CORAM

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PARTIES

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FIRST BANK OF NIG. LIMITED

 

APPELLANTS 

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STANBIC IBTC BANK PLC

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING LAW, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

 

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SUMMARY OF FACTS

The Respondent in January, 2013 obtained a consent judgment against one Mr. Seun Ogunbambo who was the Defendant before the lower court in the suit that led to this appeal. In July, 2016, Honourable Justice K.O. Dawodu granted the Respondent leave to attach and sell the property of the said Mr. Seun Ogunbambo situate and known as 2, Olamijuyin Avenue, Park View Estate, Ikoyi, Lagos State in satisfaction of the outstanding judgment debt in the sum N275,000,000. (Two Hundred And Seventy Five Million Naira) only. Thereafter, the Respondent registered the judgment with the Federal Land Registry, Ikoyi, Lagos State on the 23rd January, 2017.

Similarly, in July, 2015, the Appellant also obtained a judgment delivered by Honourable Justice O.A. Adamson of the Lagos High Court against the same Mr. Seun Ogunbambo. The Appellant registered this judgment at the Federal Land Registry, Ikoyi, against the same property known as 2, Olamijuyin Avenue, Park View Estate, Ikoyi, Lagos State on the 26th February, 2016 and thereafter obtained from Honourable Justice O.A. Adamson an order of attachment for sale of the property in February, 2017.

Two different parties obtained two different judgments against only one Defendant with only one property available to satisfy the judgment. In a bid to protect its interest in the property, the Appellant which was not a party to the suit, by motion on notice dated 8th May,2017 applied as an interested party to the court presided over by Honourable Justice K.O. Dawodu to set aside its ruling of July,2016 by which the court granted the Respondent leave to attach and sell the immovable property situate at 2, Olamijuyin Avenue,Park View Estate, Ikoyi, Lagos State on the ground that the property has been encumbered by a judgment which it has registered against the property, and that the Respondent concealed the fact of its registration and misled the court to grant the order of attachment made in favour of the Respondent. The learned judge did not find merit in the Application and consequently dismissed it. It is the dismissal of the said application that gave rise to this appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the learned judge of the lower court was right in refusing to set aside its order of attachment made on the 1st July, 2016 in favour of the Respondent thereby dismissing the Appellant’s application?

 

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RATIONES DECIDENDI

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REGISTRATION – EFFECT OF REGISTRATION OF TITLE – CONDUCT OF PARTIES IN ENFORCING JUDGMENT ORDER

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The question is, does the registration being brandished by the Appellant, ipso facto, confer title in the subject property on the Appellant? The answer is in the negative. In IDAKWO (RTD) vs. IBRAHIM & ORS (2011) LPELR-8936(CA), (Pp. 46-49 paras. A) This court, Per OGBUINYA J.C.A

said:

‘‘Besides, as already observed, registration does not create interest or right in land wherethere is none nor does it consolidate one that is improperly acquired. see Ashiru vs. Olukoya (supra), Omiyale vs. Macaulay (supra). In the case of Ayinla vs. Sijuwola (1984) NSCC 301 at 311 or (1984) 1 SCNLR 410 at 422, the Supreme Court affirmed that:”Clearly between these two registered conveyances that of the respondent was first in time and took priority although the act of registration does not confer a better title. In fact, registration of instruments is not concerned with the validity or authenticity of such instruments. Once the deed is registrable it will be accepted for registration even if its terms are inconsistent with a deed in relation to the same land registered earlier”.

Section 44 of the Sheriffs And Civil Process Act provides ‘‘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 diligence be found, or if such property is insufficient to satisfy the judgement 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 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.’’

From the above provision of the law, it is crystal clear that a judgment creditor in a money judgment such as the Appellant has to cross the hurdle of satisfying the court that no sufficient movable property of the judgment debtor can be found before going after the immovable property of the judgment debtor. So it is not automatic. The judgment creditor will need to file an application by which the judgment debtor will be put on notice. See LOTATEX (NIG) LIMITED & ANOR vs. BANK OF AGRIC (2015) LPELR 40754 CA, MICHAEL vs. ENGINEER ANTHONY ANENE (2015) LPELR 40873 CA, BADAMOSI vs. UBA PLC & ORS (2017) LPELR 45402 CA. – Per A. S. Umar, JCA

 

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MAXIM – THE BASIS FOR APPLYING THE MAXIM ‘HE WHO IS EARLIER IN TIME IS STRONGER IN LAW’

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So in my considered view, if the competition between the Appellant and the Respondent on the subject property warrants the application of the maxim qui prior est tempore portiorestjure , it will not be on the basis of registration of the judgment by the two sides but on the basis of the writs of attachment. It is the writ of attachment as the word implies that attaches or creates a nexus between the money judgments obtained by the Appellant and the Respondent and the subject property. – Per A. S. Umar, JCA

 

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DOCUMENTS – THE DOCUMENTS COGNIZABLE FOR REGISTRATION UNDER THE LAND INSTRUMENT REGISTRATION LAW OF LAGOS STATE

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It is clear from the community reading of Sections 2 and 16(1) of the Land Instrument Registration Law of Lagos State that documents cognizable for registration under the law is a document that affects land. – Per A. S. Umar, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Sheriffs and Civil Process Act, Cap 56 LFN 2004

2. Judgment Enforcement Rules

3. Evidence Act, 2011

4. Land Instrument Registration Law of Lagos State

 

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