JULIUS BERGER NIGERIA PLC & ANOR. V. TOKI RAINBOW COMMUNITY BANK LTD.
(2006)LCN/2002(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of June, 2006
CA/PH/45M/2006
RATIO
COURT PRACTICE: RIGHT OF A SUCCESSFUL LITIGANT
It is the law that a successful litigant is entitled to the fruit of his judgment. See OKAFOR v. NNAIFE (1987) 4 NWLR (PT.64) 129. PER VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
APPEAL: WHETHER AN APPEAL PER SE OPERATES AS A STAY OF EXECUTION OF JUDGMENT
It is also true that an appeal per se does not operate as a stay of execution of a judgment. See ODOGWU v. ODOGWU (1992) 2 NWLR (PT 543) at 539. PER VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
COURT PRACTICE: WHETHER A FAIT ACCOMPLI CAN BE IMPOSED ON AN HIGHER COURT
However, in order not to inflict on the higher court a completed act, the practice has been firmly established that a fait accompli will not be imposed on the higher court when a motion is yet to be heard in the higher court. This is done to prevent impugning the jurisdiction of a superior court. On the issue of knowledge of the filing in the Court of Appeal. It is settled law that the knowledge of the process in any court held by the Chief Registrar is attributed to the court. See VASWANI TRADING CO v. SAVALAKH (1972) 12 SC 77. PER VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.
JUSTICES
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
Between
1. JULIUS BERGER NIGERIA PLC
2. PETER NWACHUKWU Appellant(s)
AND
TOKI RAINBOW COMMUNITY BANK LTD Respondent(s)
VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.(Delivering the Lead Ruling): In this application the applicant judgment debtor seeks an order of court to set aside the order to execute the property of the judgment debtor under the judgment of court delivered, on 21st December, 2005 in the High Court of Rivers State Coram P.N.C. Agumagu J. The applicant also seeks an order of this court to set aside the attachment of the applicants’ listed chattel property made consequent upon the execution. Applicant deposed that the execution was made on 20th February, 2006 and six of the applicants’ vehicles were attached.
In the affidavit in support of the motion filed on 21st February, 2006 the applicants deposed that the execution on the property was carried out while a motion is pending in the Court of Appeal, in which he sought an order of court for a stay of execution of the judgment of the court delivered on 21st December, 2005.
Applicant deposed that upon the said application of 15th February, 2006 he sent letters, exhibits C and D to the Chief Registrar, High Court Rivers State, Port Harcourt both are dated 15th February, 2006. The two letters addressed to the Chief Registrar informed the Registrar that an application for a stay of execution has been filed in the Court of Appeal.
The original issues of the two letters were received in the High Court Port Harcourt and signed and stamped as received by P.O.B. the surname is undecipherable, at 12.50 p.m. on 15th February, 2006 on exhibit D. In the case of exhibit D. attached to the affidavit, it is a copy of the same letter to the Deputy Sheriff, acknowledged and received in the office of the Chief Registrar by King Kinaka P.A. The applicant submits that despite the above service of the letters both the Registrar and the Deputy Sheriff fail to restrain the bailiff from carrying out the execution of the property of the applicant judgment debtor which was subsequently attached and lying in the premises of the High Court.
The applicant submits that the failure of the Registrar to restrain its staff, the Bailiff who operates under its directive is intended and did succeed in inflicting on the Court of Appeal a completed act and it frustrated the application of the judgment debtor, despite the appeal filed by the applicant, which shows recondite points of law.
The Respondent deposed to an affidavit in opposition to the applicants’ prayers. In the counter affidavit, the respondents averred that the only notice of motion received by the Chief Registrar and Sheriff is a process of the Court of Appeal on 21/3/06, exhibit TRCBI and exhibit -TRCB2 on 7/3/06 for the Deputy Chief Registrar.
I have looked carefully at exhibits TRCB one and two, clearly the processes alleged to be issued from the Court of Appeal is referring to the motion of the applicant. TRCB is shown to be served on the Chief Registrar on 21/3/06, the very day that the applicants motion was filed in the Court of Appeal. The service of the same motion from the Court of Appeal was shown to be served on the Deputy Sheriff on 7th March, 2006 before the motion on 21/3/06 was filed. The process from the Court of Appeal shows payment for the process was made on 20/3/06, yet it has been served on the deputy service was sworn to on 17/3/06. Exhibit TRCB2 is clearly fraudulent and unreliable.
The Exhibits TRCB1 and TRCB2 have no relevance to the applicant’s 1st motion filed on 15/2/06. They relate to the applicants 2nd motion of 21/3/06 Exhibit D appears therefore to have been received on 7/3106 before it is filed on 2/3/06. There exist on the affidavit of the applicants’ letters to the Registrar and the deputy sheriff dated 15/2/06, which informed both officials of the High Court Rivers State of pending motions for a stay of execution in the Court of Appeal.
The clear purpose of the letters, exhibits C & D, is to fix the Registrar of the High Court and the Deputy Sheriff and the bailiff with knowledge of the pending application in the Court of Appeal. The applicant counsel has submitted, and the Respondent has not successfully denied the averments of the applicants counsel.
The issues to be determined are:
(1) Whether the applicants’ letters of the 15th February, 2006 is sufficient notice to the Registrar which letters enclosed copies of the motion paper in the Court of Appeal sufficient notice to the Chief Registrar and Deputy, Sheriff. The exhibits C & D show that they were sent to the Chief Registrar and the Deputy Sheriff and were duly acknowledged on 15th February, 2006. The same day that the motion in the Court Appeal was filed. I have no hesitation in holding that the Chief Registrar and the Deputy Sheriff were fixed with the knowledge of the filing by the applicant of the 1st motion for a stay of execution of the judgment of the High Court. Such fixture of the knowledge is sufficient in my view to withhold:
(a) The signing and issue of the execution in the court below
(b) To restrain the bailiff from proceeding to levy execution of the judgment.
(2) Whether such a notice should deter the issue of the process and operate as a voluntary stay of execution until the matter is determined in the Court of Appeal. It is the law that a successful litigant is entitled to the fruit of his judgment. See OKAFOR v. NNAIFE (1987) 4 NWLR (PT.64) 129. It is also true that an appeal per se does not operate as a stay of execution of a judgment. See ODOGWU v. ODOGWU (1992) 2 NWLR (PT 543) at 539.
However, in order not to inflict on the higher court a completed act, the practice has been firmly established that a fait accompli will not be imposed on the higher court when a motion is yet to be heard in the higher court. This is done to prevent impugning the jurisdiction of a superior court. On the issue of knowledge of the filing in the Court of Appeal.
It is settled law that the knowledge of the process in any court held by the Chief Registrar is attributed to the court. See VASWANI TRADING CO v. SAVALAKH (1972) 12 SC 77. The respondents in this application it must be said are not directly fixed with any delict not ostensible, but the failure of the officials of the Court below to withhold the execution of the writ with knowledge of a pending motion in this court is culpable: and I so hold.
In the event, the order of execution made by Agumagu, J. on 20/2/06 is set aside. Consequently the listed properties of the applicant attached are hereby vacated and discharged and ordered to be released to the applicant/appellant pending the hearing and determination of the appeal in this court.
ISTIFANUS THOMAS, J.C.A.: The planks of the applicant in his motion being a judgment debtor is to seek an order of this Court to set aside the order to execute the property of the judgment debtor; and also seeking an order to set aside the attachment of the judgment debtor properties made in the purported execution which was made on 20-2-2006 in which 6 vehicles were attached.
The applicants’ affidavit in support is to the effect that before the purported execution of the 6 vehicles, of appeal had already been filed and served to the respondents.
Once a notice of appeal is filed and served on the other party and the lower court, especially in the instant appeal where the applicant is challenging the judgment sum and has urged at the lower court for stay of execution, it is a clear position that the appellate court is now in total control of the matter; and the other parties and the lower court are prohibited from tampering with the respondent.
I entirely agree that the 1st respondent with indecent collaboration with the Chief Registrar of Rivers State High Court cum the Deputy Sheriff were flagrantly disregarding the knowledge that the appellant/applicant has a pending application for stay of execution of the judgment sum before this Court.
The purported execution by attaching six vehicles of the applicant, committed by the respondent and the Deputy Sheriff are abuse of court process and an insult to this Court.
I therefore entirely agree with the lead ruling of my learned brother, Omage, JCA in which he ordered that the applicant’s 6 vehicles, attached herewith be and is hereby directed that they be released to the applicant pending hearing and determination of the substantive appeal.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: The facts upon which this application is hinged have been fully recounted in the lead Ruling; I need not repeat same.
I only need say a few words on the substratum of the application. By the affidavits filled by each side in this appeal, both parties are ad idem as to the dates on which major events took place. The Judgment was delivered on the 21/12/05, appeal was filed on the 16/01/06, a motion for stay was filed on the 16/01/05 and refused on the 15/02/06.
The motion for stay was subsequently filed before this Court on the 15/02/06. It is the case of the Applicant per their paragraph 1 of the affidavit in support of this motion, that the Deputy Sheriff of the High Court was put on Notice of the pendency of the motion for stay filed before this Court.
The Deputy Sheriff nonetheless proceeded with the execution of the Judgment.
The objection of the Respondent to the instant application is premised on the principle of fair hearing. The learned Senior Counsel for the Respondent is concerned that the Chief Registry and Deputy Sheriff may be condemned unheard, having not been served with the notice of the motion before execution was levied.
This is a curious submission as per paragraph 3 (iii) of the further counter affidavit to this motion, the representative of the Respondent declared that he was not in a position to deny paragraph 9 of the affidavit in support of the motion.
Paragraph 9 says the Deputy Sheriff was given an advanced notice of the pendency of the motion filed before this Court. This fact has not been effectively controverted.
It would appear therefore that the objection of the Respondent is not made upon terra firma.
This Court has always maintained that appeal, being a Constitutional right, its prosecution must not be stultified by the trial Court or by any of the litigants. To attempt to present this Court with a fait accompli, by pulling the carpet from off the feet of this Court would be an abuse of Court process. Such an act would be a nullity of no legal consequence- (Refer NIGERITE LTD v. DALAMI NIG LTD. (1992) 7 NWLR pt. 252 p 288 at 298.)
Further and more fundamentally, by the provisions of order 3 Rule 3 (3) of the Court of Appeal Rules 2002, a writ of attachment issued before the expiration of the prescribed 15 days window period is done in futility. (Refer SUNDAY ADEBAYO V. AUGUSTINE MORE OKONKWO (2002) 8 NWLR Pt 768 p. 1 at 24.)
For this but for the fuller reasons stated in the lead Ruling of my learned brother OMAGE JGA, I too hereby allow this application and set aside the execution levied on the property of the Applicant.
It is accordingly hereby ordered that all the properties of the Applicant in the possession of the Deputy Sheriff upon the said execution be released forth with to the Applicant.
I adopt all the orders made in the lead Ruling.
Appearances
A.A. Osara EsqFor Appellant
AND
Chief A.N. Anyamene SANFor Respondent
