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P.W. Resources Ltd v. Kporah

P. W. RESOURCES LTD

(formerly Kent Resources Ltd)

P.W. NIGERIA LIMITED

V

JAMES KPORAH

DEPUTY SHERIFF, HIGH COURT OF JUSTICE, RIVERS STATE

COURT OF APPEAL

(PORT HARCOURT DIVISION)

ISTIFANUS THOMAS JCA (Presided)

EJEMBI EKO JCA

T. O. AWOTOYE JCA (Read the Lead Judgment)

CA/PH/405/2006

WEDNESDAY, 24 NOVEMBER 2010

COURT - Competence of - Determinants of - Process filed - Defect in Effect of

COURT - Court not established by State House of Assembly - Judgment of - Service and execution of - Inapplicability of state legislation thereto - Constitution of the Federal Republic of Nigeria, 1999, exclusive legislative list, item 57 considered

EVIDENCE - Affidavit - Status of - When backs an incompetent motion - Effect of

JUDGMENT AND ORDERS - Dismissal order - What connotes

LIMITATION LAW - Statutory powers - Exercise of - Limitation of by law

PRACTICE AND PROCEDURE - Act - Performance of - Statutorily prescribed procedure for - Compliance with - Mandatoriness of

PRACTICE AND PROCEDURE - Application - Application dismissed after being heard on merit - Application struck out for noncompliance with rules of court - Distinction between - Basis of

PRACTICE AND PROCEDURE - Claimant and applicant - Distinction between under the provisions of Order 43, rule 1, River State High Court (Civil Procedure) Rules

PRACTICE AND PROCEDURE - Court not established by State House of Assembly - Judgment of - Service and execution of Inapplicability of state legislation thereto - Constitution of the

Federal Republic of Nigeria, 1999, exclusive legislative list, item 57 considered

PRACTICE AND PROCEDURE - Process - Where invalid - Proper order court should make

STATUTE - Constitution of the Federal Republic of Nigeria, 1999, exclusive legislative list, item 57 - Court not established by State House of Assembly - Judgment of - Service and execution of - State legislation - Inapplicability of state legislation thereto

STATUTE - Rivers State High Court, Order 43, rule 1 - Claimant and appellant thereunder - Distinction between

Issue:

Whether the trial court erred in law in dismissing appellant’s application when it did not consider the case on merits.

Facts:

The applicants filed an application in the High Court of Rivers State claiming that their properties were attached by the court bailiff consequent upon execution of a judgment which they were not parties to. The trial court dismissed the motion on grounds that they failed to comply with provisions of Sheriffs and Civil Process Act and also discountenanced their unsigned further and better affidavit filed by them. Aggrieved, the applicants appealed to the Court of Appeal. The defendants filed a preliminary objection challenging the appeal.

In determination of the appeal, the Court of Appeal considered the following statutes:

Sheriffs and Civil Process Act, section 34:

34(1) “If a claim is made to or in respect of any property attached in execution under process of a court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the sheriff, as well before as after any action brought against him, issue a summons calling before the court the party at whose instance the process issued and the party making the claim.

(2)Upon the issue of the summons, any action brought in any court in respect of the claim or of any damage arising out of the execution of the writ shall be stayed.

(3)On the hearing of the summons, the court shall adjudicate upon the claim, and shall also adjudicate between the parties or either of them and the sheriff upon any claim to damages arising or capable of arising out of the execution of the writ by the sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it thinks fit.” Rivers State High Court Rules, 2006, Order 43, rule 1:

1. “Relief by way of interpleader may be granted where the person seeking relief (“the applicant’’) is under liability for any debt, money, goods or chattels, for or in respect of which he is, or expects to be sued by two or more parties (“the claimants’’) making adverse claims thereto.”

Provided that where the applicant is a sheriff or other officer charged with the execution of process by or under the authority of the High Court, the provisions of section 34 of the Sheriffs and Civil Process Act and the rules made under it shall apply.

Constitution of the Federal Republic of Nigeria, 1999, section 4(1 5) :

(1)“The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

(2)The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.

(3)The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion the Houses of Assembly of State.

(4)In addition and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say

(a)any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and

(b)Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.

(5)If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.”

Rivers State High Court Rules, section 1:

(1) “The provisions contained in the rules set out in the schedule to this law and hereinafter called “the Rules” shall be the rules of civil procedure to be followed in the High Court of the

State.”

Constitution of the Federal Republic of Nigeria, 1999, section 274 -

274. “Subject to the provisions of any law made by the House of Assembly of a State, the Chief Judge of a State may make rules for regulating the practice and procedure of the High Court of the State.”