General

HOW/383/2010 – BLD (NIG) LTD & ANOR VS. MRS.MONICA ONYEJIAKA & ANOR- BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT. M. NJAKA delivered ON THE 24TH DAY OF NOVEMBER 2021- Non-Challenge- the Defendants did not challenge the motion – Conditions for Attachment of Immoveable Properties – Section 44 of the Sheriff and Civil Process Act and Order IV Rule 16 of the Judgment Enforcement Rules- key conditions that must be satisfied before executing on immovable property – “reasonable diligence” in Section 44 – the importance of avoiding destitution for the judgment debtor – Duty of the Creditor and Evidence

Admin Editor

IN THE HIGH COURT OF IMO STATE

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, OWERRI

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

ON THE  24TH DAY OF NOVEMBER 2021

                                                                    HOW/383/2010

 

BLD (NIG) LTD & ANOR                 JUDGMENTCREDITORS/

APPLICANTS

AND

MRS.MONICA ONYEJIAKA & ANOR-     JUDGMENT DEBTORS

/RESPONDENTS

RULING

The Judgment Creditors by a motion dated 13th May 2019 and filed same day asked for leave to attach the Immoveable properties of the Defendants/Judgment Debtors for the purposes of realizing the judgment sum in this suit. The grounds upon which the application is brought are stated on the motion paper.

It is supported by affidavit of 16 paragraphs. And accompanied by a written address.

It would appear that the defendants/Judgment Debtors did not challenge this motion though aware of it.

Nevertheless, the conditions precedent to the attachment of immoveable properties of a judgment creditor must be met before the court can grant such a leave. The conditions precedent was extensively discussed in the case of PASTOR CHRISTIE A. OWAH & ANOR v. ACCESS BANK PLC & ANOR (2013) LPELR-23519(CA) where the Court stated:

“The 1st respondent’s application was brought under Section 44 of the Sheriff and Civil Process Act and Order IV Rule 16 (1-3) of the Judgment Enforcement Rules. For ease of reference, the provisions of the respective laws are reproduced hereunder; “EXECUTION AGAINST IMMOVABLE PROPERTY 44. If sufficient movable property of the judgment debtors can be found in the Federal Capital Territory Abuja or the State as the case may be to satisfy the judgment and cost and the costs of execution shall not issue against his movable property, but if no immoveable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and the cost 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 or the judgment debtor in accordance with the provision of this Act, and any rules made thereunder. Provided that where the judgment has been obtained in a Magistrate’s Court execution shall not issue out of the Magistrate’s Court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed”. Order IV Rule 16 (1 – 3) of the Judgment Enforcement Rules referred the Court is hereby adumbrated thus: “(1). When a judgment creditor desires a writ of attachment and sale to be issued against the immovable property of the judgment debtor, he shall apply to the Court.” (2) The application shall be supported by evidence showing. (a) What steps if any have already been taken to enforce the judgment and with what effect; and (b) What sum now remains due under the judgment. (c) That no movable property or not sufficient to satisfy the judgment debt, can with reasonable diligence be found. (3) If upon the hearing of the application it appears to the Court that the writ of attachment and sale may lawfully issue against the immovable property, the Court shall make an order accordingly”. The above provisions have received judicial interpretation in a plethora of decided authorities by the superior Courts. In the case of BAYERO v. FMBN PLC (1998) 2 NWLR (Pt. 538) page 509 at 525-527 the Court held with regards to the provisions of Section 44 of the Act thus: “This section underscores the principle of execution could be levied against the immovable property of a judgment debtor, the following condition must be satisfied:- a. The movable property of the judgment debtor must be sufficient to satisfy the Judgment debt, cost and cost of execution. b. Reasonable diligence must have been exercised to trace the movable property without success. c. The judgment creditor must have applied for a writ to issue against the immovable property of the judgment debtor. d. It must be established that the judgment debtor is the owner of the immovable property.” See also LEEDO PRESIDENTIAL HOTEL LTD v. BON LTD (1993) NWLR (Pt. 269) 334 AT 249. It follows therefore that part of the conditions precedents that must be satisfied before execution is levied on the immovable property of a judgment debtor includes. a. The immovable property of the judgment debtor must not be made the first object of satisfaction of a judgment debt. b. The judgment creditor must satisfy the Court that he has with reasonable diligence searched and ensured that no movable property exist anywhere else. See ARASCO (NIG) v. TRADE BANK PLC (2003) 6 NWLR (Pt. 815) 22 at 34-35. In LEEDO PRESIDENTIAL MOTEL v. BANK OF THE NORTH LTD & OTHERS (1998) 10 NWLR (Pt. 570) 353 the Court held thus: “Much as a judgment debtor is entitled to enjoy the fruit of the ruling delivered in his favour, caution must be exercised when realizing the judgment debt such that immovable properties of the judgment debtor are not made the first object in satisfaction of the judgment debt.” “Reasonable diligence” as used in Section 44 of the Sheriffs and Civil Process Act in my opinion means fair, proper, and due care. In ARASCO (NIG) LTD v. TRADE BANK PLC (SUPRA) at pages 35-36, the Court held thus; “The requirement of “reasonable diligence” in searching for movable property of a judgment debtor as contained in the Sheriff and Civil Process Law is essential for the security of an individual citizen though he is a debtor, reasonable care should be taken not to deny him peremptorily of a roof over his head. The requirement seeks to avoid destitution of the judgment debtor if it can be helped”. The law imposed a mandatory duty on the creditor to satisfy the Court by credible, acceptable and admissible evidence on the diligence, care or attention exhibited by it to discover the movable property of the debtor. Where the creditor fails to show any diligence, care or attention before it sought for an order for the sale of immovable property of the creditor, the creditor will be in non-compliance with the provision of the Sheriff and Civil Process Act and the Court would not accede to its application. The discharge of the onus imposed by the law on an applicant for the attachment and sale of immovable property of a judgment debtor must be by the applicant’s own effort and not the effort or effort of others who are not applicants for leave to attach. The procedure to follow in order to show such information of the efforts made by the applicant should be given in an affidavit in support of the motion seeking an order to attach. See ARASCO (NIG) LTD v. TRADE BANK PLC (supra). Per ABDU ABOKI, JCA (Pp. 22-28, paras. F-A)

To the affidavit in support, the Judgment creditors attached exhibits B and C. Exhibit B is the Writ of Execution while exhibit C is the report of the bailiff on the execution. The report is to the effect that nothing was realized from the execution on the moveable property of the Judgment Debtor. Hence this application.

Left alone with the evidence of the Judgment Creditors, I hold that the Judgment Creditors complied with Section 44 of the Sheriffs and Civil Process Act, 1990 by satisfying the conditions set out therein, which entitles him to be granted leave by this Court to levy execution on the immoveable property(ies) of the Judgment Debtors. The reliefs sought in the motion paper are accordingly granted.

I so hold

I.M.Njaka

Judge

24-11-2021

Previous post SUIT NO: HOW/723/2013 – MRS VALERIE ANN FRANCES IREGBULEM, SOREM LAWRENCE IREGBULEM, KELEM ASHLEY IREGBULEM, AMANZE ELLIOT IREGBULEM, MRS SAMANTHA IREGBULEM QUINN (SUING AS THE BENEFICIARIES OF THE ESTATE OF DR LAWRENCE M. IREBGULEM (DECEASED) VS SLY EMMANUEL EZENWUKWE, THE GOVERNOR OF IMO STATE IMO STATE COMMISSIONER FOR LAND SURVEY & URBAN PLANNING, OWERRI CAPITAL DEVELOPMENT AUTHORITY, ATTORNEY GENERAL OF IMO STATE BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 7TH DAY OF DECEMBER 2021- Revocation of Certificate of Occupancy- Procedure of Revocation- Ambiguity in Revocation Notice- Timeliness of the Defense – Grounds for Revocation – Compensation and Fair Hearing – Compliance with Section 44 of the Land Use Act- Subsistence of Certificate of Occupancy.
Next post SUIT NO: HOW/ 496/2018 -INNOCENT IHEANYI IHEANAKWE VS. FIRST BANK OF NIGERIA PLC – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 28TH DAY OF SEPTEMBER 2023 – Statute of Limitations and its Applicability- Defendant’s Obligation to Send Money Return Warrants-Plaintiff’s Derivation of Value from Money Return Warrants- Discrepancies in Legal Interpretation on the Defense of Limitation Law- Specific Pleadings and Evidence in Limitation Law Cases- Admittance of Facts and Burden of Proof in the Absence of Challenge- Money Had and Received vs. Breach of Contract- Applicability of Money Had and Received- Sections 125 and 126 of the Companies and Allied Matters Act (CAMA)- Breach of Contract- Proof of Delivery- Bank Records: Banks and financial institutions are expected to keep records of their incoming and outgoing mail- Nature of Registered Post Services – Legal Obligations Regarding Registered Mail -Burden of Proof and the Use of Registered Post -Handling of Financial Documents and Bank Drafts -Importance of Documenting Financial Transactions – Examination of Exhibits and Documentation -Determining the Statute of Limitations -Award of Damages and Costs -Legal Principles on Special Damages- Solicitor’s Fees as Special Damages- Statutory Basis for Interest Claims – Interpretation of Statutory Provisions.
Close

Related Post

Whether the Plaintiffs’ suit constitutes an abuse of court process: Does the initiation of the current suit by the Plaintiffs amount to an abuse of court process, considering the allegations that it seeks to relitigate issues already determined in Suit No. HOW/238/18? Whether the defense of res judicata or issue estoppel applies to the present suit: Are the parties, subject matter, and issues in the present suit identical to those in Suit No. HOW/238/18, such that the doctrine of res judicata or issue estoppel would bar the Plaintiffs from proceeding with their claims? Whether the parties in the present suit are the same as those in Suit No. HOW/238/18: Can the Defendants successfully establish that the parties in both the current suit and the previous suit are the same or have a sufficient relationship (privity) to invoke res judicata? Whether the subject matter and issues in the present suit are the same as in Suit No. HOW/238/18: Are the subject matter and issues in the present suit sufficiently distinct from those in the previous suit, or do they overlap to the extent that the current action constitutes an attempt to relitigate issues already decided? Whether the exhibits relied upon by the Defendants (Exhibits A, B, and C) are relevant and applicable to the present suit: Do the exhibits tendered by the Defendants directly pertain to the issues in the present suit, or are they irrelevant because they concern different parties or different matters? Whether the current suit is an attempt to relitigate issues already determined in Suit No. HOW/238/18: Does the Plaintiffs’ action constitute a relitigation of issues already settled in the previous suit, or does it involve new claims, such as trespass by new parties, that entitle the Plaintiffs to pursue their current claims? BY HON. JUSTICE INNOCENT M.NJAKA

October 10, 2024

APPEAL NO: HOW/3A/2020 – ECOBANK NIGERIA PLC VS IMO STATE BOARD OF INTERNAL REVENUE- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA – delivered ON THE 8TH DAY OF DECEMBER 2021- Imo State Revenue Court had unlimited monetary and fiscal jurisdiction for matters related to revenue collection and administration – Section 4 (2) of the Imo State Revenue Court and Task Force on Revenue Collection Establishment Law No 16, 2012 – the Imo State Revenue Court Law No 16 of 2012 did not specify a particular magisterial grade but only stated “a Magistrate”- a specific law on an issue overrides a general law on the same issue- Section 55(1) of the Personal Income Tax Amendment Act, 2011 (PITA)- Section 55 of PITA dealt with assessing a taxable person for the correct amount of tax due and did not establish a time limit for instituting actions in court- fraud is a criminal offense and cannot be statute-barred. Therefore, the limitation of six years would not apply in cases of fraud, willful default, or neglect- Tax authorities often have the right to request documents and information from taxpayers for the purpose of assessment- the appropriate time to dispute the tax assessment and provide evidence is during the investigation or assessment process by the tax authority

September 30, 2023

SUIT NO HAM/84/2021 -KENNETH CHUKWUMA ANOSIKE Vs. 1. HRH EZE BARR. P.N. ANOSIKE 2.CHIBUIKE UZOGARA 3.UNITED BANK FOR AFRICA PLC delivered ON, FRIDAY, 14TH OCTOBER 2022 BY HIS LORDSHIP: – HON. JUSTICE I.M.NJAKA.: Town Unions- Autonomous Communities- Removal of President General of Town Union- Powers of the Traditional Ruler- Eze-in-Council-Failure to indicate that an action is brought in a representative capacity-Unregistered Town Union- Locus Standi of the suspended President General of a Town Union- Originating Summons

October 22, 2022

SUIT NO HAM/34/2003- PAUL ANYANWU & ORS V SAMUEL ELUWA & ORS – delivered on 1ST DAY OF MARCH 2021 by HON. JUSTICE I.M.NJAKA- valid Customary Arbitration- five ingredients that must be pleaded and proved- oath taking under customary arbitration- Parties to a customary arbitration may resile from arbitration- refusal to provide a juju and or swear to a juju- The party claiming title to land is not bound to plead and prove more than one root of title to succeed- customary ownership of land- traditional evidence- contradictions in the evidence of a defendant- no burden of proof on the Defendant- pledge transaction- Burial of a relative in a portion of land may be evidence of ownership- boundary evidence

October 2, 2022