Download PDF
Representation: C. M. Ukpabio for the Judgment Creditors/Claimants I. K. Awa for the Judgment Debtor/Respondent RULING By a Motion on Notice dated 17th November 2016 and filed on 18th November 2016 and brought pursuant to Order IV and V Rule 3 & 4 and 16(1)-(3) of the Judgment (Enforcement) Rules, and Section 44 of the Sheriffs and Civil Process Act 2004, and under the inherent powers of this court, the Applicants herein have sought for an order of this court to attach and sell the Respondent’s property at No. 4, Scotland Crescent, Aba which the Respondent uses as official guest house, in satisfaction of the sum of N39,236,926.98 being the balance of the judgment debt. It is averred in the affidavit in support of the motion, which was deposed by the 1st Applicant, that following the judgment of the court in the suit, the total sum of the judgment debt, comprising the principal sum and the accrued post judgment interest, was the sum of N39,236,926.98. When the Respondent refused to liquidate the judgment debt, the applicants brought garnishee proceedings against five bankers of the Respondent, but only the sum of N139,393.15 was garnisheed, leaving the sum of N39,097,533.83 as the outstanding judgment debt. The Respondent is the owner of the property at No. 4, Scotland Crescent, Aba which the respondent uses as official guest house to host important visitors. Except this property is attached and sold, the Respondent does not have movable property throughout Abia State that is sufficient to satisfy the judgment debt. The Respondent receives a monthly allocation of N160,000,000.00 from the Federation Account but it is not willing to pay the judgment debt. The Defendant filed a counter affidavit on 27th January 2017 in opposition to the application. Mrs. Patricia Kalu, who deposed to the counter affidavit, stated that the Respondent does not receive the sum of N160,000,000.00 from the Federation Account, and its revenue has dwindled as a result of the current economic recession. She further deposed that the Respondent has movable properties in its premises and all over the state but the Applicants have not made any effort to attach the movable properties of the Respondent. After the Applicants were served with the Respondent’s counter affidavit, they filed a further affidavit deposed to by the 1st Applicant. It is averred by the 1st Applicant that before this motion was filed, the Applicants made efforts to search for the movable properties of the Respondent but none was found. The principal officers of the Respondent council do not have official cars but use hired vehicles. Hired vehicles are also used to carry out the functions of the Respondent. The Applicants made diligent search for movable properties of the Respondent but could not find any. The Respondent has no movable property that could satisfy the judgment debt except immovable properties which include the property at No. 4, Scotland Crescent, Aba. On the 13th day of July 2015, I entered judgment in favour of the Applicants in the main suit where I ordered the Respondent to pay the sum of N34,756,297.20 to the Applicants within 30 days of the judgment and if the sum was not paid within the period, an annual interest of N10% of the sum shall be imputed into the judgment sum. In this application, the Applicants have deposed to the fact that 10% of the sum as at October 2016 amounted to the sum of N4,475,629.72. This brings the total judgment debt to N39,236,926.98. The judgment debt has not been paid till this day except the paltry sum of N139,393.15 the Applicants realised from the garnishee proceedings. The Applicants have now sought an order of this court to attach and sell the immovable property of the Respondent at No. 4, Scotland Crescent, Aba. The Applicants maintain that the property belongs to the Respondent, and the Respondent uses it as its official guest house. The Respondent did not deny ownership of the property anywhere in its counter affidavit. The Respondent’s only contention is that the Applicants have not made any effort to attach the movable properties of the Respondent. This averment also formed the focus of the Respondent’s counsel in his written address. Counsel argued that the applicants have not satisfied the requirement of Section 44 of the Sheriffs and Civil Process Act before they brought this application. According to the Respondent’s counsel, the Applicants have not shown that they made reasonable diligence to trace the movable properties of the Respondent before bringing this application to attach an immovable property of the Respondent. Section 44 of the Sheriffs and Civil Process Act is to the effect that execution shall not issue against immovable property of a judgment debtor except no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgement debt. Similarly, Order IV, Rule 16 (1) and (2) of the Judgment Enforcement Rules provides that a judgment creditor who applies for a writ of attachment and sale to issue against an immovable property of the judgment debtor, must establish the following facts in the application: 1. The steps already taken to enforce the judgment and the outcome of the steps, 2. The amount of the outstanding judgment debt, and 3. That no movable property of the judgment debtor or none sufficient to satisfy the judgment debt, can with reasonable diligence be found. I have read through the affidavit and further affidavit of the Applicants and I am satisfied that the facts required by Section 44 of the Sheriffs and Civil Process Act and Order IV, Rule 16 (1) and (2) of the Judgment Enforcement Rules have been shown by the Applicants. The Applicants have told this court the steps they have taken to enforce the judgment and the efforts they have made to find the movable properties of the Respondent. In their further affidavit, the Applicants did aver that they made diligent search for movable properties of the Respondent but could not find any and that the Respondent has no movable property that could satisfy the judgment debt except immovable properties which include the property at No. 4, Scotland Crescent, Aba. These facts deposed to by the applicants clearly refute the Respondent’s only point of opposition to the application. It is trite that a litigant who obtained judgment from a court should enjoy the fruit of his judgment. He cannot get judgment and yet not be able to get the benefits of the judgment. It is apparent that the Respondent is not willing to settle the judgment debt. The garnishee proceedings brought by the Applicants was not helpful as only a negligible part of the judgment debt was realised in that process. An unchallenged fact in this application is that the immovable property at No. 4, Scotland Crescent, Aba, belongs to the Respondent. Since the Applicants have shown that they could not find any movable property of the Respondent sufficient to satisfy the judgment debt, I am inclined to grant this application. Accordingly, the Application is granted. I hereby order a writ of attachment and sale to issue against the Respondent’s property at No. 4, Scotland Crescent, Aba. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge