MR. E. I. IJEWERE v. MR. AUGUSTUS ERIBO (2014)

MR. E. I. IJEWERE v. MR. AUGUSTUS ERIBO

(2014)LCN/7387(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/L/515/1999

RATIO

COURT: DUTY OF THE COURT: WHETHER THE COURT IS NOT PERMITTED TO RAISE AN ISSUE SUO MOTU AND PROCEED TO DETERMINE THE CASE BEFORE IT ON THE ISSUE SO RAISED WITHOUT CALLING ON THE PARTIES OR COUNSEL REPRESENTING THEM TO ADDRESS IT ON THE SAID ISSUE

APPEAL: RECORD OF APPEAL; WHETHER THE APPELLATE COURT AND THE PARTIES ARE BOUND BY THE CONTENTS OF THE RECORD OF APPEAL

I am in total agreement with the above submissions of learned counsel for the appellant. The authorities he referred to are equally on point. In the case of PETET ADEBOYE ODOFIN V. CHIEF AGU (1992) 3 NWLR (PT 229) 351 @ 367 A KARIBI WHYTE JSC said:
“When asked by the court to show on the record of proceeding a notice of such application, Mr. Adedoyin could not do so. The Appeal Court which is bound by the records cannot go outside it to decide on a disputed issue.
Also in TEXACO PANAMA INCORPORATED V. SHELL PETROLEUM DEVELOPMENT CO LTD (2002) SC (PT. III) 1 @ 15 lines 35-38, the SC observed:
“The parties and the court are bound by the contents of that record as it is presumed to be correct. See Sommer v. F.H.A. (1992) 1 NWLR (pt 219) 548; per KALGO JSC.”
In JULIUS BERGER (NIG) LTP v. FEMI (1993) 5 NWLR (PT 295) 612 @ 619-620, Achike JCA (as he then was) observed:
“It is trite that in the absence of any complaint, the appellate court and the parties are bound by the contents of the record of appeal…any informal insertion – whether by oral submission or in a brief of argument-which contradicts the content of the record of appeal is inadmissible and will not avail the party making the assertion”
In OJEME V. MOMODU (1994) 1 NWLR (PT 323) 685 @ page 697 C-D, Akpabio JCA observed:
“… an appeal should be fought solely on the basis of what appeared in the printed records, and not on something that existed only in the imagination of learned appellant’s counsel.” per. CHINWE EUGENIA IYIZOBA, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTARY EVIDENCE CANNOT BE CONTRADICTED, ALTERED OR ADDED TO OR VARIED BY ORAL EVIDENCE

I further agree with Counsel that by Section 132 of the Evidence Act when any judgment of any court or any other judicial or officVial proceedings has been reduced into writing the contents cannot be contradicted, altered or added to or varied by oral evidence. A.A. MACAULAY VAL. MERCHANT BANK LIMITED (1990) 4 NWLR PT. 144 283 at 310-311. per. CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA O. OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

MR. E. I. IJEWERE
(Carrying on business under the name and style of Ijewere & Co.) Appellant(s)

AND

MR. AUGUSTUS ERIBO
(Attorney for the Administratrix/Administrator of the Estate of Chief E. E. Eribo) Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Respondent herein as Plaintiff instituted suit no. HIGU/12/97 in the High Court of Edo State holden at Iguobazuwa against a company, Majekodunmi Ventures Ltd: as 1st Defendant and the appellant herein as 2nd defendant claiming as follows:
“1. An order of this Honourable court setting aside the Deed of sublease dated 6/9/93 made between Mr. Crosby Osadolor Eribo (Attorney of the Administratrix and Administrator of the Estate of Late Chief E.E. Eribo) of the one part and 1st Defendant of the other part and registered as instrument No 25 in volume 839 of the Land Registry in the office at Benin City for:-
a) Breach of terms of the Deed of sublease by the 1st Defendant and/or
b) Frustration of the intervening act of insolvency of 1st Defendant and appointment of 2nd defendant as manager/Receiver in respect of the 1st defendant

2. An order that the 1st defendant return to the plaintiff documents of title handed over to the 1st Defendant in respect of all that piece or parcel of farmland described in the schedule attached to the said deed of sublease.

3. An order of perpetual injunction restraining the defendants, their servants and/or agents from further occupation and managing of the said piece or parcel of farmland.
The parties settled out of court leading to the entering of a consent judgment duly signed by the parties and their counsel. The terms of settlement read thus:

TERMS OF SETTLEMENT
TAKE NOTICE that the parties to this suit in consultation with their respective counsel have freely and willingly agreed to settle all the issues arising from this suit in terms following:
1. That the total indebtedness of the 1st Defendant to the Plaintiff is in the sum of N4, 125,000.00 (Four million one hundred and twenty-five thousand naira only) made up as follows:
a. Balance outstanding on lease = N3,625,000.00
b. Compensation for delayed Payment = 500,000.00
4,125,000.00
2. That the 1st defendant shall pay an initial deposit of N1 million on or before 31st July 1998.

3. That the outstanding balance shall be paid by equal monthly installment and shall be fully liquidated on or before 31st May, 1999.

4. That interest shall be paid on the outstanding balance at the rate of 15% per annum. (interest shall be calculated on the reducing balance) …….”

Pursuant to a Certificate of judgment which was registered at the High Court of Lagos State, Lagos Judicial Division as NRJ/25/98 (page 20-23 of the Record), the Respondent herein levied execution on the assets of the Appellant who was the 2nd Defendant in the lower court when judgment was entered against the 1st defendant only.

The Appellant alleged that the Respondent in purported execution of the aforesaid judgment with a fully armed policeman and 15 other persons stormed into his office at 106/110 Lewis street on 10/3/99; seized his Mercedes Benz Car Reg No: DE 230 KJA, and forcibly collected from him a Union Bank Cheque for the sum of N1 million and cash of N125, 000.00.

The appellant, the very next day, on 11/3/99 filed a Motion on Notice supported by an Affidavit with three exhibits KA1 – KA3 and an affidavit of urgency seeking, inter alia, to set aside the execution and the restoration of his assets seized in execution of the judgment obtained against the 1st defendant. The Appellant later filed a Notice of Further relief by which he sought for the restoration of his seized assets as well as the setting aside of the Registration of the Certificate of Judgment. (See Pages 10-11 of the Record).

The Respondent filed a Counter Affidavit in which he expressly admitted levying execution on the Appellant but sought to justify the execution on grounds extraneous to the Judgment.
The lower court in its Ruling of 1st December 1999 dismissed the Appellant’s Application on the main ground that the appellant failed to provide evidence of execution on his assets and on the secondary ground that the Appellant ought to have approached the court by an interpleader summons and not by motion on Notice. (See Pages 16 – 19 of the Record).

The Appellant dissatisfied with the ruling filed a Notice of Appeal on the 15th of December 1999 and with the leave of this court amended the Notice of Appeal to include four additional grounds of Appeal. Out of the grounds of appeal, the appellant formulated the following issues:

1. Whether the court below was right in holding that there was no evidence of execution on the appellant and that there was no signed writ of fifa against him.

2. Whether the Lower court was right in dismissing the Appellant’s application on the grounds contained in the Ruling.

3. Whether having regard to the admitted fact that the appellant was not a judgment debtor the court below ought, without more, to have granted his application.

The Respondent pursuant to Order 3 Rule 14(2) of the Court of Appeal Rules filed a Respondent, Notice dated 5th day of November 2003 contending that the ruling should be affirmed on grounds other than those relied on by the court below. The sole ground of the Notice to contend is that the court below properly dismissed the appellant’s application dated 11/3/99 having regard to the capacity in which the appellant was sued as co-defendant in the action. Seven paragraph particulars were set out in the notice. Learned counsel for the Respondent in his brief submitted that the only issue for determination, flowing from the ground contained in the Respondent Notice is:
Whether the court below having regard to the capacity in which the appellant was sued in the substantive suit, ought not to have dismissed the appellant’s application.

The appeal was heard on the 12th of June 2014. The appellant was represented but the Respondent was not represented, though served with hearing notice. Pursuant to order 18 Rule 9 (4) of the Court of Appeal Rules, the appeal was taken as having been duly argued.

ARGUMENTS OF THE APPELLANT ON HIS THREE ISSUES
Issues 1 & 2 are inter-related and will be dealt with together.

ISSUE 1:
Whether the court below was right in holding that there was no evidence of execution on the appellant and that there was no signed writ of fifa against him.

ISSUE NO: 2
Whether the Lower Court was right in dismissing the Appellant’s application on the grounds contained in the Ruling.

Learned counsel for the appellant in his brief submitted that the lower court in its ruling acknowledged that the Appellant’s application was supported by an affidavit of urgency and an affidavit in support with three exhibits marked KA1- KA3. It equally acknowledged the Counter Affidavit of the Respondent. Counsel argued that in the Appellant’s Affidavit of Urgency it was deposed that execution was levied on the appellant’s assets. There are similar depositions in greater details in the affidavit in support of the application. The Respondent did not deny these depositions. It merely sought to justify the execution it levied on the appellant. In fact in paragraph 17 of his Counter Affidavit, he deposed thus:
“I am also informed by Mr, Oluwatosin Omigie whom I verily believe that the execution on the Applicant (Appellant herein) was neither mischievous nor fraudulent”

Counsel submitted that it was thus an agreed or accepted fact between the parties to the litigation that execution was levied on the assets of the Appellant. He argued that Exhibit KA1 attached to the Appellant’s supporting affidavit showed clearly the nature of the exercise that was carried out by the Plaintiff on the appellant. Exhibit KA1 signed by the Plaintiff’s Solicitor, Mr. Oluwatosin Omigie, the Bailiff, the police and a representative of the Appellant, reads in part as follows:
“…..Writ of Execution taking (sic) against the 2nd Defendant (Appellant herein) today 10/3/99 at 106/110 Lewis Street Lagos.
Properties attached are as follows:
1. One Mercedes Benz Reg. No DE 230 KJA…”

Counsel submitted that in spite of abundant evidence that execution was levied on the appellant the learned trial judge held that:
“The application is based upon an assumption that execution was levied against the 2nd Defendant. There is no doubt that execution was carried out but there is no evidence that the execution was carried out against the 2nd Defendant who is the applicant in this case….. On the whole in the absence of a writ of fifa against the 2nd defendant it is to be assumed that the writ of fifa executed in this case was against the 1st defendant.” See page 18 of the Record.

Learned counsel expressed shock and surprise at the finding of the learned trial court and wondered from where the lower court conjured its doubts from and ultimately its perverse findings given the averments in the affidavits. Counsel submitted that the question whether or not the execution was levied against the appellant was raised suo motu by the lower court in its Ruling without any reference to the parties or the state of the affidavit evidence. Counsel submitted that the lower court at page 18 of the Record further observed:
“There is no record that any Writ of Fifa was ever signed by this court against the 2nd Defendant whatsoever. The 2nd Defendant who has the burden and responsibility of satisfying this court that execution was indeed levied against the 2nd Defendant has failed to show any writ of fifa signed against the 2nd defendant…”

Learned counsel submitted that the affidavit evidence of the Respondent on the issue of execution was highly material in the determination of the issue by the lower court and ought not to have been ignored. He cited ORIENT BANK (NIG) PLC V. BILANTE INTL. LTD [1996] 5 N.W.L.R. PT 447 PAGE 166 at 180 where the court made the point that:
“it is elementary law that where a respondent does not challenge or contradict a deposition in his counter affidavit he will be deemed to have accepted the truth of the deposition unless it is obviously false to the knowledge and experience of the court.”

Counsel further submitted that a burden to prove facts in civil cases can only exist when a fact affirmed by one party is disputed by the other party. The fact is then said to be in issue. A burden lies on the person who will lose if no evidence were called by either party with regard to facts which evidence affirmed on one side and denied on the other side. Counsel relied on the cases of LEWIS PEAT (N.R.I) LTD .V. AKHIMIEM (1976) 1 ALL N.L.R 460; ANASON FARMS LIMITED V. NAL MERCHANT BANK LIMITED (1994) 3 N.W.L.R. PT 331 PAGE 241 at page 252.

Counsel also submitted that the appellant did not merely affirm the fact of execution on his assets but led evidence by affidavits and exhibits to show that execution was levied on his assets and the respondent confirmed and admitted in his affidavit evidence the fact of execution on the appellant. There was thus no dispute or issue between the parties as to the fact of execution and the learned trial judge was, in the circumstances of this case, clearly wrong to have required any other evidence of this fact from the Appellant.

Learned counsel finally on issue 1 submitted that there was absolutely no justification whatsoever for the learned trial judge to come to the conclusion that the appellant failed to provide evidence of execution or that there was no evidence of execution or that there was no signed Writ of Fifa on the Appellant or that there was no evidence that execution was levied on the Appellant. He concluded that the decision of the lower court is perverse and unsupportable even by its own record and should be reversed. On issue 2, counsel submitted that the two issues on the basis of which the lower court dismissed the application of the appellant were raised suo motu by the court without giving opportunity to the appellant to present his views on the matter. Relying on a number of authorities, counsel urged the court to set aside the decision of the lower court.

ISSUE NO: 3
Whether having regard to the admitted fact that the appellant is not a judgment debtor the court below ought, without more, to have granted his application.

Learned counsel submitted that the main ground on which the appellant applied for relief is that he is not a Judgment debtor under the consent judgment as deposed in Paragraphs 3 Affidavit of Urgency and paragraph 3V – 3X of the affidavit in support of the Motion on Notice at pages 5-6 of the Record. The respondent did not deny these paragraphs. The Terms of Settlement and the Certificate of Judgment which contain an abstract of the consent judgment confirm that the appellant is not a judgment debtor. Paragraph 4 of the affidavit of the respondent, deposed to by Nosa Obaizamomwan falsely states:

“The Plaintiff/Judgment Creditor sued the Defendant/Judgment Debtors in the High Court of Edo State holden at Iguobazuwa in Suit No NIGU/12/97 in which consent Judgment was entered in the said sum of N4,125,000 (Four Million One Hundred and Twenty Five Naira) (sic) in favour of the Plaintiff/Creditor against the Defendants/Judgment/Debtors jointly and severally by the said court on the 24 days of June, 1998 which was to be paid in installment” (emphasis supplied).

Counsel submitted that this false statement on oath that Judgment was entered jointly and severally, when in fact it was not, underscores the fact that the Appellant is not a judgment debtor. Counsel argued that the terms of settlement make it clear beyond any peradventure that only the 1st Defendant was ordered to pay money under the judgment. It was the only judgment debtor. Significantly the Respondent did not in his Counter Affidavit contend that the Appellant was ordered to pay money under the Terms of Settlement or that he is a judgment debtor. He sought to justify the execution on ground extraneous to the judgment. Counsel submitted that the appellant was in the circumstances entitled ex debito justicie to have the execution on his assets set aside.

Counsel submitted that the issues that the Plaintiffs raised in their Counter Affidavit were all extraneous to the Judgment, which they purported to have executed. They raised the following issues in their Counter Affidavit:
(1) Appellant’s alleged admission of liability in the course of execution. Paragraph 4, page 12 of the Record.

(2) That the appellant as Defendant in the Suit signed the Terms of Settlement and is bound by it. Paragraph 15, Page 13 of the Record.

(3) That the appellant as the Receiver/Manager of 1st Defendant is vested with all the rights assets and liabilities of the 1st Defendant. Paragraph 16, Page 13 of the Record.

Learned counsel submitted that none of the above issues are contained in the Judgment, which was purportedly enforced against the Appellant. Counsel submitted that the lower court was wrong to have held that the appellant should have come by interpleader summons. He submitted that Interpleader summons Procedure is applicable when the goods and chattels of a person not named in the writ of fifa is attached. It cannot be the procedure to be followed by a party to the suit against whom the writ was targeted and executed. He relied on HOLMAN BROS (NIG) LTD CASE (Supra). Counsel submitted that to allow the Ruling of the Court below to stand will be a travesty of Justice and prayed us to set it aside and grant all the reliefs contained in his motion on notice and notice of further relief.

RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent on his sole issue submitted that it is incontrovertible that the Appellant was a party (sued as 2nd Defendant) to suit No: HIGU/12/M3/97 where the consent judgment was given. He argued that under the Law, one reason which makes it necessary to make a person a party to a civil action is that he may be bound by the result of the action. He referred to GREEN v. GREEN 1987 NWLR PART 61 P480. Counsel submitted that 1st Defendant was in receivership and that the appellant was sued in his capacity as the Receiver/Manager of the 1st Defendant. Counsel referred to paragraph 805 Halsbury’s laws of England 4th Edition Vol 39 which states that a receiver manager appointed out of court being an agent only is not personally liable for transactions entered into by him as a receiver, however “if a receiver manager gives his personal promise to pay a debt for which his principal may become liable, he is bound to pay that debt (Robinson Printing Co. Ltd Vs. Chic. Ltd. (1905) 2 Ch. 123 at 134) and such promise can be inferred by the court from the terms of the documents, if any containing the promise.”

Counsel submitted that in the instant case the promise can be inferred from the consent judgment, which he instigated on behalf of the first Defendant and by also his endorsement of the terms of settlement of the said consent judgment. Counsel referred to various sections of the Company and Allied Matters Act concerning receivers/managers and contended that by those sections the appellant was personally liable under the terms of the consent judgment. Counsel further submitted relying on LAWAL V. UNION BANK 1995 2 S. C. N. J. P132 AT 145 that the appellant having agreed in the trial and on record and in private meetings to be bound by terms of the settlement in the consent judgment, he is estopped from denying such facts. He argued that the receiver manager who was a party to the proceedings in the High Court in Edo State together with the 1st Defendant in that suit entered an agreement with the respondent fully aware that the 1st Defendant was insolvent, instigated and entered terms of settlement endorsed by the court would be engaging in an act of mischief by attempting to avoid his culpability.

Counsel submitted relying on COUNCIL OF YABATECH V. NIGERLEC CONTRACT LTD (1989) 1 NWLR P 95 that by the singular act of payment of the sum of N500,000.00 (Five Hundred Thousand Naira Only) on behalf of Judgment Debtor by the Appellant, the Appellant demonstrated his wiliness to be bound by the terms of the consent judgment. Counsel finally urged the court to dismiss the appeal and affirm the ruling of the lower court validating the writ of fifa executed against the appellant and also order the appellant to pay the debt owed the respondent as stated in the terms of settlement in the consent judgment.

APPELLANT’S REPLY ON LAW
Learned counsel in his reply brief submitted that by his notice to contend, the respondent is inviting the Court of Appeal to affirm the decision of the court below on the ground that as the Appellant, 2nd defendant in the court below was sued as Receiver/manager of the 1st defendant, execution was rightly levied on his personal assets even though judgment was given against the 1st defendant alone!

Learned counsel submitted that the respondent in his statement of the facts as set out in his brief of argument alluded to facts which are nowhere contained in the Record of Appeal. Counsel set out the facts and relevant authorities and urged the court to discountenance and strike out all the facts contained in the respondent’s brief, which are not borne out by or contained in the Record of Appeal as being totally irrelevant to the determination of the appeal.

Counsel argued that the inclusion of the 2nd defendant (Appellant) by the respondent as a person liable to pay money jointly or severally with the 1st defendant is an addition to, a variation or contradiction of the judgment and is expressly forbidden by section 132 of the Evidence Act Cap 112 LFN.

Counsel further submitted that section 394 of the Companies and Allied Matter Act does not authorize the execution of judgment on a Receiver/Manager in a situation where judgment was expressly obtained against the company alone. Section 394 is inapplicable to the facts of this case and cannot avail the respondent in the absence of a judgment or order of a court of competent jurisdiction against the Appellant. Counsel submitted that the case of AKANBI v. DUROSARO (1998) 12 NWLR PT 577 284 cited by the respondent is completely irrelevant to this case as the case merely established the principle that in a representative action both named and unnamed but represented parties are bound by the judgment.
Learned counsel urged the court to allow the appeal and grant all the reliefs sought in the Amended notice of Appeal.

RESOLUTION:
From the arguments of counsel copiously set out above, it is obvious that this appeal is a simple one devoid of any complexity. The respondent did not proffer arguments in response to the appellant’s arguments on his three issues. Rather, he filed a notice to contend and formulated his own issue based on the notice. I shall first deal with the appellant’s three issues and then the respondent’s issue.

APPELLANT’S ISSUES ONE & TWO
For ease of reference, I shall set out in full the short ruling of the learned trial judge:
“This is a motion on Notice by which the applicant the second defendant (sic) and suit No. HIGU/12/11/97 before the Edo State High Court (sic) sting at Iguobazuwa is praying this court for an order to stay execution and further proceedings. An order setting aside the issue of processes upon the certificate of joint (sic) and a host of other reliefs as contained in the face of the motion paper and a notice of further reliefs dated 16th March, 1999. The application is supported by an affidavit of Urgency and an affidavit in support of 5 paragraphs. The judgment creditor/respondent filed and served a counter affidavit of 20 paragraphs. I must add very quickly that there are three exhibits attached to the affidavit in support. I have read the affidavit in support and the three exhibits attached thereto. I have listened to the submissions of learned counsel for the applicant as recorded above.
After listening to learned counsel aforesaid, it became obvious to me that there (sic) no reason to call (sic) all the learned counsel for the judgment creditor to respond. This application is based upon an assumption that execution was levied against the 2nd defendant. There is (sic) doubt that execution was carried out but there is no (sic) obvious that the execution was carried out against the 2nd defendant who is the applicant in this case.

The only writ of fifa and sale of goods on the record of this court is a writ of fifa issued against the first defendant in this case which is the writ of fifa against the 1st defendant only. It is to be found at page 16 of the case file. There is no record that any writ of fifa was ever signed by this court against the 2nd defendant whatsoever. The 2nd defendant who has the burden and the responsibility of satisfying this court that execution was indeed levied against the 2nd defendant has failed to show any writ of fifa signed against the 2nd defendant, Exhibit K1 attached to the affidavit in support (sic) a list of goods which were Attached. It is stated therein that the writ of execution was taken against the 2nd defendant Exhibit K2 is a receipt for money collected for the liquidation of debt owed the judgment creditor by the 1st defendant while Exhibit K3 is the photocopy of the cheque issued to the judgment creditors.

On the whole, in the absence of a writ of fifa executed in this case was against the 1st defendant. I am not unaware that it is possible to levy execution against the goods of an innocent person in the process of carrying out execution against a judgment debtor. The procedure provided to enable the innocent person to reclaim his goods wrongly carried away is the procedure by way of interpleaded summons. This action is not in accordance with interpleaded summons.
In the result I am of the view that there is no evidence before this court that execution was carried against the 2nd defendant. The evidence before the court is that execution (sic) has carried against the 1st defendant only. Therefore this application having been brought by the person against whom execution is never levied as 2nd defendant. Even if it is competent it lacks merit. It is therefore dismissed. There shall be no order as to cost.”

It is clear from the learned trial judge’s ruling above that his conclusion was that there was no evidence that execution was levied against the 2nd defendant (appellant herein). It is indeed very surprising that the learned judge would come to this conclusion in view of the copious affidavit evidence before him that execution was levied against the 2nd defendant. In his ruling he acknowledged the affidavits and said he had read them and the exhibits attached. It is thus quite puzzling that his lordship came to that conclusion. For example the relevant depositions in the affidavit of urgency are as follows:
1. That on Wednesday the 10th of March, 1999 execution was levied on the 2nd Defendant in his office at 106/110, Lewis Street, pursuant to a certificate of judgment under which he is not at all liable in any form to the Plaintiff.
2. That it is in the interest of justice that the 2nd Defendant’s motion on notice dated 11th March 1999 be heard immediately in order to expedite the reversal of the great injustice that has been done to him by the seizure of his goods and chattels.
3. That I was informed by the 2nd Defendant and I verily believe him that the cheque of N1, 000,000.00 (one million naira only) which he was forced to issue to the Plaintiff in order to save himself and his office from further embarrassment as a result of the execution aforesaid, will be presented this morning by the Plaintiff for clearing.
4. That unless the 2nd Defendant’s application is heard most urgently he stands to lose, not Just the goods seized in execution but a whooping sum of N1, 000,000,00 (one million naira only)

There are similar depositions in the affidavit in support of the application as follows:

3. That on the 10th of March, 1999 the 2nd Defendant, in his office informed me and I verily believe him as follows:
(i) That on Wednesday the 10th day of March, 1999 the Plaintiffs Solicitor, Mr. Oluwatosin Omigie, with the Bailiff of this Honourable Court and fully armed policeman with the aid of about 15 persons stormed his office and seized, at about 7.00 pm; one Mercedes Benz car with Registration No. DE 230 KJA.

(ii) That under the threat of the armed Policeman, the plaintiffs solicitor aforementioned collected a cash sum of N125, 000.00 (one hundred and twenty-five thousand naira only) representing N100, 000.00 (one hundred thousand) in liquidation of the 1st Defendant’s debt and N25,000.00 (Twenty-five thousand naira only) as his alleged expenses.

(iii) That the plaintiffs solicitor also insisted on collecting and collected a Union Bank of Nigeria plc cheque dated March 10, 1999 and made payable to the plaintiff in the sum of N1,000,000,00 (one million naira only).

The above affidavit had attached to it, three exhibits K1, K2 and K3 all confirming the execution against the 2nd defendant as averred to above. It is clear on the face of the cheque for N1m Exhibit K3 that the cheque was written in favour of the judgment creditor Augustus Eribo by the appellant’s company, Ijewere & Co. Evidence of execution against the 2nd defendant is totally overwhelming.

The Respondent deposed to a counter affidavit in opposition to the application. The question is: Did the respondent traverse or deny any of the above depositions in the Appellant’s affidavits? There was no such traverse or denial. Rather the averments in the counter affidavit confirmed the levying of execution on the 2nd defendant/appellant and proceeded to give reasons why it was right to levy execution on the 2nd defendant. It was even deposed that the execution was neither mischievous nor fraudulent. This was not even a case of failure to deny the averments, which under our law translates to admission. The averments actually confirmed the execution. It therefore beats my imagination to understand how in the face of this overwhelming affidavit evidence of the levying of execution on the appellant, the learned trial judge would come to the conclusion that there was no evidence that execution was levied against the 2nd defendant (appellant herein). I can well understand the feeling of learned counsel for the appellant when he queried:
“Where did the lower court get its doubts and assumption as to execution from? How or why did it arrive at this most startling conclusion? From whence did it conjure up the assumption as to execution on the 1st defendant? Certainly not from the affidavits of any of the parties before it.”

I fully concur in the sentiments expressed by learned counsel above. There was absolutely no basis for the conclusion arrived at by the learned trial Judge. His Lordship was equally wrong in his conclusion that because the 2nd defendant failed to show a writ of fifa signed by the court against him, he did not discharge the burden of proving that execution was against him. Of course learned counsel for the appellant who went to a lot of trouble to espouse the law and the difference between a writ of fifa and execution was absolutely right in his view that a signed writ of fifa is no evidence of execution. The analogy the learned trial judge tried to draw between the two concepts is untenable. There was no burden on the appellant to prove the levying of execution on him because the fact of execution on him was not in dispute between the parties. There was consensus that execution was levied on him. The learned trial judge was simply on a frolic of his own, raising suo motu issues that did not arise from the dispute between the parties and basing his decision on them without hearing from the parties. Learned counsel had submitted that the court below dismissed the Appellant’s application on two grounds, namely, that the Appellant failed to provide evidence of execution and that he ought to have applied for relief by way of interpleader summons.

I agree with counsel that the Respondent did not in his counter affidavit or anywhere else canvass these issues and they were not issues in the appellant’s affidavit. They were raised suo motu by the court in its Ruling. The learned trial Judge was clearly in error in basing his decision on grounds not canvassed by the parties and without giving the Appellant any opportunity to put across his own point of view on the matter. In Adedayo & Ors v. PDP & Ors (2013) LPELR-20342 (SC), Onnoghen JSC observed:
“it is trite law that a court of law is not permitted to raise an issue suo motu and proceed to determine the case before it on the issue so raised without calling on the parties or counsel representing them to address it on the said issue. It follows therefore that it is not the raising of the issue so motu that is frowned upon by the law but the failure of the court to hear the parties on the issue in question before proceeding to determine the case on the issue. Where the court fails to listen to the parties, particularly the party to be adversely affected by the decision on the issue so raised, it is said to have fallen foul of the principles of the rules of fair hearing, and such a decision is liable to be set aside.”
See also the following cases cited by learned counsel for the appellant: SPACO VEHICLE & PLANT HIRE CO. LTD V. ALRAINE (NIG) LTD (1995) 8 NWLR PT. 416 665 & 673; MALCOM OLUMOLU V. ISLAMIC TRUST OF NIGERIA (1996) 2 N.W.L.R. PT. 430 PAGE 253 AT 266; AFRICAN CONTINENTAL SEAWAYS LTD. V. NIGERIA DREDGING ROADS AND GENERAL WORKS LTD, (1977) 5 SC 235 at 248 and 250.
I agree with appellant’s counsel that since neither the appellant nor the respondent raised the issue in their affidavits or argument and they were not called upon to address the issues raised suo motu by the court, the lower court descended into the arena of conflict by gratuitously canvassing these points on behalf of the Respondent. The error vitiates the ruling of the court. Further, the learned trial Judge was wrong in his finding that there was no evidence that execution was levied against the 2nd defendant/appellant. In view of the affidavit evidence before him, the finding was perverse. He also erred in dismissing the application because the appellant did not come by way of interpleader summons when the issue was not raised by any of the parties.

Furthermore, the appellant was right in his submission that interpleader summons Procedure is applicable when the goods and chattels of a person not named in the writ of fifa is attached and cannot be the procedure to be followed by a party to the suit against whom the writ was targeted and executed. Even if the wrong procedure was followed, it is not a ground for dismissing the application if meritorious. See Holman Bros v. The Compass Trading Co Ltd. (1992) 1 NWLR (pt. 217) 368 @ 378 A; where it was held that a trial court could summarily dispose of triable issues without resorting to interpleader summons.

ISSUE THREE:
A careful perusal or indeed even a cursory perusal of the claims of the respondent against the appellant in the lower court and the terms of settlement make it clear beyond peradventure (using the words of learned counsel for the appellant) that judgment was against the 1st defendant alone. The consent judgment was not against the parties jointly and severally. Yet in his counter affidavit, the respondent falsely deposed that consent Judgment was entered in the said sum of N4,125,000 (Four Million One Hundred and Twenty Five Naira) in favour of the Plaintiff/Creditor against the Defendants/Judgment Debtors jointly and severally. This was not the case. The fact of this false deposition underscores the point that the respondent knew that he had no business levying execution on the personal assets of the appellant who was in the suit merely as receiver/manager of the 1st defendant and for a debt incurred before the 1st defendant went into receivership. Learned counsel for the appellant is right that even on the basis that the consent judgment was against the 1st defendant alone the learned trial judge ought to have granted his application setting aside the execution levied against his personal assets. However, I shall now consider the submissions of the Respondent to see whether he proffered any convincing reasons why the ruling of the lower court should be up held.

RESPONDENT’S ISSUE:
Whether the court below having regard to the capacity in which the appellant was sued in the substantive suit, ought not to have dismissed the appellant’s application.

The Respondent had filed a Respondent’s Notice contending that the ruling should be affirmed on grounds other than those relied on by the Court below. This by implication means a concession that the grounds on the basis of which the Lower Court dismissed the appellant’s application were untenable. The Respondent consequently had nothing to urge the court in response to appellant’s submissions on his three issues. His case is that the appellant was made a party to the suit because he was the receiver/manager of the 1st defendant. Learned counsel for the respondent had referred to paragraph 805 Halsbuly’s laws of England 4th Edition Vol 39 which provides that a receiver/manager appointed out of court being an agent only is not personally liable for transactions entered into by him as a receiver, except where he gave a personal promise to pay a debt for which his principal may be liable; and further that the promise can be inferred from the terms of the document containing the promise. It is pertinent to note that the submissions of learned counsel for the respondent is to the effect that a receiver can be held personally liable for a contract entered into by him as a receiver on behalf of the company in receivership only under certain circumstances. If he cannot be held personally liable for such a contract except for example where he gave a personal promise to pay, how then can he be held personally liable for a contract entered into by the company long before it went into receivership and when the judgment of the court was against the company only? Execution ought to be levied against the assets of the 1st defendant in respect of which the appellant is receiver/manager. That was why he was made a party to the suit. It is inconceivable that the judgment creditor would go after the personal assets of the receiver in the circumstances.

What is quite worrisome about this case is that counsel for the respondent in his brief raised points and issues in support of his argument that cannot be found anywhere in the record of appeal, or any of the processes filed by the parties. The facts as meticulously set out in the appellant’s reply brief are as follows:
1. Firstly on the 6th and 7th lines of the 2nd page of the Brief the Respondent introduced facts which was not put in evidence either at the court below or in this court. The paragraph reads as follows:
“And leave was sought to levy execution against the defendants”.

Counsel submitted that the respondent did not file any motion seeking leave to levy execution on the defendants. The entire process leading up to execution on the Appellant was done administratively as shown on pages 26-38 of the Record of Appeal.

2. Secondly lines 8, 9, 10 and 11 of the 2nd page of the Respondent’s brief read as follows:
“Pursuant to paragraph 2 of the terms of settlement of the said consent judgment, the Appellant on behalf of the 1st defendant forwarded to the Respondent a cheque in the sum of N500,000.00 (Five hundred Thousand Naira Only) and undertook to abide by the schedule of payment laid down in the said terms of settlement.”

At page 4 and 5 from paragraph 6, it is stated:
“The Appellant pursuant to term of the consent Judgment, had paid to the Respondent the sum of N500,000.00 (Five hundred thousand naira only) in accordance with the schedule of payment of the terms of settlement on behalf of the judgment Debtor. At the time of this payment, the Appellant requested for a little more time to pay the balance of N500,000.00 (Five hundred thousand naira only) as the amount of money which the Judgment Debtor was to have paid as per the first installment or the said schedule of payment was N 1,000,000.00 (one million naira only) this was to have been done on or before the 31st of July 1998”
The 2nd, 3rd and 6th paragraphs of page 5 of the respondent’s brief read respectively as follows:
“What prompted the application for a writ of fifa against the Appellant was when after repeated attempt, the Appellant refused to make any further payments to the Respondent as per the terms of settlement.
“It is submitted that the Appellant’s payment of the sum of N500,000.00 (Five hundred thousand naira only) on behalf of the Judgment Debtor is a clear affirmation of the Appellant’s acceptance of the bindingness of the terms of the consent judgment….”
“Lastly, we submit that by the singular act of payment of the sum of N500,000.00 (Five hundred thousand naira only) on behalf of Judgment Debtor by the Appellant, the Appellant has demonstrated his wiliness to be bound by the terms of the consent judgment…”

Learned counsel submitted that all these statements are not to be found anywhere in the 20 paragraph counter affidavit filed by the Respondent in the court below or in the solitary exhibit attached to that affidavit; or in any affidavit filed by the Appellant; nor indeed are the statements part of any of the party’s case. Counsel submitted that they were conjured from thin air by the Respondent and planted into his brief of argument. They are not part of the Record of Appeal.
Counsel also submitted that at page 1, line 12 of the brief it was stated:
“On 26 February 1997 a writ of fiery facias was ordered…against the Appellant”

Counsel submitted that the court below did not make any order and as earlier explained the entire process leading up to execution on the Appellant was done administratively!

3. Thirdly counsel submitted that the following passage in paragraph 2 of page 3 is also a misrepresentation of the facts and is not borne out by either the records nor is any such view reflected in the arguments in the appellant’s brief.
“From the Appellant’s argument, it is clear that he entered the consent judgment on behalf of his client who was not fully represented or present. He signed on behalf of the 1st defendant who was in a receivership…therefore they were willing to be bound”

Counsel submitted that records show clearly that the Appellant did not sign on behalf of the 1st defendant. The respondent chose to sue the defendants separately and distinctly and judgment was entered against the 1st defendant alone and not jointly and or severally against the defendants. Furthermore there is nothing in the entire Record of Appeal to support the above passage.

4. Again at paragraph 2 page 4 the respondent declared:
“The Appellant agreed in the trial and on record and in a private meeting to be bound by the terms of the settlement in the consent judgment.”

Counsel submitted that this alleged agreement is not borne out by or contained in the Record of Appeal, more importantly the Appellant in his affidavit of urgency and affidavit in support of his application at the court below categorically denied every liability under the judgment. Page 1 of the Record paragraph 3, and pages 5 and 6, paragraphs 3(i) (ii) (v) (vi) (vii) (viii) (ix) and (x).

Counsel submitted that the respondent cannot by his brief of argument introduce facts which are not in the record of appeal. The parties as well as the court are bound by the facts contained in the record of appeal. Counsel relied on the cases of PETET ADEBOYE ODOFIN v. CHIEF AGU (1992) 3 NWLR PT 229 351 at 367 Para A; TEXACO PANAMA INCORPORATED V. SHELL PETROLEUM DEVELOPMENT CO LTD (2002) SC (PT III) 1 at 15 lines 35-38; JULIU BERGER (NIG) LTD V. FEMI (1993) 5 NWLR PT 295, 612 AT 619-620; OJEME v. MOMODU (1994) 1 NWLR PT 323 685 at page 697 line C.
I am in total agreement with the above submissions of learned counsel for the appellant. The authorities he referred to are equally on point. In the case of PETET ADEBOYE ODOFIN V. CHIEF AGU (1992) 3 NWLR (PT 229) 351 @ 367 A KARIBI WHYTE JSC said:
“When asked by the court to show on the record of proceeding a notice of such application, Mr. Adedoyin could not do so. The Appeal Court which is bound by the records cannot go outside it to decide on a disputed issue.
Also in TEXACO PANAMA INCORPORATED V. SHELL PETROLEUM DEVELOPMENT CO LTD (2002) SC (PT. III) 1 @ 15 lines 35-38, the SC observed:
“The parties and the court are bound by the contents of that record as it is presumed to be correct. See Sommer v. F.H.A. (1992) 1 NWLR (pt 219) 548; per KALGO JSC.”
In JULIUS BERGER (NIG) LTP v. FEMI (1993) 5 NWLR (PT 295) 612 @ 619-620, Achike JCA (as he then was) observed:
“It is trite that in the absence of any complaint, the appellate court and the parties are bound by the contents of the record of appeal…any informal insertion – whether by oral submission or in a brief of argument-which contradicts the content of the record of appeal is inadmissible and will not avail the party making the assertion”
In OJEME V. MOMODU (1994) 1 NWLR (PT 323) 685 @ page 697 C-D, Akpabio JCA observed:
“… an appeal should be fought solely on the basis of what appeared in the printed records, and not on something that existed only in the imagination of learned appellant’s counsel.”

With all due respect to learned counsel for the respondent, I do not understand what he was thinking or doing. None of his numerous claims and assertions was reflected in the records. If the records were incomplete or if his claim is that the learned trial judge failed to record all that transpired in court, there is a procedure for questioning the record of appeal. He must formally attack the record with due notice of the complaint given to the opposing party. The courts, if the circumstances justify it will rectify the record. Where there is no such rectification, the record must be left intact and all will be bound by it. The respondent cannot go on a frolic of his own making allegations and claims outside the record and his own counter affidavit. It would even be understandable if the issues were canvassed in the respondent’s counter affidavit. None of the issues was raised in the counter-affidavit. Did the respondent forget that this is a court of record, not a customary court?

I agree with the submission of appellant’s counsel that the respondent is wrong in his contention that the signing of the Terms of Settlement by the Appellant binds him and makes him liable there under without regard to the terms of the judgment. It is true as Counsel argued that the implication of the respondent’s contention is that each of the lawyers who signed the terms of settlement i.e. Mr. N. Obaizamomwam and Mr. R. Kelani are bound by the Terms of Settlement and are liable to have execution levied against them because they signed the Terms of Settlement! The Terms of Settlement is clear and free from any ambiguity. It is stated clearly in clause 2 that the “1st Defendant Shall Pay” etc. The 2nd defendant (Appellant herein) is excluded from the order to pay money.

I further agree with Counsel that by Section 132 of the Evidence Act when any judgment of any court or any other judicial or official proceedings has been reduced into writing the contents cannot be contradicted, altered or added to or varied by oral evidence. A.A. MACAULAY VAL. MERCHANT BANK LIMITED (1990) 4 NWLR PT. 144 283 at 310-311.
Section 394 of the Companies and Allied Matters Act cannot avail the respondent because the section which provides for the liabilities of receivers and managers on contracts is concerned with contracts entered into by the receiver himself. It does not apply to a liability incurred by the company in receivership before the appointment of the receiver. The point however is that if the respondent wanted the appellant as receiver to be personally liable under the consent judgment, he should have claimed from the two defendants jointly and severally and ensured its inclusion in the consent judgment. He took no such steps. On the contrary both the claims and the consent judgment specifically mentioned the 1st defendant only as the judgment debtor. There is just no justification for the levying of execution on the personal assets of the appellant. It was deposed in paragraph 5 of the affidavit of urgency at page 44 of the amended supplementary record of appeal that the appellant was forced to issue the N1 million cheque in addition to other personal assets taken away in order to save himself and his office from further embarrassment occasioned by the execution. There is no saving grace for the misconceived and perverse ruling of the learned trial judge. It is bound to be set aside.

In the final result, I hold that this appeal is meritorious. It is hereby allowed. The ruling of Ade Alabi J. of the High court of Lagos state, Lagos Judicial Division in suit No NRJ/25/98 is hereby set aside. In its place the reliefs contained in the appellant’s notice of further reliefs dated 16/3/99 at page 53 of the amended supplementary record of appeal are granted as prayed. For the avoidance of doubt, the reliefs now granted are as follows:
1. AN ORDER setting aside the registration of the certificate of judgment as against the 2nd Defendant.

2. AN ORDER directing the Deputy Sheriff to release the Mercedes Benz car registration number DE 230 KJA seized pursuant to the issue of process on the Certificate of judgment.

3. AN ORDER directing the Plaintiff and or his solicitor Mr. Oluwatosin Omigie to return forthwith the total sum of N125, 000.00 and the 2nd Defendant’s Union Bank of Nigeria plc cheque number 00091157 dated 10th March, 1999 for the sum of N1, 000,000.00 (one million naira only) collected under and by virtue of the process issued on the certificate of judgment.
Costs assessed at N100, 00.00 in favour of the appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the comprehensive judgment prepared by my learned brother, Chinwe Eugenia Iyizoba, J. C. A., with which I entirely agree with nothing extra to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.: I have read the draft the lead Judgment just delivered by my learned brother, IYIZOBA JCA, and I agree with his reasoning and conclusion. He has covered the field and dealt with the issues in this Appeal, and I have nothing useful to add, the judgment must be set aside, and I abide by the orders made in the lead judgment and the cost awarded.

Appearances

E.R. EMUKPORUO ESQ with C.O. OGUCHI (MISS) and O.O. OLUSIYI (MISS)For Appellant

AND

RESPONDENT not represented.For Respondent