ISSUES

Whether the Court of Appeal had jurisdiction to entertain the respondent's application when the said application was not initiated in accordance with prescribed due process?

Whether the Court of Appeal should not have applied Section 149(d) of the Evidence Act to resolve the issue as to whether or not the respondent took an inventory of the assets of the appellant?

FACTS

As plaintiff in the High Court, the respondent had instituted action against the appellant. The cause of action related to money which the respondent alleged the appellant owed it, but failed to pay.

The respondent therefore sought an order directing the Receiver to take the necessary steps to realise the appellant's assets with a view to paying its debt to the respondent. Judgment was granted in the respondent's favour, but the respondent appealed to the Court of Appeal.

While the appeal was pending, the appellant broke into the premises of the respondent which were by then under the control of the Receiver, and removed the vehicles and other assets under receivership. That led to the respondent's approaching the Court of Appeal for an order directing the appellant to return the property unlawfully removed. In response, the appellant filed an application, seeking the striking out of the respondent's application on the ground that it lacked locus standi to bring the application. The court held that it could not decide on the issue of locus standi at that stage because it was the fulcrum of the main appeal, but granted an interlocutory order for the return of the property.

The appellant then appealed to the Supreme Court against the granting of the interlocutory order.

The appeal was dismissed.

HELD

1.      On the competence of the application for the return of the property

The appellant's challenge to the competence of the application for the return of the property was based on the contention that the respondent ought to have complied with the provisions of Order IX rule 13(1) and (2) of the Judgment (Enforcement) Rules, Cap. 407 and Section 72 of the Sheriff and Civil Process Act. The Court found that Section 72 can only be enforced against a person who refuses or neglects to comply with an order made against him and rule 13(1) is applicable to contempt proceedings only. Per Tobi, JSC at 468.

2.      On the need to apply Section 149(d) of the Evidence Act to resolve the issue of whether the respondent had taken an inventory of the appellant's assets

The Court pointed out that it was clear that the appellant did not deny that the vehicles were in the premises of the appellant at the material time. It is elementary law that what is not denied is presumed to have been admitted, and facts in an affidavit not contradicted are deemed admitted. Thus, the point regarding the applicability of Section 149(d) of the Evidence Act failed. Per Tobi, JSC at 468.

The following cases were referred to in this judgment:

Nigeria

A-G, Anambra State v Okafor (1992) 2 NWLR (Part 224) 396

Abubakar v Unipetrol Plc (2002) 8 NWLR (Part 769) 242

C.C.B. (Nigeria) Plc v A-G, Anambra State (1992) 8 NWLR (Part 261) 528

Din v A-G, Federation (1998) 4 NWLR (Part 87)

Ezekiel-Hart v Ezekiel-Hart (1990) 1 NWLR (Part 126) 276

Kano State Oil and Allied Products Ltd v Kofa Trading Ltd (1996) 3 NWLR (Part 436) 244

Lahan v A-G of Western Region (1963) 2 SC NLR 47

Lijadu v Lidaju (1991) 1 NWLR (Part 169) 627

Madukolu v Nkemdilim (1962) 2 All NLR 581

Majoroh v Fassassi (1986) 5 NWLR (Part 40) 243

Nwosu v Imo State Environmental Sanitation Authority (1990) 2 NWLR (Part 135) 658

Soy Agencies Ind. Serv Ltd v Metalum Ltd (1991) 3 NWLR (Part 177) 35

Schroder v Major (1989) 2 NWLR (Part 101) 1

Tewogbade v Akande (1968) NMLR 404

Uhunmwangho v Okojie (1989) 5 NWLR (Part 122) 471

Uzouku v Ezeani II (1991) 6 NWLR (Part 200) 708

The following statutes were referred to in this judgment:

Nigeria

Evidence Act: S 149(d)

Sheriff and Civil Process Act: Ss 66; 72

The following rule was referred to in this judgment:

Nigeria

Judgment (Enforcement) Rules, Cap. 407: Order IX, rule 13(1)(2)

Tobi, JSC:- The appellant is the defendant. The respondent is the plaintiff. The appellant owed the respondent some money which the respondent claimed was N77,194,576.30 as at the end of September 1999. The appellant failed to pay the amount. The respondent instituted an action by way of an originating summons for and on behalf of the receiver/manager against the appellant. The respondent asked for the following orders:-

"1.     An order of this Honourable Court directing the Receiver to take such steps as may be necessary to realise the assets of the respondent with a view to paying its outstandings (sic) to applicant.

2.      An order of this Honourable Court restraining the respondent, its agents, privies and assigns including but not limited to its directors, and officers from doing anything that would prevent the Receiver from performing his lawful duties as a Receiver."

The trial court granted the two orders. Dissatisfied, the appellant appealed to the Court of Appeal. While the appeal was pending the appellant, through its Managing Director, Mr Sunil Bhojwani, broke the gate of the respondent's premises under receivership, in company of armed men in plain clothes, and moved away all cars and vehicles along with other assets in the premises under receivership.

The respondent, by an application dated 19 November 1999 prayed the Court of Appeal for the following orders:-

"1.     An order directing the defendant /appellant and more particularly its Managing Director and Chief Executive, Mr Sunil Bhojwani to return to the premises of Unibiz Nigeria Limited (now in receivership) at 16 Idowu Taylor Street, Victoria Island, Lagos, all cars and vehicles unlawfully and forcibly removed from the premises of the said company on 10 November 1999.

2.      In the event that any or all of the said cars and vehicles have been sold an order directing the defendant/appellant to disclose the names of the purchasers, the amount for which they were sold, and the payment to the Chief Registrar of the court of the amount realised from such sale.

3.      An order committing the Managing Director/Chief Executive Officer of Unibiz Nigeria Limited to wit: Mr Sunil Bhojwani to prison for aiding and abetting the flouting of the order of the High Court dated 26 October 1999 which order was duly served on him."

The appellant, on its part, filed an application dated 29 November 1999 praying for the dismissal or striking out of the respondent's application dated 19 November 1999 on the ground that the respondent lacked locus standi to make the application. Both applications were argued together. The Court of Appeal held that it cannot at that stage decide on the issue of locus standi which was the fulcrum of the main appeal.

The court however made the following orders:-

"1.     The appellant and more particularly Sunil Bhojwani, Managing Director and Chief Executive, should as a matter of urgency return to the premises of the appellant (now in receivership) all the nine Toyota Camry Saloon Cars, one Toyota Bus and one Daewoo Racer Saloon Car forcibly removed from the said premises of the said appellant at 16, Idowu Taylor Street, Victoria Island, Lagos on 10 November 1999.

2.      In the event that any or all the said cars and vehicles have been sold, the appellant should fully account for the amount for which they were sold. Payment of the amount realised from such sale should be made to the Deputy Chief Registrar of this Court."

Dissatisfied with the interlocutory decision, the appellant has come to this Court. Brief were filed and exchanged. The appellant originally formulated the following three issues for determination:-

"1.     Whether the Court of Appeal was right in refraining from pronouncing on the locus standi of the respondent to bring the application leading to the decision of the court when it was manifestly clear that the respondent lacked the requisite locus standi in respect of the matter.

2.      Whether the Court of Appeal did not lack jurisdiction to entertain the respondent's application when the said application was not initiated in accordance with prescribed due process.

3.      Whether the Court of Appeal should not have applied Section 149(d) of the Evidence Act to resolve the issue as to whether or not the respondent took an inventory of the assets of the appellant on 27 October 1999."

The respondent formulated the following similar three issues for determination:-

"1.     Whether the court of appeal was right in refraining from pronouncing on the locus standi of the respondent to bring the application leading to the decision of the court.

2.      Whether the court of appeal lacked jurisdiction to entertain the respondent's application.

3.      Whether the court of appeal was right not to have applied Section 149(d) of the evidence act."

The appellant withdrew Issue No 1 when the appeal was heard. The issue was accordingly struck out. The appellant was therefore left with Issue Nos 2 and 3 which Counsel argued.

Arguing Issue No 2, learned Counsel for the appellant, Mr Babajide Koku, submitted that the order sought being one for injunction, the respondent ought to have complied with the provisions of Order IX rule 13(1) and (2) of the Judgment (Enforcement) Rules, Cap. 407. Citing Section 72 of the Sheriff and Civil Process Act, learned Counsel submitted that the proper procedure for enforcing an order of injunction is by the issuance of Forms 48 and 49 pursuant to the provisions of the Judgment (Enforcement) Rules, Cap. 407. He relied on Uhunmwangho v Okojie (1989) 5 NWLR (Part 122) 471 at 483-485 and Ezekiel-Hart v Ezekiel-Hart (1990) 1 NWLR (Part 126) 276.

Learned Counsel submitted that where a particular procedure has been presented for the initiation of a proceeding that procedure and not other ought to be employed in order to give jurisdiction to the court. He cited the following cases, see Schroder v Major (1989) 2 NWLR (Part 101) 1 at 18; Din v A-G, Federation (1998) 4 NWLR (Part 87) at 186; C.C.B. (Nigeria) Plc v A-G, Anambra State (1992) 8 NWLR (Part 261) 528 at 556; Kano State Oil and Allied Products Ltd v Kofa Trading Ltd (1996) 3 NWLR (Part 436) 244 at 254 and Lahan v A-G, of Western Region (1963) 2 SC NLR 47.

Learned Counsel submitted that as the respondent failed to initiate the application in accordance with prescribed procedure, the Court of Appeal lacked jurisdiction to entertain the application. He relied on Madukolu v Nkemdilim (1962) 2 All NLR 581 at 589-590.

On Issue No 3, learned Counsel referred to the affidavit of the respondent and the counter-affidavit of the appellant and submitted that the respondent had a duty to produce the inventory of the assets of the appellant. To learned Counsel, the consequence of failure of the respondent to produce and exhibit before the court a copy of the alleged inventory is that if it had been produced, the contents would have been against the respondent. He urged the court to invoke Section 149(d) of the Evidence Act, in the circumstances and allow the appeal.

Learned Counsel for the respondent, Miss O.M. Lewis, submitted that the application of the respondent dated 19 November 1999 was more in the nature of a prayer for a mandatory order of injunction than one of enforcement of orders made by the court. She relied on A-G, Anambra State v Okafor (1992) 2 NWLR (Part 224) 396 and Abubakar v Unipetrol Plc (2002) 8 NWLR (Part 769) 242.

Learned Counsel submitted on Issue No 3 that as the issue of the cars and vehicles was not in dispute, there was no reason why the Court of Appeal ought to have applied Section 149(d) of the Evidence Act. She argued that a presumption under the subsection can only apply when a party against whom it is sought to operate must have in fact withheld evidence and that mere failure to produce the evidence would not necessarily amount to withholding such evidence.

She relied on Tewogbade v Akande (1968) NMLR 404 at 408. She urged the court to dismiss the appeal.

Learned Counsel for the appellant relied on Order IX rule 13(1) of the Judgment (Enforcement) Rules and Section 72 of the Sheriff and Civil Process Act. Let me first take Section 72 of the Act. It reads:-

"If any person refused or neglects to comply with an order made against him, other than for payment of money, the court instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph (f ) of Section 66 of this Act, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order than until he has been imprisoned for such time or until he has paid such fine as the court directs."

As it is, Section 72 can only be enforced against a person who refuses or neglects to comply with an order made against him.

Rule 13(1) provides:-

"1.     When an order enforceable by committal under Section 72 of the Act has been made the registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice Form 48, and the copy so endorsed shall be served on the judgment debtor in the manner as a judgment summons."

Rule 13(1) is parasitic on Section 72 and it provides for the issuance of Form 48. Forms 48 and 49 can only be issued if an applicant wants to proceed against a party on contempt proceedings, see generally Majoroh v Fassassi (1986) 5 NWLR (Part 40) 243; Uhunmwangho v Okojie (1989) 5 NWLR (Part 122) 471 and Ezekiel-Hart v Ezekiel-Hart (1990) 1 NWLR (Part 126) 276. Forms 48 and 49, in my view, do not issue in respect of a mandatory order of injunction.