(2018) LPELR-45445(CA)

Transcription

1 KAWU v. CHIEF SHERIFF, KEBBI STATE & ANOR CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO ON THURSDAY, 12TH JULY, 2018 Suit No: CA/S/63/2017 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal BELLO MOHD DAN KAWU - Appellant(s) 1. CHIEF SHERIFF, KEBBI STATE 2. BELLO MOHAMMED GWANDU RATIO DECIDENDI And - Respondent(s)

2 1. JUDGMENT AND ORDER - EXECUTION OF JUDGMENT: Position of the law as regards the execution of judgment over the immovable properties of a judgment debtor "...In the instant case, the Respondents did not put the Appellant on notice and therefore the lower Court with due respect was wrong to attach the Appellant's immoveable property surreptitiously. (at page 19 of the Record of Appeal). The Court below, held thus: "I disagree with this submission as there was an affidavit before the Court explaining the procedure followed by the Judgment Creditor in order to make the Judgment Debtor to pay for the debt as contained in p.2 paragraph 4 of the Ruling on ex parte application and the Court is satisfied that the Judgment Debtor was in full knowledge and understanding of the stress he made the Judgment Creditor to pass through. I am satisfied that the said ruling against the judgment debtor is in order and the application for setting aside the judgment cannot be granted as the Judgment debt must be paid." Much as judgment debt must be paid, the statutory procedure for enforcement of judgment must as well be respected and followed. More so as in the instant case where failure to observe the procedural law lead to violating the appellant's fundamental right to fair hearing. Neither was the Appellant placed on notice when the attachment order was made against his immoveable property nor did the Respondents challenge the depositions contained in the appellant's supporting affidavit. Section 44 of the Sheriffs and Civil Process Law clearly spells out the procedure for attachment of immoveable property. It requires that attachment of immoveable property cannot be resorted to unless sufficient movable property of the judgment debtor cannot be found in Kebbi State to satisfy the judgment and other costs, execution shall not issue against his immovable property. The judgment creditor must perform the uphill task of satisfying the provision of the law to entitle him to an order for attachment of immoveable property of the judgment debtor. The judgment creditor must establish the fact that the judgment remained unsatisfied and that there is no movable property of the debtor which can satisfy the judgment debt, the judgment creditor may apply to Court for a writ to issue against any immovable property of the judgment debtor. The mode of the application is discretionary but such power must be exercised judiciously and judicially. The respondent's failure to show some bit of diligence before he sought an order for sale of the appellant's immovable property, was tantamount to non-compliance with the provision of Section 44 of the Sheriffs and Civil Process Law of Kebbi State and the Court was in error to issue writ of attachment of immoveable property in such circumstances."per MUKHTAR, J.C.A. (Pp. 8-10, Paras. E-G) - read in context

3 HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Kebbi State High Court of Justice delivered on 5th April, 2017 wherein the Appellant s application was dismissed. An application was filed by the Appellant pursuant to Section 44 of the Sheriff and Civil Process Law of Kebbi State of 1996, in Motion No. KB/I1C/M.60/2017 seeking to set aside its ex-parte order made on 15/02/2017 granting the 2nd Respondent writ of attachment in respect of the Appellant s immoveable property. The lower Court in its ruling delivered on 5th April, 2017 refused to set aside the order for the attachment of the appellant s immoveable property. Being dissatisfied with the said Ruling, the Appellant appealed against it vide the Notice of Appeal dated 13th April, 2017 on the following three grounds: GROUND ONE The lower Court erred in law and thereby occasioned a miscarriage of justice when it held that the Ruling on ex parte application against the Appellant is in order. 1

4 PARTICULARS OF ERROR a. The 2nd Respondent filed an ex parte application (rather than motion on notice) for writ of an attachment of immoveable property of the Appellant which was granted on 15th February, b. That the Appellant was only served with the Court's order for the attachment of his immoveable property on 6th March, 2017 by the 2nd Respondent without putting him on notice. c. That it is condition precedent to put the Appellant on notice before issuance of order for attachment of his immovable property as provided for by Section 44 of the Sheriff and Civil Process Act (2004). GROUND TWO: The lower Court misdirected itself in the application of the position of law to the fact of this case when it held thus; "I am satisfied that the said ruling against the judgment debtor is in order and the application for setting aside the judgment cannot be granted as the Judgment Debt must be paid." PARTICULARS OF ERROR: a. The Appellant did not apply to set aside the judgment but rather to set aside order for writ of attachment of his property made ex parte on 15th February b. That the Appellant complained of lack of fair hearing and breach of statutory and case law provisions relating to attachment of immoveable property.

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6 c. That the reasons contained in the affidavit in support of the application of the Appellant pointed irresistibly that the condition precedent to the attachment for sale of the immoveable property of the Appellant has not been satisfied. GROUND THREE: The trial Court misdirected itself in law and breached the Appellant's right to fair hearing when it held that the Court is satisfied that the judgment debtor was in full knowledge and understanding of the stress he made the judgment Creditor to pass through. PARTICULARS OF ERROR: a. The Appellant was not given an opportunity to defend himself as the order was made ex parte. b. The Court relied on affidavit attached to the ex parte application of the 2nd Respondent. The appellant submitted a lone issue for determination of the Court; Whether the lower Court is right to refuse the application of the Appellant and hold that the Ruling on exparte application to attach the immoveable property of the Appellant is in order. (Distilled from grounds 1, 2 and 3). 3

7 The learned counsel for the appellant Y. B. Aminu, Esq. submitted that the laws governing a writ of attachment of immoveable property of a judgment debtor are Sheriff and Civil Process Act, Cap S6 LFN 2004, Sheriff and Civil Process Law, Kebbi State CAP and Order IV Rule 16 (2) of the Judgment (Enforcement) Rules. These laws stipulated the procedure and manner upon which the immoveable property of the judgment debtor may be attached. Relating the above principle of law to this case, the Respondents duty bound under the law to satisfy the procedure prescribed upon by the above-mentioned Statutes. For clarity purpose, Section 44 of the Sheriff and Civil Process Act which is same with Section 43 of the Sheriff and Civil Process Law, Kebbi State provides thus: "If sufficient moveable property of the judgment debtor can be found in the State to satisfy the judgment and costs and the costs of execution, execution shall not issue against his immoveable property, but if no moveable property of the judgment debtor can with reasonable diligence be found in the State, or if such property is sufficient to satisfy judgment and costs and the costs of execution, and the judgment debtor is the owner of any immoveable 4

8 property, the judgment creditor may apply to the Court for a writ of execution against the immoveable property of the judgment debtor in accordance with the provisions of this Laws, and any rules made thereunder (Underline for emphasis) It was submitted for the appellant that, in applying the provision of Section 44 of the Sheriff and Civil Process Act for writ of attachment of immoveable property, the Applicant must apply vide Motion on Notice supported by an affidavit showing what steps, if any have already been taken to enforce the judgment and with what effect; what sum now remain due under the judgment and that no moveable properties of the Judgment Debtor, or nonsufficient to satisfy the judgment debt, can with reasonable diligence be found. See Giwa Nigeria Loan and Mortgage Co. Ltd. (1946) 18 NLR 81 It was submitted that, from the foregoing that the Respondents are required under the law to follow strictly the procedure enshrined in the statutory provisions, particularly Section 44 Sheriff and Civil Process Act, 2004, Section 43 Sheriff and Civil Process Law, Kebbi State 1996 and Order IV Rule 16 of the Judgment (Enforcement) Rules. 5

9 The Respondents in this case filed an Ex-parte Application for writ of attachment of immoveable property of the Appellant, which the lower Court granted. However, Appellant s application to vacate the order was refused by the lower Court. (See pages 6 to 8 and 15 to 19 of the Record of Appeal) It was submitted for the appellant that the failure of the Respondents to put the Appellant on notice amounts to the breach of the Appellant's right to fair hearing and breach of Section 44 of the Sheriff and Civil Process Act. See the case of LEEDO PRESIDENTIAL H0TEL LTD. V. BON LTD & ANOR. (1998) LPELR (SC) where the Supreme Court held thus: "I think there is much wisdom in the views of the learned Judges in the two cases above. Although Section 44 of the Sheriffs and Civil Process Law is silent as to how an application is to be made to the court by a judgment creditor for writ of execution against the immoveable property of the judgmentdebtor, it is my respectful view that, as there are many things the Court has to satisfy itself about, it is only but fair and just that the judgment debtor be put on notice of the application." 6

10 "From the nature of evidence and 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. I cannot see how such a determination can be made behind the back of the judgment debtor without breaching his constitutional right to fair hearing under Section 33 (1) of the Constitution." Per Ogundare, JSC (P. 33, Paras B-F) It was submitted further that this Court at Kaduna Judicial Division in the case of Bayaro Vs Federal Mortgage Bank Ltd & Anor. (1998) held thus: "In the present appeal, it is not in dispute that the 1st respondent is entitled to enjoy the fruits of the ruling delivered in its favour. However, caution must be exercised when realizing the judgment debt such that immoveable properties of the judgment debtor are not made the first object in satisfaction of the judgment debt. Even though the Kano State High Court Rules, the State Sheriffs and Civil Process Law and other statutory provisions do not expressly prohibit attachment of immovable properties in satisfaction 7

11 of judgment debt, the general practice insists that it must be done in the right manner. I think in a situation where immoveable property of a judgment debtor is to be attached, the judgment debtor is entitled to be put on notice. In other words, the motion shall be one on notice to the judgment debtor as against ex parte motion. See Osunkwo v Ugbogbo (1966) [NMLR] 84; Opubor v Demiruru ENLR 27; Onagoruwa v I.G.P. (1991) 5 (NWLR) (Part 193) 593. I think this is only being fair to the judgment debtor as this will afford him an opportunity of being herd on the crucial issue as to whether or not he still has, within the trial Court's jurisdiction, enough moveable property to satisfy the judgment debt. This will also accord with the rules of natural justice, fair hearing and the Constitution. In the instant case, the Respondents did not put the Appellant on notice and therefore the lower Court with due respect was wrong to attach the Appellant s immoveable property surreptitiously. (at page 19 of the Record of Appeal). The Court below, held thus: "I disagree with this submission as there was an affidavit before the Court explaining the 8

12 procedure followed by the Judgment Creditor in order to make the Judgment Debtor to pay for the debt as contained in p.2 paragraph 4 of the Ruling on ex parte application and the Court is satisfied that the Judgment Debtor was in full knowledge and understanding of the stress he made the Judgment Creditor to pass through. I am satisfied that the said ruling against the judgment debtor is in order and the application for setting aside the judgment cannot be granted as the Judgment debt must be paid." Much as judgment debt must be paid, the statutory procedure for enforcement of judgment must as well be respected and followed. More so as in the instant case where failure to observe the procedural law lead to violating the appellant s fundamental right to fair hearing. Neither was the Appellant placed on notice when the attachment order was made against his immoveable property nor did the Respondents challenge the depositions contained in the appellant's supporting affidavit. Section 44 of the Sheriffs and Civil Process Law clearly spells out the procedure for attachment of immoveable property. 9

13 It requires that attachment of immoveable property cannot be resorted to unless sufficient movable property of the judgment debtor cannot be found in Kebbi State to satisfy the judgment and other costs, execution shall not issue against his immovable property. The judgment creditor must perform the uphill task of satisfying the provision of the law to entitle him to an order for attachment of immoveable property of the judgment debtor. The judgment creditor must establish the fact that the judgment remained unsatisfied and that there is no movable property of the debtor which can satisfy the judgment debt, the judgment creditor may apply to Court for a writ to issue against any immovable property of the judgment debtor. The mode of the application is discretionary but such power must be exercised judiciously and judicially. The respondent s failure to show some bit of diligence before he sought an order for sale of the appellant s immovable property, was tantamount to non-compliance with the provision of Section 44 of the Sheriffs and Civil Process Law of Kebbi State and the Court was in error to issue writ of attachment of immoveable property in such circumstances. 10

14 The sole issue is resolved in favour of the appellant. The appeal succeeds and is hereby allowed. The order for attachment of the Appellant s immoveable property made on 15th February, 2017 is hereby set aside, and the respondent s application for attachment and sale of the appellants immovable property, which falls short of the requirement of the law is incompetent and accordingly struck out. There shall be costs of Fifty Thousand Naira (N ) to the appellant against the 2nd respondent. MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, Hussein Mukhtar, JCA and I agree with him that the appeal has succeeded. I too set aside the order for attachment of the appellant s immovable property and abide by the consequential orders including the order as to costs. FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of my learned Brother, Hussein Mukhtar, JCA just delivered and I am in agreement with the reasons and conclusions in allowing the appeal as meritorious. 11

15 I too subscribe to the consequential orders including the order setting aside the attachment of the Appellant s immoveable property made on 15th February, There shall be costs of Fifty Thousand Naira (N50, ) to the Appellant against the 2nd Respondent. 12

16 Appearances: Y. B. Aminu, Esq. For Appellant(s) O. F. Omoyibo, Esq. For Respondent(s)