AFOLABI v. TEJUOSO & ANOR (2017)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of April, 2017

CA/IB/176/2012

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria


Between

AIR VICE MARSHALL E.O. AFOLABI Appellant(s)

AND

1. MRS. OPENIFOLU TEJUOSO (Substituted by an Order of this
Honourable Court dated 15th May, 2014)
2. DEPUTY SHERIFF OF THE OGUN STATE HIGH COURT OF JUSTICE Respondent(s)

…………………….A…………………….MODUPE FASANMI, J.C.A.(Delivering the Leading Judgment):This is an appeal against the ruling of the Ogun State High Court of Justice in Suit No. HCT/309/97 delivered on the 14th of June 2012 which allowed the execution of judgment levied on the 12th of February 2012.
By a writ of summons and statement of claim both dated the 22nd of December 1997, Mrs Foluke Mudashiru commenced an action against the Appellant herein as the Defendant claiming the following reliefs to wit:
(1) The sum of N25,300.00 as damages for assault to have been occasioned to the Plaintiff by the Defendant (the Appellant herein) on the 13th of October 1997.
(2) An injunction restraining the Defendant from committing any further act of assault on the Plaintiff.
At the end of the trial, the learned trial Judge on the 15th of October 2002 found the Appellant liable in assault and awarded the 1st Respondent the sum of N6,324,520.00 as damages against the Appellant. The Court also made an order restraining the Appellant from further committing any act of assault against the 1st Respondent.
Dissatisfied with the ruling, the Appellant appealed against the decision to the Court of Appeal. On the 30th of November, 2009 the Court of Appeal while delivering final judgment on the Appeal held that the Amended Notice of Appeal filed by the Appellant on 1st December, 2005 was incompetent and struck same out. (See the judgment at pages 105 to 114 of the records.) Thereafter, the Appellant filed an application before the Court of Appeal to re-list the said incompetent Amended Notice of Appeal but the application was refused by the Court in a ruling delivered on 10th May, 2010 (see pages 115-119 for the records of the proceedings and ruling). The Appellant being dissatisfied appealed to the Supreme Court against the refusal to re-list the appeal. On 31st October, 2011 when the matter came up for hearing at the Supreme Court, the Appellant withdrew the appeal which was dismissed. (See pages 120-123 of the record) He thereafter filed an application before this Honourable Court the next day seeking extension of time within which to appeal against the decision of the trial High Court given on 15th October, 2002 and also another application seeking stay of execution. (See pages 57-69 of the records of appeal).
It must be noted that the said application for extension of time to appeal had no proposed Notice of Appeal attached to it, and as such was incompetent.
While these applications were pending, the Respondent caused execution to be levied attaching only a Mercedes Benz car of the Appellant. She thereafter on the 22nd of February, 2012 filed an application for leave to attach the immovable property of the Appellant at No. 7 Water Street, Fairfields Estate, Iju, Ogun State. It was at this stage that the Appellant filed his application dated 12th March, 2012 seeking to set aside the execution levied and also damages for wrongful execution against the 1st Respondent and the 2nd Respondent i.e. the Deputy Sheriff.
The learned trial Judge after listening to the arguments of counsel on both sides and the processes filed by the parties on the application filed by the Appellant on the 12th of March 2012 seeking to set aside the execution levied and also damages for wrongful execution against the 1st Respondent ruled in favour of the Respondents and allowed the execution of judgment levied on the 12th of February 2012 by the Respondents.
Dissatisfied with the ruling,

…………………….B…………………….

Appellant filed his notice of appeal at pages 299-303 of the record on the 15th of June 2012. Record of appeal was transmitted on 18/7/12. Amended Appellants brief of argument was filed on 17/10/14 while the 1st Respondents amended brief of argument was filed on the 30th of Oct. 2014.
At the hearing of the appeal, learned Counsel for the 2nd Respondent informed the Court that 2nd Respondents brief is not ready. Learned counsel for the Appellant informed the Court that the Court has granted application for the appeal to be heard on the existing briefs on the 21st of November 2016 since the time to file 2nd Respondents brief has lapsed.
Appellant distilled four issues for determination thus:
1) Whether an execution can be levied where the appellate process been set in motion and there is a Motion for Stay of execution pending against the judgment of the Court.
2) Whether an issue of law bordering on the expiration of a Writ of Fifa cannot be validly raised in the Appellants Reply on Points of Law.
3) Considering the circumstances of this case and the provisions of Order II Rule 10 of the Judgment Enforcement Rules, whether an Application to set aside unlawful execution on an expired writ must be commenced by a fresh suit.
4) Whether the trial Court was right when it dismissed the Appellants Application to set aside the executions, including a Motion for Stay of Execution of the trial Courts Judgment pending before the Court of Appeal.
1st Respondent distilled four issues for determination thus:
1) Whether there was in fact a pending appeal at the time execution was levied by the Respondent in this matter. (Ground One)
2) Whether the issue of expiry of the writ of fifa, before it was executed was raised in the Appellants application dated and filed 12th March 2012 before the lower Court. (Ground Two)
3) Whether having regards to the reliefs claimed therein, the Appellants application for setting aside execution ought not to have been commenced as a fresh action by writ of summons instead of by Motion on Notice. (Ground Three)
4) Whether under the facts and circumstances of this case the trial Court rightly granted the Respondents application to attach the Appellants immovable property at No. 7 Water Street, Fairfileds Estate, Iju, Ogun State. (Ground Four)
I have examined the issues distilled for determination by the parties and I observe that the issues are the same but couched differently. The appeal will be determined on the 1st Respondents issues since they are more clearer and apt to the controversy in issue between the parties.
Before going into the issues Respondents counsel submitted that ground five of the grounds of appeal of the Appellant is incompetent being an omnibus ground of appeal which cannot arise from an interlocutory ruling where trial was not conducted and evidence led. He referred to the case of Udossen v. Necen (1997) 5 NWLR (Pt. 506) page 570 at 582 paras F  G. He urged the Court to strike out ground five of the notice of appeal. Submitted further that no issue was formulated to cover ground four of the Appellants ground of appeal, the ground must be deemed abandoned and struck out.
Learned counsel for the Appellant in his reply brief submitted that evidence is not limited to oral evidence but also includes affidavit evidence. He submitted that ground 5 is therefore competent and ground four is questioning the grant by the trial judge of the 1st Respondents application to attach the immovable property of the Appellant. He urged the Court to discountenance the preliminary objection of the 1st Respondent.

…………………….C…………………….

When an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, the judgment in the Respondents favour is against the weight which should have been given having regard to the totality of the evidence. An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See the cases of Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) page 60, Agbamu v. Ofili (2004) 5 NWLR (Pt. 867) page 540 and Faneroli v F.R.N. (2016) ALL FWLR (Pt. 856) page 366 at 395 paras D  G.
In this case, this is an interlocutory appeal where trial was not conducted and evidence led. In Akinlagun v. Oshoboja (supra) the Supreme Court per Kalgo J.S.C. stated as follows:
An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial
I am emboldened by the pronouncement of the learned jurist Kalgo J.S.C. stated above to hold that ground 5 is incompetent and is liable to be struck out. It is hereby struck out accordingly.
Issue 4 was distilled from ground 4. The objection of the 1st Respondents counsel on ground 4 is hereby overruled.
Issue One
Whether there was in fact a pending appeal at the time execution was levied by the Respondent in this matter.
Learned counsel for the Appellant submitted that where the judgment appealed against is executed whilst a motion for stay of execution of the judgment and a motion for extension of time to appeal is pending before the Court of Appeal, the Court of Appeal is competent to order the setting aside of the writ of attachment and thus return the parties to status quo pending the determination of the application before it. He referred to the cases of Vaswani Trading Co. v. Savalakh (1972) 12 SC page 77 and Nigerian-Arab Bank Ltd. v. Comase (1996) 6 NWLR (pt. 608) pg 648 at 665-666 paras H-A. 
Submitted further that whether there was appeal before this Court is not for the Respondents to determine. Submitted that there is no point in applying to the Court below when the time to appeal has expired, for enlargement of time cannot be granted by the lower Court but by this Court. Submitted that it is in the interest of justice that the Respondent ought to have waited for this Court to consider the Appellants applications before it peremptorily levied execution on the Appellant. He urged the Court to resolve issue one in favour of the Appellant.
Learned counsel for the 1st Respondent submitted that the grounds for setting aside the execution by the Appellant were clearly stated in the motion paper on pages 2-3 of the record of appeal. In addition to those grounds, it was stated by the Appellant in paragraphs 3.1.2 and 3.1.3 of the affidavit in support that:
1.2 As at the time the aforesaid execution was levied on the 2nd of February 2012, there was a valid Appeal and an Application for a Stay of Execution pending appeal at the Court of Appeal Ibadan Division against the Judgment of the Honourable Court delivered on the 15th day of October 2002 and upon which the Writ of Attachment dated 11th June 2010 executed was ostensibly issued.
1.3 That the Notice of the pendency of this Appeal and the Application for a Stay of Execution pending appeal were duly served on the Deputy Sheriff of this Honourable Court, with acknowledgment of service; the processes were likewise served on the Plaintiff/Respondents Solicitors.

…………………….D…………………….

He argued further that Appellant canvassed his application at the lower Court on the basis that there was a valid appeal and application for stay of execution pending at the time execution was levied. He contended further that there is no evidence of a valid or pending appeal on the record. He referred to the case of Abubakar v. Chucks(2007) 12 SC page 1 at 22 per Akintan JSC where he made it clear that no order for stay can be granted when there is no pending appeal.
He submitted further that Appellant filed an application for extension of time to appeal dated 31st of October 2011 which has been attached as Exhibit PA11 to the Appellants application for setting aside. Exhibit PA11 does not even have a proposed notice of appeal. He submitted that Appellant cannot rely on such incompetent process to contend that he had a valid pending appeal at the time execution was levied. He urged the Court to resolve issue one against the Appellant.
The onus is on the Appellant who asserts that he has a pending appeal to show this Court that he has one. The basis of an appeal is the filing of the notice of appeal and where there is no evidence on record showing that a notice of appeal was filed, any purported appeal is incompetent. See the case of U.B.A. Plc v. Ekanem (2010) 6 NWLR (pt. 1190) page 207 at 226. It is also the law that no order for stay of execution can be granted when there is no pending appeal. SeeAbubakar v. Chucks (supra).
In the instant case, Appellant filed application for extension of time to appeal and an order for a stay of execution, dated 31st of Oct. 2011. Exhibit PA11 was attached to the Appellants application for setting aside. For the Applicant to earn the favour of the Court in an application for extension of time to appeal, he must satisfy two conditions which must co-exist conjunctively i.e. to say there must be good and substantial reason why a discretion should be exercised in favour of the applicant and secondly that the grounds of appeal sought to be introduced are arguable. In that wise, the application must have a proposed notice of appeal attached to the application showing that the grounds of appeal are arguable. See the cases of Yanwuren v. Modern Signs (Nig.) Ltd (1985) 1 NWLR (pt. 1) pg 244, Balogun v. Afolalu (1994) 7 NWLR (pt. 355) page 206, Kotoye v. Saraki (1995) 5 NWLR (pt. 395) page 256 and Itsueli v. S.E.C. (2016) 6 NWLR (pt. 1507) page 160 at 173 paras A-C per Ogunbiyi JSC and page 174 para B-C per Nweze JSC. Regrettably Exhibit PA11 did not donate any proposed notice of appeal to the application. It was not just that there was no appeal pending, there was no competent application for extension of time within which to appeal. What the Appellant filed was a scarecrow or a sham. The mere filing of an application for extension of time to appeal does not operate as stay of execution but the filing of a valid notice of appeal coupled with an application for stay of execution. See the case of Mobil Oil (Nig.) Ltd v. Agadaigho (1988) 2 NWLR (pt. 77) page 383.
The learned trial Judge at page 295 of the record had this to say:
The need for there to be a valid pending appeal before an application for stay of execution could be entertained has been restated in numerous authorities which are binding on this Court. See Mobil Oil (Nig.) Ltd v. Agadaigho (1988) 2 NWLR 383; Martins v. Nicannar Foods (1988) 2 NWLR (pt. 77) 75. I agree with the Claimants counsel that the cases relied on by the Defendants counsel are inapplicable to the relevant facts in this application.
Appellant cannot rely on such incompetent process to contend that he had a valid pending appeal at the time execution was levied. Issue one is hereby resolved against the Appellant.
Issue Two
Whether the issue of expiry of the writ of fifa before it was executed was raised in the Appellants application dated and filed on 12th March 2012 before the lower Court.

…………………….E…………………….

Learned Counsel for the Appellant submitted that expiration of writ of fifa can be validly raised in the Appellants reply on point of law. He submitted that the facts surrounding this issue are not disputed by the parties. A writ of fifa was issued by the trial Court on the 11th of June 2010 but was executed against the Appellants property on 2nd of February 2012, one year and seven months after the issuance of the writ at which date, the time stipulated by law had clearly elapsed. Learned counsel for the Appellant relied on Order IV Rule 10 of the Judgment Enforcement Rules 2004 which provides:
Any process, if unexecuted shall remain in force for one year only from its issue.
Learned counsel for the Appellant submitted further that the basis upon which the Respondents application was granted for leave to attach the movable properties of the Appellant was predicated on the expired writ; a writ which also formed the basis of the Respondents subsequent application to attach the Appellant’s immovable property. For leave to attach an immovable property to be granted, there must be a valid writ of attachment in the form prescribed by law. He referred to the case of Madukolu & Ors v. Nkemdilim (1962) 2 S.C.N.N. L. R. page 341. He urged the Court to resolve issue two in favour of the Appellant.
Learned counsel for the 1st Respondent submitted that the issue of expiry of the writ of execution was not part of the grounds for seeking the setting aside of the execution levied. He referred to the record of proceeding at page 279 lines 18-23 where the issue was raised that the Appellant did not make the writ of execution he wants to set aside part of his application which fact Appellant’s counsel conceded to. Notwithstanding this admission by the Appellant’s counsel, Appellant smuggled in a writ of attachment into the records of appeal at page 82 of the records. Submitted that this amounts to trying to produce and rely at appeal stage on a document which did not form part of the proceedings of the lower Court. He urged the Court to discountenance this document. Learned counsel for the Respondent submitted that the actual copy of the writ executed should have contained the endorsement of what was attached, which is not the case here. He urged the Court not to look at this document. Submitted that since the issue of expiry of the writ of execution was not raised as part of the grounds for seeking the setting aside of the execution levied against the Appellant, it ought not to be considered at all either by the lower Court or by this Court. Submitted that the learned trial Judge was right in striking out the application and the finding of the lower Court cannot be faulted. He urged the Court to resolve issue two against the Appellant.
Where a point was not made an issue before a lower Court, that Court ought not to base its decision on such point not raised and canvassed before it. Also, an appellate Court ought not to base its decision on appeal on such issue. See the case of Ijeonyenani v. A.C.B. Ltd (1997) 6 NWLR (pt. 508) page 340 at 347 para F.
The record of proceedings at page 279 will be reproduced for ease of reference. Respondents counsel told the Court that:
Amachina  The defendants did not attach the writ of execution so that argument on it is incompetent. We have stated this earlier. He raised the issue in a reply when we can no longer reply.
Adamolekun  The rules did not state we should set out grounds. I concede that I did not attach the writ of attachment because I did not have it at the time this application was filed.
Let me take off from where the

…………………….F…………………….

Appellant counsel submitted that the rules did not state that they should set out grounds in an application. Order 7 Rule 1 of the Court of Appeal Rules, 2011 was the extant rule when Appellant filed his application. It is now Order 6 Rule 1 of the Court of Appeal Rules 2016. Both of them are in pari materia. The order states:-
Every application to the Court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought.
The underlined is mine for the purpose of emphasis. From the above provision it is mandatory that the grounds must be stated. Appellant is therefore bound to confine himself to the issues raised, in his motion paper as the trial Court is a Court of record. See Ali v. Obande (1999) 9 NWLR (Pt. 620) page 563 at 576 paras AB. The learned trial Judge at page 290 of the record had this to say:-
The defendants counsel in paragraphs 2.1  2.8 of his reply to the Claimant’s counter affidavit argued extensively for the first time that the writ of attachment had expired by 7 months when it was purportedly executed on 2/2/2012. He cited Order 1 Rule 7 and 12 and Order IV Rule 10 of the Judgment Enforcement Rules. Order IV Rule 10 in particular states that any process, if unexecuted, shall remain in force for one year only from its issue I have examined the entire application and it cannot be doubted that the issue was being raised for the first time in the defendants reply. It is trite law that a plaintiff is not permitted to make a departure in his reply by setting up a new and different case from that in the statement of claim or originating pleadings. See Adeniyi v. Fetuga (1990) 5 NWLR (Pt. 150) page 375 at 391. The affidavit and counter affidavit filed in this application are analogous to pleadings commenced by writ of summons. When the defendant raised the issue of expiration of the writ of attachment in his reply, the Claimant no longer had a right of reply and that was over reaching and prejudicial. I agree with Amachina that the submissions in paragraphs 2.1.  2.8 of the reply dated 24/5/2012 are incompetent and liable to be struck out. They are accordingly struck.
There is substance in the finding of the learned trial Judge because a reply is not an avenue for the applicant and in this instance the Appellant to improve upon his submissions in the main argument or to fine tune same. SeeAnyaonu v. Chukwuma (2010) 40 WRN page 118 at 147 lines 45 5Appellant cannot change the goal post at his whims and caprices. The issue of expiration of the writ of attachment was raised for the first time in the Appellants reply. Where is the fair hearing to the Respondent who no longer has a right of reply. Appellant’s reply was over reaching and prejudicial since Respondent no longer has a right to reply. Issue two is hereby resolved against the Appellant.
Issue Three
Whether having regards to the reliefs claimed therein, the Appellant’s application for setting aside execution ought not to have commenced as a fresh action by writ of summons instead of by motion on notice.
Learned counsel for the Appellant submitted that the Judgment (Enforcement) Rules is a subsidiary legislation made pursuant to the Sheriff and Civil Process Act. He contended that by the provisions of Order II Rule 10 of the Judgment (Enforcement) Rules 2004 (made pursuant to the Sheriff and Civil Process Act) . . . any application by a party for an order or direction of a Court in relation to any judgment, execution or process shall be made in the same manner as an application for an interlocutory order in that Court. This provision confirms Order 39 Rule 1 of the Ogun State High Court Civil Procedure Rules 2004that provides:-
Where by these rules any application authorized to be made to a Judge, such application shall be made by motion. . .
He urged the Court to hold that the claim for special damages obeyed the procedure prescribed by the

…………………….G…………………….

applicable written law and corresponding rules. Learned counsel for the Appellant urged the Court to resolve issue 3 in favour of the Appellant.
Learned counsel for the 1st Respondent submitted that a person cannot seek to recover damages allegedly arising from wrongful execution without leading evidence in proof of the damages he claimed to have suffered. It is therefore an issue that must go to trial and prove by evidence. Submitted that Sections 41 -43 of the Sheriffs and Civil Process Act which are applicable to this matter intend that the Appellant can only bring an action to challenge execution in the circumstances of the instant case, not by an interlocutory application. Section 41 clearly and expressly said that . . . any person aggrieved may bring an action for any special damage sustained by him. . .
He submitted that the provisions of Order II Rule 10 of the Judgment (Enforcement) Rules cannot prevail over the clear provisions of Sections 41  43 of the Act. He submitted that the Provisions of Order II Rule 10 of the Judgment (Enforcement) Rules are not applicable to the facts of the instant case. He urged the Court to resolve issue 3 against the Appellant.
When the words of a statute are clear and unambiguous, the Court should accord them their ordinary and plain meaning. See the case of Obiawenbi v. CBN (2011) 7 NWLR (pt. 1247) pages 465 at 491 paragraph E.
Order 11 Rule 10 of the judgment (Enforcement) Rules provides:-
Subject to any provision to the contrary, any application by a party for an order or direction of a Court in relation to any judgment, execution, or process shall be made in the manner as an application for an interlocutory order in that Court.
The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules cannot prevail over the clear provisions of Sections 41  43 of the Act for the following reasons:-
(a) The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules are clearly made subject to any provision to the contrary. Sections 41  43 are clearly provisions to the contrary. The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules are therefore clearly intended to be subservient to other provisions of the parent statute. See Kabo Air Ltd. v. Oladipo. (1999) 10 NWLR (Pt. 624) 517 at 533 B  C;
(b) Order II Rule 10 of the Judgment (Enforcement) Rules are provisions of subsidiary legislation made under the Sheriffs and Civil Process Act and cannot therefore override provisions of the Act. SeeF.G.N. v. Zebra Energy Ltd(2002) 18 NWLR (Pt. 798) 162; UNTHMB v. Nnoli (1994) 5 NWLR (Pt. 363) 376;
(c) The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules apply to situations where applications are made for directions and not for situations where there is substantive claim for damages.
The law is trite that claim for special damages must be specifically pleaded and strictly proved. See Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) page 626 at 647 paras F  H. This cannot be achieved by motion on notice. See Transkomplet Nig. Ltd. v. Galadima (1999) 3 NWLR (pt. 596) page 631 at 644  645 paras B  C.
The learned trial Judge at pages 291-292 of the record had this to say:
The question is: when the statute says any person aggrieved may bring an action . . . what does it mean? I have carefully perused the provisions of Section 41  43 of the Act. I wish to

…………………….H…………………….

observe that Sections 42 and 43 of the Act repeatedly employed the phrases and expressions like no action shall be commenced  if an action is commenced and In any action commenced. Section 42 specifically provides:
1. No action shall be commenced against any bailiff for anything done in obedience to any process issued by a Court unless:
a) a demand for inspection of the process and a copy thereof is made or left at the office of the bailiff by the party intending to bring the action or his solicitor or agent, in writing by the person making the demand; and
b) The bailiff refuses or neglects to comply with the demand within six days after it is made.
2. If an action is commenced against a bailiff in a case where such demands has been made and not complied with judgment shall be given for the plaintiff if the process produced or proved at the trial.
Section 43 provides: In any action commenced against a person for anything done in pursuance of this Act, the production of the process of the Court shall be deemed sufficient proof of the authority of the Court previous to the issue of the process (Emphasis and underlining supplied by me).
The generous use of the underlined expressions above in Section 41  42 left me in no doubt that the action contemplated in those provisions is a fresh substantive action and not to simply join the Deputy Sheriff in an interlocutory application for the purpose of claiming damages against him jointly with the claimant.
I agree entirely with the learned trial Judge.
Issue three is hereby resolved against the Appellant.
Issue Four
Whether under the facts and circumstances of this case, the trial Court rightly granted the Respondent’s application to attach the Appellant’s immovable property at No 7 Water Street Fairfield Estate, Iju, Ogun State.
Learned counsel for the 1st Respondent and her counsel at all material times were aware of the applications for stay of execution and extension of time within which to appeal pending before this Court when execution was levied. The Respondents by ignoring due process foisted on both this Court and the Appellant a situation of utter hopelessness. He referred to the case of Nigerian-Arab Bank Ltd v. Comex (1996) 6 NWLR (Pt. 608) 648 at 665  666 paras H  A. He urged the Court to hold that the execution of the judgment of the lower Court is a nullity and that the Court should allow this appeal.
Learned counsel for the 1st Respondent submitted that the facts of this case satisfied the requirement of the immovable property of the Appellant. Respondent averred to the fact that she had levied execution and what was attached in the execution did not satisfy the judgment debt which fact was not challenged in any way by the Appellant. He urged the Court to resolve issue four against the Appellant and dismiss the appeal for lacking in merit.
A judgment creditor is entitled to the fruit of his judgment and the Court ought not to allow the antics of the judgment debtor to deny the judgment/creditor such. Appellant has not shown why the application should not be granted. It is obvious that what was attached in the execution did not satisfy the judgment debt. This is an appropriate situation for the Court to grant leave to Claimant/Judgment creditor as prayed. The judgment/creditor is the 1st Respondent on appeal. Issue four is hereby resolved against the Appellant.

…………………….I…………………….

Finally, the appeal is devoid of merit and it is hereby dismissed accordingly. The ruling of the lower Court in Suit No. HCT/309/97 delivered on the 14th of June, 2012 is hereby affirmed. N30,000.00 cost is hereby awarded against the Appellant and in favour of the 1st Respondent.
MONICA BOLNA’AN DONGBAN-MENSEM,J.C.A.: Filing an appeal simplicita does not amount to an order of stay by this Court. A reply brief is a medium of reply to issues raised by the respondent in the Respondent’s brief. It is not a medium for raising fresh issues. The reason being that it would inflict injustice by way of denial of fairing hearing to the Respondent who has no right of reply to the reply brief of the Appellant. Where an Appellant feels sufficiently aggrieved by
an issue which he failed to raise in his Notice of Appeal, he should seek the order of the Court to amend his Notice and ground of Appeal by the addition of more grounds of appeal.
In this appeal, the Appellant failed to do so proceed. He cannot turn a reply brief into another brief which is not supported by grounds of appeal filed before the Court. That procedure would go contrary to the provisions of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
This appeal is without merit and is hereby dismissed.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, MODUPE FASANMI JCA. She has dealt exhaustively with the issues in the appeal. I agree with his reasoning and conclusions. I abide by all the consequential orders of my learned brother in the Judgment

Appearances

Jide Olasite with Gbolahan Oluyemi. For Appellant

AND

George Mwahajieke for the 1st Respondent.

N. I. Ajide-Bello, Principal State Counsel Ministry of Justice, Ogun State, for the 2nd Respondent. For Respondent.

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