MR. IFEANYI E. E. JOB NWAUDO & ANOR v. MR. JOB MBA & ANOR
(2016)LCN/8431(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2016
CA/OW/273/2014
RATIO
COURT: JURISDICTION; CONDITIONS FOR A COURT TO BE COMPETENT TO ASSUME JURISDICTION
Drawing inspiration from authorities of the Supreme Court which followed the land mark decisions in Madukolu V. Nkemdilim [1962] 2 SCNLR 341, Skens Consult (Nig.) Ltd V. Ukey (1981) 1 S.C. 341, Rivers State Government of Nigeria & Anor V. Specialist Konsult (Swedish Group) (2005) LPELR – 2950 (SC) Per Edozie, JSC at page 36 paras. C – G; re-echoed what was laid down in Madukolus case as the ingredients for the exercise of jurisdiction by a Court thus:
“A Court is only competent to exercise jurisdiction where the following conditions are satisfied: (1) The Court is properly constituted as regards members and qualifications of members of the Bench and no member is disqualified for one reason or another; (2) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising jurisdiction; and (3) The case comes before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. PER IGNATIUS IGWE AGUBE, J.C.A.
JURISDICTION: IMPORTANCE OF JURISDICTION
Thus, jurisdiction has been described variously as the life blood, life spring and font et origo of adjudication and without it the action is like an animal drained of its blood as the action will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise. See Chief Israel Aribisala & Anor. V. Talabi Ogunyami & Ors. (2005) LPELR – 549 (SC) Per Oguntade, JSC. See also the recent case of Sun Insurance (Nig.) Plc V. U.E.C.C. Ltd [2015] 11 NWLR (Pt. 1471) 576 at 600 paras B- C; F – G to 610 paras. F – G; per Mohammed, CJN; Fabiyi, Galadima and Ogunbiyi, JJSC who also reechoed the long settled position of Courts that the question of jurisdiction is so fundamental that the adjudicating Court should determine it first before embarking on any proceedings for hearing on the merit Katto V. CBN (1991) 9 NWLR (Pt. 214) 126 refers, Agbaso V. Iwunze (2015) 11 NWLR (Pt. 1471) 527 at 562 paras. A – D.; refer.) PER IGNATIUS IGWE AGUBE, J.C.A.
COURT: DUTY OF COURT TO CREATE THE ATMOSPHERE FOR FAIR HEARING
In the recent case of Ukachukwu Vs. PDP [2014] 17 NWLR (Pt. 1435) 134 at 164 – 165 paras. G – A and 171 paras. E.G.; the Supreme Court dealt extensively with this vexed issue of fair hearing and per Kekere-Ekun, JSC upon a consideration of the Landmark authorities like Isiyaku Mohammed V. Kano N.A. (1968) 1 ALL NLR 424 at 426, (1968) SCNLR 558 at 561 per Ademola, CJN; Pam V. Mohammed & Anor (2008) 16 NLR (Pt. 1112) 1 at 48 paras E – G and Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 621 – 622 paras. F – A; reechoed the immortal words of Tobi, JSC that the duty of the Court, be it trial or Appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that the party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who therefore refused and/or neglected as in this case to take advantage of the fair hearing process cannot turn round to castigate/accuse the Court of denying him fair hearing. For as the adage goes, the best the owner of a horse can do is to take it to the stream but it cannot force it to drink water. The horse has to do it by itself and where it fails or is unwilling to sip, that is the end of the matter as the horse will not blame anybody but itself if eventually it dies of dehydration or thirst. PER IGNATIUS IGWE AGUBE, J.C.A.
PROCEDURE: HOW IS AFFIDAVIT OF SERVICE CHALLENGED
Still on this point I shall commend the very recent decision of this Court per Iyizoba, JCA of the Lagos Division in Cosmas Maduka V. Dr. Patrick Ifeanyi Ubah & 4 Ors. (2015) 11 NWLR (Pt. 1470) 201 at 221 222 paras F – A; that where there is proof of service on a party by means of Affidavit of Service sworn to by the Bailiff or an Officer of Court, the only recommended and acceptable way of challenging or rebutting the presumption of service is by filing a Counter-Affidavit and that what is important there should be a kind of sworn deposition denying service. PER IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. MR IFEANYI E. E. JOB NWAUDO
2. MR. FRANCIS O. JOB NWAUDO Appellant(s)
AND
1. MR. JOB MBA
2. MR. OFFIA ENYINNAYA FRIDAY MBA Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A.(Delivering the Leading Judgment):
This Appeal is sequel to the Ruling of the Honourable Justice T.U. Uzokwe sitting at the Aba Division of the High Court of Justice, Abia State which Ruling was delivered on the 7th day of March, 2013 granting the 2nd Respondent herein who was Plaintiff/Judgment-creditors Application by way of Motion on Notice for an Order of the Court to attach for sale the immovable property of the Defendant/Judgment Debtor/Respondent (now the 1st Respondent in his Appeal), comprising the entire Bungalow together with the appurtenances situate at and known as No. 20 Aguwa Avenue Off Ovom Street, Ogbor Hill, Aba.
The Application was supported by an Affidavit of nine paragraphs and the Applicant/Judgment. Creditirors Learned Counsels Address. Annexed to the Affidavit was Exhibit A captioned; Form 29 RECEIPT TO BE BGIVEN BY BAILIFF OR. 1 R 5 issued in favour of Ijieoma O. Ijieoma under Writ (or Order) (or Warrant) dated 2nd May 2006 in Suit A/272/2005 between Offia Enyinnaya (plaintiff) and Job Mba (Defendant) the said Ijieoma O. Ijioma having paid the sum of N74,400.00 (Seventy Four Thousand Four Hundred Naira) through auction sale conducted by the Trial Court on 1/11/2007. The moveable property of the Judgment-Debtor (now 1st Respondent) which was sold to the said Ijioma is stated on top of the Receipt to be 1 (one) old fridge. See pages 31 36 of the Records.
On the 8th day of October, 2012 when the Application was to be heard by the Learned Trial Judge, none of the parties appeared in Court including their Legal representatives/Counsel. The Court then remarked: COURT: In the absence of the parties and their Counsel without any letter to the Court explaining their absence, this Suit is hereby struck out. See page 38 of the Records.
By a motion on Notice dated the 18th day of October, 2012 and filed on the 19th October, 2012, Afamefuna O. Uchendu Esq sought for orders setting aside the earlier order made on 8th October 2012 striking out the Applicants earlier motion for leave to levy execution on the immovable property of the Defendant/Judgment Debtor (now 1st Respondent) comprising the entire property as aforementioned in the Motion and to relist the above mentioned motion on Notice struck out on 8th October, 2012 for non-appearance of parties/diligent prosecution. That motion to set aside and to re-list was supported by an affidavit of 11 paragraphs deposed to by the Applicant (the Judgment-Creditor) (now 2nd Respondent) and a Written Address by Learned Counsel for the Judgment Creditor. There was also an Affidavit of service deposed to by David Kalu the Office Assistance to the Learned Counsel to the Judgment-Creditor/Applicant in that motion which was to the effect that on the 19th of October, 2012, he served a copy of the said Motion to relist on the Defendant/Judgment-Debtor for which he acknowledged receipt through his (Judgment-Debtors) wife one Mrs. Glory, a copy of which was annexed as Exhibit A.
On the 13th day of February, 2013 when the said Motion to set aside and relist was to be heard, the Applicant and his Counsel were present while the Defendant/Judgment-Debtor and his Counsel were absent. The Court having satisfied itself that there was indeed an Affidavit of service of the Motion Paper on the Defendant/Judgment-Debtor/Respondent, at page 65 of the Courts file and the Clerk of Court having also intimated the Court that there was no letter from the Defendant/Judgment Debtor/Respondent, the Court remarked: Court: Learned Counsel for the Claimant/Judgment Creditor/Applicant is therefore at liberty to proceed to move his motion. Upon this directive of the Learned Trial Judge, the Learned Counsel for the Judgment-Creditor/Applicant then moved the Motion and the Court ruled thus:
Order as prayed the Motion relisted shall be adjourned to the 5/3/13 for hearing. Order: Hearing Notice to issue to the Defendant/Judgment-Debtor/Respondent.
It has to be noted that before this Application was heard and granted on 13th Feb. 2013, the Court had sat on the 17th day of December, 2012 for that purpose but the Learned Trial Judge upon discovering that there was no affidavit of service in the Courts file even though parties were recorded to have been present, adjourned the Motion to that 13th of February, 2013 for hearing and report of service of the Motion. See pages 39 48 of the Records.
It does not appear from Records whether the Court actually sat on the 5th day of March, 2013 as scheduled. However, it was not until the 7th day of March, 2013, that Court again sat for the purpose of considering the Application for leave to levy execution on the immovable property of the 1st Respondent/Judgment-Debtor. On that day parties were said to be present in Court and Kelechi Eze Esq appeared for the Claimant/Judgment-Creditor/Applicant. There was no representation for the Defendant/Judgment-Debtor. The Clerk of Court intimated the Court that there was no letter from Counsel to the Defendant/Judgment-Debtor/Respondent.
Defendant on his part told the Court that: I saw my Counsel this Monday and I paid him. His name is Anaga Kalu.
Upon the above development, the Learned Counsel for the Judgment-Creditor/Applicant (now 2nd Respondent in this Appeal) moved the Motion and informed the Court that Defendant-Judgment-Debtor did not file anything in reaction to their Application an assertion which the Registrar of Court Mrs. Joy Okorie confirmed thus: My Lord I have equally perused the case file and there is no Counter-Affidavit or anything in reaction to the motion.
In the light of the above disclosures the Learned Trial Judge Ruled at page 52 of the Records inter alia:
RULING: Order as prayed. Moreso as the Defendant and his Counsel did not bother to react to or oppose this Application.
ORDER: The Bailiffs of this Court are therefore hereby ordered to proceed forthwith to levy execution on the immovable property of the Defendant/Judgment-Debtor/Respondent comprising the entire bungalow together with the appurtenances situate at and known as No. 20 Agwa Avenue, Off Ovom Street, Ogbor Hill, Aba after Observing all decent rules of procedure. See page 53 of the Records for the enrolled order of the Lower Court in this respect.
On the 8th day of March, 2013 in a Motion on Notice so dated and filed Anaga Kalu Anaga, Esq on behalf of the Defendant/Judgment-Debtor )now the 1st Respondent) sought for:
An Order staying execution of the Judgment delivered in this Suit by this Honourable Court on the 3rd day of May, 2006 pending the determination of the Appeal filed against the Ruling delivered by this Honourable Court (the Court below) on the 7th day of March, 2013 granting leave to the Judgment-Creditor/Respondent to attach the property otherwise known as and called No. 20 Agwa Avenue Off Ovom Street, Ogbor Hill, Aba.
AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
The Motion was supported by an Affidavit of 14 paragraphs to which was annexed Exhibit A the Notice of Appeal also filed in this Court on the 8th day of March, 2013. See pages 54 58 of the Records. On the same 8th of March 2013 the present Appellants, through the self same Anaga Kalu Anaga & Associates wrote a letter signed by Anaga Kalu Anaga Esq on behalf of the present Appellants to the Sheriff i/c Office of the Registrar in-charge, High Court of Justice, Aba Judicial Division, intimating the Sheriff that their attention had been drawn to a Court process (Motion on Notice) in Suit No. A/272/2005; OFFIA E.F. MBA VS. JOB MBA wherein Offia Enyinnaya Friday Mba as Judgment-Creditor in the said Suit had applied for attachment of the immovable property otherwise described as No. 20 Agwa Avenue Off Ovom Street , Ogbor Hill, Aba in further execution of the said Judgment in Suit No. A/272/2005. He further intimated the Registrar that they were informed by their Clients on the 7th March, 2013 that the Court below granted the Application of the Judgment-Creditor in the said Suit to attach the property as contained in the face of the Motion paper of the Judgment-Creditor filed on the 19th day of October, 2012.
The Learned Counsel then informed the Sheriff that the said property sought to be attached belonged to the Appellants and not to the Judgment-Debtor in Suit No. A/272/2005.
Consequent upon the foregoing, and in keeping with the requirements of Section 34(1) of the Sheriff and Civil Process Act (Judgment Enforcement Rules) CAP. 56 Vol. 14, Laws of the Federation, 2004, the Sheriff was requested to kindly issue the necessary Statutory Forms to enable their (Counsels) clients interplead in respect of the property sought to be attached. The letter was accompanied by an Affidavit of Ownership of Property deposed to by Ifeanyi E. E. Job Nwaudo, on behalf of Frances O. Job Nwaudo and with his consent and authority. The letter was also accompanied by an IRREVOCABLE POWER OF ATTORNEY given on the 5th day of February, 2008 by Mr. Job Enyinnaya Mba (Donor) in favour of Messrs IFEANYI E. E. JOB NWAUDO AND FRANCIS O. JOB NWAUDO (Donees) wherein the 1st Respondent herein donated the property sought to be attached to the Appellants. (See pages 54 to 68 of the Records.)
At page 71 of the Records the present Appellants had filed their Notice of Appeal with a Sole Ground dated 17th day of February, 2014 same date against the Ruling of the Honourable Justice T.U. Uzokwe of the Abia State High Court sitting at Aba Judicial Division which Ruling was delivered on the 7th day of March, 2013 now the subject of this Judgment. We shall come to the crux of the matter subsequently (see pages 71 73 of the Records) but suffice it to say that the Learned Counsel to the Judgment-Debtor/Applicant filed a written submission in support of the Application for stay of Execution (see pages 74 77 of the Records) while subsequently, Enyinnaya Friday Mba (the Judgment-Creditor) filed a Counter-Affidavit in opposition to the Motion for Stay of Execution dated 8th April, 2013 same date which was accompanied by his Counsels Written Address in opposition to the Motion for stay of further execution (See pages 80 84 of the Records).
At page 87 of the Records the Legal Firm of O.U. Kalu & Associates of No. 107, Arochukwu Road, Elu, Ohafia wrote a letter dated 25/4/13 and signed by O. U. Kalu Esq; to the Registrar of the High Court 2 through the clerk of Court seeking for adjournment in that he had taken ever the case from Anaga Kalu Anaga Esq. He suggested the 23rd, 28th of May, 2013 or the 11th of June, 2013 to enable him get the case file from the Applicants former Counsel and study same.
At page 88 of the Records is the Affidavit of Service of Form 48 (Notice of consequence of Disobedience of Judgment of Court on the 1st Respondent (then Defendant /Judgment-Debtor) dated 9th of May, 2013 and issued by F. C. Anyamele (Chief Bailiff) of the High Court of Justice Aba. A copy of the said Form 48 can be seen at page 79 of the Records and it is dated the 7th day of May, 2013. Perhaps following the avoidance of the Notice (From 48) by the 1st Respondent (then Judgment-Debtor) (Contemnor), the Judgment-Creditor filed a Notice To Show Cause Why Order Of Committal should not be made against him (the 1st Respondent) as in Form 49 dated 23rd May, 2013. (see page 89 of the Records).
It would also appear from what can be gleaned at page 90 of the Records that the Court issued an inter pleader summons to the Execution Creditor/Offia Enyinnaya Friday Mba dated the 8th day of March, 2013, at the instance of the Appellants (the Claimants).
The Affidavit in support of the Forms 48 and 49 can be found at pages 91 93 of the Records and it was deposed to by Friday Enyinnaya Mba the Judgment-Creditor (now 2nd Respondent) dated the 23rd of May, 2013. The Affidavit of Service of the Form 49 on the Judgment-Debtor (now 1st Respondent) dated the 31st day of May, 2013 can also befound at page 95 of the Records.
On the 4th day of July, 2013, the Claimant/Judgment-Creditor and the Judgment/Debtor/Contemnor were present in Court and while Kelechi Eze Esq appeared for the Judgment-Creditor, E. D. Mazi Esq held the brief of E.S. Obguji Esq for Respondent/Contemnor. Mr. Eze then informed the Court that the Respondent/Contemnor/Judgment-Debtor had been served with Forms 48 and 49 but that the Bailiff of Court refused to obey the order of Court to levy execution.
The Court Administrator upon the allegation of Mr. Eze, told the Court that they did not refuse to obey the order of Court because the order for execution was made on 7th March, 2013 whereas the Inter pleader summons was filed the same 7th March, 2013. Upon these disclosures, the Learned Trial Judge Ordered that the Suit shall be adjourned to 2/10/13 having pertinently noted that the said Inter pleaders were not in Court and the Learned Counsel for the Claimant had not been served. (see page 96 of the Records).
On that 2nd day of October, 2013 the Apex Law Firm through E.E.J Agwulonu Esq; wrote to the Court on behalf of Appellants for an adjournment to 4/11/2013, 5/11/2013, 12/11/2013, 25/11/2013. 26/11/2013 or 27/11/2013 as he was off to Lagos while the other Counsel were severally engaged in the High Courts at Orlu and Aboh Mbaise (see page 97 of the Records).
It would appear that the Inter pleader summons came up again for hearing on the 28th day of January, 2014 but the Interpleaders agained failed to appear whereof B. Onuoha Esq the Learned Counsel for the Claimant/Judgment-Creditor/Respondent moved the Court that:
1. Following the continued absence of the Inter pleaders and the fact that they had not served the Claimant/Judgment- Creditor with their Motion or file anything at all,
2. That the Interpleader Summons ought to be struck out; and
3. That the Bailiffs of the Lower Court should proceed to forthwith execute the Judgment of Hon. Justice L.M. Akuma delivered on the 2nd day of May 2006 after observing all the decent rules of procedure; the Learned Trial Judge, T.U. Ubokwe, J; granted all the prayers and so ordered. (See page 98) of the Records. The Preacipe for Writ of Execution (Form 3); and Form 6 (Writ of Attachment and Sale Against the Goods of Defendant) so issued by the Court below can be found at pages 99 and l00 of the Records whereas Form 38 made under Order IV, Rule 16 of the Judgment Enforcement Rules (The Writ of Attachment And sale Against Immovable property) and Judgment Form 41 (Notice of Attachment) dated 10-2-2014 respectively as issued against the 1st Respondent Job Mba can be found at pages 101 and 102 of the Records.
It was against the Ruling of the Hon. T. U. Uzokwe, J; delivered on the 7th day of March, 2013 that the Appellants as interested parties have now appealed to this Honourable Court by leave of the Court granted them on the 4th day of May, 2014. The Notice of Appeal is predicated on a Sole Ground as earlier stated and was dated and filed on the 17th of February, 2014. See pages 103- 105, 107 133 of the Records. For the avoidance of doubt, the Sole Ground of Appeal is reproduced here under as couched:
GROUND ONE:
ERROR OF FACT
The Learned Trial Judge erred in fact when he ordered that execution be levied on the immovable property of the Appellants comprising the entire bungalow together with all the appurtenances thereto situate at and known as No. 20 Aguwa Avenue, Off Ovom Street, Ogbor Hill, Aba, Abia State in satisfaction of the Judgment debt in Suit No. A/272/ 2005; Offia Enyinnaya Friday Mba Vs. Job Mba.
PARTICULARS OF ERROR:
1. The said immovable property known as No. 20 Aguwa Avenue, Off Ovom Street, Ogbor Hill, Aba, Abia State does not belong to the Judgment-Debtor in Suit No. A/272/2005.
2. The property belongs to the Appellants herein who acquired irrevocable rights and interests in the property as far back as February 2008.
3. The property was not part of the subject matter in Suit No. A/272/2005; Offia Enyinnaya Friday Mba Vs. Job Mba and only came into issue in an Application by the 2nd Respondent to levy execution/attach and sell the property in satisfaction of the judgment debt in Suit No. A/272/2005; Offia Enyinnaya Friday Mba Vs. Job Mba.
4. The Honourable Trial Judge was made to erroneously believe that the property belonged to the 1st Respondent.
5. This error led the Court to a wrong conclusion and occasioned injustice to the Appellants.
RELIEF SOUGHT FROM THE COURT OF APPEAL:
To allow this Appeal and set aside the Order f the Court below.
Upon transmission of the Record of Appeal to this Court on the 8th day of August, 2014 and in line with the Rules of this Court, the Learned Counsel for the respective parties filed and exchanged their briefs of Argument. In the Brief settled by Okey Onuigbo Esq dated the 25th day of August, 2014 but filed on 5/9/14, the Learned Counsel for the Appellant distilled a Sole Issue couched as reproduced here under:
Whether it is right and justifiable to attach and sell the Appellants property in satisfaction of the Judgment debt in the Suit between the Respondents at the Lower Court (Suit No. A/272/2005; OFFIA ENYINNAYA FRIDAY MBA VS. JOB MBA) when the Appellants were not parties to the said Suit and the property ordered to be attached and sold belongs exclusively to the Appellants and was not a subject matter of the Suit at the Lower Court?.
The 1st Respondent did not file and Brief nor was he represented at the hearing of the Appeal.
As for the Brief of the 2nd Respondent dated the 3rd day of October, 2014 and filed on 15th October, 2015, Ejieke Onuoha Esq who settled same nominated also a single Issue as calling for determination from the Ground of Appeal thus:
Whether or not the Court below was right to order that execution be levied on the immovable property comprising the entire bungalow situate at and known as No. 20 Aguwa Avenue, Ogbor-Hill, Abia; and/or had the jurisdiction when it did so?
Upon receipt of the 2nd Respondents Brief, the Learned Counsel for the Appellants further filed the Appellants Reply Brief dated the 6th of November, 2015 on the 12th day of November 2015. On the 25th day of January, 2016 when the Appeal was heard, the respective Learned Counsel adopted their Briefs of Argument in either urging us to allow the Appeal or dismiss same.
ARGUMENTS OF LEARNED COUNSEL ON THEIR SOLE ISSUES.
ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANTS:
The Learned Counsel for the Appellant prefaced his argument by citing Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 which confers a right of Appeal from a decision of the High Court to the Court of Appeal on persons(s) having interest in the matter and affected by the decision regardless of the fact that the person was not a party at the Court or proceedings leading to the decision with which he is aggrieved. He relied on the definition of a person having interest in a case as given by this Court in RE: Ndayako (2003) 4 NWLR (Pt. 809) 42 pp. 48 49 paras. H B to buttress his submission and gave a gist of the case on how the Court below on the 7th of March, 2013 made the order now the subject of Appeal while the property sought to be distrained and sold was and still belongs to the Appellants and not the 1st Respondent against whom Judgment was obtained by 2nd Respondent.
The Learned Counsel explained that the Appellants had through Irrevocable Power of Attorney dated 5th February, 2008 acquired irrevocable legal rights and interest over the said property traditionally known as and called UZO IYI UMUOLA MKPUTU otherwise No. 20 Aguwa Avenue, Ogbor Hill, Aba Abia State to the exclusion of any other person long before the Application to attach the said property. According to him, the fact that the Appellants were the owners of the property as at when the execution was levied is indisputable.
It was further submitted by the Learned Counsel for the Appellants that the Appellants cannot be accused of laches or standing by while issues which would directly affect their interest in their property was being adjudicated in the Lower Court. He added that the property in question was not the subject of litigation but that the substantive Suit was for libel whereof the 2nd Respondent claimed N10,000,000.00 (Ten Million Naira) damages against his elder brother (the 1st Respondent) as per the Statement of Claim. The 1st Respondent was said to have filed a Memorandum of Appearance but failed to file statement of Defence and the 2nd Respondent subsequently filed a Motion for Judgment in default of Statement of Defence. Judgment was subsequently entered in favour of the 2nd Respondent in terms of all the Reliefs sought and the order for execution to be levied on the immovable property of the Appellants was to satisfy the amount awarded as damages in the Suit to the 2nd Respondent against the 1st Respondent.
The Learned Counsel for the Appellant further contended that a perusal of the Records would show that the 1st Respondent was not even served with the Motion seeking the attachment of the property in question before the Application was heard and the order made. He also argued that the motion to levy execution was initially struck out on the 8th of October, 2012 and was subsequently restored on 13th February 2013 but that the Affidavit of service does not prima facie show that the 2nd Respondents Motion for relisting the Motion for Execution was served on 1st Respondent as it states therein that the receipt thereof was acknowledge by one Mrs. Glory an alleged 1st Respondents wife. Furthermore, on the date the motion was to be heard for relistment, the 1st Respondent was not in Court and the Judge ordered that a Hearing Notice be served on 1st Respondent.
It was acknowledged by the Learned Counsel for the Appellant however that the Hearing Notice was so served on the 1st Respondent and he attended Court on the date named therein when the Motion for leave to levy execution on the Appellants said property was moved but he was not represented by Counsel on that day as previously submitted and that there was no scintilla of evidence showing that he was served with the said Motion which accordingly affected the jurisdiction of the trial Court to have proceeded with the matter in the first place and rendered the entire proceedings and order a nullity. For this submission he placed reliance Onyeanusi V. Misc. Offences Tribunal (2002) 12 NWLR (Pt. 781) 227 PP. 238 Ratio 16 (S.C.); Okolo V. Union Bank if Nigeria Plc (2004) ALL FWLR (Pt. 197), at 981 Rationes 3 & 4. Petrojessica V. Leventis (1992) 6 SCNJ 154 at 166 167 para. 40 (S.C) and Kalu Mark & Anor V. Gabriel Eke (2004) 5 NWLR (pt. 865) 54 Ratio 5 (S.C.) on the principles of law that where there is no jurisdiction a Courts exercise of jurisdiction will result in a nullity, that parties cannot by connivance, acquiescence or collusion confer jurisdiction on a Court where there is none and that the importance of jurisdiction is such that it can be raised at any stage of the proceedings or even for the first time in the Supreme Court by any of the parties and even by the Court suo motu.
The Learned Counsel insisted that the issue of service goes to the root of the competence of the Court to proceed with the matter. Kalu Mark & Anor V. Gabriel Eke (Supra) and Ononye V. Chukwuma (2005) 17 NWLR (Pt. 953) 90 at pages 95 Ratio 4; were further relied upon in submitting that the Motion seeking leave to execute the Judgment was filed about 5 (five) years after Judgment was delivered making proper service thereby vital as it is not enough that a Defendant knows or is informed of the pendency of a Suit against him and his awareness does not dispense with the need to serve him with the originating process personally.
On another score, he reiterated that there is nothing on record showing that the Appellants had prior knowledge of the motion seeking leave to levy execution on their property as the Court below only relied on the fact that there was no Counter-Affidavit to believe the erroneous facts averred to in the 2nd Respondents Affidavit in support of the motion to erroneously grant the Application for leave to levy execution.
The Learned Counsel was therefore of the view that the procedure adopted by the Learned Trial Judge was very improper and that the only conclusion that can be reached from the above scenario and as can be gleaned from the Records is that the Application was granted ex-parte, regardless of its being stated that same was by motion on Notice and as such the decision ought not be allowed to stand for the Appellants should not be allowed to suffer the loss of their bonafide property on account of that wrong decision. He quoted copiously from the decision of the Supreme Court in LEEDO V. Bank of the North (1998) 7 SCNJ328 at 332 33;4; where Section 44 of the Sheriffs and Civil Process Law was interpreted in a matter similar to our instant case and asserted that there was no conduct of the Appellants that may amount to laches. We were therefore urged to hold that the entire procedure adopted and leading to grant the Motion for the levying of execution on the Appellants property in question being granted, was faulty as the Honourable Trial Judge mistook the fact of ownership of the said property and wrongly ordered the Bailiffs to levy execution on same.
We were finally urged to resolve the only issue in favour of the Appellants and hold that it is neither right nor justifiable to attach and sell the Appellants property in satisfaction of the Judgment-Debt in Suit No: A/272/2005; OFFIA ENYINNATA FRIDAY MBA V. JOB MBA); when Appellants were not parties to the said Suit and their said property ordered to be attached and sold was not part of the Suit in the Lower Court.
In conclusion, we were urged to allow the Appeal on four reasons stated in the Brief of Argument.
ARGUMENT OF LEARNED COUNSEL FOR THE 2ND RESPONDENT.
Reacting to the above submissions of the Learned Counsel to the Appellants as reproduced above, Ejieke Onuoha Esq, first of all answered the question posed by way of the Issue distilled therefrom, in the affirmative . Turning to the contentions of the Learned Counsel for the Appellants that the 1st Respondent was not served with the Motion to levy execution/attachment of the property in dispute; the initial striking out of the Motion on the 8th October, 2012 and was subsequently re-listed on 13th February 2013 and thirdly that the Affidavit of service of the said Motion revealed that it was served on another person instead of the 1st Respondent; he posited that the aforesaid attack on the jurisdiction of the Trial Court is strange as the 1st Respondent who was supposed to be directly affected by the lack of jurisdiction has not raised it herein even as the said 1st Respondent attended all sittings of the Court below.
The Learned Counsel further argued that it was strange that the Appellants are arguing in favour of the 1st Respondent whom they were suing in this Appeal adding on the authorities of Jadesimi V. Okotie Eboh (1989) 4 NWLR (Pt. 113) 113. Arubo V. Aiyelori (1993) 3 NWLR (Pt.280)? and Ohakim V. Agbaso (2011) FWLR (Pt. 553) 1806 at 1837 paras. G H; that a party cannot be he and to approbate and reprobate or be allowed to base his actions or defence on a set of facts and then depart from those set of facts on which issues had been joined to meet the issue of the other part as this would amount to abuse of Court process.
He submitted that there is nothing on record to show that Appellants were engaged as Counsel to the 1st Respondent and that the Supreme Court had dealt with a similar situation to what the Appellants have done here in Ohakim V. Agbaso (supra) insisting that the 1st Respondent was duly served at page 51 of the Records . In the unlikely event and without necessary conceding that the 1st Respondent was improperly served, he submitted that this is a mere irregularity that does not in any way affect the jurisdiction of the Court below as the Court process being complained of was not an originating process and the 1st Respondent appeared in person in all the sittings of the trial Court. He therefore cited and relied on the dictum of Abba Aji, JCA (PP. 32 38) of Oladekoyi V. IGP (2011) LPELR 4531 (CA); to urge the Court to hold that the objection is grossly misconceived and should be discountenanced as the Court below had the jurisdiction to hear and determine the matter before it and was right to have ordered the execution levied on the immovable property as mentioned and situate at No. 20 Aguwa Avenue Ogbor Hill, Aba Abia State being the immovable property of the 1st Respondent.
The Learned Counsel insisted that he who comes to equity must come with clean hands and without necessarily conceding that the property does not belong to the 1st Respondent upon that assumption, posed the question whether the 1st Respondent could validly at the time he did, transfer the property to the Appellants and in good faith which question he answered in the negative. He pointed out the modalities of the law of execution of Courts Judgment which is to the effect that movable property are first levied after which the execution is then levied on immovable property where the money realized from the sale of the movable property can not satisfy the judgment sum. According to him, the process and procedure of the law of execution, when set in motion cannot be terminated midway until it gets to its terminus. He maintained that further that once the clock of execution starts ticking execution by being levied on movable property of a Judgment-Debtor, it confers the Judgment-Creditor with an equitable interest over the immovable property of the Judgment-Debtor, except where the money realized from the sale of the movable property is sufficient to satisfy the Judgment sum. Thus, the Judgment-Debtor cannot validly transfer the title of his immovable property to anybody after execution had been levied on the movable property.
He recalled that the movable property of the 1st Respondent found in his house at No. 20 Aguwa Avenue, Off Ovom Street, Ogbor Hill Aba, Abia State was attached and N27,900 (Twenty Seven Thousand, Nine Hundred Naira, Only) realized after auction in partial execution of the Judgment. Sometime in February, 2008, about three months from 1st November, 2007 after the partial execution of the Judgment, the 1st Respondents from the Records purportedly transferred the said No. 20 Aguwa Avenue, Off Ovom Street, Ogbor Hill, Aba, Abia State to the Appellants (his sons) probably on the advice of his 1st Respondents friends in anticipation of the attachment of same since the proceeds from the sale of the movable property could not make the Judgment sum and the period of Appeal had elapsed.
He therefore, from the foregoing, submitted that from the hasty transfer of the property to his children on the purported consideration of Love and Affection relationship of father and sons; the good faith of the 1st Respondent is called to question and to say the least same was a fraudulent transfer in order to avoid his obligation to the 2nd Respondent. In so submitting he again sought umbrage in the case of Okwoche V. Dibia (1994) 2 NWLR (PT. 325) 195, AT 204 paras. D G, D G; and posited that the law is trite that Equity will not allow the law to be used as an engine of fraud as the fact that a purchaser had the legal estate conveyed to him is not sufficient to give priority to him except he had no notice of the equities attaching to property and such claim is not disproved, in which case he would take free from any prior equitable interest affecting the property which is not the position in our instant case.
The Learned Counsel further relied on Folashade V. Duroshola (1961) 1 ANLR, 87; where the Supreme Court enunciated and reiterated the position of the law on when a subsequent purchaser for value will not be affected by a prior equitable interest which conditions are said to co-exist, the absence of one which would result in priority being given to an already existing equitable interest over the property.
Against the foregoing background the Learned Counsel for the Respondent then posed the following questions:-
(a) Whether the transaction in the instant case is bonafide?
(b) Did the Appellants purchase for value?
(c) Did the Appellants purchase without notice?
(d) Did the Appellants acquire legal title?, which he answered in the negative as according to him the said house was merely transferred to the Appellants by their father in consideration of LOVE and AFFECTION of father and sons, in order to deprive the 2nd Respondent from reaping the fruit of his judgment.
Furthermore, he cited Section 26(1) of the Sale of Goods Act, 1893 and the proviso to Section 26 thereof which stipulate for the conditions under which a Writ of Fieri Facias or other writ of Execution shall prejudice the title of attached goods acquired by any person in good faith for valuable consideration and submitted that the Appellants as biological sons of the 1st Respondent acquired interest in the property from the 1st Respondent with the notice of impending execution/attachment of same by the Officers of Court immediately after the movable property of the 1st Respondent was auctioned by the said Officers of Court and from the Records the Appellants and 1st Respondent are still living in the house together and so they cannot feign ignorance of the Respondent nor the fact that the Bailiffs had shortly after their sudden acquisition levied execution on the movable property of the father found in that house.
On the submission/contention of the Appellants that there is nothing on Record to show that they (Appellants) could have had prior knowledge of the Motion seeking leave to levy execution on the property, the Learned Counsel for the Respondents drew our attention to pages 48, 52, 57, 60 and 71 of the Record of Appeal in order to decipher the motive behind the Appellants Appeal and the fact that 1st Respondent and Appellants live together in the house which is still the Address for service of the 1st Respondent.
Placing reliance again on Chidoka V. F.C.F.C. Ltd (2013) 5 NWLR (Pt. 1346) 144 at 162 paras. A B; he submitted that the Appellants cannot be heard to complain that they were not aware of the motion for leave to levy execution on the property if they had interest in same and consequently he further maintained on the authorities of Okike V. The Legal Practitioners Disciplinary Committee (2006) 1 NWLR (Pt. 960) 67 per Jega JCA (of blessed memory); Pam V. Mohammed (2008) 16 NWLR (Pt. 1112) 1 (S.C.) per Oguntade, JSC; INEC V. Musa (2003) 3 NWLR (Pt. 806) 72 (S.C.); that the Appellants argument that the Court acted against their interest and that of the 1st Respondent is baseless as they were all given the opportunity to present their cases at the Lower Court but they chose to remain aloof and cannot therefore be heard to complain of the breach of their right to fair hearing.
We were therefore in the light of the foregoing urged to resolve the sole issue against the Appellants and in favour of the 2nd Respondent.
Emphasizing on the need for consistency in the case presented by a party, the Learned Counsel cited and relied on Onyekwelu V. Elf Petroleum Nig. Ltd. (2008) 5 NWLR (Pt. 133) 181 at 205 206 paras. H A; Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 423 and Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 269 per Oputa, JSC of blessed memory; to submit that it is part of litigation that parties must be consistent in the case they present and not change like a weather Cock in climatology and that the Appellants then Appellants have in this Court canvassed position that is not only scandalously contradictory with their case. We were asked to discountenance their contention that the 1st Respondent was not properly served or that the process at the trial Court was fraught with irregularities as they are not engaged as lawyers to the 1st Respondent who has no defence to this Appeal.
We were therefore in conclusion urged to dismiss the Appeal for lacking in merit and with substantial costs for the reasons stated at page 11 of the Brief of Argument of the Appellant.
APPELLANTS REPLY BRIEF:
In the Appellants Reply Brief the Learned Counsel for the Appellants on the contention of the Learned Counsel for the 2nd Respondent that the 1st Respondent who is the party directly affected by the lack of jurisdiction did not raise it at the Lower Court even when he was present at every sitting and that it was an abuse of process for the Appellants to raise the issue on behalf of the 1st Respondent, rehashed his earlier argument in the Appellants Brief and relied on Ogigie V. Obiyan (1997) 10 NWLR (pt. 524) 178, Oyediran V. Egbetola (1997) 5 NWLR (pt. 504) at 122.
He contended that the Appellants are the persons now directly affected by the order of the Court made without jurisdiction touching on their property and it cannot therefore be said that they are arguing on behalf of the 1st Respondent.
Referring again on N.B.N. V. Gutterie Nig. Ltd. (1993) 3 NWLR (Pt. 284) Pg. 643 at 660; he further argued that what is in issue in the Appeal is the inability to serve the 1st Respondent with the motion so as to inform the Court that the property sought to be attached is the property of the Appellants. It was also contended that even if the 1st Respondent attended the Court the day the motion was heard, it does not tantamount to waiver of his right to oppose the Application nor does it cure the defect for non-service of the Motion.
We were therefore urged to discountenance that angle of the Learned Counsel for the 2nd Respondents submission that the Appellants cannot raise the issue of jurisdiction on behalf of the 1st Respondent or that the mode of service of the motion was a mere irregularity on the authorities of Alayi V. Mil. Admin. Ondo State (1997) 5 NWLR (pt. 504) at 238 and Okoye V. C.P.M.B Ltd (2008) 15 NWLR (Pt. 110) 339.
The Learned Counsel for the Appellant also pointed out that it has to be noted that the motion in question was not just an interlocutory Application filed and moved during the pendency of the substantive Suit but same was filed 5 years after the Judgment in the Suit was delivered hence proper personal service of that Application was necessary in the circumstance.
In response to the contention of the Learned Counsel for the 2nd Respondent on the cardinal principle of law that he who comes to equity must come with clean hands and that the 1st Respondent did not transfer the property to the Appellants bonafides as at the time he did, we were also urged relying on the case of Fessien V. Oyerinde (1997) 11 NWLR (Pt. 530) pg. 552 at 561; to discountenance that submission in that the 1st Respondent was not given the opportunity to inform the Court that the property sought to be attached did not belong to him but to the Appellants and that where the Claimant has no equity on his side and has behaved recklessly, the Court will be on the side of the truth and the law to support the case.
He added that if the 2nd Respondent had properly conducted the search, he would have discovered that the property sought to be attached belongs to the Appellants more so when the motion to attach was filed in 2011 while the property was transferred in 2008 and as such delay defeats Equity. Citing Section 44 of the Sheriffs and Civil Process Act which provides as one of the essential requirements to be satisfied upon an Application for leave to levy execution on the immovable property of the Judgment debtor, that the Judgment-Debtors title to the immovable property sought to be attached must be certain, the Learned Counsel submitted that the 2nd Respondent failed to satisfy and establish the title of the 1st Respondent to the said immovable property.
On the contention that the Appellants acquired no interest in the property in good faith or for any valuable consideration or without notice of the house being the subject of possible attachment by the Sheriffs of the Court below as the house was merely transferred to the Appellants in consideration of love and affection, the Learned Counsel for the Appellant countered that the Appellants acquired good interest in the property as the document creating the interest was a Deed and the law is that once an agreement for transfer of land is in the form of a Deed, it takes effect notwithstanding the absence of consideration. We were therefore urged to discountenance the argument of Learned Counsel in that regard as the interest of the Appellants in the property is covered by a Deed in the form of a Power of Attorney.
On another wicket the Learned Counsel for the Appellant urged us to discountenance the stance of the 2nd Respondents Counsel in that the issue was not raised at the Court of first instance as he was supposed to have done if proper investigation was carried out and it was discovered that the property was transferred to a third party in which case the Learned Counsel for the 2nd Respondent would have first asked the Court below to set aside the transfer with the third party being made a party to the Application. Having not done that, it was contended by the Learned Counsel for the Appellants that the Appellants could not have known that their property was to be attached and that the Learned Trial Judge granted the Application on the erroneous ground that the property belonged to the 1st Respondent but did not hold the transfer to the Appellants as fraudulent nor was the transfer set aside.
The Learned Counsel for the Appellants has also argued in his Reply Brief that the 2nd respondent did not file a Respondents Notice of Contention urging this Court to affirm the decision on grounds other than those relied upon by the Trial Court and accordingly, it is improper to urge us to declare the transfer fraudulent on the basis of the Respondents Brief.
Reacting to the contention by the Learned Counsel to the 2nd Respondent that the Appellants were aware of the equitable interest of the 2nd Respondent he argued the contrary insisting that the property was transferred in 2008 while the Application for leave to levy execution was filed in 2011 after the interest had already been acquired on the property.
In respect of Section 26 of Sale of Goods Act 1893, he posited that it does not apply to this case as the Section talks of goods of the execution debtor as from the time the Writ is delivered to the Sheriff for execution. He pointed out that the order to levy execution was made on the immovable property of the 1st Respondent on 7/3/2013 (page 52 of the Records refers) whereas the Appellants acquired their interest in 2008 and that delay defeats Equity. He maintained that the Judgment was delivered in the case in May, 2006 and execution was levied June, 2007 one year after delivery and it then took the 2nd Respondent about four (4) years to bring application to levy execution on immovable property of the 1st Respondent.
It was therefore submitted on that score that the 2nd Respondent was guilty of laches and acquiescence having allowed a substantial period of time to pass between the date of Judgment and the bringing of the Application and therefore the bringing of the Application is fatal to the argument now proffered by the 2nd Respondent which the Appellants should not be allowed to suffer the consequences of such delay.
In conclusion we were urged to allow the Appeal and set aside the decision of Lower Court ordering attachment and sale of the Appellants property in satisfaction of the Judgment debt in the suit between the 2nd Respondent and the 1st Respondent in the Lower Court.
RESOLUTION OF ISSUES:
In the resolution of the Issues formulated by the respective Learned Counsel for the parties, I intend to consider them together since they are basically saying the something. From my perusal of the Issues and the arguments of Learned Counsel, it is clear to me that each of the Issues is two pronged in that apart from questioning whether Learned Trial Judge was justified in making the order for attachment of the purported immovable property of the Appellants where the Appellants were not parties to the substantive Suit A/272/2005 MR. OFFIA ENYINNAYA FRIDAY MBA VS. MR. JOB MBA, in the course of his argument of their Sole Issue, the Learned Counsel for the Appellants raised the issue of the jurisdictional competence of the Court below to entertain the motion for leave to levy execution. On his part, the Learned Counsel for the 2nd Respondent incorporated the question of jurisdiction in his Issue as formulated.
Taking into consideration the trite position of the law as laid down in a plethora of cases some of which like Onyeanusi v. Misc Offences Gibural (2002) 12 NWLR (Pt. 781) 227 at 228, Okolo v. Union Bank Plc (2004) ALL FWLR (Pt. 197) 981, Petrojessica V. Leventis (1992) 6 SCNJ 154 at 166 167 para. 40; have been rightly cited by the Learned Counsel that jurisdiction is a crucial and radical question as well as threshold issue which if a Court does not possess in determining a subject-matter, the proceedings remain a nullity no matter how well conducted, we shall first deal with the question whether the Court had the jurisdiction to make the order sought to be set aside considering the surrounding circumstances of what transpired in the Court below.
Drawing inspiration from authorities of the Supreme Court which followed the land mark decisions in Madukolu V. Nkemdilim [1962] 2 SCNLR 341, Skens Consult (Nig.) Ltd V. Ukey (1981) 1 S.C. 341, Rivers State Government of Nigeria & Anor V. Specialist Konsult (Swedish Group) (2005) LPELR 2950 (SC) Per Edozie, JSC at page 36 paras. C G; re-echoed what was laid down in Madukolus case as the ingredients for the exercise of jurisdiction by a Court thus:
A Court is only competent to exercise jurisdiction where the following conditions are satisfied: (1) The Court is properly constituted as regards members and qualifications of members of the Bench and no member is disqualified for one reason or another; (2) The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising jurisdiction; and (3) The case comes before the Court by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.
Thus, jurisdiction has been described variously as the life blood, life spring and font et origo of adjudication and without it the action is like an animal drained of its blood as the action will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise. See Chief Israel Aribisala & Anor. V. Talabi Ogunyami & Ors. (2005) LPELR 549 (SC) Per Oguntade, JSC. See also the recent case of Sun Insurance (Nig.) Plc V. U.E.C.C. Ltd [2015] 11 NWLR (Pt. 1471) 576 at 600 paras B- C; F G to 610 paras. F G; per Mohammed, CJN; Fabiyi, Galadima and Ogunbiyi, JJSC who also reechoed the long settled position of Courts that the question of jurisdiction is so fundamental that the adjudicating Court should determine it first before embarking on any proceedings for hearing on the merit Katto V. CBN (1991) 9 NWLR (Pt. 214) 126 refers, Agbaso V. Iwunze (2015) 11 NWLR (Pt. 1471) 527 at 562 paras. A D.; refer.)
The Learned Counsel for the Appellants was also on very firm pedestal when he argued that the fundamental importance of jurisdiction warrants its being raised at any stage of the proceedings whether at the Court of first instance or even at the Supreme Court for the first time by any of parties or even suo motu by the Court. See Obiuwebi V. CBN (2011) LPELP 2185 (SC). SLB Consortium Ltd V. NNPC (2011 LPELR 3074 (CS) per Onnoghen, JSC quoting Okolo V. Union Bank of Nigeria Plc (supra); Akere V. The Governor of Oyo State & Ors. [2012] LPELR 7806 (SC) per Ngwuta, JSC at 23 -24 paras G C, Emeka V. Okadigbo & Ors. [2012] LPELR 9338 (SC) and Ijebode Local Govt. V. Balogun & Co. Ltd [1991] LPELR 1463 (sc) per Karibi Whyte JSC.
Now, the basis of the contention by the Learned Counsel for the Appellants that the Court below lacked the jurisdiction and that parties cannot by connivance or acquiescence or collusion confer jurisdiction on a Court when there is none is that the 1st Respondent was not served with the hearing notice for the Application for leave to levy execution on the property which the Appellants purport is now theirs and that if the 1st Respondent were to be served he would have been able to tell the Court that the property upon which execution was levied had changed hands.
The Learned Counsel for the 2nd Respondent had argued the contrary submitting that the 1st Respondent was duly served with the Motion and hearing Notice but decided to keep aloof without filing any counter-affidavit and that the 1st Respondent was in Court throughout the sittings of the Court and indeed on the date the order was finally made for the leave to attach the property in question.
I had chronicled what transpired in the Court below day by day culminating in the eventual grant of the Application for leave to levy execution on the property in question. I think it is the height of mischief for the Learned Counsel for the Appellants to contend as they had had done that the 1st Respondent was not served with the processes of the Court before the Motion was granted.
There is no doubt that the Supreme Court had decided in Kalu Mark & Ano V. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 at page 79 paragraphs A D,. Per Musdapher, JSC (as he then was) on this vexed issue of service of process that:
Now, where a process has been served, it is necessary for the Court to have before it evidence of that fact. Service of process especially the originating process is an essential condition for the Court to have the competence or the jurisdiction to entertain the matter. Further failure to comply with this condition would render the whole proceedings, including the judgment entered, and all subsequent proceedings based therein, wholly irregular, null and void. That is why the proof of service of the process on a Defendant is very fundamental to the issue of the jurisdiction and competence of the Court.
See also EIMSKIP LTD V. Exquisite Industries (Nig.) Ltd. (2003) LPELR 1058 (SC); (2003) 4 NWLR (Pt. 809) 88, (2003) 1 S.C. (Pt. 11) 94 per M.E. Ogundare, JSC at PP. 25 26 paras. B C.
In the Kalu Mark & Anor V. Gabriel Eke case, the Apex Court held that the affidavit of service of the Bailiff claiming that the originating processes were served on the 2nd Appellant, a limited Liability Company, by posting, was irregular and amounted to improper service.
Also I am not oblivious of our decision in Ononye V. Chukwuma (2005) 17 NWLR (Pt. 953) 90 at 119 paras. A C; where Abba-Aji JCA then contributing to the Lead Judgment of Augie, JCA; restated the law that:
It is trite that the object of service, is to give notice to the Defendant so that he may be aware of and be able to defend if he he may that which is sought against him. It is settled law that failure to serve Defendant is a fundamental vice as service of a Writ of Summons is a condition precedent for the exercise of the Courts jurisdiction over the subject-matter of the action and over the Defendant. See Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 at 598; Sken Consult (Nig.) Ltd. V. Ukey (1981) 1 S.C. 6; Okafor V. Igbo (1991) 8 NWLR (pt. 210) 476. It is not enough that the Defendant knows or is informed that a Suit has been pending against him. The fact that he is aware that he has been sued in Court does not dispense with the need to serve him with the originating process. See Otobaimere V. Akporehe (2004) 14 NWLR (Pt.894) 591.
At page 114 paras. C H to 115 paras. A C, Augie, JCA rightly reasoned in line with decision in Management Enterprises & Anor V. Otusanya (1987) 2 NWLR (Pt.55) 179, (1987) NSCC (Pt. 1) 577 per Oputa, JSC that the best notification to parties in respect of any litigation is one communicated personally on the individuals concerned. According to the erudite Law Lord; Personal Service is affected by delivery to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original thereof See Order 12 Rules 2 of the High Court Rules. Delivery of such process to such persons Secretary, spouse, child or servant, etc, is not a personal service. In such cases, there is non-compliance with due process of law when the procedural requirements, which are preconditions, have not been met.
The Learned Counsel for the Appellants has capitalized on the above authorities and the dictum of their Lordships to submit that there was nothing on record showing that the Appellants had or could have had prior knowledge of the motion seeking leave to levy execution on their purported property and that the Learned Trial Judge only relied on the fact that there was no counter-Affidavit to believe the erroneous facts as contained in the Affidavit of the 2nd Respondent.
With the greatest respect to the Learned Counsel for the Appellants this contention is as hollow as it is mischievous if not fraudulent and most annoying, taking the salient facts of this case into consideration. This is an unfortunate case that originated from two blood brothers (the 2nd Respondent and 1st Respondent) and from the particulars of the Writ of Summons and the Statement of Claim filed on the 7th of July, 2005 in Suit No. A/272/2005, the 2nd Respondent (as Plaintiff claimed against the 1st Respondent (as Defendant), the sum of N10,000,000.00 (Ten Million Naira) damages for defamation of character and for a published apology and retraction.
As can be gleaned from paragraphs 3,5,6,7,8,9,10 to 18 of the Statement of Claim, the Plaintiff/2nd Respondent is the junior brother who served the 1st Respondent in his trade of Industrial Sewing of Underwares as apprentice. The Plaintiff completed his apprenticeship under the 1st Respondent but was not settled as promised and the 2nd Respondent had to struggle to build himself up in the trade of Industrial Underwares and because of the success of the 2nd Respondent in the business, the 1st Respondent became envious of the 2nd Respondent and began a sustained campaign of calumny against the 2nd Respondent for his success over that short span of time.
Amongst such campaigns against the 2nd Respondent was that the 2nd Respondent was a Secret Cultist who used people for money rituals and despite complaints from the 2nd Respondent, the 1st Respondent persisted in the campaign culminating in the false and malicious petition written by the 1st Respondent to their kindred (Ohava Family) at Aba and Item Meetings respectively concerning the 2nd Respondent in the words following on the 18th of April, 2001 among others: My brother Friday has been indulging in evil practices which I suspect he initiated himself to a Secret Group all in the name to make quick money through rituals¦¦¦¦¦¦¦¦¦¦¦…
The 2nd Respondent became aware of the libelous publication when he was invited by Chief Chinasa Okpo who informed him of the allegations in the petition and subsequently the letter was read to the Offiavu Family members meeting in the presence of Parents of the 1st and 2nd Respondents. This event necessitated their father to visit the 2nd Respondent to authenticate the allegations contained in the letter. The 2nd Respondent mentioned the venue and date of the meeting and the persons present thereat to include Chinasa Okpo, Chinyere Eke in whose house the meeting was held, Chijioke Ogbonnaya,, Okechukwu Albert Ogbonnaya Ojukwu Ukaegbu, Ada Enyinnaya Mba and Enyinnaya Mba.
The 2nd Respondent was invited on the 3rd May, 2001 at EzeOgo Chinyere Ekes residence to defend himself but the 1st Respondent could not substantiate his allegations with credible evidence. Thereafter the Family Meeting decided to take the 2nd Respondent to a Native Doctor to clear his name which the Doctor in the presence of the Elders of the Family and Community including the 1st Respondent and the 2nd Respondent was exonerated from any wrong doing. The 1st Respondent was said to have left in utter disappointment, his heinous plans having failed out rightly.
As a result of the foregoing, the 2nd Respondent claimed that the ordinary and natural meanings of the words used by the 1st Respondent were understood to wit:
(a) That the Plaintiff (now 2nd Respondent) is a fetish and dangerous ma;.
(b) That he is not Christian as professed to be;
(c) That he is an occultic man;
(d) That he is a criminal and
(e) That he engages in rituals to make money.
Further in the alternative the said words meant and were understood to mean:
(a) That the 2nd Respondent is not a hardworking man but a man who makes money from unlawful means, and that by reason of the above premises the 2nd Respondent has been greatly injured in his credit, character and reputation in his business and has been brought into hatred, ridicule and contempt and was being avoided by other members of Offiavu Family Meeting and other members of the public.
The 1st Respondent was duly served at his usual place of abode which was/is No. 20 Agwuwa Avenue, Ogbor Hill Aba with the Writ of Summons (See page 7 of the Records) but the 1st Respondent failed to appear in Court until the 2nd Respondent filed a Motion pursuant to Order 13 Rule 1 and Order 27 Rule 8 (1) of the Abia State (Civil Procedure) Rules, 2001 for leave of the trial Court to enter default Judgment in favour of the 2nd Respondent against the 1st Respondent for failure to file his Statement of Defence. The Addresses for Service of the Motion and the Hearing Notice to that effect (See pages 8 and 11 of the Records) bear No. 20 Agwuwa Avenue, Ogbor Hill, Aba.
At page 12 of the Records, the Defendant/1st Respondent filed a Motion for extension of time to him to enter appearance in the Suit. That Motion was dated 31st March, 2006 but filed on the 3rd day of April, 2006 almost one year after the originating processes were served on him.
On the 2nd day of May, 2006 following the inability of the Defendant who was served with the Writ of Summons and Statement of Claim on 14/7/2005 vide the Affidavit of Service deposed to by G. Wogu (Chief Bailiff) of the Aba High Court, to file any Statement of Defence, the Court granted the Motion for Judgment in Default and accordingly entered Judgment as per the Reliefs sought by the Plaintiff/2nd Respondent. See page 23 of the Records. The enrolled order of the Court annexed to the Motion on Notice dated the 9th of May, 2006 and filed on 15th May, 2006 for an Order setting aside the Default Judgment and for stay of execution of the Judgment pending the determination of the Motion can be seen at Pages 17 22 of the Records.
The rest of what transpired in the case had earlier been chronicled and there is no doubt that the 2nd Respondent started the process of execution of the Judgment on the 12th of June, 2007 this may be as a result of the amicable settlement which was initiated by the Learned Counsel for the 1st Respondent as can be gleaned from his averment in paragraphs 5,6,7,10 of the Affidavit in support of the Motion for setting aside of the Judgment of Akuma, J. See pages 17 21 of the Records.
In any case, else our attention is diverted from the crux of this Issue, the 1st Respondent through Anaga Kalu Anaga had filed a Motion for further stay of Execution of the judgment pending the determination of the Appeal against the Ruling delivered by the Court granting leave to the Judgment-Creditor to attach the property in question. The Notice of Appeal dated 8th March, 2013 as filed by the 1st Respondent is contained at pages 57 and 58 of the Records but the 1st Respondent up till now did not argue the Appeal which has been abandoned for good owing to the sinister strategy of the 1st Respondent, the Appellants and their Learned Counsel to deprive the 2nd Respondent of the fruit of his Judgment.
To believe all the submissions of the Learned Counsel for the Appellants who had also initiated their interpleader summons on the 8th day of March, 2013 perhaps with the false hope that they would get away with their Chikanery, and abandoned same, when the Learned Trial Judge Uzokwe, J. discovered that there was no Hearing Notice in respect of the Motion for setting aside and relisting the Motion for leave to levy execution, on the 1st Respondent, he ordered at page 46 of the Records that the case be adjourned to 13/2/13 for Report of service and hearing of the motion.
At page 47 of the Records there is an Affidavit of Service deposed to by David Kalu dated 7th February, 2013 to the effect that as the Office Assistance in the Law Firm of A.O. Uchendu & Co. representing the Judgment-Creditor, he served a copy of the Motion for relistment on the Defendant/Judgment-Debtor/Respondent on the 19th of October, 2012 to which he acknowledged receipt through one Mrs. Glory (Defendants Wife) and which said copy is hereby attached and marked Exhibit A. Being satisfied by the above Affidavit of service, the Court at page 48 of the Records relisted the motion for leave to levy Execution which had earlier been struckout and adjourned the said motion to 5/3/13 for hearing and that fresh Hearing Notice should issue on the Defendant/Judgment-Debtor/Respondent.
To prove that the Defendant/Judgment-Debtor/1st Respondent was duly served, the Hearing Notices issued to Job Mba are Exhibited at pages 50 and 51 of the Records and to further debunk the spurious argument of the Learned Counsel for the Appellants that the 1st Respondent was not served so as to intimate the Court that ownership of the property sought to be distained has been passed over to the Appellants, on the said 7th day of March, 2013 when the Ruling culminating in this Appeal was delivered, the Learned Trial Judge had recorded at page 52 of the Records thus:
Parties present.
Creditor/Applicant.
Clerk:- No letter from Counsel for Defendant/Judgment-Debtor/Respondent.
Defendant: I saw my Counsel this Monday and I paid him. His name is Mr. Anaga Kalu.
Mrs. Joy Okorie the Registrar of the Court on her part did inform the Court that: My Lord I have equally perused the case file and there is no counter-affidavit or anything in reaction to the Motion.
It was on the above bases that the Defendant and his Counsel did not bother to react or oppose this Application that the Court granted the Application for leave to levy execution. From the foregoing, all the authorities cited by the Learned Counsel for the Appellants may have been decided on their peculiar facts and circumstances but they definitely do not apply to this case where the 1st Respondent was given every opportunity to react to the Motion for leave to levy execution but because lethargy or dilatory disposition of the 1st respondent and his Counsel, they failed to file any Counter-Affidavit thereby necessitating the Court below to grant the Application.
In the recent case of Ukachukwu Vs. PDP [2014] 17 NWLR (Pt. 1435) 134 at 164 165 paras. G A and 171 paras. E.G.; the Supreme Court dealt extensively with this vexed issue of fair hearing and per Kekere-Ekun, JSC upon a consideration of the Landmark authorities like Isiyaku Mohammed V. Kano N.A. (1968) 1 ALL NLR 424 at 426, (1968) SCNLR 558 at 561 per Ademola, CJN; Pam V. Mohammed & Anor (2008) 16 NLR (Pt. 1112) 1 at 48 paras E G and Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 621 622 paras. F A; reechoed the immortal words of Tobi, JSC that the duty of the Court, be it trial or Appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that the party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who therefore refused and/or neglected as in this case to take advantage of the fair hearing process cannot turn round to castigate/accuse the Court of denying him fair hearing. For as the adage goes, the best the owner of a horse can do is to take it to the stream but it cannot force it to drink water. The horse has to do it by itself and where it fails or is unwilling to sip, that is the end of the matter as the horse will not blame anybody but itself if eventually it dies of dehydration or thirst.
In the instant case, as I said earlier, the Court created the conducive and adequate atmosphere for the 1st Respondent to ventilate or defend himself against the motion for leave to levy execution and the Learned Counsel for the Appellants nay the Appellants who are weeping more than the 1st Respondent the direct victim and Respondent in that Application, cannot be serious in their contention that the 1st Respondent was not afforded fair hearing..
The Learned Counsel for the Appellant had also harped on the Supreme Court decision in LEEDO V. Bank of the North (1998) 7 SCNJ 328 at 322 324; which he quoted in extenso the dictum of Ogundare, JSC (of blessed memory) that although Section 44 of the Sheriffs and Civil Process Law does not provide for the mode of applying to Court by a Judgment-Creditor for a Writ of Execution against the immovable property of a Judgment-Debtor, as the Court has many things to satisfy itself about, it is only but fair and just that the Judgment debtor be put on Notice of Application. Furthermore as rightly held by the Learned Law Lord of blessed memory, the nature of evidence upon which the Court must satisfy itself before a Writ of attachment and sale is ordered to issue, the civil rights and obligations of the Judgment-Debtor must obviously come up for determination.
It is also of utmost good sense that such a determination cannot be made behind the back of the Judgment-Debtor without breaching his constitutional right to fair hearing under Section 33(i) of the 1979 Constitution (now Section 36(i) of the 1999 Constitution (as amended).
However as I had held earlier the Court below provided the 1st Respondent with every opportunity to state his part of the case by adjourning even in the presence of the 1st Respondent and insisting on service of hearing Notices to the said Respondent yet he refused to take due advantage of the opportunities. Accordingly, the Learned Counsel contended as he had done that the only conclusion to be drawn from his enumerated facts is that the Application was granted Ex-parte.
With the greatest respect, the 2nd Respondent did not file any Exparte Motion throughout the proceedings but at all times material to the case all the Motions were on notice and duly served on the 1st Respondent who on all the sittings for purposes of considering the Application was present in Court and on the date of Ruling confirmed to the Court that he had paid his Counsel who decided not come to Court because they had perfected a strategy to fraudulently deprive the 2nd Respondent of the fruit of his judgment.
The Learned Counsel for the Appellants had cited with gusto the dictum of Abba-Aji, JCA in Ononye V. Chukwuma (supra) on what amounts to proper service of processes of Court but suffice it to say that, that self-same learned brother (sister?) had laid to rest whatever spurious arguments the Learned Counsel for the Appellants has advanced in this respect when he posited in Oladekoyi V. IGP (2011) LPELR 4531 (CA) at 37 38 paras G B ably cited by the Learned Counsel for the 2nd Respondent that:
The Appearance in Court of a party served is the strongest evidence of service. It is therefore for this reason that the Rules of Court provide for the various ways of proving service either by certification, affidavit of service or personal appearance in Court of the person served.
In this case the Records have shown not only that the 1st Respondent was duly served but he personally appeared on all the days the case was called and particularly on the date of the Ruling complained of and accordingly the Learned Counsel for the Appellants submission is neither here nor there and same is discountenanced for its frivolity. Still on this point I shall commend the very recent decision of this Court per Iyizoba, JCA of the Lagos Division in Cosmas Maduka V. Dr. Patrick Ifeanyi Ubah & 4 Ors. (2015) 11 NWLR (Pt. 1470) 201 at 221 222 paras F A; that where there is proof of service on a party by means of Affidavit of Service sworn to by the Bailiff or an Officer of Court, the only recommended and acceptable way of challenging or rebutting the presumption of service is by filing a Counter-Affidavit and that what is important there should be a kind of sworn deposition denying service.
On the whole in respect of the Issue of jurisdiction, I am satisfied that the subject-matter of the Application heard and determined by the Learned Trial Judge was within his jurisdiction and not only was there no feature in the case which prevented the Court from hearing and determining the Application but that the case came to that point by due process and all the conditions precedent were fulfilled before the Learned Trial Judge assumed the jurisdiction to entertain the Application for leave to levy execution which he rightly granted the 2nd Respondent.
Turning to the pertinent question of whether the Court below was right to attach the purported property of the Appellants in settlement of the Judgment-Debt of which they were no parties, without wasting any judicial time, the Learned Counsel for the 2nd Respondents was right when he contended that under the principle of Equity the Appellants hands are dirty as the entire transaction of transferring the property the subject of the Application for leave to execute, is suspect, malafides and could not have been valid as at when it was purportedly made notwithstanding that ordinarily the Power of Attorney by way of Deed executed in favour of the Appellants ought to have conferred on them, the legal estate in the property.
However, the Learned Counsel for the 2nd Respondent had rightly submitted that once the process of execution had commenced, it cannot be terminated halfway. In the circumstances of this case, where the 2nd Respondent commenced and had indeed levied execution on the movable property of the 1st Respondent except where the amount realized from the sale thereof settled the entire Judgment-Debt (which is not the situation here as only a paltry sum of N74,400.00 (Seventy Four Thousand Four Hundred Naira) was realized out of the N10,000,000.00 Judgment-Debt, the Judgment-Creditor/2nd Respondent was conferred with an equitable interest over the immovable property of the Judgment-Debtor.
I agree therefore that the Judgment-Debtor/1st Respondent could not validly transfer title of his immovable property to the Appellants or anybody. The said immovable property of the 1st Respondent is No. 20 Aguwa Avenue Off, Ovom Street, Ogbor Hill Aba from where the movable property auctioned on 1st November, 2007 was found.
Coincidentally, about three months later on 5th day of February, 2008, the 1st Respondent purportedly transferred the said immovable property that is the land and House aforementioned to the Appellants in anticipation that the said property could be auctioned since the amount realized from the first auction was ridiculously low. I dare also pose the question as the Learned Counsel for the 2nd Respondent has done as to why the hasty transfer just immediately after the movable property was auctioned? I agree that the good faith of the 1st Respondents and indeed the Appellants is called to question as regards the questionable transfer of the House and Land by the 1st Respondent to his sons (Appellants) upon the consideration of Love and Affection relationship of father and sons.
The authority of Okwoche V. Dibia (1994) NWLR (Pt. 325) 195 at 204 paras D H; ably cited by the Learned Counsel for the 2nd Respondent is on point. In that case it was held that:- any transfer or assignment of the goods of a judgment debtor made after the date and times of receipt of the Writ of fiery facias by the Sheriff at which time the binding power of the Writ begins to operate against the goods except in the case of a purchaser in the market overt or a purchaser in good faith for value without notice remains subject to the Sheriffs right of execution and the Sheriff has the right to follow up and seize the goods under the writ. This is because the Sheriffs right to execution arises from the time of delivery up of the writ.
The above principle is anchored on the further position of the law that: If the principle that when goods have been attached, the execution cannot be defeated if in the interval, the owner transfers his rights to the goods to a third party (except in the case of title being acquired by a third party in good faith and for valuable consideration and without notice of the writ having been delivered to the Sheriff and remaining executed) is allowed to be violated, the way will be opened up for defeat of the execution of creditors rights and, as the circumstances of this case very plainly show, to transactions of a questionable nature under which debtors would endeavour to avoid their just obligations.
Again as was held in the case of Folashade V. Durosola (1961) 1 ANLR 87 that where an estate is affected by equitable interest, a subsequent purchaser for value will not be affected by that equitable interest provided he obtained the legal estate, gave value for the property and he had no notice of the equitable interest at the time when he gave consideration.
As far as this case is concerned and contrary to the submission of the Learned Counsel for the Appellants, the transaction was not bonafide as the Appellants did not purchase for value nor can it be seriously contended that the Appellants had no notice of the pending execution of the Judgment given against their father who at all times material to this case and even now reside in the property. The Appellant in my view acquired no legal estate as a Power of Attorney properly so called is merely an instrument of delegation of power and not a means through which a donor alienates his interest. See Ude V. Nwara (1993) 2 NWLR (Pt. 278) 647; (1993) 2 SCNJ 47 and Chime V. Chime (2001) 3 NWLR (Pt. 701) 527.
The implication of the above authorities is that, on its own, a Power of to convey an interest in land in the name and on behalf of a donor. Y. Y. Dadem in his book Property Law & Practice. In Nigeria (2001) Jos University Press Limited, 1st Edition at pages 42 45; posits that the reason for this practice by Solicitors is that once a power of Attorney coupled with interest (valuable consideration) in favour of the Donor is given, it is irrevocable but that it is only irrevocable to the extent that the consideration which is given is unrealized. Where however the consideration is realized, the Power of Attorney becomes revocable.
The Learned Author also opined that the Power of Attorney on its own cannot extinguish the title of the Donor since the Donee remains an agent of the Donor. In the instant case and going by the true purport of a Power of Attorney, the 1st Respondent merely appointed the Appellants his agents as the Legal Estate still resides in him. Moreover since the Sheriff has been issued the Writ of attachment before the purported transfer in 2008, the transfer is void on the authorities of Okwoche V. Dibia (supra) and Folashade V. Durosola (supra).
On the question of consideration the mere transfer of property to sons on consideration of love and affection as the 1st Respondent has done, can never be in good faith as this was done in anticipation of the execution of the Judgment given against the 1st Respondent and after the initial execution and sale of the 1st Respondents movable property.
Even if the sale of Goods Act 1893 by Section 26(1) do not apply to the facts of this case which is not conceded, the fact that Appellants are the Biological sons of the 1st Respondent who live in the same house sought to be attached and the coincidence of the transfer three months after the first execution go a long way to show that the Appellants had due notice of the fact of the anticipated execution. I also agree that the Appellants cannot feign ignorance of the Suit against their father by 2nd Respondent their uncle nor can they feign ignorance of the fact that the Bailiffs of the Court had just levied execution shortly before their purported acquisition of the said property.
On the submission that the Appellants could not levy execution on the property under consideration, our attention has been drawn to pages 48, 52, 57, 60 and 71 of the Records and a careful perusal of this pages would reveal that at all times material to this case the Appellants were aware of the pending execution of the Judgment to the extent of their father filing a Notice of Appeal which they abandoned as well as their (Appellants Counsel) who was also the Counsel for their father who filed the Appeal writing to the Court about the property and even initiated the summon to inter plead which they feel will hoodwink this Court into setting aside the Ruling of the Lower Court and frustrate the 2nd Respondents reaping of his hard earned Judgment.
The argument that the Learned Trial Judge acted against the interest of the Appellants and 1st Respondent is grossly misleading as the 1st Respondent had ample opportunity either through his Counsel or by himself on all the days he was in Court until the Ruling was delivered to inform the Court that the property upon which execution was to be levied was encumbered, but he failed so do. On the authorities of Chidoka V. F.C.F.C. (supra) and Okike V. The Legal Practitioners Disciplinary Committee (supra) and other authorities cited on fair hearing, the Appellants failed to discharge the burden cast on them to establish the breach of their right to fair hearing.
I am of the candid view that the parties were given equal opportunities to put their case before the Court below as dictated by authorities like INEC V. Musa (2003) 3 NWLR (Pt. 806) S.C. and Pam V. Mohammed (supra).
Finally, inspite of all the arguments of the Learned Counsel in his Reply Brief the Power of Attorney purportedly donating the property sought to be attached is a fraud calculated to hoodwink this Court as the 1st Respondent who is supposed to defend the Appeal had nothing to urge on the Court in view of their grand conspiracy with his sons to frustrate the 2nd Respondent.
On the whole, this Appeal lacks merit and is accordingly dismissed. I shall make no order as to costs with the hope that sanity will prevail between the parties who are of the same blood and ought not to have washed their dirty linens in public when they would have explored all means of resolving this unfortunate quagmire amicably rather than resort to litigation with all its expenses and bad blood it has generated and would continue to generate.
I make no order as to Costs.
PETER OLABISI IGE, J.C.A.:
I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, IGNATIUS I. AGUBE, JCA., and I am in agreement with his reasoning and conclusions.
FREDERICK O. OHO, J.C.A.:
I had the opportunity of reading the draft of the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in agreement with the reasoning and conclusions in dismissing this Appeal in its entirety. I abide by the consequential orders made thereto.
Appearances
Okey Onuigbo, Esq. with him, Goodness Nnadozie (Miss)For Appellant
AND
U. K. Anyanwu, Esq. (holding brief of Ejike Onuoha)For Respondent
