SKYE BANK (NIGERIA) PLC v. SEPH INVESTMENT LIMITED & ORS
(2016)LCN/8479(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/I/214/2007
RATIO
APPEAL: CONSEQUENCE OF ISSUES FORMULATED NOT ARISING FROM THE GROUNDS OF APPEAL
On the other hand, issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, as in the instant case, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court.
See. Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475, Amadi v. NNPC (2002) 6 SC (Pt. 1) 66 at 72; Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608; Shitta-Bey v. A.G. Federation (1998) 10 NWLR (Pt. 570) 392. PER MOJEED ADEKUNLE OWOADE, J.C.A.
APPEAL: PRINCIPLES GUIDING THE FORMULATION OF VALID ISSUES BY THE RESPONDENT
Furthermore, any issue formulated for determination by the Respondent in an appeal must relate to the grounds of appeal filed by the Appellant.
However, for the Respondent to validly raise any issue not related to the grounds of appeal filed by the Appellant, he must file a cross appeal or file a Respondent’s notice.
See Ossai v. Wakwah (2006) 4 NWLR (Pt. 969) 208; UTB (Nig.) Ltd v. Ajagbule (1997) 2 NWLR (Pt. 486) 194 at 197. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUDGMENT: WHAT LAW GOVERNS THE EXECUTION OF A JUDGMENT REGISTERED IN ANOTHER STATE
Secondly, where a judgment given in one State is registered in another State, proceedings from execution in the latter case are subsumed and governed by the Federal Law, the Sheriffs and Civil Process Act Cap 407 LFN 1990 (Now Cap 56 LFN 2004). And not the corresponding law of any of the two States.
See Dalgo Investment v. JenBill Industries Ltd (2002) All FWLR (Pt. 107) 1163 at 1172. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUDGMENT: WHICH COURT SHALL HAVE JURISDICTION OVER CERTIFICATE OF A JUDGMENT
The procedures for the registration of certificate of judgment for the purposes of levy of execution of immovable property are provided for in Section 104 and 105 of the Sheriffs and Civil Process Act and by the provision of Section 108 of the Act, the Court in which any such certificate of a judgment has been registered shall, in respect of the issue of process upon the certificate and the enforcement of the judgment, have the same control and jurisdiction over the judgment as if the judgment were a judgment of such Court. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
SKYE BANK (NIG) PLC Appellant(s)
AND
1. SEPH INVESTMENT LTD
2. AYO OLAGBAJU
3. SEGFAR PETROLEUM AND GAS LTD Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/Ruling of G. E. Oladoke J. in the High Court of Osun State, sitting at Ile-Ife delivered on 13/2/2007.
The Appellant as Plaintiff took out a Writ of Summons in the High Court of Justice Ogun State, Ijebu Ode Judicial Division against the Respondents and secured judgment in the said Court on 3/3/2004 per Hon. Justice T. Ibikunle in the following terms.
“Accordingly Plaintiff succeeds against the Defendant on all its claims.
Judgment is entered in favour of the Plaintiff for the sum of N16,304,217.72 with interest as claimed and it is also ordered that the Plaintiff has the power of sale of the 3rd Defendant’s property covered by a Legal Mortgage Exhibit “C”. Cost of N10,000 awarded against the Defendants.”
? Consequent upon the judgment, the Court sold the Respondent Petro Filling Station at Sagamu for N5.5 Million Naira, thus leaving a debit balance of over N10 Million Naira still unpaid by the Respondents judgment debtors.
?The Appellant later located other properties of the
Respondents in Ile-Ife and went ahead on 11/12/2006 to file an application in the High Court of Osun State, Ile-Ife.
“For an Order of this Honourable Court to levy the execution of the judgment delivered on the 30th day of March, 2004, in suit HC7/75/2002 on the immovable property of the 3rd Defendant i.e. SEGFAR PETROLEUM AND GAS LIMITED situate, lying and being at Toll Point Ibadan/Ife Expressway, Ile-Ife, Osun State.”
The Respondents filed a counter-affidavit that the judgment of the Ogun State High Court did not permit execution of any other property except the mortgaged property. In a ruling delivered on 13/2/2007, the learned trial Judge refused the application to attach and sell on the grounds that to do so will amount to amending the judgment of the Ogun State High Court.
In the words of the learned trial Judge at page 21 of the record:
“I must say agreeing with the learned counsel to the Respondents that the judgment is clear and straight forward and not ambiguous in any form. To grant this application is to amend and alter the statement of claim and the judgment of my learned brother T. Ibikunle Adesalu
J. of the High Court of Justice, Ijebu-ode and to exercise an Appellate jurisdiction on the said judgment of which I am not competent to do and agreeing with the learned counsel to the Respondents suicidal and sacrilegious. (sic). Furthermore, this will amount to judicial recklessness on my part. I will not or never embark on such a suicidal voyage.
I must say that the property sought to be attached for sale having not been contained in the said Exhibits ‘A’ and ‘B’ as the judgment was specific on what property to be sold. I do not have the power to add the property contained in the application to it. I lack jurisdiction to do so. In the circumstance the application is hereby refused and the same accordingly dismissed. No order as to cost.”
Dissatisfied with the above decision, the Appellant filed a Notice of Appeal containing five (5) grounds of appeal in this Court on 7/5/2007.
?Based on the above, Learned Counsel for the Appellant filed a brief of argument dated 21/11/2007 on 22/11/2007.
The Respondents also filed a brief of argument dated 15/10/2015 on the same day. And, the Appellant’s
thereafter filed Appellant’s Reply Brief dated 26/10/2015 on 12/11/2015.
Learned Counsel for the Appellant nominated three (3) issues for determination. They are:
”1. Whether the learned trial Judge was right in refusing to make an Order attaching and selling the Respondents property in Ile-Ife, when it was apparent that the judgment debt still remained unsatisfied.
2. Whether the judgment of the Ijebu-ode High Court was incapable of being executed in Ile-Ife.
3. Whether from the facts of this case granting the motion by the Ile-Ife High Court will amount to amending and altering the statement of claim and the judgment of the Ijebu-Ode High Court.”
Learned Counsel for the Respondents also formulated three (3) issues for determination as follows:
(i) whether or not the Appellant’s Notice of Appeal filed on 7th May, 2007 is competent having regard to Section 14 of the Court of Appeal Act, Cap. (36 Laws of the Federation of Nigeria 2004).
(ii) Whether the learned trial Judge was right in refusing to make an Order of sale of the 3rd Respondent’s property
at Ile-Ife which property was not a subject of the earlier judgment of Ijebu-Ode High Court.
(iii) Whether or not the grants of the application by the learned trial Judge will not amount to amending the judgment of the Ijebu ode High Court sought to be enforced?”
I observe as a preliminary point that Respondent’s issue one did not arise from the Grounds of Appeal neither did it arise from the decision of the Court.
An objection to the competence of the Notice of Appeal relates to the jurisdiction of this Court and would only have properly been raised separately by way of a motion on notice or by way of preliminary objection to the appeal itself.
On the other hand, issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, as in the instant case, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court.
See. Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475, Amadi v. NNPC (2002) 6 SC (Pt. 1) 66 at 72; Momodu v.
Momoh (1991) 1 NWLR (Pt.169) 608; Shitta-Bey v. A.G. Federation (1998) 10 NWLR (Pt. 570) 392.
Furthermore, any issue formulated for determination by the Respondent in an appeal must relate to the grounds of appeal filed by the Appellant.
However, for the Respondent to validly raise any issue not related to the grounds of appeal filed by the Appellant, he must file a cross appeal or file a Respondent’s notice.
See Ossai v. Wakwah (2006) 4 NWLR (Pt. 969) 208; UTB (Nig.) Ltd v. Ajagbule (1997) 2 NWLR (Pt. 486) 194 at 197.
In the instant case, the Respondent’s issue one was not validly and/or properly raised and it is accordingly struck out and discountenanced.
This appeal shall be decided on the issues formulated by the Learned Counsel to the Appellant.
?Learned Counsel for the Appellant argued his three issues together and reiterated the facts of the case and submitted that the Appellant followed the proper procedure by filing an application on notice pursuant to the inherent jurisdiction of the Court as contained in the Sheriffs and Civil Process Law of the Federation to attach the property of the judgment
debtors to satisfy the judgment yet unsatisfied.
Appellant’s Counsel referred to the case of Saleh v. Moguno (2006) All FWLR (Pt. 332) 1411 at 1451 and also to the provision of Order 4 Rule 16 (1) – (3) of the Judgment Enforcement Rules and Sections 104, 105 and 108 of the Sheriffs and Civil Process Act cap. 56 LFN 2004.
He emphasized the provision of Section 108 of the Sheriffs and Civil Process Act to the effect that “the Court in which any such certificate of a judgment has been registered shall, in respect of the issue of process upon the certificate and the enforcement of the judgment, have the same control and jurisdiction over the Judgment as if the Judgment were a Judgment of such Court.”
He submitted that the learned trial Judge however held that she could not grant the prayer sought as the judgment of the Ijebu-Ode High Court was specific on the property to be sold and to do so will also amount to amending and altering both the statement of claim and the judgment of the Ijebu-Ode High Court as well as exercising an appellate jurisdiction over the said judgment.
?Appellant’s Counsel submitted that
this is a wrong conclusion reached by the trial Court as the Ijebu-Ode High Court did not say that no other property (apart from the mortgaged property) should be sold. That reading such conclusion into the judgment by the Ile-Ife High Court has resulted in adding to the judgment what the judgment did not say. This Counsel said, has led to a miscarriage of justice.
Furthermore, that granting the application does not amount to exercising an appellate jurisdiction as Section 108 of the Sheriffs and Civil Process Act is explicit on the fact that registering the judgment in her jurisdiction gives her power and jurisdiction over the said judgment. That the trial Court’s conclusion also offends against Section 105 (2) of the Sheriffs and Civil Process Act which imposes a duty on the Court to treat the judgment of the Ijebu-Ode High Court as her own judgment.
Appellant’s Counsel submitted further that the evidence before the Court showed that over N10 Million was still unsatisfied by the judgment granted by the Ijebu-Ode High Court after sale of the filling Station at Shagamu.
?He submitted that the Respondents did not deny sale of the property at Sagamu.
And, that to hold that only the mortgaged property could be sold is to deny the Appellants the rights to reap the fruits of the judgment given to them.
He referred again to the case of Saleh v. Monguno (supra) and Order 2 Rule 22 of the Judgment Enforcement Rules Cap. 56 LFN 2004 and submitted that once a judgment debt remains unsatisfied, the judgment creditor is at liberty to attach any property belonging to the judgment debtor which can be located anywhere in Nigeria.
This, he said is more so since there is no denial by the judgment debtors that the property sought to be attached belonged to the 3rd Respondent. He submitted that granting the order for sale cannot in any way amount to amending or altering the statement of claim or the judgment of the Court.
That what the Court was called upon to do is to give effect to a valid judgment which all Courts are enjoined to do once such judgment has been registered in the State where it is sought to be enforced.
He referred again to Section 104, 105, 108 and 109 of the Sheriffs and Civil process Act cap 56 LFN 2004 and the case of Dalgo Investment v. Jenbill
Industries Ltd (2002) All FWLR (Pt. 107) 1163 at 1172.
He argued that from the combined effects of Sections 105 (2) 108 and 109 of the Sheriffs and Civil Process Act, it is clear that granting the reliefs sought will not in any way amount to amending the judgment or the statement of claim.
He urged us to set aside the decision of the learned trial Judge and grant the reliefs sought in the motion to attach and sell the Respondents filling station at Ile-Ife.
Learned Counsel for the Respondent on the other hand submitted inter alia that the Appellant had to prove amongst other things that there was an existing order of the High Court of Ijebu-Ode, Ogun State which authorized the sale of the property of the 3rd Respondent at Ile-Ife.
That at page 4 of the record, the specific order of the Ijebu-Ode High Court was an Order for the sale of the 3rd Respondent’s property lying, situate and being at Sagamu/Benin Road, Soyindo, Sagamu which property is covered by Deed of Mortgage registered as No. 45/45/561 of the Lands Registry, Abeokuta.
?He submitted that the said property was the subject of a purported guarantee by the 3rd
Respondent for which a Deed of mortgage was purportedly prepared and registered by the Appellant. That the Ijebu Ode High Court could not have even granted in the substantive suit the prayer which the Appellant brought to the Osun State High Court sitting at Ile-Ife.
He submitted that it is trite law that every statement of claim shall clearly state the reliefs sought and that a Court cannot give to a party a relief not sought by the party and that a judgment by Court acting without or in excess of jurisdiction is a nullity.
On this, Counsel referred to the cases of Cornelius Oladunjoye v. Engr Bayo Abinterinwa & Anor (2004) 4 SC (Pt. 1) 19; Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393; Emegokwue v. Okadigbo (1973) 4 SC 113.
Respondents Counsel emphasized that even the Ijebu Ode High Court that gave the order could not have granted the prayer sought by the Appellant in Osun State since the property at Ile-Ife was not part of the claims by the Appellant in the High Court. Also, that the High Court at Ile-Ife could not have made an Order varying the order of the High Court Ijebu Ode by way of
consequential order. That to have ruled in favour of the Appellant will have amounted to varying the order of the High Court, Ijebu Ode since the Ijebu Ode High Court did not enter any order against the property at Ile- Ife.
He referred to the case of Mike Momoh v. A. B. Petroleum Inc. (2000) 2 SC 142.
Respondents Counsel submitted that while there is a presumption of validity of a judicial order, in the instant case, that presumption was over ruled when the Appellant falsely claimed that the judgment of an Ijebu Ode High Court gave him an Order to sell the 3rd Respondent’s property at Ile-Ife.
Counsel added that the Respondents will not at this point be drawn into the jurisprudence of whether or not a creditor secured with a guarantee of a specific property can seek a relief against other properties not secured. But that be that as it may, the answer to the issue raised by the Appellant as to whether the judgment entered in Ijebu Ode High Court cannot be executed in Ile-Ife was answered by the Judge. It can be executed in Ile- Ife but only in exactly the limits to which it was entered in Ijebu Ode.
?He submitted that if the
Ijebu Ode High Court gave the Appellant an Order to sell the property of 3rd Respondent at Ile-Ife it will not need to seek that same order at Ile-Ife. It would have simply followed the provisions of Section 13 (1) (2) and (3) of the Sheriffs and Civil Process Laws Cap. 148 Laws of Osun State to execute same. That it is not the duty of the Court to find right law for a Counsel as Counsel is obliged to assist a Court with authorities.
He referred to the case of African Reinsurance Corporation v. JDP Construction Nigeria Limited (2003) 23 WRN 17. He urged us to uphold the Ruling of the Court below.
Appellants Issues 1 – 3 are clearly related. They all go to the determination of the question of whether or not the learned trial Judge was not wrong to have refused the Appellant’s motion “to levy the execution of the judgment delivered on the 30th day of March, 2004 in Suit HCJ/75/2002 on the immovable property of the 3rd Defendant i.e. SEGFAR Petroleum and Gas Limited situate, lying and being at Toll Point Ibadan/Ife Express Way Ile-Ife, Osun State.”
The ratio decidendi of the reasoning of the learned trial Judge for
the refusal of the Appellant’s application which the learned Counsel for the Respondent brought up in this Court with justification is that granting the Appellant’s application would have amounted not only to varying the order of the Ijebu-Ode High Court but also to have amended the Appellant’s claims in the High Court of Ijebu-Ode both of which are impossible for lack of jurisdiction.
I think it is important therefore to set out again the order secured by the Appellant as judgment creditor from the Ijebu-Ode High Court. It reads thus:
“Accordingly Plaintiff succeeds against the Defendants on all its claims. Judgment is hereby entered in favour of the Plaintiff for the sum of N16,304,2017.72 with interest as claimed and it is hereby ordered that Plaintiff has the power of sale of 3rd Defendants property covered by the legal mortgage Exhibit C. Cost of N10,000 awarded against the Defendants.”
Clearly by the use of the word “and” in between “claimed” and “it is hereby ordered”, there are two components to the judgment secured by the Appellant in the Ijebu-Ode High Court. The first
is the declaration that the Respondents are indebted to the Appellant in the stated sum + interest. The second is a separate order that the particular mortgaged property covered by Deed of legal mortgage could be sold under the mortgagees power of sale.
After the sale of the mortgaged property for N5.5 Million Naira, the judgment in favour of the Appellant remained unsatisfied. The basis for the refusal of the Appellant’s application to levy execution of judgment on other immovable properties of the Respondents could not be that the property at Ile-Ife was not specifically ordered to be sold nor that the Court does not have jurisdiction to entertain the motion to levy execution on the 3rd Respondent consequent on the judgment of the Ijebu-Ode High Court itself.
In other words, the basis for the levy of execution or further levy of execution on the immovable property of the 3rd Respondent located at Ile-Ife was not the Order of the sale of the mortgaged property of the Respondents but on the basis of the fact that the judgment debt remained unsatisfied.
In the first instance, where the payment of judgment debt obtained against a judgment debtor
is guaranteed, once the original debtor fails to pay the judgment debt, the guarantor or as many as there are become judgment debtors and the judgment creditor has a discretion to proceed against any of them to execute judgment without having to proceed against the judgment debtor.
See Mucas Hospital Ltd v. Fasuyi (2004) 8 NWLR (Pt. 874) 67.
?Secondly, where a judgment given in one State is registered in another State, proceedings from execution in the latter case are subsumed and governed by the Federal Law, the Sheriffs and Civil Process Act Cap 407 LFN 1990 (Now Cap 56 LFN 2004). And not the corresponding law of any of the two States.
See Dalgo Investment v. JenBill Industries Ltd (2002) All FWLR (Pt. 107) 1163 at 1172.
Section 44 of the Sheriffs and Civil Process Act Cap 56 LFN 2004 specifically deals with levy of execution upon immovable property. It says:
“If sufficient movable property of the judgment debtor can be found in the Federal Capital Territory, Abuja or the State, as the case may be, to satisfy the judgment and costs and cost of execution, execution shall not issue against his
immovable property, but if no movable property of the judgment debtor can with reasonable diligent be found, of if such property is insufficient to satisfy the judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the Court for a Writ of execution against the immovable property, of the judgment debtor, and execution may issue from the Court against the immovable property of the judgment debtor in accordance with the provisions of this Act, and any rules made there under …”
The procedures for the registration of certificate of judgment for the purposes of levy of execution of immovable property are provided for in Section 104 and 105 of the Sheriffs and Civil Process Act and by the provision of Section 108 of the Act, the Court in which any such certificate of a judgment has been registered shall, in respect of the issue of process upon the certificate and the enforcement of the judgment, have the same control and jurisdiction over the judgment as if the judgment were a judgment of such Court.
Finally, by Order 2 Rule 22 of the Judgment
(Enforcement) Rules made under the Sheriffs and Civil Process Act “Every Process may lawfully be carried into effect in any place within Nigeria where the Defendant or Judgment debtor or his movable or immovable property may be found or met with ….”
In view of the aforegoing, I agree with the learned Counsel for the Appellant that by the combined effect of Sections 105 (2) 108 and 109 of the Sheriffs and Civil Process Act that granting the reliefs sought will not in any way amount to amending the judgment or the statement of Claim. In fact, Section 105 (2) of the Sheriffs and Civil Process Act declared that “From the date of registration the certificate shall be a record of the Court in which it is registered and shall have the same force and effect in all respects as a judgment of that Court, and the like proceedings may be taken upon the certificate as if the judgment had been a judgment of that Court.”
In the instant case, the learned trial Judge was wrong to have refused to grant the Appellant’s application of 11th December 2006 “to levy the execution of the judgment delivered on the 30th day of March,
2004 in Suit No. HCJ/75/2002 on the immovable property of the 3rd Defendant i.e, SEGFAR PETROLEUM AND GAS LIMITED, situate, lying and being at Toll Point Ibadan/Ife Express Way Ile-Ife Osun State.”
The three (3) issues formulated by the Appellant in this appeal are resolved in favour of the Appellant. The appeal is meritorious and it is accordingly allowed. The decision/Ruling of Hon. Justice G. E. Oladoke delivered on 13/2/2007 in Suit No. HIF/NRJ.1/2006 is hereby set aside.
The Appellant’s Application’s Motion on Notice of 11/2/2006 “to levy the execution of the judgment delivered on the 30th day of March, 2004 in Suit No. HCJ/75/2002 on the immovable property of the 3rd Defendant i.e. SEGFAR PETROLEUM AND GAS LIMITED situate, lying and being at Toll Point Ibadan/Ife Express Way, Ile-Ife, Osun State” is hereby granted.
I make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. I agree entirely
with the reasoning and conclusion in the said judgment and adopt them as mine.
I agree entirely with my learned brother that the lower Court was wrong when it refused to grant the application to levy execution by the judgment creditor.
I too allow the appeal and set aside the ruling of the lower Court delivered on 13th February, 2007.
?I grant the application of the Appellant to levy execution of the judgment delivered on 30th March, 2004 in suit No.HCJ/75/2002 on the immovable property of Segfar Petroleum And Gas Limited situate, lying and being at Toll Point Ibadan/Ife Express Way, Ile-Ife, Osun State.
I abide by the order as to costs
Appearances
Oladipo Olasope with him, A. A. Adeniran (Miss.)For Appellant
AND
G. AwoyemiFor Respondent
