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BORNU HOLDING AND CO. LTD AND OTHERS
DIPCHARIMA AND OTHERS IN RE: ALI
In re: ALHAJI UMAR ALI
Chief F.R.A. Williams (Mr J.A. Lawrence and Miss Okwesa with him) – for the Appellant
Mr. Brown Peterside – for the Respondents
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Civil Action -execution – Judgment debt due to company -Judgment debt to be paid by realistic monthly instalments.
ALEXANDER, C.J.N. – (Delivering the Judgment of the Court):
This application dated the 2nd of January, 1976 by way of motion in this Court is by Alhaji Umar Ali, the judgment debtor in Suit No. NEM/15/71 which was tried by Hague, Ag. J. and came on appeal (SC.291/74) to this Court, where it was ordered that Alhaji Umar Ali should personally pay the sum of 200,000 naira for intermeddling without lawful authority with the affairs of the Bornu Holding & Co. Ltd., the 1st above-named appellant, hereinafter referred to as “the Company”. Alhaji Umar Ali is also the 3rd Respondent in the present appeal by the above named appellants. Their appeal is against the decision of the High Court of North-Eastern State contained in the final ruling of Barreto, Ag. J. dated the 27th day of March, 1975, dismissing an application by them for an injunction restraining the 1st and 2nd above-named respondents, Adama Dipcharima and Tijani Ali (alias Zanna Tijani Ali Dipcharima) from levying execution without the consent of the applicants (now the above-named appellants) to recover from Alhaji Umar Ali the sum of 200,000 naira awarded by the order of the Supreme Court.
The following orders are sought by the applicant –
(a) an order for stay of execution or further execution by the plaintiffs/1st and 2nd respondents of the judgment of the Supreme Court delivered on the 11th day of December 1974 in Appeal No. SC.291/74 pending the determination of the Appeal lodged herein, against the decision of the High Court of the North-Eastern State contained in the ruling of His Lordship Mr. Justice P.A. Barreto dated the 27th day of March, 1975, whereby that Court dismissed an application by the present Appellants dated the 9th day of January, 1975 herein,
(b) an order restraining the 1st and 2nd respondents herein from levying execution or further execution of the said judgment as plaintiffs in the original action;
(c) an order restraining the said 1st and 2nd respondents from taking any further steps towards the enforcement of the said judgment (whether by way of sale of any property on which execution had already been levied or in any other manner);
(d) an order that the Deputy Sheriff, High Court, North- Eastern State shall not take any further steps in the execution or for the enforcement of the said judgment pending the determination of the said appeal;
(e) an order stopping any sale or further sale of any goods on which execution has been levied in respect of the said judgment of the Supreme Court dated 11/12/74; and
(f) an order for an accelerated hearing of the said Appeal which is pending before this Honourable Court.
And such order or further order as this Honourable Court may deem fit to make in the circumstances.
The applicant also gave notice that at the hearing of this application he would in addition to the affidavit in support of this application rely on the record of appeal relating to the decision of the High Court of North-Eastern State dated 27th March, 1975, as well as on the original record of appeal, the subject matter of the Supreme Court Judgment in SC.291/74.
An affidavit was filed in support of the application and a counter-affidavit was also filed by the 2nd Respondent named in this application, Tijani Ali (alias Zanna Tijani Ali Dipcharima) on behalf of himself and the 1st Respondent (Adama Dipcharima) stating in paragraph 2 thereof –
“That the Applicant in this matter Alhaji Umar All has not paid any money to satisfy the judgment debt in this suit, except the costs of N2,000.00 and the sum of N37,000.00 recovered only last month being proceeds of sale of his mo-veable properties following the issue of a writ of fifa.”
Suit No. NEM/15/71 was originally instituted by Adama Dipcharima and Tijani Ali (alias Zanna Tijani Ali Dipcharima) as Plaintiffs against Alhaji Umar Ali (alias Alhaji Umar Adama Kolo) and the Company as defendants and it is clear that the effect of the judgment of this Court allowing the appeal by the plaintiffs, in so far as the 1st defendant (now the applicant) Alhaji Umar Ali is concerned, is to make him a judgment debtor to the tune of 200,000 naira. The point in dispute between the 1st and 2nd respondents on the one hand and, on the other hand, the applicant (who is not a shareholder in the Company) and the above-named appellants who are shareholders in the Company is – whether the 1st and 2nd plaintiffs who are also shareholders in the Company (with two shares and one share respectively) are judgment creditors entitled to levy execution on their own behalf and for their own personal benefit or on behalf of the Company and for the benefit of the Company.
Learned Counsel for the applicant, Chief Williams, expressed the prepared-ness of the applicant to pay the judgment debt, subject to reasonable time being given, to the Company and not to the plaintiffs who appear to have been proceeding to execution as if the judgment debt was to be recovered by them for their own personal benefit. The applicant deposed in paragraph 4 of his affidavit –
“4. That to the best of my knowledge, information and belief, the Plaintiffs are under the erroneous impression that the N200,000.00 damages awarded against me by the Supreme Court as aforesaid, is payable to them where-as it is explicit from the said judgment that the 2nd Defendants Company are the only persons entitled to the benefit of the said judgment and accordingly are the only persons empowered by law to levy execution thereof.”
Chief Williams relied on the cases of Wallersteiner v Moir (1975) 2 WLR 589 and Spokes v The Grosvenor and West End Railway terminus Hotel Company, Limited (1897) 2 CB 124 as authorities for the proposition that the judgment debt is payable not to the plaintiffs for their own personal benefit but to the Company, as the real purpose of the action by the plaintiffs (who were no more than nominal plaintiffs suing on behalf of the Company) was to protect the interests of the Company, and renewed his plea that reasonable time be given for payment of the judgment debt.
Learned Counsel for the respondents Mr. Brown Peterside at first opposed the motion as being premature on the ground that this Court had, in allowing the appeal in Suit No. NEM/15/71, ordered the plaintiffs to summon a meeting of share-holders to regularise the position of things. He contended that, in the meantime, the plaintiffs were entitled to the sum of N200,000.00 personally as their portion of the loss to the Company occasioned by the intermeddling of the applicant. We find it, to say the least, difficult to conceive at this stage how their total shareholding of 3 shares out of 100 shares in the Company could entitle them to lay claim to this whole amount of 200,000 naira.
However, Mr. Peterside after conceding that the 1st and 2nd respondents stood to lose nothing if the money was paid to the Company, later withdrew this concession and contended further that the effect of the application was to require this Court to review its own judgment and order that the money should be paid to the plaintiffs, and that this Court could not review its own decisions. He cited the case of The Minister of Lagos Affairs, Mines and Power v Chief O.B. Akin-Olugbade AND OTHERS . in re Chief F.R.A. Williams (1974) 11 SC. 11 in support of his contention.
But, after the Court had again drawn his attention to the cases of Wallersteiner v Moir and Spokes v The Grosvenor Hotel (already cited), he conceded finally that the Company was entitled to the judgment debt, but nevertheless opposed the application for a stay of execution beyond the end of January 1976, and urged that any money paid by the applicant in addition to the N37,000.00 already paid into the High Court of North-Eastern State, at Maiduguri should remain in Court.
In the circumstances, and having regard to the fact that we consider that the issue to be decided in the appeal is a substantial one and that the applicant is ready and willing to pay the judgment debt if given reasonable time to do so, the application is granted and the orders sought are hereby made, subject to the following conditions –
(1) that the judgment debtor/3rd respondent/applicant, Alhaji Umar Ali do pay the judgment debt of N200,000.00 (less N37,000.00 already paid) that is the balance of N163,000.00 in four monthly instalments of N40,750.00 into the High Court of North-Eastern State at Maiduguri, commencing from the 1st day of April, 1976, and
(2) that any default in the payment of any such instalment shall render the whole amount due and outstanding at the date of the default payable forthwith and execution thereof may be levied accordingly.
It is further ordered –
(1) that the appeal of the above-named appellants to this Court be fixed for hearing on the 15th day of March, 1976 at Kaduna, and
(2) that the respondents do pay to the applicant the costs of this application assessed and fixed at N20.00.