NWANKWO & ORS v. UDEH & ORS
(2021)LCN/15060(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, March 11, 2021
CA/AW/412/2013
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
- MR. OBINNA NWANKWO 2. MR. SIMON AKPA 3. MR. E. N. DIMAKA 4. ENGINEER CHIKE UZOETO 5. MR. JOHN CHUKWUDE 6. MR. FRIDAY EMENIKE (For Themselves & On Behalf Of Members Of League Of Creditors To Electronics Dealers Association). APPELANT(S)
And
- MR. JOSEPH UDEH 2. MR. STEPHEN NNAEMEZIE 3. MR. PETER IBEKANJO 4. EVANG. CHUKWUNAGO CHUNWE 5. MR. EMMANUEL EBIRIM 6. MR. JOSEPH AJAERO (Executive Electronics Dealers Association Onitsha) 7. INCORPORATED TRUSTEES OF ELECTRONICS DEALERS ASSOCATION ONITSHA. RESPONDENT(S)
RATIO
WHETHER THE GRANT OR REFUSAL OF AN APPLICATION FOR WRIT OF ATTACHMENT OF IMMOVABLE PROPERTY OF A JUDGMENT DEBTOR IS AT THE DISCRETION OF THE TRIAL JUDGE
Much as it is the right of the Appellants as Judgment Creditors to proceed against the Judgment Debtors to recover the fruits of their litigation, it is definitely at the discretion of the learned trial Judge to refuse the application for writ of attachment of immovable property where the conditions are not met or where the attitude of the parties smack of collusion. PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering The Leading Judgment): This Appeal is a by-product of the Ruling of Anambra State High Court sitting in Onitsha in Suit No. O/353/2007, delivered on the 29th day of April, 2013, Coram P. C. Obiorah, J.
Wherein the learned trial Judge in his Ruling, dismissed an application brought by the Appellants for leave to sell the immovable property of the 7th Judgment Debtor/Respondent towards the satisfaction of the Judgment debt entered in favour of the Appellants in the sum of N129,902:124:00 (One Hundred and Twenty Nine Million, Nine Hundred and Two Naira, One Hundred and Twenty Four Naira) on the 14th day of July, 2008, with interest of the 21% on the Judgment debt from the 14th of July, 2007.
Exercising their constitutional right to Appeal, the Appellants have appealed to this Court.
SUMMARY OF RELEVANT FACTS:
The Appellants herein as plaintiffs at the Court below were all traders who supplied assorted building materials during the construction of the Electronics International Market Onitsha, at the request of the 1st – 6th Respondents who were then the Executive Committee of the Electronics Dealers Association and who were in charge of the Construction of the Market then.
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The 7th Respondent was the owner of that Market as well as the umbrella body which supervised the affairs and interest of all the Electronic traders in that market, the 1st – 6th Respondents inclusive. The said Electronics market was completed about 2006. The Respondents were able to offset a huge amount of debt owed the Appellants and left a balance of about N129,000,000:00 unpaid. After series of demands by the Appellants, they commenced action against the Respondents in 2007.
On the 14th of July, 2008, Judgment was entered in favour of the Appellants by V. Agbata, J. in the sum of N129,902,124:00 with interest at 21% effective from the 14th of July, 2007.
Subsequently, the Appellants sought to enforce the Judgment in various ways without success. The Appellants then brought an application under Sections 20 and 44 of the Sheriffs and Civil Process Act, Cap. 56, Laws of the Federation of Nigeria, 2004, seeking for leave to issue writ of Execution on a parcel of land belonging to the 7th Respondent for the purpose of satisfying the Judgment awarded in their favour in 2008.
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It is rather curious and unusual that the Judgment Debtors did not object to the application to attach and sell the parcel of land which land is the property of Electronics Dealers Association the owners of the Electronics Market Onitsha.
In a considered Ruling the Learned Trial Judge dismissed the application for leave to sell the immovable property of the 7th Judgment debtor/Respondent on the ground that before the Court can order the attachment of immovable property, it must be satisfied that no other movable property of the Judgment debtor could be seen.
This Appeal revolves round the said Judgment.
Learned Counsel for the Appellants Cyprian O. I. Agwuna Esq distilled three issues for determination as follows:
1. “Whether the Appellants, as Judgment creditors have a choice to proceed against any of the Respondents on record to recover the fruits of their litigation.
2. Whether under the Sheriffs and Civil Process Law Cap. 56 Laws of the Federation, the learned trial Judge has a discretion not to grant an application for writ of attachment of immovable property of
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a Judgment debtor, where it has been shown by an uncontroverted affidavit evidence, that the property sought to be attached belongs to the Judgment debtor who has been shown not to have any movable property.
3. Whether the Ruling of the lower Court is not altogether unreasonable and perverse, taking into consideration the provisions of Section 20 and 44 of the Sheriffs and Civil Process Law which govern such matters.”
The Respondents did not file any brief in this Appeal. On the 9th of September, 2020, this Court granted an application to hear this Appeal based on the Appellants’ brief alone.
I will take the issues distilled by the Appellants together since they are interwoven.
Much as it is the right of the Appellants as Judgment Creditors to proceed against the Judgment Debtors to recover the fruits of their litigation, it is definitely at the discretion of the learned trial Judge to refuse the application for writ of attachment of immovable property where the conditions are not met or where the attitude of the parties smack of collusion.
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Some portions of the Ruling of the learned trial Judge caught my attention. In line 3 of the Ruling at page 18, the learned trial Judge stated as follows;
“Interestingly, the said Judgment Debtors do not oppose the application to attach and sell the parcel of land. I have realised that the land in question is the property of the Electronics Dealers Association, the owners of the Electronics Market Onitsha.”
I agree with the learned trial Judge that it is interesting that the Judgment Debtors do not object to the application. It is rather curious, unusual and rather suspicious. On the same page 18, the last but one line, the learned trial Judge also had these to say:
“… I think the attitude of the parties smack of collusion. The Court cannot allow itself to be misled into an obvious matter.”
On the last paragraph at page 19, he also stated as follows:
“The result is that I find no merit in the present application. It is accordingly dismissed. The Applicants are at liberty to file fresh application if truly they want to levy the execution of the Judgment and bring such application against the proper Executives of the 7th Respondent or her Trustees”
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I agree entirely with the learned trial Judge that this application is not automatic if the merits of the application are not met. I am also of the view that the Appellants are at liberty to file fresh application if truly they want to levy execution of the Judgment. Such application must be brought against the proper executives of the 7th Respondent or her Trustees. I therefore do not see the Ruling of the lower Court as perverse or unreasonable.
In the premise, all the issues are resolved against the Appellants. This appeal in unmeritorious and is hereby dismissed. However, since the Appellants already are the Judgment Creditors, they are still at liberty to file fresh application to levy execution of their Judgment.
Consequently, this file is remitted back to the Chief Judge of Anambra State to be assigned to another Judge of the Anambra State High Court should the Appellants still want to file a fresh application to levy execution of the Judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA and I agree with his reasoning and conclusion. I agree that the appeal lacks merit and I dismiss it.
I abide by the consequential orders.
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PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the lead judgment of my learned brother CHIOMA NWOSU-IHEME, JCA just delivered.
I agree with his Lordship that this appeal is devoid of merit and should be dismissed. I accordingly dismiss the appeal and affirm the decision of the trial lower Court.
I also abide by the consequential order remitting this case file back to the Hon. Chief Judge of Anambra State for re assignment to another Judge of the State High Court for the purposes of levying execution of the judgment should parties so desire.
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Appearances:
O. I. Agwuna For Appellant(s)
C. Anaenugwu (SAN) For Respondent(s)
