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Mucas Hospital Ltd v. Fasuyi

MUCAS HOSPITAL LIMITED

V

CHIEF OMOTAYO FASUYI

COURT OF APPEAL

( ILORIN DIVISION )

PATRICK IBE AMAIZU, JCA ( Presided )

WALTER S. NKANU ONNOGHEN, JCA ( Read the Lead Judgment )

JA’AFARU MIKA’ILU, JCA

CA/IL/34/2003

TUESDAY, 27TH JANUARY, 2004

APPEAL - Issues for determination - Where not related to grounds of appeal - Effect

JUDGMENT AND ORDERS -  Execution of judgment - Execution of whole of judgment sum on one of several judgment debtors or guarantors - Possibility of

JUDGMENT AND ORDERS - Execution of judgment - Liability of guarantor - Possibility of executing judgment against guarantor in the same manner as judgment debtor

JUDGMENT AND ORDERS - Execution of judgment - Parties to

PRACTICE AND PROCEDURE - Execution of judgment - Execution of whole of judgment sum on one of several judgment debtors or guarantors - Possibility of

PRACTICE AND PROCEDURE - Execution of judgment - Liability of guarantor - Possibility of executing judgment against guarantor in the same manner as judgment debtor

SHERIFFS AND CIVIL PROCESS - Execution of judgment - Execution of whole of judgment sum on one of several judgment debtors or guarantors - Possibility of

SHERIFFS AND CIVIL PROCESS - Execution of judgment - Liability of guarantor - Possibility of executing judgment against guarantor in the same manner as judgment debtor SHERIFFS AND CIVIL PROCESS - Execution of judgment - Parties to

Issue:

Whether the lower court was right in holding that the application of the appellant for attachment and sale of the immovable property of the respondent can only be granted where it is established to the satisfaction of the court that there is insufficient movable property of the other judgment debtors to satisfy the judgment debt.

Facts:

The appellant herein instituted suit No. ID/2629/98 at the Lagos State High Court Ikeja on the 26th day of November 1998 against one Jonathan Ayowunmi Fasuyi, a son of the respondent, for the sum of N1,967,617.00 allegedly converted together with interest at the rate of 21%. Judgment was entered as per the terms of settlement agreed upon by both parties. The said terms provided inter alia as follows:

1.              The plaintiff and the defendant in this suit have agreed that as at January 1999 the defendant was owing plaintiff the sum of N914,147.00

2.              The defendant hereby agrees to pay to the plaintiff the said sum of N914,147.00 in equal instalments of N20,000.00 commencing from 31st of August 1999.

3.              The parties hereby agreed that a deposit of N10,000.00 be paid by the defendant as an initial payment.

4.              The defendant hereby agrees to provide as guarantors the following:

(a)           Chief Omotayo Fasuyi of 17 Oke-Oniya Ajilosun Street, Ado-Ekiti.

(b)           Mr. Oluwadare Ajewole of 13, Bada Street, Akowonjo, Dopemu Lagos.

5.              That the guarantors aforementioned hereby undertake to indemnify the plaintiff should there be a failure on the part of the defendant to tender three instalmental payments simultaneously.

6.              PROVIDED ALWAYS that if the defendant shall make default in any of the above matters, the plaintiff may at its discretion

levy execution on guaranteed properties herein without instituting a fresh action.

The original judgment debtor or principal judgment debtor defaulted in the instalmental payments and appellant obtained a certificate of judgment from the Lagos State High Court, Ikeja which it registered at the High Court of Justice of Ekiti State holden at Ado-Ekiti and proceeded to execute the judgment against the respondent, being the first of the two guarantors. Execution was levied against the movable properties of the respondent as a result of which his private vehicle was sold for the sum of N193,000.00 on 5th February, 2002 leaving a balance of N698,737.00. The appellant subsequently filed a motion before the High Court of Ekiti State holden at Ado-Ekiti praying for leave of court to attach and sell the immovable property of the respondent. Both parties to the application agreed that the respondent has no other movable property traceable to him within jurisdiction but the court, in its considered ruling, now on appeal, refused to grant the application.

Dissatisfied with the ruling, the appellant appealed to the Court of Appeal.