KEEMTECH FARM LTD & ANOR v. UNITY BANK PLC
(2022)LCN/16992(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/639/2017
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. KEEMTECH FARM LIMITED 2. ABDULHAKEEM YUSUF APPELANT(S)
And
UNITY BANK PLC RESPONDENT(S)
RATIO
THE OPTION AVAILABLE TO A PARTY WHERE THERE IS PROOF OF SERVICE ON A PARTY BY MEANS OF AFFIDAVIT OF SERVICE
Also, it is trite that where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of Court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing a counter affidavit to controvert the affidavit of service. SeeIntegrated Builders vs. Domzaq Ventures (Nig) Ltd (2005) 2 NWLR (Pt. 909) 97, Fatokun vs. Somade (2003) 1 NWLR (Pt. 802) 431. PER OWOADE, J.C.A.
THE POSITION OF LAW WHERE THE OPPOSING PARTY DOES NOT CHALLENGE THE DEPOSITIONS IN AN AFFIDAVIT
Clearly, it is now too late for the Appellants, on appeal to begin to challenge the contents of the affidavit of service and the accepted depositions of the Respondent by way of written address.
Where the opposing party does not challenge depositions in an affidavit, such evidence or depositions are uncontroverted and unchallenged they are deemed to stand as admitted and constitute the truth of the matter. See Adamu vs. Akukalia (2005) 11 NWLR (Pt. 936) 263, A-G, Lagos State vs. Purification Tech (Nig) Ltd (2003) 15 NWLR (Pt. 845) 1, Ezechukwu vs. Onwuka (2006) 2 NWLR (Pt. 963) 151, Long-John vs. Blakk (1998) 6 NWLR (Pt. 555) 524 at 532 SC, FMCT vs. Eze (2006) 2 NWLR (Pt. 964) 221, F.G.N vs. AIC Ltd (2006) 4 NWLR (Pt. 970) 337, Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 SC, Umoh vs. Tita (1999) 12 NWLR (Pt. 631) 427, Ikpana vs. RTPCN (2006) 3 NWLR (Pt. 966) 106, Malgit vs. Dachen (1998) 5 NWLR (Pt. 550) 384. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/ruling of the Kaduna State High Court of Justice delivered on 23/11/2015 by his lordship, Honourable Justice Hannatu A.L. Balogun.
On 27/03/2014, the Respondent as plaintiff got judgment under the summary judgment procedure against the Appellants as Defendants in the following terms as shown on page 14 of the Record of Appeal.
Court: The Plaintiffs claims against the defendants is for the following reliefs:
1. The sum of N35,828,676.10 (Thirty Five Million, Eight Hundred and Twenty Eight Thousand, Six Hundred and Seventy-Six Naira, Ten Kobo) representing the total indebtedness of the defendants as at 2/9/2013 made up of Agricultural Loan under the Unity Industrial Input Farmers Scheme of Unity Green product and overdraft facilities extended to the 1st defendant and under the guarantee of the 2nd defendant with accrued interest and other bank charges.
2. 27% compound interest on the said sum of N35,828,676.10 from the 2/9/2013 to date of judgment and thereafter interest to accrue at the rate of 10% until total liquidation of the judgment debt.
3. Cost of this action.
The plaintiff’s application for judgment was supported by the statement of accounts and other documents marked exhibits a–m. The defendants were served with the statement of claim and other documents but did not file a defence.
Consequently, judgment is entered for the plaintiff against the defendants as per the statement of claims.
Signed
27/3/14”
By a motion on notice dated 27/07/2015, the Respondent as Judgment Creditor/Applicant prayed the Court below for:-
“1. AN ORDER of this Court granting leave for the attachment and sale of the immovable properties of the Judgment Debtors/Respondents particularly the property situate and lying at No.1 Fish Avenue, Assalamu Alaikum, Mando, Kaduna with a view to satisfying the judgment debt of N35,828,676.10k pursuant to the judgment delivered on 27/03/2014.
2. AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.”
The grounds on which the Respondent/Applicant brought the application are stated thus:
“a. Judgment was entered in favour of the Judgment Creditor and against the Judgment Debtors in sum of N35,828,676.10k with 27% compound interest on the said sum from 2/9/2013 to the date of judgment and interest to accrue at the rate of 10% until final liquidation.
b. The Respondents do not have any moveable properties that can be attached and sold to satisfy the judgment debt.
c. Leave of this Honourable Court is required for the attachment and sale of the immoveable property of the Judgment Debtors.”
The application was served on the law firm of Mas’ud Alabelewe and Co. who hitherto represented the Appellants. The processes were however returned to the Court below on 8/10/2015 that they do not have the instructions of the Appellants to continue representing them. Thereafter, the Respondent filed an ex-parte application dated 4/11/2015 for leave to serve the post judgment applications particularly the motion dated 27/7/2017 by substituted means and same granted on 5/11/2015.
The application was thereafter served on the Appellants pursuant to the order of the Court below and the trial Court granted the application for leave to attach and sell the Appellants’ immoveable property situate and lying at No.1 Fish Avenue, Assalam Alaikum, Mando, Kaduna State on the 23/11/2015.
The ruling of the Court for leave to attach the Appellants immoveable property on 23/11/2015 which led to this appeal is as contained in the record of proceedings of 23/11/2015 as follows:
“Parties absent
A. Bashar Esq for judgment creditor/applicant with H.T. Oyebanji Ms.
Bashar Esq: Our application is dated 27/7/15 praying for sale of the judgment debtor’s immoveable properties. I move in terms.
Court: The application is granted as prayed. The judgment debtor’s property situate at No.1 Fish Avenue Assalamu Alaikum, Mando, Kaduna shall be attached and sold in satisfaction of the judgment debt in this case.
Signed:
23/11/15”
Dissatisfied with the decision/ruling, the Appellants filed a Notice of Appeal containing two(2) grounds of appeal in this Court on 7/3/2017. The grounds of appeal together with their particulars are reproduced below:
“GROUND ONE
ERROR IN LAW
The learned trial Judge erred fundamentally in law when he entertained and granted the motion dated the 27th July, 2015 for attachment sale of immoveable property when the counsel who was served with the motion clearly informed the Court that he had no instruction of the Judgment Debtor/Appellant thereby denying the Appellants their rights to fair hearing.
PARTICULARS
a. The counsel who appeared for the Appellant before judgment made it clear the extent of his instruction, to wit: to facilitate settlement.
b. The said counsel therefore did not file any process and informed the Court on 23/11/2015 that his brief excluded the motion.
c. Though the address for service endorsed on the said motion dated 27th July, 2015, it was the counsel that was served and not the Appellants. Order of substituted service on a registered company by pasting is bad in law.
GROUND TWO
ERROR IN LAW
The learned trial Judge erred fundamentally in law when he granted the motion dated 27th July, 2015 as a matter of cause when the Respondent did not satisfactorily discharge the onus placed on the Appellant as required by the law.
PARTICULARS
a. Section 44 of the Sheriff and Civil Process Act requires reasonable diligence in search of movable property. No evidence of reasonable search for movable property in the instant case.
b. Exhibit A attached to the motion talks about only one feeble attempt which does not qualify as reasonable diligence in law.
c. The learned trial Judge granted the motion as a matter of course as no evidence of ownership of the property was placed before the Court.
d. There are two Judgment Debtors but no attempt to go after the movable properties of the other J/Debtor. It is not even clear on whom the attempt was made.”
The relevant briefs of argument for the appeal are:
1. Appellants brief of Argument which was filed on 8/01/2019. It is settled by M.T. Mohammed Esq.
2. Respondent’s brief of Argument incorporating preliminary objection which was filed on 27/05/2019. It is settled by A. Bashar Esq.
3. Appellants Reply brief of Argument was filed on 11/06/2019. It is settled by M.T. Mohammed Esq.
The Preliminary Objection
Learned counsel for the Respondent objected to the competence of the two grounds of appeal filed by the Appellants. He argued that ground 1 of the Notice of Appeal dated 27/3/2017 does not relate to the ratio of the decision appealed against, that is the ruling of the trial Court delivered on the 23/11/2015. The reference to counsel who was served with the said motion informing the Court below that they had no instruction of the Judgment Debtor to represent him occurred on 8/10/2015 not 23/11/2015 subject of the instant appeal.
He submitted that both the ground of appeal as encapsulated in ground 1 and the attendant particulars are incompetent in that counsel who appeared on behalf of the Judgment Debtor to notify the trial Court that his brief excluded the motion was on 8/10/2015 and not 23/11/2015. He added, relying on the case of Eresia-Eke vs. Orikoha (2010) 8 NWLR (Pt. 1197) 421 at 441 that there cannot be two complaints encapsulated in one ground of appeal. He referred to the cases of M.B.N. Plc vs. Nwobodo (2005) 14 NWLR (Pt. 945) 379 at 387–388, Iloabachie vs. Iloabachie (2000) 5 NWLR (Pt. 656) 194 and reiterated the trite position of the law that a ground of appeal must relate to the ratio of the decision appealed against.
He emphasized that the complaint of the Appellants relative to ground 1 relates to the proceedings of 8/10/15 when the Respondents served the erstwhile counsel to the Appellants with the motion on notice dated 27/5/2015 and informed the trial Court that they do not have instructions to continue representing the Appellants and the matter adjourned to 5/11/2015. That on 5/11/2015, the Respondents filed, an ex parte application dated 4/11/2015 to serve the Appellants by substituted means and same accordingly granted by the trial Court and the case adjourned to 23/11/2015 for hearing of the motion on notice dated 27/7/2015.
Learned counsel for the Respondent submitted on the second ground of appeal and the attendant particulars that they are argumentative and contain extraneous materials that do not flow from the ruling of the trial Court appealed against which contravenes the express provision of Order 7 Rule 3(3) and 6 of the Rules of this Court.
After referring to the case of O.D. Briggs vs. The Chief Lands Officer of River State of Nigeria & 2 Ors (2005) 12 NWLR (Pt. 938) 59 at 90 on the above, Respondent’s counsel submitted further that the ruling of 23/11/2015 is interlocutory and on mixed law and facts for which no leave of the trial Court was sought within the contemplation of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria.
He submitted that the grounds of appeal and the Appellant’s particulars of error reveal that the Appellant is questioning the evaluation of facts by the lower Court before the application of the law, thus making same a ground of mixed law and fact.
That in the same vein, the Appellant is questioning the exercise of the discretionary powers of the Court in granting the motion dated 27/5/2015 and same requires leave to appeal being a ground of mixed law and fact.
He concluded that there is nothing before this Court that has shown that the Appellant has sought for and obtained leave before filing the Notice of Appeal relative to the instant appeal.
In response to the Respondent’s first ground of objection, learned counsel for the Appellant submitted that the rule that a ground of appeal must attack the ratio in a decision is not absolute. That the ground did not have two complains even if inelegantly drafted. He further submitted that the view that the said ground 1 relates to the proceedings of 8/10/2015 is futile as what the trial Court did including but not limited to the proceeding of 8/10/2015 impacted negatively on the Appellants by denying them their right to fair hearing even in all subsequent proceedings.
He concluded that a decision to attach and sell moveable properties predicated on the Sheriffs and Civil Process Act cannot be described as interlocutory or as exercise of discretion.
He urged us to overrule the Preliminary Objection.
Ground 1 of the Appellant’s notice of appeal does more than not being related to the ratio of the decision. In fact, it lied against the proceedings of 23/11/2015. There is nothing in the ground or its particulars that are traceable to the proceedings of 23/11/2015 on which the appeal is based.
A ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus, where, the factual basis for attacking a judgment is false or non-existent as the ground and particulars in ground 1 of the Appellant’s notice and grounds of appeal, or based on fictitious or misleading premise, such a ground is incompetent. See Iloabachie vs. Iloabachie (2000) 5 NWLR (Pt. 656) 194, Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 158, Bakule vs. Tanerewa (Nig) Ltd (1995) 2 NWLR (Pt. 308) 724–739 – 740, M.B.N. Plc vs. Nwobodo (2005) 14 NWLR (Pt. 945) 379–387–388.
In contrast, and in respect of Appellant’s ground 2 of the Notice and grounds of appeal, the allegation by the Respondent that the decision appealed against is interlocutory and required leave of Court as the grounds are on mixed law and fact cannot be sustained. The decision granting leave to attach and sell immoveable property is not an interlocutory decision.
For these reasons, ground 1 of the Notice of Appeal is found to be incompetent, however ground 2 of the Notice of Appeal is sustained. The Preliminary Objection is allowed in part.
The Main Appeal
Learned counsel for the Appellant nominated a sole issue for determination of the appeal. It is:
“Whether the learned trial Judge was correct to have granted the motion dated 27th July, 2015 in view of the facts and circumstances of the matter?”
Learned counsel for the Respondent adopted the issue so formulated by the Appellant for determination.
Learned counsel for the Appellants introduced his submissions on the sole issue by reproducing the Affidavit of service as contained on page 9 of the records. He submitted that:
(a) That the address the bailiff went to was not indicated.
(b) Moveable properties of the 2nd judgment debtor was not attempted for execution.
(c) It appears only one attempt was made which does not qualify as diligent search.
(d) Deponent of the affidavit in support of the motion derived his information from A. Bashar Esq, who was the counsel.
(e) It was the said counsel who supplied the contents of paragraph 3(b) of the affidavit.
(f) The said paragraph 3(b) is vague, lacking in details or particulars and insufficient to sustain the motion.
(g) The affidavit of service was not evaluated.
(h) There is nothing in the proceedings of 23/11/2015 to show that the Court thoroughly examined the affidavit of service.
He submitted that the learned trial Judge wrongly proceeded and granted the motion on notice dated 27/7/2015 on the basis of service of the said motion by way of pasting.
That the 1st Appellant, being a registered company cannot be served by way of pasting. Pasting, said counsel is alien and a fundamental infraction. It means no proper service on the Appellants and all proceedings conducted are faulty and liable to be set aside.
Finally, on the sole issue, learned counsel for the Appellants submitted that there is no single paragraph of the affidavit in support of the said motion dated 27th July 2015 where the Respondent state that the immoveable property to be attached belongs to either of the Appellants. No title documents or anything cogent or tangible that shows or proves ownership of the immoveable property to be attached. He referred to the cases of Shining Star (Nig) & Anor vs. A.K.S. Steel (Nig) Ltd & Ors (2010) LPELR–4957 (CA), Bullet Int’l (Nig) Ltd & Anor vs. Olaniyi& Anor (2016) LPELR–40303 (SC) and concluded that it appears the learned trial Judge treated every step in the proceedings as a matter of course.
Learned counsel for the Respondent submitted that the pertinent question in the instant case is to ask whether the decision reached by the trial Court to grant the said application is right particularly in the light of the fact that the Appellants did not file any process in opposition to the grant of same despite being on notice. He referred to the cases ofLebile vs Registered Trustees C & S (2003) 2 NWLR (Pt. 804) 399 at 422–423, S.C.C. Nig Ltd vs. Anya (2012) 9 NWLR (Pt. 1305) 213 at 230, Dapo vs. U.B.N Plc (2007) 16 NWLR (Pt. 1059) 99 at 161.
All, for the proposition that where a decision of a Court is right, the reason given for so holding is immaterial.
He submitted that the Appellants had argued that the information in Exhibit A which is the affidavit sworn to by the Bailiff of the Court below located at page 9 of the record is not sufficient to qualify as diligent search for moveable properties. However, that the Appellants have failed to take into account the available affidavit evidence that was not challenged in paragraphs b, c and d in support of the said application which stated that:
“(b) That he has made diligent search to trace the moveable properties of the judgment debtors/respondents with a view to making same subject of attachment to no avail.
(c) That on the 2nd of July 2015, the representative of the Judgment Creditor/Applicant went with the bailiff of this Court to the farm house of the judgment debtors situate at No.1 Fish Avenue, AssalamuAliakum, Mando, Kaduna with a view to attaching the moveable properties of the judgment debtors but could not find anything worthy of attachment to satisfy the judgment debt. Find attached herewith an affidavit deposed to by the bailiff of this Court indicating that there were no moveables to attach as Exhibit A.
(d) That in the absence of any moveable properties of the judgment debtors/respondents based on the diligent search for the same made by the judgment creditor, the only option is to apply to this Court for leave to attach and sell the immoveable property of the judgment debtors/respondents with a view to applying the proceeds to satisfy the judgment debt in this suit.”
He submitted that there were sufficient pieces of evidence before the trial Court which prompted the Court’s exercise of discretionary power to grant the said application. He added that Appellants have not demonstrated that the exercise of such discretion was not judiciously or judicially carried out. That in the light of the facts before the trial Court in the affidavit in support, the Court was justified in granting the said application.
He submitted that the soundness or validity of a judgment/ruling is neither a function of the length or volume of the judgment or ruling nor the analysis of the details of the issues and evidence. That it is not mandatory that all the essential elements of a good judgment must be manifest in the judgment/ruling subject of the complaint for same to be valid as the absence as it were of some of the ingredients for a valid judgment would not in themselves vitiate the judgment unless a clear case of miscarriage of justice can be shown to have arisen. On this, Respondent’s counsel referred to the case of A.G, Federation vs. Abubakar (2007) 10 NWLR (Pt. 1041) 1 at 76 – 77.
On the issue of the service of the motion on notice on the 1st Appellant by substituted means which according to the Appellants is fundamentally defective being a limited liability company, Respondent’s counsel reminded us that the appeal before this Court is against the ruling of the trial Court delivered on 23/11/2015 granting the motion on notice dated 27/7/2015. There is no challenge or appeal against the validity or otherwise of the service effected on the 1st Appellant by substituted means and therefore all issues and/or argument in relation thereto ought to be discountenanced.
He urged us to resolve the sole issue in favour of the Respondent.
The facts of the instant case would make one to think that the appeal by the Appellants is an afterthought on the inability of the Appellants to challenge any of the processes filed and served against them by the Respondent in the Court below. The Respondent took leave of Court and serve processes on the Appellants, the Appellants could not deny service either in the Court below or in this Court but now find it convenient on appeal to attack the contents of the Respondent’s unchallenged affidavit and even the validity of a Court granted substituted service by a written address on appeal. I do not think, this procedure conveniently created by the Appellants should succeed.
The purpose of an affidavit of service as in Exhibit ‘A’ on page 9 of the record of appeal is to prove that the process emanating from the Court has been brought to the notice of a litigant whose presence is required in Court.
Also, it is trite that where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of Court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing a counter affidavit to controvert the affidavit of service. SeeIntegrated Builders vs. Domzaq Ventures (Nig) Ltd (2005) 2 NWLR (Pt. 909) 97, Fatokun vs. Somade (2003) 1 NWLR (Pt. 802) 431.
Clearly, it is now too late for the Appellants, on appeal to begin to challenge the contents of the affidavit of service and the accepted depositions of the Respondent by way of written address.
Where the opposing party does not challenge depositions in an affidavit, such evidence or depositions are uncontroverted and unchallenged they are deemed to stand as admitted and constitute the truth of the matter. See Adamu vs. Akukalia (2005) 11 NWLR (Pt. 936) 263, A-G, Lagos State vs. Purification Tech (Nig) Ltd (2003) 15 NWLR (Pt. 845) 1, Ezechukwu vs. Onwuka (2006) 2 NWLR (Pt. 963) 151, Long-John vs. Blakk (1998) 6 NWLR (Pt. 555) 524 at 532 SC, FMCT vs. Eze (2006) 2 NWLR (Pt. 964) 221, F.G.N vs. AIC Ltd (2006) 4 NWLR (Pt. 970) 337, Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 SC, Umoh vs. Tita (1999) 12 NWLR (Pt. 631) 427, Ikpana vs. RTPCN (2006) 3 NWLR (Pt. 966) 106, Malgit vs. Dachen (1998) 5 NWLR (Pt. 550) 384.
In the instant case, the Appellants could no longer be heard to complain after failing to file counter-affidavit against the depositions of the Respondents in relation to the Respondent’s application to sell immoveable properties or failing to react to the validity of substituted service in the Court below.
In any event, as pointed out by the learned counsel for the Respondent, there is in fact no ground of appeal in the case challenging the validity of substituted service on the Appellants by the Respondents.
The trial Court was indeed justified in all the circumstances in granting the motion of 27/7/2015.
The only issue in this appeal is resolved against the Appellants. This appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the advantage of reading the judgment of my learned brother, MOJEED A. OWOADE, JCA. I am in agreement with the reasoning and conclusion that the appeal lacks merit. I also dismiss the appeal. Parties to bear their cost.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
M.T. MOHAMMED, ESQ. For Appellant(s)
K. MUSTAPHA, ESQ. For Respondent(s)
