execution and the execution against the Respondent, the lower Court ought to have been granted leave to attach the immovable property of the Respondent, especially that the Respondent did not deny ownership of the property in his counter affidavit, and in the absence of a third party claim.

The Court is therefore urged to allow the appeal on these submissions and to further grant leave to the Appellant to attach the immovable property of the Respondent.

​The Respondent in his brief of argument formulated a single issue for determination and adopted the Appellant’s three issues.

The Respondent’s sole issue is whether this Court had jurisdiction to entertain this appeal.

In his submission, learned Respondent’s counsel argued that there was no personal service of the notice of appeal on the Respondent but that same was effected on counsel against the spiral and provision of Order 2 Rule 1(a) of the Court of Appeal Rules 2016 (which was then in force at the time the appeal was filed). Counsel relied on the case of Ihedioha vs. Okorocha (2016) Vol. 3 EJSC 71 at 83 ration 6, and the case of Exim vs. Menakaya (2017) EJSC Vol. 77 pg 29, paras. A–D. Further cited is the case of Akpabuy vs. Edim (2003) 1 NWLR (Pt. 800) pg 23 at 27.
Counsel therefore urged the Court to dismiss the appeal on grounds of lack of proper service.

​Another point taken on issue of jurisdiction is that the appeal is against an interlocutory ruling and therefore required leave of Court, and that the appeal is rendered nullity the required leave having not been sought and obtained. The Court is referred to Section 14 of the Court of Appeal Act and the case of N.C.C. Ltd V. P.M.B. Ltd (2012) LRCN Vol. 212 p. 73 at p. 79 ration 4.

The appeal, counsel submitted is incurably defective and cannot be amended. Reliance is placed on the case of Okwuosa v. Gomwalk (2017) EJSC vol. 69 P. 54 at 61 ration 8. The Court is urged to dismiss the appeal on this argument also.

Counsel also made the point that by the consent judgment, the Respondent must be in default for 3 months before execution can be levied against him. He therefore held the execution to be unlawful and void going by Section 21(1) of the Sheriffs and Civil Process Act.

​In his response to arguments canvassed by the Appellant’s counsel on Appellant’s issue one, it was submitted for the Respondent that under Section 44 of the Sheriffs and Civil Process Act by which the Appellant’s motion was filed, the Appellant in his supporting affidavit must satisfy the Court of reasonable diligence that has been exercised of the step if already taken to enforce the judgment debt and the effect thereof, the amount of the judgment debt outstanding, and that throughout the state there is no movable property of the judgment debtor or non-sufficient to satisfy the judgment debt. Referring the Court to the Appellant’s affidavit and further affidavit, counsel submitted that nowhere were these conditions met or satisfied to warrant the grant of this application. Counsel submitted further that address of counsel no matter how beautiful cannot take the place of evidence. It was therefore counsel’s submission that the learned trial Judge properly evaluated the affidavit evidence before the Court before he held that the fact of payment made by the Respondent was not challenged. The relevant pages of the record of appeal were referred to by counsel.

Regarding issues 2 and 3 in the Appellant’s brief of argument, counsel submitted that issue 2 as formulated did not arise from any of the grounds of appeal. He pointed out that the Appellant filed 2 grounds of appeal but formulated 3 issues, and in counsel’s submission, there was proliferation of issues which the law does not allow. Reliance is placed on the case of Okponipere V. The State (2015) EJSC vol. 3 P. 131 at P. 133 ration 2. Also cited is the case of Abe v. University of Ilorin (2015) EJSC Vol. 11 p 146 at 148 ration 3.

​The Court is urged to discountenance the submission and authorities on issues 2 and 3. Counsel urged the Court to discountenance the case of Akinyemi v. Soyanwo (supra) because no ground of appeal complains about the counter affidavit acting as notice of appeal.
Finally, counsel urged the Court to dismiss the appeal with costs.

In the Appellant’s reply brief, it was submitted that Order 2(a) and 2 (13) of the Court of Appeal Rules (sic) makes personal service of notice of appeal unnecessary if the Court is satisfied that the notice of appeal was communicated to the Respondent. In this case, counsel submitted that counsel for the Respondent did not only acknowledge receipt of the notice of appeal but signed for the record of proceedings and proceeded further to file the Respondent’s brief of argument. This, counsel submitted is an indication of the notice of appeal being communicated to the Respondent.

​On the submission of the Respondent’s counsel that the Appellant require leave to file his appeal, it was submitted that the ruling is not interlocutory but final as it brought the dispute between the parties to an end, or that it finally disposed of the right of the parties on the matter. This is what in law is a final decision, counsel submitted.

Appellant’s counsel further submitted that the Respondent raised issues not covered in the Appellant’s grounds of appeal, even where he did not file a cross-appeal or Respondent’s notice. He urged the Court to discountenance the issues so raised. That the Respondent did not also comply with Order 9 Rule 2 of the Court of Appeal Rules, 2016, counsel relied on the case of Ibator v. Barakuro (2007) 9 NWLR pg. 475 at pg 481 ration 7.

Counsel contended that issue 2 is distilled from ground 1, but that even if that is not the case, the Court is competent to decide from the grounds of appeal the real issues arising for determination. The case of Titiloye v. Olupo (1991) 7 NWLR (pt. 205) 519 and other cases were cited to buttress counsel’s argument.

​There are issues in the briefs of argument of the parties which I need to clear before delving into the substance of the appeal. Let me commence on the drafting skill of counsel. Both counsels, particularly, the Appellant, the initiator of the appeal did not tie the issues to the grounds. This is most unfortunate. This Court, and indeed the apex Court have numerous times, beyond doubting always admonished counsel to tie their issues to the grounds of appeal. This helps to paint a clear picture of the appeal and obviates the need for the Respondent and the Court to examine the grounds of appeal vis-à-vis the issues raised for determination in order to ascertain whether any ground of appeal has been abandoned. However, since the Court of Appeal Rules made no provision as regards the need to tie issues to the grounds of appeal, a brief will not be treated as incompetent on this ground. See the case of Yussuf v. Ilore (2007) LPELR–5137 (CA) p. 6 paras B–D; Akpan v. FRN (2011) LPELR–3956 (CA) P. 14 paras A–E.

Looking at the grounds of appeal vis–a–vis the issues, while it is not in doubt that issue one flows from ground one, issues two and three appear to have been distilled from ground two. I invite the attention of your Lordships to take a deeper look at the said issues two and three and ground two. In my respectful view, this is an infraction of the settled principle of law against proliferation of issues, which is that while it is accepted that an issue can be formulated from one or more grounds of appeal, more than one issue cannot be formulated from a ground of appeal. In such a situation, the issues and the grounds of appeal from which the issues are so formulated will be treated as incompetent and liable to be struck out, or in the least discountenanced. See Ndulue & Ors. v. Ezuma & Ors. (2018) LPELR 44149 (CA) P. 6 paras. A–B, Abue v. Egbelo & Ors. (2017) LPELR–43483 (CA) PP 6–7 Paras E–A, Emeka v. Idris (2020) LPELR–51440 (CA) Pp 5–6 paras D–F. Therefore I shall discountenance issues two and three which are by reason of the foregoing liable to be struck out having been caught by the rule against proliferation of issues.

​The Respondent on his part raised two objections in his brief of argument which I hereunder proceed to consider. The first is that the appeal should be struck out because there was no personal service of the notice of appeal on him. He just raised this in his brief of argument without a formal notice of preliminary objection. This is wrong. Order 10 Rules 1 and 3 of the Court of Appeal Rules 2016 (in force at the time this appeal was filed) provides:
1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.
3. Where the Respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or may make such other order as it thinks fit.
There is non-compliance, and therefore this objection is liable to be discountenanced.

​However, even on the merit, is this objection tenable? It is not tenable because the Court of Appeal Rules, 2016 did not make personal service of the notice of appeal on the Respondent mandatory, if the Court is satisfied that it had been so communicated to the Respondent. See Order 2 Rule 1(a) and (b) of the Court of Appeal Rules, 2016. The cases cited by the Respondent are Supreme Court cases and were decided based on the Supreme Court Rules, 1985 (as amended) which made personal service of the notice of appeal on the Respondent mandatory. The Respondent in the instant appeal was served the record of appeal and when served the Appellant’s brief duly filed and served the Respondent’s brief of argument and it was in the Respondent’s brief that he raised the objection as to non-service of the notice of appeal personally on him. Therefore, the objection even if competent was liable to be dismissed.

The second objection raised is that the ruling appealed against is an interlocutory appeal, and requires leave of the Court to be competent. The Appellant responded to this in his reply brief notwithstanding that the objection is incompetent because it ought to have been brought in compliance with Order 10 Rules 1 and 3 of the Court of Appeal Rules which by reason of non-compliance ordinarily rendered the objection dead on arrival.
​In the Appellant’s reply brief, counsel contended that the ruling appealed against is a final ruling because it finally disposed of or put to rest the issues in controversy between the parties. I agree that the ruling appealed against is a final ruling and being a final ruling, no leave of Court is required. See Paxson Nig. Co. Ltd. v. A.G. Abia State (2019) LPELR–50620 (CA) P. 30 paras C–B, Goji v. Garnvwa (2019) LPELR–47429 (CA) P. 8 paras B–E, Ogunmola v. Kida(2001) LPELR–6946 (CA) pp. 8–9 paras B–C.
The appeal is therefore competent.

Notwithstanding all the observations made regarding the briefs of the parties, I am minded to consider the appeal on the merit. All the issues boil down to this:
“Whether the lower Court did not err when it refused to grant the application for leave to attach the immovable property of the Respondent.”
The Appellant has complained of improper evaluation by the Court in reaching the verdict it reached.

​Now the application was brought under Section 44 of the Sheriffs and Civil Process Act, which provides thus:
44. 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 cost of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the Court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the Court against the immovable property of the judgment debtor in accordance with the provisions of this Act, and any rules made thereunder: Provided that where the judgment has been obtained in a magistrate’s Court execution shall not issue out of the magistrate’s Court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.
Section 44 of the Sheriffs and Civil Process Act, as can be seen, prescribes conditions that must be met before leave can be granted to attach the immovable property of a judgment debtor. If the wordings of the Section is properly appreciated, it can be seen that generally, execution shall not be levied against the immovable property of judgment debtor. The right to do so avails by way of exception rather than the rule. And it is this exception that metamorphoses to a condition precedent; which is that, if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and the costs of execution, and the judgment debtor is the owner of any immovable property.

​Now, the complaint of the Respondent seem to me to be that having due regards to the terms of consent judgment, the execution will only fall due when he was in default of payment of the instalmental payment for three months, and claimed that he was not in default. See paragraphs 7, 8, 9, 10, 11 and 12 of the Respondent’s counter affidavit. Reacting to this claim, the Appellant filed a further affidavit in which he denied the Respondent’s averment of payment. He went on to further aver that the judgment debtor/Respondent was duly invited to witness the public auction of all the movable properties, and that the motion filed at the Magistrate Court to vacate the writ of attachment issued on 14/2/2018 was withdrawn when counsel discovered the true and correct facts in the case in relation to the payment of the judgment debts.

The claims and counter-claims between the Appellant and the Respondent need to be examined from the record of appeal.

I have looked at the Appellant’s affidavit in support of his motion for leave. The affidavit refers to documents allegedly marked Exhibit A, B and C. However, documents were attached but are unmarked. The Respondent in his counter affidavit referred to Exhibit A, Exhibit B and Exhibit C but the said Exhibits were not attached. See pages 12–13 of the record of appeal. Page 14 of the records of appeal is a motion on notice filed by the judgment debtor/applicant (Respondent) dated 24/2/2018 in which he sought an order to vacate the writ of execution issued and dated by the Magistrate Court, allegedly obtained by fraud. Attached to this affidavit are documents marked as Exhibit A, Exhibit B and Exhibit C. At the back of the affidavit, three different documents were attached but not marked.

In the Appellant’s further affidavit sighted at pages 24–25 of the record of appeal, Exhibits DD and EE were referred to. Documents are attached but not marked. The general trend with all the Exhibits referred to in the affidavits, and further affidavit, is that they were not marked. Does this suggest that whoever were registrars of this Court did not know that Exhibits referred to in the affidavit are not only required to be attached but be marked and labeled by the said registrars? Ok, if perhaps, the registrars by the level of their legal education are not aware of this, what of the legal practitioners who went to the registry to file such processes? This default to me is a clear demonstration of ineptitude on the part of counsel.

When an Exhibit is mentioned, but not attached and marked by the commissioner for oath, it is as good as there being no Exhibit attached. This ordinarily should be the case, but for the sake of doing substantial justice, I will try to match the documents attached to the averments in the affidavit, further affidavit or counter affidavit as the case may be to see what could be made out of it.

​The Respondent as I have shown from the record of appeal did not attach any of the Exhibits referred to his counter affidavit. However, he attached to his affidavit in support of his motion for an order to vacate the writ of attachment, dated 21//2/2018 the following:
(i) Terms of settlement
(ii) Two handwritten acknowledgments of payment, one sighted on page 20 of the record of appeal, and the other on page 40 of the record of appeal. Fast track to the Appellant’s further affidavit filed on 6/12/18 (pages 24–25 of the record of appeal). In paragraph 4 of the said further affidavit, it was deposed that the Respondent’s motion to vacate the writ of attachment was withdrawn.

Page 27 of the record of appeal is the attached record of proceedings of the Magistrate Court Ekpoma of 25/5/18 in which the motion to vacate the writ of attachment was withdrawn and struck out. However, contrary to the Appellant’s averment in the further affidavit that the Respondent’s counsel withdrew the motion when he got to know the true facts of the matter, the proceedings of the Magistrate’s Court referred to, proves otherwise. Counsel actually moved the motion and placed reliance on all the Exhibits attached. The last payment made by the Respondent which he referred to was on 31/1/2018. Counsel therein submitted that the judgment creditor (Appellant herein) did not complain of any default. That when the writ of attachment was issued against the judgment debtor, he had paid the arrears of his default. However, he withdrew the motion at that stage noting that attachment had been done.

The Respondent admitted that he had defaulted but that at the time the writ was issued, he had paid the arrears of his default. While moving the Respondent’s motion to vacate the writ of attachment, counsel stated that further payment was made on 31/1/2018. In paragraph 12 of the counter affidavit, the Respondent stated that he made payment for the month of February 2018 and annexed Exhibit B. The said Exhibit “B” was not attached to the counter affidavit, but it was attached to the motion to vacate the order of attachment. Exhibit “B” shows that on 20/2/2018, the Respondent paid N10,000 to the Registrar. However, the payment was made after the attachment because by his own showing in paragraph 13 of the counter affidavit (page 13 of the record of appeal) the writ of fifa was issued on 14/2/18.

​The clear picture I get from all these is that the Respondent was in arrears of payment of the judgment debt as agreed in the consent judgment, but purportedly paid up of the arrears after the writ of attachment had been issued.

There is nothing before the Court to show that there was any payment made by him after 20/2/18, up to 18/7/2018 when the motion for leave to attach his immovable property was filed.

My conclusion on the appraisal and evaluation of the totality of the affidavit evidence and processes attached leads me to the following:
(i) That the Respondent at the time the writ of attachment was issued was in default of payment of judgment debt as agreed in the terms of settlement.
(ii) That at the auction of his attached properties which he witnessed, N91,000.00 was realized. The auction took place on 1/6/2018 (page 7 of the record of appeal). He was invited to attend same vide a letter dated 30/5/2018. Nowhere did he deny attendance at the auction.
(iii) After the auction, the Respondent took no further steps towards the settlement of the balance of his debit till the Appellant filed her motion to attach his immovable property on 18/7/2018.

​Having gone through the judgment of the lower Court, I hold the view that his Lordship’s evaluation of the evidence before the Court was not thorough.

It is settled law that an Appellate Court is in as good position as the trial Court in the evaluation of documentary evidence. See Gonze (Nig) Ltd v. Nigeria Educational Research & Development Council & Ors (2005) LPELR 1332 (SC) P. 11 para A, Oloye v. State (2014) LPELR 22545 (CA) P. 35 Paras F–G, Iwuoha & Anor. v. NIPOST Ltd & Anor (2003) LPELR–1569 (SC) P. 29 Paras B–D.

I am on the evidence before the Court satisfied that the condition precedent for the grant of leave to attach the immovable property of the Respondent was satisfied.

The appeal is therefore meritorious, and is hereby allowed. The ruling of the lower Court delivered on 21st February, 2019 is hereby set aside. In consequence, I hereby grant leave to the Appellant to attach the immovable property of the judgment debtor/respondent containing one 3 bed room flat, 1 bedroom flat and premises situated at No. 7. Izeko Street, Uwen – Oboh Quarters, Eguare – Ekpoma to satisfy the judgment debt.
Costs of N100,000.00 (One Hundred Thousand Naira) is awarded in favour of the Appellant.

UCHECHUKWU ONYEMENAM, J.C.A.: I have had the preview of the lead judgment just delivered by my learned brother JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion reached in the issues treated therein. I also hold that the appeal has merit and same is accordingly allowed.

I too set aside the ruling of the High Court of Edo State delivered on 21st February, 2019 by J. O. Okeaya-Inneh, J. in Suit No. HEK/MISC/4/2018.
I abide by the order made as to costs.

ADEMOLA SAMUEL BOLA, J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother, JAMES GAMBO ABUNDAGA, JCA. His reasoning and conclusion are acceptable to me. I adopt them as mine.

​The appeal is allowed. The ruling of the lower Court is set aside.

Appearances:

E. E. Eghalo For Appellant(s)

C. O. Omonzejie For Respondent(s)