1. IN THE HIGH COURT OF JUSTICE OGUN STATE NIGERIA
IN THE IJEBU-ODE JUDICIAL DIVISION
HOLDEN AT IJEBU-ODE.
SUIT NO HCJ/68/2011
BETWEEN
RONKO INTERNATIONAL LIMITED JUDGMENTCREDITOR/APPLICANT
AND
1. WAHEED ADALEKO JUDGMENTDEBTOR/RESPONDENTS
2. OLALEKAN ALLISON
(For themselvesandon behalfof IREDE THREE
WHEELERS OWNERSAND RIDERS ASSOCIATIONOF NIGERIA)
IN RE:
HON. KUNLE SHITTU RESPONDENT
REPLY TO PRELIMINARY OBJECTION ON POINTS OF LAW.
By a preliminary Objection dated the 8th
day of July 2014 the judgment creditor objected to the
Motion on notice dated the 10th
day of June 2014 filed on the 11th
of June 2014 praying the court to
set aside the Execution of Judgment given by this honourable Court against the Judgment Debtor
and Executed against the applicant in that Motion on Notice.
In replytothisPreliminaryObjectionwe state thatsection 34(1) ofthe Sheriffs and Civil Process Act
Cap S6 L.F.N 2004 provides that “if a claim is made to or in respect of any property attached in
executionunderprocessof a court,or in respectof the proceedsorvalue thereof,the registrar may,
uponthe applicationof the Sheriff,aswell asbefore asafterany 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”
Section 34(2) provides that 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.
In essence the Actenvisages thatactions maybe instituted against the sheriff pending the issuance
of an InterpleaderSummonbythe registrar.The Motiondated10th
of June 2014 servesthis purpose
as it seeks to set aside the action of the sheriff as being done in error.
In the case of Iheanacho V. Ofoegbu [2001] FWLR (pt 55) 476 A Motion was defined as an
application made to a court or Judge for the purpose of obtaining a ruling or order directing some

2. act to be done in favour of the applicant. It may be a written or oral application made for a ruling
before or after the trial.
It is worthy of note that the wordings of the statute stipulate that the Registrar ‘May’ issue a
Summon upon the application of the Sheriff however there is no stated procedure on how the
Applicantclaimingthe attachedpropertyistofollow innotifyingthe Sheriff.We humblysubmit that
it is not in the of the province party claiming ownership of the attached property to apply for
issuance of the Interpleader Summons we humbly refer my Lord also to the provision of Order VI
Rule 1 the Judgment (Enforcement) Procedure Rules which provide that any claim in respect of
propertyshall be made tothe bailiff holdingtothe sheriff,thisenvisages both oral or written claim.
It supports our earlier submission that the issuance of the Interpleader Summon.
Further, Order II Rule 10 of the Judgment (Enforcement) Rules provides that subject to any
provisionstothe contrary,any applicationbyaparty foran Order or discretionof a Court in relation
to any Judgment, execution or process shall be made in the same manner as an application for an
interlocutory order of that court. We hereby submit that because there is no slated procedure for
commencement of action against the sheriff making an application in the same manner as an
application is made in the High Court by a Motion on Notice is proper in the circumstance.
On the other hand assuming but not conceding to the objection of the judgment Creditor that the
Judgement(Enforcement) Rulesprovidesthatthe proceedingmustbe byan Interpleadersummonit
has been held in Shanu V. Afribank Nig PLC [2003] FWLR (Pt 136) 823 that Courts are set up to do
substantial Justice andtoensure thatthere isa semblance of the pursuitof it. Justice cannotbe seen
to have beendone whenaJudgmentisreachedbased on no facts whatsoever laid before the court
because of a wrong procedure adopted by the parties and the Court whereas there are facts
ordinarily available. The parties will walk away with the feeling that they did not put their case
across to the court which ought to hear them and all because Counsel and the Court adopted a
totally flawed procedure. That is worse than Judgment by mere technicality which this court
denounces.Itisin the interestof justice thatpartiesshouldbe affordedareasonable opportunity in
appropriate circumstancesfortheirclaims to be adequately investigated and properly determined
upon their merit also referred is the case of Nalson & Team Associate V. N.N.P.C (1991) 8 N.W.L.R
(Pt 212) 652; Nduba V. Appio (1993) 5N.W.L.R (Pt 292) 201.
The Court held in Union Bank of Nig PLC V. Ekulo Farms Ltd [2001] FWLR (Pt 67) 1019 @1031 that
Rules of Court are made for the convenience and orderly hearing of the cases in court. They are
made to helpthe cause of Justice andnotto defeatJustice.The rulesare therefore aids to the Court
and notmastersof the Court.For Courts to readrulesinthe absolute withoutrecourse tothe justice
of the case will make the court slavishtothe rules,also we humbly refer your Lordship to UTC (NIg)
Ltd V. Pamotei (1989) 2 N.W.L.R (Pt 103) 244@ 296.
We refer your Lordship also to the case of Ya’u V. City Security Ltd [2003] FWLR (Pt 165) pg 498
where it was held that the Court should not allow undue technicality to becloud its sense of true
Justice onitsmeritalsoNwosuV.Imo State Environmental SanitationAuthority (1990) 2 N.W.L.R (Pt
135) 717.
In conclusion we urge your Lordship to dismiss the objection of the Judgment Creditor as being
frivolousandwe make thisprayer on the authorities stated above and on the authority of National

3. Bank of Nigeria Ltd V. Alakija [2003] FWLR (Pt 146) 931 @ 943 where the Supreme Court ordered a
retrial of a case whichhad beencommencedby a Writ of Summon instead of Originating Summons
and directed that the pleadings be ordered. It stated there that the Rules of Court, like those
directingthe commencement of suits in this case are mere aids to course of Justice; they must not
be allowed to stand in the way of justice. The Judgment (Enforcement) Rules is also a rule of court
made pursuant to Section 94 of the Sheriff &Civil Process Act Cap S6 L.F.N 2004 and thus a mere
guide, we urge your Lordship to hear and grant the motion dated 10th
June 2014 in the interest of
Justice.
C.F. MGBEADICHIE (MISS)
RESPONDENT’S SOLICITOR
ADEBIYI ODUGBESAN & CO
NO. 15 FOLAGBADE STREET, APEBI
JUNCTION,IJEBU-ODE.
FOR SERVICE ON:
CHIEF A.F OKUNNUGA
A.F. OKUNNUGA& Co
JUDGMENTCREDITOR/ APPLICANT’SSOLICITORS
C/O CHIEF LANRE AKINTOLA & Co.,
OBA AWOLESI ROAD,
(UNIONBANK BUILDING)
G.R.A SAGAMU.