MR. UCHE CHIAZOR & ORS v. OGBUENYI EZEDIASHI OFILI & ANOR
(2019)LCN/13276(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/B/73/2017
RATIO
APPEAL: ISSUES FOR DETERMINATION: THE ESSENCE OF FORMULATING ISSUES FOR DETERMINATION
The Supreme Court in Sylva v. INEC (2015) LPELR-24447 (SC); (2015) 16 NWLR Pt. 1486 Pg. 576 per Ngwuta JSC. opined that the essence of formulating issues for determination is to enable the parties narrow the issues in controversy in the grounds of appeal in the interest of accuracy, clarity and brevity. The rule is that an issue for determination must be a concise statement of enquiry on whether the judgment of the trial Court is supported by the facts and or law.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
APPEAL: WHAT THE APPELLATE COURT MUST CONSIDER WHEN HANDLING AN APPEAL
Be that as it may, there is no doubt that in hearing and deciding an appeal, what an appellate Court considers is whether the decision of the lower Court is right, not whether the reasons given for it are right. As such, the appellate Court will uphold a decision it finds to be right even though the reasons given for it may be wrong. See Agbanelo v. U.B.N (2000) 77 LRCN 1140, 1175 F-H; (2000) LPELR-234 SC; (2000) 7 NWLR Pt. 666 Pg. 534; Odukwe v. Ogunbiyi (1998) 67 KLR 1523, 1537 C-D; (1998) 8 NWLR Pt. 561 Pg. 339.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
COURT ORDER: NATURE OF A COURT ORDER
The law is that a Court order may be declaratory or executory. It is executory where the order declares the rights of the party (Claimant) before the Court and then proceeds to enjoin the defendant or judgment debtor to act in a certain way. It may be to act in a certain way or refrain from acting in a certain way. e.g. pay a debt within a certain period etc. It is declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be carried out by or enforced against the defendant. It is merely a judicial statement confirming or denying the legal right of the Claimant. It does not contain any order that may be enforced against the defendant. See Akunnia v. A. G Anambra (1977) LPELR-394 (SC); Carrena & Ors v. Akinlase & Ors (2008) LPELR-833 (SC); (2008) 14 NWLR Pt. 1107 Pg. 262; Olabomi & Anor. v. Oyewinle & Ors. (2013) LPELR-20969 (SC)PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DECLARATORY JUDGMENT: WHEN A DECLARATORY JUDGMENT WILL BECOME ENFORCEABLE
In Enekwe v. International Merchant Bank (2006) LPELR-1140 (SC); (2006) 19 NWLR Pt. 1013 146, the Supreme Court held that the rights conferred by a declaratory judgment can only become enforceable, if another and subsequent judgment albeit relying on the rights hitherto declared, so decrees. The later judgment will be the executory judgment. The date of enforceability must be the date of the subsequent executory judgment and not the earlier judgment which is merely declaratory. Thus, the mere declaratory relief granted in rem (against the whole world) cannot be enforced as it is. See also Ogunlade v. Adeleye (1992) 10 SCNJ 58 at 65-67.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
FILING OF PROCESSES IN A SUIT TO SECURE THE ENFORCEMENT OF A JUDGMENT IS DIFFERENT FROM FILING A NEW SUIT OR ACTION
By these different time limits, it is crystal clear that filing processes in a suit to secure the enforcement of a judgment therein is different from filing a new suit/action on the basis of a judgment pronounced in an earlier suit.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
THE SPECIFIC PROVISIONS OF LAW MUST ALWAYS BE FOLLOWED
Moreover, it is trite law that where there is a law that deals specifically with a matter, it is such law that would apply to the matter instead of another law which deals in general with such matters, including the one in issue. See Governor of Kaduna State v. Kagoma (1982) ALL NLR Pt. 1 Pg. 150, 161; (1982) LPELR-3176 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
LIMITATION LAW OF LAGOS: SECTION 15: MEANING
That the provision of Section 15 of the Limitation Law is meant to apply to new/fresh suits filed to enforce a previous judgment is clear from the Supreme Courts decision in Purification Technique (Nig) Ltd & Ors v. Jubril & Ors cited by the objectors which is also reported in (2012) ALL FWLR (Pt. 642) 1657; (2012) LPELR- 9727 (SC) Pg. 35-36 Para G-B.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. MR. UCHE CHIAZOR
2. MRS. ASHIEDU CHIAZOR
3. MISS. MANASHI CHIAZOR
4. MR. NGOZI CHIAZOR
5. MR. BENEDICT CHIAZOR
6. MR. NDUBUISI CHIAZOR
7. MR. SUNDAY CHIAZOR – Appellant(s)
AND
1. OGBUENYI EZEDIASHI OFILI
2. OGBUENYI CHIKWEH MADUKA – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Delta State, delivered by Hon. Justice F.N. Azinge on 31/10/16 wherein the Appellants Notice of Preliminary Objection against the Respondents application to execute a judgment delivered in 1975 was dismissed.
The facts that led to this appeal are as follows: –
The Respondents herein filed an application on 9/4/15 which sought the leave of the High Court of Delta State to execute a judgment that was delivered by Uche Omo J. in 1975. The Court, presided over by His Lordship, Z.A Smith, C.J had on 12/3/2015 extended the time to execute the said judgment, time for doing so having expired and the original Plaintiffs/judgment creditors having died. The Appellants by a Notice of Preliminary Objection filed on 21/3/16 challenged the jurisdiction of the lower Court to entertain the application on the ground that the execution of the 1975 judgment had become statute barred.
In a considered ruling, the lower Court dismissed the Appellants preliminary objection to the application.
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Dissatisfied, the Appellants filed a Notice of Appeal on 29/11/16. Record was transmitted on 21/2/17. The Appellants brief was filed on 31/3/17 and Appellants reply brief filed on 30/5/17. The Respondents brief was filed on 30/5/17.
Mr. C.O. Erondu, Esq., who settled the Appellants brief identified a sole issue for the determination of this appeal to wit: –
Whether the learned trial judge was right in dismissing the Appellants Notice of Preliminary Objection with a finding that the Respondents time is still running without considering the said objection on the merits?
In the brief settled by O.W. Chibuogwu Esq., the Respondents also identified a sole issue for the determination of this appeal as follows:
Whether the lower Court was wrong in dismissing the Appellants preliminary objection after finding, contrary to the claim made therein, that the time to execute the judgment is still running and the execution sought not statute barred.
Both issues are the same but couched differently. I will however recouch a sole issue which addresses the complaint of the Appellants.
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Whether the learned trial judge was right in dismissing the Appellants Notice of Preliminary Objection to the motion while holding that the motion is not statute barred without considering the merit of the said objection?
SOLE ISSUE
Whether the learned trial judge was right in dismissing the Appellants Notice of Preliminary Objection to the motion while holding that the motion is not statute barred without considering the merit of the said objection?
Learned counsel to the Appellants argued that the Notice of preliminary objection against the Respondents application was predicated on Section 15(1) of the Limitation Law of Delta State which provides that an action shall not be brought upon any judgment or on the interest on any judgment debt after the expiration of ten years from the date on which the judgment becomes enforceable or the interest becomes due or as the case may be.
Counsel opined that as at the time when the contentious application was initiated in 2015, the Respondents had no cause of action to enforce the 1975 judgment anymore, time having elapsed or stopped running ten years thereafter.
Counsel argued that the
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learned trial judge without taking cognizance of the settled position of the law in U.B.N v. Edionseri (1988) 3 SC 341 Pg. 352 and Eperokun v. The University of Lagos (1986) 4 NWLR Pt. 34 Pg 162 at 179 held that considering the merits of the preliminary objection will amount to the Court sitting on appeal over its own order which the Court is precluded from doing.
Learned counsel emphasized that it is the adjudged incompetent application for leave to execute that amounts to sitting on appeal over the former subsisting order and not the preliminary objection. The Appellants preliminary objection was targeted at the competence of the adjudged incompetent motion and cannot by any stretch of imagination be likened to the Court sitting on appeal over a subsisting order of the Court.
Counsel argued that the learned trial judge erred in law by dismissing the notice of preliminary objection which was not considered at all. The dismissal permanently extinguished the Appellants right of action on the unconsidered subject matter of the objection.
Counsel further argued that an application can be dismissed for lack of merit only when the
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trial Court must have taken the arguments from the counsel to the parties and considered the arguments before making pronouncements on whether or not the application is meritorious. Dismissing an application without hearing it on the merit is a breach of the Applicants constitutional right. Counsel cited Adebayo v. T.S.G. (Nig.) Ltd. (2011) 2 NWLR Pt. 1238 Pg. 493, 510-511 Paras E-A, John Andy Sons & Co. Ltd. v. Mfon (2006) 12 NWLR Pt. 995, Pg. 461 at 481-482 Paras H-B; Idoko v. Ogbeikwu (2003) 7 NWLR Pt. 819 Pg. 275 at 292 Para E; Amah v. Nwankwo (2007) 12 NWLR Pt. 1049 Pg. 552 at 580 Para F-G.
Counsel argued that the Court was wrong to have pronounced on the subject of the objection which he never considered, to the effect that the Respondent time is still running; this constitutes a violation of the Appellantsconstitutional right to fair hearing. Counsel cited Ekpenetu v. Ofegobi & Ors. (2012) 15 NWLR Pt. 1323 Pg. 276 at 310 Para D-F, Onah v. Okom (2012) 8 NWLR Pt. 1301 Pg. 169 at 189-190 Para F-A; News-watch Communication Ltd. v. Atta (2006) 12 NWLR Pt. 993 Pg. 144, at 170 Para H; Nokoprise Intermark Coy Ltd. & Anor
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v. Dobest Trading Corp. Inc. & Anor. (1997) 9 NWLR Pt. 520 Pg. 334-335 Para H-A.
Learned counsel emphasized that the dismissal of the preliminary objection had occasioned a miscarriage of justice which this Court must not allow to stand. Counsel cited Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR Pt. 1225 Pg. 329 at 338 Para G; Adigun v. A.G. Oyo State (1987) 2 NWLR Pt. 56 Pg. 197; Okafor v. A.G. Anambra State (1991) 6 NWLR Pt. 200 Pg. 659; Obiesie v. Obiesie (2007) 16 NWLR Pt. 1060 Pg. 223 at 232 Para C-D.
Learned counsel argued that the Respondents issue for determination is incompetent and should be struck out as it does not flow from the grounds of appeal. Counsel argued that the issue for determination must be predicated on the grounds of appeal unless a cross appeal or respondents notice was filed. Counsel cited Hon. Mahmoud Baba Bichi v. Ahmed Haladu & Ors. (2003) 14 NWLR Pt. 841 Pg 624 at 658-659 Paras E-B; Okoye v. N.C.F.C Ltd. (1991) 6 NWLR Pt. 199 Pg. 501 at 532-533.
Counsel emphasized that a holistic examination of the two grounds of appeal reveals that the complaint of the Appellants is targeted at the
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failure of the learned trial judge to consider the objection on the merits before dismissing it while the Respondents issue for determination is to the effect that findings were made in the course of considering the objection before its dismissal which is completely at variance with the said grounds of appeal.
Counsel argued that there was no subsisting order or/finding that time was still running and there was no previous objection which rendered the extant application a relitigation of the same issue as held by the learned trial judge. As such without any proven case of relitigation by the Appellants, there cannot be any case of abuse of the process of Court. Counsel cited Arubo v. Aiyeleru (1993) 3 NWLR Pt. 280 Pg. 126 at 142 Para C; 146 paras C-D, Buhari v. INEC & 4 Ors (2008) 19 NWLR Pt. 1120 Pg. 246 at 375-376 Para G-A; Augustine Oyubu v. Francis Akpobarojeru (1998) 4 NWLR Pt. 546 Pg. 422 at 436 Para A-B.
Counsel further argued that the Respondents contention that the Appellants notice of objection was an abuse of the process of Court cannot be validly raised in their brief of argument without first filing a
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Respondents notice and since no Respondents notice was filed, all the arguments on the abuse of the process are rendered incompetent and of no effect. Counsel relied on Order 9 of the Court of Appeal Rules 2016 and cited Bobmanuel v. Briggs (2003) 5 NWLR Pt. 813, Pg. 323 at 339-340 Paras D-E; Adebiyi v. Umar (2012) 9 NWLR Pt. 1305 Pg. 279 at 294 Para F-G.
Counsel emphasized that the order for the grant of leave ex-parte did not constitute a bar to the invocation of the defence of statutory bar. Counsel argued that once an action is statute barred, it cannot be reviewed or resurrected by any order of Court. Counsel cited Akinnuoye v. Mil. Adm. Ondo State & Ors. (1997) 1 NWLR Pt. 483 Pg. 564 at 572 para F; Abubakar v Nasamu (No. 1) (2012) 17 NWLR Pt. 1330 Pg. 440 at 459-460 Paras H-A.
Counsel urged this Honourable Court to set aside the conclusion of the lower Court for being in violation of the Appellants constitutional right to fair hearing.
Learned counsel to the Respondents argued that the lower Court was right to have dismissed the preliminary objection which was predicated on the fact that the time for executing the
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judgment has elapsed and the proposed execution is statute barred, having been delivered forty years earlier.
Counsel emphasized that the Respondents deposed that the same Court, per Z. A. Smith, C.J (Rtd.) had, on 12/3/2015, granted leave to execute the judgment, the Court admitted the deposition as true because the Appellants did not deny it. The lower Court also found that there was no appeal against the order and same was still valid and subsisting.
Counsel opined that the Appellants were aware of the order granting leave to execute the judgment after the expiration of the time limited for doing so but they neither appealed against same nor applied that it be set aside and since the order was still valid and subsisting, the lower Court was bound by it. An order of Court, be it ex parte or otherwise, is valid, subsisting and binding until set aside. Jikantoro v. Dantoro (2004) All FWLR Pt. 216 Pg. 390 at 416-417.
Learned counsel argued that an application by which a Court is asked to ignore its earlier order by making another one on the same subject matter amounts to reversing or reviewing the order which is an abuse of Court process.
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Counsel cited S.P. & Associates Ltd. v. March & Rich & Company A.G (2003) FWLR Pt. 177 Pg. 922 at 935 Para C-G and 936 D-F and Josiah Cornelius Ltd & Ors. v. Ezenwa (1996) Pg.37 LRCN 618 at 641 Para D-F and 624 B-G.
Counsel further argued that a Court of law is entitled to dismiss an application/process filed in abuse of Court process. Counsel cited Labaran v. Kalshingi (2006) All FWLR Pt. 292 Pg. 65.
Learned counsel argued that in case there is any doubt about the jurisdiction of Smith (C.J) Rtd., making the order of 12/3/15, the provisions of Order 4, Rule 8(2) of the Judgment (Enforcement) Rules Cap, S3, Laws of Delta State, 2006 gives the lower Court the power to grant leave, ex parte, for the enforcement of a Court judgment after the time for doing so has elapsed.
OPINION
An appeal in this Court is by way of rehearing. Thus, I am obliged to examine all the materials considered by the learned trial judge in order to determine whether the decision of the trial Court was factually and legally sound.
Let me start by considering the complaint of the Appellants against the issue distilled by the Respondents for
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consideration in this appeal. I have looked at the sole issue identified for the determination of this Appeal by the learned Respondents counsel on the one hand and the two (2) grounds of appeal as contained in the Appellants Notice of Appeal on the other hand. In my view, the Appellantscontention against the Respondents in relation to the issue for determination identified by the learned Respondents counsel is misconceived and of no moment. The Supreme Court in Sylva v. INEC (2015) LPELR-24447 (SC); (2015) 16 NWLR Pt. 1486 Pg. 576 per Ngwuta JSC. opined that the essence of formulating issues for determination is to enable the parties narrow the issues in controversy in the grounds of appeal in the interest of accuracy, clarity and brevity. The rule is that an issue for determination must be a concise statement of enquiry on whether the judgment of the trial Court is supported by the facts and or law. I am of the firm view that the sole issue as couched or identified by the Respondents counsel in the determination of this appeal emanates from the grounds of appeal in the Appellants notice of appeal being an enquiry as
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to whether the learned trial judges ruling and reasons given for it was right. The sole issue is therefore competent and I will consider the arguments of counsel in that regard.
It is important to relate the facts of this case in order to apply the relevant laws. The judgment of Uche Omo J. (as he then was) delivered on 17/10/75 in suit No. A/8/69 was between Julius Ofili and Stephen Mafenmoh (for themselves and on behalf of Enem family of Illah) on one hand against or versus L.C. Idim and P.C. Chiazor on the other hand.
The declaration of title and injunction sought by the Plaintiffs in 1969 was granted by the trial Court. See Pg 5-17 of the Record. The last portion of the judgment of 17/10/75 reads as follows on Pg. 16-17 of the Record;
This is a proper case in which the claim to an injunction must succeed. It is very important that the defendants be restrained from pursuing any further their trespass on the plaintiffs land. The plaintiffs claim for recovery of possession of the portions of the land in dispute on which the defendants have built houses also follows the same course as the claim for a declaration of
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title. For the avoidance of doubt this affects the church and now completed second house of the 1st defendant, and the three houses of the 2nd defendant. With regards to claim (5), i.e. demolition of the buildings, I see no basis for making an order that these houses be now demolished, as the plaintiffs may want to take them over. They may thereafter demolish them if they so desire. In order to make allowance for negotiation and/or possible moves on this issue, which I hope the parties will have recourse to as befits kinsmen, it is hereby specifically ordered that no demolition of any of these houses should be undertaken until two months from the date of this judgment.
In the supplementary record transmitted on 2/3/17, the Respondents had filed on 23/12/14, a motion ex parte pursuant to Order 4 Rule 2, 8 and 9 of the Judgment (Enforcement) Rules Cap S.3 Laws of Delta State for an order of Court granting leave to the plaintiffs/judgment creditors/applicants to execute or apply for the issuance of the relevant process/processes for the execution of the 1975 judgment the time for doing so having expired and the original Plaintiffs/Judgment Creditors
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having died. That order was granted in the following terms on Pg. 6 of the supplementary record:
Order as prayed. Having heard counsel for the Claimants/Judgment Creditors/Applicants and perused the motion ex parte as filed. I am satisfied with the watenah(sic) placed before me that this is a proper case for which leave should be granted. Leave is hereby granted the Claimants/Judgment Creditors/Applicants to execute or apply for the issuance of the relevant process/processes for the execution of the judgment in this suit i.e No. A/8/69: Ogbuenyi Ezediashi Ofili & Anor. v. Mr Uche Chiazor & 8 Ors. time for doing so having expired and the original Claimants/Judgment Creditors having died.
According to the rules of Court in Delta State, it is imperative that an ex parte order be first sought and obtained for leave to kick start the process, the time to so do having expired. That was what was done by the Respondent at the trial Court before Z.A. Smith J. on 12/3/15.
Pg. 42 of the Record is the prayer in the motion on notice subsequently sought by the Respondent. It is set out below:
1. An order of Court granting
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leave to the plaintiffs/judgment creditors/applicants to execute the judgment in this suit against the Estate of P.C. Chiazor, the original 2nd defendant/judgment debtor in this suit, or his personal representatives who are the defendants/judgment debtors/respondents herein the said original 2nd defendant/judgment debtor having died in October 2006 without complying with the judgment or same being executed.
It was to the above prayer that the Appellants filed a notice of preliminary objection which was overruled by the trial Court. The Court held inter alia as follows on Pg. 107 of the Record:
In paragraph 5(C) of the Counter-affidavit of the Respondents, the Respondents averred that this Honourable Court granted leave on the 12th day of March, 2015 to execute the judgment in this suit the time for doing so having expired and the original Plaintiffs/Judgment Debtors having died. This was not challenged or controverted by the objectors. There is no appeal against the said order of this Honourable Court.
I hold the view that there being a subsisting order of Court granting leave to the Respondents to execute the judgment, the
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Respondents motion filed on the 30th day of March, 2015 is incompetent.
It should be noted that the notice of preliminary objection challenges the jurisdiction of this Honourable Court to entertain the said motion.
Considering the merits of the preliminary objection will amount to this Honourable Court sitting on appeal over its own order. The Court is precluded from doing so.
I hold the further view that the time to execute the said judgment is still running. Consequent upon the above, the notice of preliminary objection is hereby dismissed.
It seems to me that the learned trial judge with the greatest respect was bereft of the knowledge of the procedure when the Court held that the subsistence of the ex parte order for leave to apply makes the motion on notice incompetent. It cannot be right that the next step in a process would be taken as sitting on appeal over the previous step. There are so many procedural actions in our various rules of Court which provide that an ex parte order be first sought and obtained before a motion on notice can be filed to give both parties opportunity to bring their case to the Judex for
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determination of their rights and obligations e.g. (1) the Fundamental Human Rights Rules, (2) Garnishee proceedings under the various Sheriffs and Civil Process Laws and Act etc. It was erroneous in law for the learned trial judge to hold that considering the merits of the objection would be tantamount to sitting on appeal over its previous decision. It is just like saying that a Court having granted the 1st leg of the trinity prayers cannot grant the other two legs.
Now, the most pertinent complaint against the ruling of the trial Court is that it was wrong of the Court to hold that the time to execute the judgment is still running. The Court was clearly speaking from both sides of the mouth when it held in one breath that it could not consider the merits of the preliminary objection as it will amount to sitting on appeal against its own order, then in the next breath concluded and effectively over ruled the objection by saying that the time to execute the said judgment is still running.
Be that as it may, there is no doubt that in hearing and deciding an appeal, what an appellate Court considers is whether the decision of the lower Court is
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right, not whether the reasons given for it are right. As such, the appellate Court will uphold a decision it finds to be right even though the reasons given for it may be wrong. See Agbanelo v. U.B.N (2000) 77 LRCN 1140, 1175 F-H; (2000) LPELR-234 SC; (2000) 7 NWLR Pt. 666 Pg. 534; Odukwe v. Ogunbiyi (1998) 67 KLR 1523, 1537 C-D; (1998) 8 NWLR Pt. 561 Pg. 339.
I need now to determine, inspite of my views regarding the reasoning of the learned trial judge, whether the learned trial judge was right in dismissing the preliminary objection to the motion on notice for leave to execute the judgment. I have set out above the pertinent portions of the orders of Uche Omo J. (as he then was). The law is that a Court order may be declaratory or executory. It is executory where the order declares the rights of the party (Claimant) before the Court and then proceeds to enjoin the defendant or judgment debtor to act in a certain way. It may be to act in a certain way or refrain from acting in a certain way. e.g. pay a debt within a certain period etc. It is declaratory where it merely proclaims the existence of a legal relationship, but contains no specific order to be
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carried out by or enforced against the defendant. It is merely a judicial statement confirming or denying the legal right of the Claimant. It does not contain any order that may be enforced against the defendant. See Akunnia v. A. G Anambra (1977) LPELR-394 (SC); Carrena & Ors v. Akinlase & Ors (2008) LPELR-833 (SC); (2008) 14 NWLR Pt. 1107 Pg. 262; Olabomi & Anor. v. Oyewinle & Ors. (2013) LPELR-20969 (SC).
In Enekwe v. International Merchant Bank (2006) LPELR-1140 (SC); (2006) 19 NWLR Pt. 1013 146, the Supreme Court held that the rights conferred by a declaratory judgment can only become enforceable, if another and subsequent judgment albeit relying on the rights hitherto declared, so decrees. The later judgment will be the executory judgment. The date of enforceability must be the date of the subsequent executory judgment and not the earlier judgment which is merely declaratory. Thus, the mere declaratory relief granted in rem (against the whole world) cannot be enforced as it is. See also Ogunlade v. Adeleye (1992) 10 SCNJ 58 at 65-67.
I have set out above the pertinent portion of the judgment in suit No. A/8/69 delivered by Uche Omo
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J. (as he then was) on 17/10/75. The Applicants in the trial Court were trying to execute the executory portions of the judgment through the process initiated by the ex parte motion first sought and obtained on 12/3/15 and the later motion on notice dated 30/3/15, which was objected to and decision on said objection is the subject matter of this appeal.
The Appellants had based their objection to the jurisdiction of the trial Court on the provisions of Section 15 (1) of the Limitation Law of Delta State which states as follows:
No action shall be brought upon any judgment or on the interest on any judgment debt after the expiration of ten years from the date on which the judgment becomes enforceable or the interest becomes due, as the case may be.
The thorny question here is whether that provision is applicable to the executory portion of the judgment in Suit No. A/8/69 delivered on 17/10/75 sought to be enforced forty years later in 2015.
It must be reiterated that the right to judicial relief of whatever hue does not last in perpetuity but strictly regulated by time specifications to aid vigilant rather than indolent
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suitors. That was the mischief the Limitation Law and the Judgment Enforcement Rules set out to cure.
One school of thought is that an application in the same suit for leave to execute a judgment against the Estate of a deceased judgment debtor or his personal representatives after the time allowed by law to execute same has elapsed is not an action upon a judgment as envisaged by Section 15 of the Limitation Law but a process regulated by the judgments (Enforcement) Rules.
By Order 4 Rule 8 of the Judgment (Enforcement) Rules, Cap S. 3, Laws of Delta State, 2006 made pursuant to the Sheriffs and Civil Process Law, Cap S. 3 Laws of Delta State, 2006, the time limit for executing/enforcing judgments of Court are specified. The Rule also authorizes the Court to grant leave to execute judgments even after the time for doing so elapses upon the ex parte application of the judgment creditor. For ease of reference, the relevant portion of Order 4, Rule 8 provides:
(1) As between the original parties, process, otherwise than against person, may issue at any time within six years, and against the person at any time within two years, from the
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date of the judgment which is immediately sought to be enforced.
(2) After such periods respectively, process shall not issue without leave of the Court, but on notice to the judgment debtor before applying for such leave shall be necessary.”
The Sheriffs and Civil Process Law under which the judgments (Enforcement) Rule was made, is by its long title and provisions, a law that makes provisions for the enforcement of judgments and orders and the service and execution of civil processes of the Courts of Delta State. There is also no doubt that the judgments (Enforcement) Rules, under which the application being objected to, was brought is a provision dealing specifically with the practice and procedure for enforcing/executing judgments. They are specific provisions dealing with the enforcement/execution of judgments while the limitation law is a general provision dealing with the time limits for filing different kinds of originating actions to establish ones right/entitlement to judgment and the grant of the reliefs one seeks. What is more, the Judgment (Enforcement) Rules make specific provisions for the time limits for enforcing
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judgments and orders of Courts namely two years and six years respectively which are totally different from the ten year period provided in Section 15 of the Limitation Law.
By these different time limits, it is crystal clear that filing processes in a suit to secure the enforcement of a judgment therein is different from filing a new suit/action on the basis of a judgment pronounced in an earlier suit. Moreover, it is trite law that where there is a law that deals specifically with a matter, it is such law that would apply to the matter instead of another law which deals in general with such matters, including the one in issue. See Governor of Kaduna State v. Kagoma (1982) ALL NLR Pt. 1 Pg. 150, 161; (1982) LPELR-3176 (SC).
That the Limitation Law deals with fresh suits and the time for commencing them is clear from the provisions of Section 25-33 thereof which deal with the periods of person outside Nigeria or under disability or confinement to commence legal proceedings/actions or when the time to sue starts running where there is a part-payment or acknowledgment of debt, amongst others. In each of the said sections, the expression right of
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action and cause of action are freely used clearly suggesting that the law deals with matters which are yet to be heard and judicially determined by the Court. Section 15 of the Limitation Law does not say that no judgment should be enforced after 10 years; it only says that no action upon a judgment shall be filed after 10 years.
That the provision of Section 15 of the Limitation Law is meant to apply to new/fresh suits filed to enforce a previous judgment is clear from the Supreme Courts decision in Purification Technique (Nig) Ltd & Ors v. Jubril & Ors cited by the objectors which is also reported in (2012) ALL FWLR (Pt. 642) 1657; (2012) LPELR- 9727 (SC) Pg. 35-36 Para G-B. In that case, the objection was that Suit No. LD/792/92 was an action brought upon the judgment in Suit No. LD/1213/76 delivered on 24/2/1978 and so was caught by the provision of Section 12(2) of the Limitation Law Lagos State whose provisions are, in all material respects, identical with Section 15 of the Limitation Law, Cap L11, Laws of Delta State, 2006 having been filed after 12 years. See Page 1681 A-F.
In the lead judgment delivered
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by Ngwuta, J.S.C., (2012) LPELR- 9727 (SC) Pg. 35-36 Para G-B, the apex Court held:
As a matter of commonsense, an action brought upon a judgment is an invocation of the coercive powers of the trial Court to enforce the enforceable orders in the judgment. In other words, the action is intended to enforce specific orders in the judgment. It is not the judgment that is statute-barred. It is an action to enforce the reliefs granted in the judgment that may be statute-barred.
In Purification Technique v. Jubril (supra), Ngwuta JSC., in the lead judgment interpreted S. 12 (2) of the Limitation Law of Lagos State which states as follows in similar terms with the provision under consideration in this appeal;
S. 12 (2). An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment becomes enforceable.
My Lord Ngwuta was emphatic on the point that the judgment of a Court cannot be statute barred and that the fact that such judgment was delivered can be pleaded and relied on in a subsequent action notwithstanding the effluxion of time. However, my Lord in the
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circumstances of that case, having considered the fact that the later suit brought in 1992 did not relate to the former suit brought in 1976. My Lord considered the fact that in Suit LD/1213/76, the claim was for declaration that the Defendants were not members of Ado Family and an order to restrain the defendants from interfering with the properties of Ado family. The Claimants won in all Courts up to the Supreme Court. In Suit LD/792/92 from which the appeal in purification arose, the Appellants as Plaintiffs claimed damages for trespass, an order to eject the Defendants from the land and an order to restrain the Defendants from further trespass on the land. The Plaintiffs won at trial but lost at the Court of Appeal. At the Supreme Court, the Court held that in view of the claims and orders granted in LD/1213/76 and the claims and orders granted in LD/792/92, it cannot be said that latter suit was an action brought upon the judgment in the former suit even though the former suit was one of the facts pleaded and relied upon by the Appellants. The Supreme Court held that what is barred twelve years after it becomes enforceable is an action brought upon the
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judgment.
It is my humble view that while the Judgment Enforcement Procedure Rules may prescribe the time limit and the mode of enforcing the reliefs in the judgment, the Limitation Law prescribes time limits for the filing of a suit to enforce the declaratory portions of a judgment. The effect of the statute of Limitation is that the right to enforce the claim is lost. See John Eboigbe v. N.N.P.C (1994) 5 NWLR Pt. 347 Pg. 649; Egbe v. Adefarasin (No 2) (1987) 1 NWLR Pt. 47 Pg. 1.
An action is a simple term that means a lawsuit or matter brought before our Courts in the form of a formal complaint stating the grievance of the complainant, who presents a dispute or seeks a prayer for judicial examination of the propriety or otherwise of the claim. Thus, in my humble view, the motion on notice to enforce the specific executory terms of the judgment in A/8/69 is an action within the meaning of S. 15 (1) of Limitation Law of Delta State.
Whether we consider the provisions of the Judgment Enforcement Rules or the provisions of the Limitation Law, both of which provide a time limit to enforce declaratory or executory orders, there can
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be no legal justification for the fact that the Judgment Creditors/Respondents had slept on their rights to enforce the judgment for over forty (40) years. In my humble view, the process initiated by the applicant respondent at trial is to enforce the specific enforceable orders in the judgment. Even if it were a fresh action/suit to enforce the declaratory reliefs in the said judgment, I am still of the humble view that such an action would be statute barred whichever way you look at it.
I am thus of the humble view that the attempt to enforce the executor portions of the judgment delivered in 1975 is statute barred being a matter brought within the purview of the judgment and not extrinsic to it. There is merit in this appeal. The ruling of the learned trial judge in Suit No A/8/69 is hereby set aside. Appeal allowed. No order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the draft copy of the leading judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.
The sole issue for determination has been exhaustively and adequately addressed in consonance with established authorities
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and relevant statutory provisions. I am therefore in agreement with the reasoning and conclusion reached therein.
I also hold that the appeal has merit and it is accordingly allowed.
I abide by the consequential orders made in the leading judgment inclusive of that of cost.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, Ogunwumiju, JCA, just delivered.
I agree with the elaborate reasons given by my learned brother for allowing the appeal. For those reasons, I also allow the appeal and abide by all the orders in the leading judgment.
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Appearances:
C. O. Erondu, Esq. with him, A. Obwota, Esq. and S. Nwaeli, Esq.
For Appellant(s)
G. I Ugbechie For Respondent(s)
Appearances
C. O. Erondu, Esq. with him, A. Obwota, Esq. and S. Nwaeli, Esq. For Appellant
AND
G. I Ugbechie For Respondent
