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  • 2002-08-05
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Ikono Local Govt. v. De Beacon Finance & Sec. Ltd

IKONO LOCAL GOVERNMENT

V

DE BEACON FINANCE & SECURITIES LIMITED

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS ONYEJIFE EDOZIE, JCA ( Presided )

OKWUCHUKWU OPENE, JCA ( Read the Lead Judgment )

SIMEON OSUJI EKPE, JCA

CA/C/46/2000 

THURSDAY, 12TH JULY, 2001.

COURT - Applications - Need for court to consider and make specific findings on every prayer - Need for courts to consider all essential issues before it before arriving at its decision

EVIDENCE - Affidavit evidence - Paragraphs of not specifically challenged deemed admitted

EVIDENCE - Unchallenged and uncontradicted evidence - How treated

JUDGMENT AND ORDERS - ‘Perverse decision’ - Meaning of

JUDGMENT AND ORDERS - Judgment debt - Application to court by judgment debtor under Order 5 rule 8(1), Judgment Enforcement Rules - Need for court to stay execution of judgment pending enquiry and verification of actual indebtedness of judgment debtor

JUDGMENT AND ORDERS - Judgment debt - Application to court by judgment debtor for enquiry or verification of actual judgment debt -  Order 5 rule 8(1) and (2), Judgment Enforcement Rules, Cap. 407, Laws of the Federation of Nigeria, 1990

JUDGMENT AND ORDERS - ‘Perverse finding’ - Meaning of PRACTICE AND PROCEDURE - Applications - Need for court to consider and make specific findings on every prayer - Need for courts to consider all essential issues before it before arriving at its decision

SHERIFFS AND CIVIL PROCESS - Judgment debt - Application to court by judgment debtor under Order 5 rule 8(1), Judgment Enforcement Rules - Need for court to stay execution of judgment pending enquiry and verification of actual indebtedness of judgment debtor

SHERIFFS AND CIVIL PROCESS - Judgment debt - Application to court by judgment debtor for enquiry or verification of actual judgment debt - Order 5 rule 8(1) and (2), Judgment Enforcement Rules, Cap.

407 , Laws of the Federation of Nigeria,  1990

WORDS AND PHRASES - ‘Perverse decision’ - Meaning of

WORDS AND PHRASES - ‘Perverse finding’ - Meaning of

Issue:

Whether the trial court actually considered prayer 3 on the motion paper filed on 10/11/98 and whether it was right in law when it awarded to the judgment-creditor the sum of N361,000.00 as the balance due to it from the appellant out of the total contract sum of N1,456,000.00.

Facts:

The respondent, as the plaintiff, had obtained judgment against the appellant in the High Court on 16/5/95 for the sum of N1,456,000.00 in a claim placed on the undefended list.

The appellant as the judgment debtor after making several part payments to liquidate the judgment debt filed a motion on notice praying among other reliefs, the determination of the outstanding balance of the judgment debt.  The application was brought under section 23 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990 and under Order 5 rules 5 and 8 of the Judgment Enforcement Rules.  In delivering his ruling Nsima Akpabio, J. on 23/3/99 ordered the appellant to liquidate the sum of N361,000.00 being the balance of judgment debt by instalmental payments of N50,000.00.  The trial Judge failed however to consider and rule on prayer 3 which asked the court to order an enquiry into the actual judgment debt due and payable to the respondent.

Dissatisfied with the ruling, the appellants have appealed to this court.