MR. OWEIFA DOKUBO & ORS v. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR (2013)

MR. OWEIFA DOKUBO & ORS v. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR

(2013)LCN/6516(CA)

On Tuesday, the 19th day of November, 2013

CA/C/189/2012

RATIO

 WORDS AND PHRASES: LOCUS STANDI

WHETHER A TRIAL COURT HAS JURISDICTION TO RECEIVE APPLICATIONS IN RESOECT TO A MATTER TO WHICH AN APPEAL HAS BEEN FILED

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. MR. OWEIFA DOKUBO
2. MR. TEKENA NICKSON
3. MR. ADIOWEI LAZARUS
4. MR. ADIGWE BOBO
(Suing through their lawful attorney
Blessing Resources International Ltd.) Appellant(s)

AND

1. MOBIL PRODUCING NIGERIA UNLIMITED
2. UNITED BANK FOR AFRICA Respondent(s)

ONYEKACHI A. OTISI, J.C.A (Delivering the Leading Judgment): Upon service of Notice of Appeal in Appeal No CA/C/189/2012 filed on 24/4/2012 by the Appellant/Respondent, in respect of Suit No. HEK/MISC.88/2012: Mobil producing Nigeria Unlimited v. Mr. Oweifa Dokubo & ors., the Respondents/Applicants filed this motion on notice on 12/9/2012, seeking the following orders:

1. An order dismissing in limine the 1st Respondent’s Appeal brought by means of notice of appeal dated and filed on the 24th day of April 2012 in Suit No. HEK/MISC.88/2012: Mobil Producing Nigeria Unlimited v. Mr. Oweifa Dokubo & ors., now entered as Appeal No CA/C/189/2012.

2. Any further order(s) as this Honourable Court may deem fit to make in the circumstance.

The grounds upon which this application is brought are that:
a. The Notice of Appeal filed on the 24th day of April, 2012 is an abuse of the process of court. It is incompetent, null and void ab initio.
b. As the Appellant/1st Respondent is neither a named party nor the garnishee against whom the order absolute was made for the payment of the judgment debt in respect of Suit No. HEK/MISC.88/2012 from which Appeal No CA/C/174/2006 arose, it has no locus standi, or right of appeal to prosecute any appeal challenging the order made against UBA Plc. for the Payment of the judgment debt in respect of the garnishee order absolute of 18/7/2006.

c. The Applicant ought to have sought an obtained leave of Court to file any appeal arising from, pertaining to or connected with the garnishee order absolute in accordance with the subsisting decision of this Honourable Court in Appeal No CA/C/174/2004: Mobil Producing Nigeria Unlimited v. Mr. Oweifa Dokubo & ors., delivered on 2nd December, 2010.

d. The purported appeal aforesaid is deliberately designed by the Appellant to frustrate the Applicants from reaping the fruits of their victory or from enforcing the money judgment that is due and payable by the Garnishee Bank, UBA Plc. by virtue of the garnishee order absolute made on the 18th July 2006 against which the Respondents have no validly filed pending appeal.

In support of this motion is an affidavit of 11 paragraphs deposed to by Clement Bassey, Esq., Legal Practitioner in the firm of E.B. Ukiri & Co. Counsel to the Applicants, with the authority of the Respondent/Applicant. Annexed to the affidavit are 4 exhibits marked Exhibits A – C.
In opposition to this motion, the Appellant/Respondent filed a counter affidavit of 55 paragraphs on 20/2/2013 deposed to by Ademola Obayomi Esq., Legal Practitioner in the firm of Ajumogobia & Okeke, Counsel to the Appellant/Respondent, with the authority of the Appellant/Respondent. Annexed to the counter affidavit are 5 exhibits marked Exhibits AO-01 – AO-05.

Upon the direction of the Court, a written address was filed on 8/2/2013 by E.B. Ukiri Esq. of Counsel for the Applicants/Respondents. Ademola Obayomi Esq. also filed a written address on 14/3/2013 but deemed properly filed and served on 18/3/2013.
The Respondents/Applicants had on 20/3/2013 filed an affidavit headed: “REPLY TO APPELLANTS COUNTER-AFFIDAVIT FILED ON 20-2-2013”.

However, on 16/9/2013, Mr. Ukiri said that they would not be relying on it. Mr. Ukiri filed a Reply on points of law on 26/3/2013; and, he submitted a list of Additional Authorities dated 10th June, 2013.
In this application, the 2nd Respondent in the application is the 5th Respondent in the substantive appeal. For avoidance of confusion, and, since it is the application being considered, this party shall be referred to as the 2nd Respondent. The written addresses were adopted by respective Counsel on 16/9/2013.
The complaint of the Respondents/Applicants is as follows: The High Court of Akwa Ibom State had on 18th July, 2006, made absolute a garnishee order nisi against the 2nd Respondent in Suit No. HEK/MISC.88/2012. The Appellant/Respondent had appealed against the said Order Absolute. But, the appeal was declared incompetent, null and void by this Court in Appeal No CA/C/174/2006 on 2nd December, 2010. Exhibit A and A1 are the Ruling of this Court and the enrolled Order. Thereafter, the High Court of Akwa Ibom State on 13th December, 2011, pursuant to its order absolute order of 18th July, 2006, ordered the 2nd Respondent, to pay over to the Respondents/Applicants the judgment debt together with its accrued interest. A copy of the said enrolled order was annexed as Exhibit B. There is no pending appeal by the said 2nd Respondent against the said order. That the order was not made against the Appellant/Respondent, which was also not a party to the proceedings thereat. The Appellant/Respondent, without prior leave of either the lower court or of this Court, filed a Notice of Appeal on 24th April, 2012 challenging the order made against the 2nd Respondent therein. A copy of the said Notice of Appeal is annexed as Exhibit C. The Respondents/Applicants contend that the Applicant/Respondent has no locus standi to challenge the said Order which was not directed against it, without leave of court being first sought and obtained. That the Notice of Appeal relating to the said garnishee order absolute of 18th July, 2006, made against the 2nd Respondent, is incompetent and an abuse of court Process.
The Appellant/Respondent in their counter affidavit went into great detail. They aver that they lodged an appeal in the Supreme Court against the Ruling of this Court in CA/C/174/2006 (Exhibits A and A1 of the Respondents/Applicants’ supporting affidavit). The said appeal, SC/58/2011, was entered on 19th October, 2011. A certified copy of the Ruling of the Supreme Court evidencing that the appeal was entered was attached as Exhibit AO-02.
In spite of the entering of the said appeal at the Supreme Court, the Respondents/ Applicants approached the High Court of Akwa Ibom, Eket Division for an ex parte order directing the 2nd Respondent, inter alia, to pay the sum of N86, 231, 367.55 as judgment sum, with accrued interest. That the said ex parte application was founded on willful misrepresentation and deliberate concealment of the material fact that an appeal on the subject matter was now entered by the Respondents in the Supreme Court. That when the ex parte order was brought to the attention of the Appellant/Respondent, they filed a motion before the High Court, Eket seeking to have the said ex parte order set aside.
This motion was dismissed by the High Court, Eket on 24th April, 2012. That the present appeal, CA/C/189/2012 is against the Ruling of 24th April, 2012: and not against the garnishee order absolute, which is the subject matter of another appeal CA/C/176/2006 and subject matter of a further appeal to the Supreme Court as SC/58/2011.
It is further averred that the High Court, Eket Division did not make its ex parte order of 13/12/2011 pursuant to the garnishee order absolute of 18/7/2006. But that the said ex parte order of 13/12/2011 is different and independent of the garnishee order absolute of 18/7/2006 in that while the order absolute was made in respect of N28, 496,342.00, the lower court in the ex parte Ruling of 13/12/2011 attached the sum of N86, 231, 367.55, and described it as “being the Judgment sum against the Judgment Debtor which sum of money was attached by an Order of this Court.” That there was no garnishee order absolute in respect of N86, 231, 367.55. That the Appellant/Respondent is a person affected by the ex parte order of 13/12/2011 because the sum of N28, 496,342.00 upon which the garnishee order absolute was made, was arbitrarily inflated to N86, 231,367.55 and sought to be recovered from the funds of the Appellant/Respondent with the 2nd Respondent, which funds had already been paid into an interest yielding account in Port Harcourt Rivers State, upon orders of the Port Harcourt Division of this court, of the instance of the Respondents/Applicants. That the said order of the Port Harcourt Division of this Court was made in CA/PH/656M/2008; which was an appeal by the Respondents/Applicants against the decision of the High Court of Rivers State, which set aside the garnishee proceedings in PHC/1207/2006, earlier commenced by the Respondents/ Applicants in respect of the Judgment sum arising from the decision of the High Court of Rivers State in PHC/2192/2000. That it is the same judgment sum awarded in PHC/2192/2000 that was the subject matter of garnishee proceedings in PHC/1207/2006.
It is also averred that in the garnishee proceedings of PHC/1207/2006, the Respondents/Applicants proceeded against the 2nd Respondent as judgment debtor with a view to enforcing a garnishee order absolute earlier made against the 2nd Respondent and erected to name the Central Bank of Nigeria as garnishee, on the understanding that since they could not enforce the order absolute against the 2nd Respondent, they could replace the Appellant/Applicant with the 2nd Respondent as judgment debtor and proceed against Central Bank of Nigeria, in whose custody the funds of the 2nd Respondent were as the garnishee. The High Court Rivers State found these proceedings to be an abuse of court process and set it aside, upon which the Respondents/Applicants appealed in CA/PH/656M/2006
That it is the judgment sum in PHC/2192/2000 that constitutes the subject matter of appeal in CA/PH/656M/2006, which has already been paid into an interest yielding account on the orders of the Port Harcourt Division of this Court. After appealing against the order of the High Court of Rivers State setting aside the garnishee Order absolute, the Respondents/Applicants filed an application on 12/12/2008 at the Port Harcourt Division of this Court seeking an order of interlocutory injunction restraining the Central Bank from re-crediting the account of the 2nd Respondent with the judgment sum of N28, 496,342.00, urging that the judgment sum be paid into an interest yielding account. A copy of the said motion is attached as Exhibit AO-05. In the said application, the Appellant/Respondent was not named as a party or as a party affected by the application, notwithstanding the fact that the application in respect of which the order appealed against was made was filed by the Appellant/Respondent in PHC/1207/2006, and the Appellant/Respondent is a named party in the Notice of Appeal.
It is further averred that it is the same judgment sum in PHC/2192/2006 that was the subject matter of garnishee proceedings in HEK/MISC.31/06 as well as Appeal No CA/C/174/06. That it is the some judgment sum in PHC/2192/2006 already paid into an interest yielding account, that the Respondents/Applicants again made subject matter of their ex parte motion dated 6th December, 2011, culminating in the ex parte order of 13th December 2011, which put the judgment sum as N86, 231,367,55.
That the ex parte order of 13/12/2011 would have the effect of rendering the Appellant/Respondent’s further appeal to Supreme Court, SC/58/2011 academic and any order made by the Supreme Court nugatory.
That the order absolute of 8/6/2006 is for N28, 496,342, which is a sum far less than the sum of N86, 231,367.55 stated in the ex parte order of 13/12/2011; and that the order absolute makes no mention of or provide for any interest whatsoever. That the order of 13/12/2011 confers on the Respondents/Applicants a benefit for and above that stated in the order absolute.
That it is above grounds that Appellant/Respondent sought an order to set aside the ex parte order of 13/12/2011 as a person affected by the said order: the ex parte order being a nullity. That the Appellant/Respondent does not require leave to contest the ex parte order of 13/12/2011 and also does not require leave to appeal against the order refusing its application to set aside the said ex parte order. That the instant appeal is against the ex parte order of 24/4/12 in which the court below refused to set aside the ex parte order of 13/12/2011, which the lower court could have set aside without the necessity of an appeal.
In written address of the Respondents/Applicants the following issues have been raised:

i. Whether the Appellant, not being a party to suit No. HEK/MISC.83/2011 and the judgment debtor in respect of garnishee Proceedings in which a garnishee order absolute had already been made, has the locus standi to challenge the order of 13th December, 2011 which was directed exclusively at UBA Plc.

ii. Whether the Appellant’s appeal filed on 24th April, 2012 and challenging the order of the High Court of Akwa Ibom State made on 13th December, 2011 in HEK/MISC.83/2011 is not incompetent and an abuse of the process of this Honourable Court.

iii. Whether this appeal is liable to be dismissed by this Honourable Court having regard to all the circumstances of the appeal.

On issue No 1, at is submitted that the order of the High Court, Akwa Ibom State was made after this court had declared the appeal filed against the order absolute of 18/7/2006 against UBA Plc. incompetent. UBA Plc., the garnishee, filed no appeal against the said order absolute made on 18/7/2006, directing it to pay the judgment debt and accrued interest in the judgment of the High Court of Rivers State given against the Appellant on 13th February, 2001. That it is settled law that once a garnishee order nisi becomes absolute, the garnishee must pay the judgment debt, as it assumes the liability of the original judgment debtor; relying on Union Bank of Nigeria Plc. vs. Boney Marcus Ind. Ltd & ors. (2005) 13 NWLR (pt 943) 654 at 666. The order has not been set aside; and, there is no order for stay of execution, there being no validly filed notice of appeal. That an appeal challenging the decision of this Court in the Supreme Court cannot operate as a stay of execution of the garnishee order absolute made against UBA Plc.
It is further submitted that although the Appellant/Respondent is the judgment debtor in the proceedings before the Rivers State High Court, it was not a party to the proceedings in HEK/MISC.83/2011 in which the garnishee order absolute was made, and the said order was not made against it. It is submitted that as far as the said order absolute is concerned, the Appellant/Respondent is a stronger and a meddlesome interloper. That it cannot prosecute this appeal as of right; relying on NITEL Plc. vs. I.C.I.C. (Directory Publishers) Ltd. (2009) 16 NWLR (PT 1167) 356 at 397. That the Appellant/Respondent has no locus standi to challenge the order absolute or prosecute this appeal; relying on Mobil Producing Nigeria Unlimited vs. Monokpo & ors. (2003) 18 NWLR (PT 852) 346 at 422.
And, that this appeal should be dismissed.

On Issue No 2, it is submitted that the Appellant’s appeal filed on 24th April, 2012, challenging the order made on 13th December, 2011 in HEK/MISC.83/2011 was filed outside 90 days, and out of time, relying on Section 24 of the Court of Appeal Act. That even if the notice of appeal was filed within time, that the Appellant/Respondent can only exercise any right to challenge the said order as a person affected or interested pursuant to Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999, as amended: relying on Ogembe vs. Usman & ors (2011) 12 S. C. (PT 3) 34 at 51.
It is submitted that the Appellant/respondent altered the parties to HEK/MISC.83/2011 by adding its name to the Notice of Appeal filed on 24/4/2012 without leave of court, rendering the Notice of Appeal incompetent, null and void; relying on PPA vs. INEC (2011) 11-12 S.C. (PT 2) 1 at 48, 64, 79, 94-95.
On Issue No 3, it is submitted that in the circumstance of this appeal, it ought to be dismissed.
The Appellant/Respondent in their written address adopted, with modifications, the issues as formulated by the Respondents/Applicants, with an additional issue as follows:

1. Whether in the circumstances of this case, the Appellant/Respondent has the locus standi to apply for an Order to set aside the ex-parte Order of the Court below made on 13th December, 2011.

2. Whether the decision of the court below made on 13th December, 2011 made in disregard of the entered Appeal at the Supreme Court and procured by willful concealment of material facts, is a null decision in respect of which a motion for setting aside ought to have been brought.

3. Whether the Appellant/Respondent’s appeal founded on the Notice of Appeal dated 24th April, 2012 is competent in the circumstance of this case.

4. Whether the Respondents/Applicants ought to be allowed to use the machinery of justice as engine of fraud by this Appeal being dismissed without determined on the merits.

On issue No 1, learned Counsel chronicled the facts and circumstances prevailing of the time the ex parte order of 13/12/2011 was made. Although these were set out in the counter affidavit, I shall repeat them for emphasis:

a. Prior to the making of the ex-parte Order of 13-12-11, the Judgment sum in Suit No. PHC/2190/2001 which was subsequently attached by a Garnishee Order absolute on the 18th of July 2006 had been paid into an interest yielding account, at the instance of the same Respondents/Applicants, as ordered by the Port Harcourt Division of this Honourable Court;

b. As at 13-12-11 when the ex-parte order was granted, the Judgment sum with accrued interest, ordered to be paid into an interest-yeilding account by the Port Harcourt Division of this Honourable Court, remained in the said interest-yielding account into which it as paid at the instance of the Respondents/Applicants.
c. By the ex-parte Oder of 13-12-11, the Respondents/Applicants procured an ex-parte Order vesting them with the right to attach the very Judgment sum that had already been paid into an interest-yielding Account at their instance. The said ex-parte Order of 13-12-11, specifically directed the 2nd Respondent, custodian of the Appellant/Respondent’s funds, to pay to the Respondents/Applicants, through their Counsel, and from the Appellant/Respondent’s funds with it, the Judgment sum already paid into an interest-yielding Account in Port Harcourt, with additional interest and costs, which shut (sic) up the said judgment sum and interest to the sum of N86, 231,367.55.
It is submitted, in the light of the above, that the ex-parte order of 13-12-11 has nothing to do with the Judgment sum awarded in favour of the Respondents/Applicants by the High Court, Rivers State in PH/2192/2000. That the ex-parte order of 13/12/11 is an order procured to achieve unjust enrichment of the expense of the Appellant. It is submitted that the Appellant/Respondent is a person affected by the ex parte order of 13/12/11 and has locus standi to challenge the said order by approaching the court below to have it set aside, regardless of whether or not the Appellant/Respondent was a party to the proceedings culminating in the ex parte order. It is submitted that the Appellant/Respondent also has locus standi to further approach this court, in the event that the lower court fails to set aside the ex parte order. That the Appellant/Respondent, who is a person affected by the said ex parte order, does not need to file an appeal against same in the first instance, whether as of right on with leave, but could competently file an Application before the same court below that made the order asking the court to set same aside. On who can be described as a person interested, he relied on the case of In Re: Ndayako (2003) 4 NWLR (PT 809) 48: Akinfolarin vs. Akinnola (1994) 3 NWLR (PT 335) 659, F.B.N. Plc vs. T.S.A. Ltd (2010) 15 NWLR (PT 1216) 247.
On issue No 2, it is submitted that of the time the ex parte order was made on 13/12/11, the Appellant/Respondent’s further appeal to the Supreme Court and it had been entered of the Supreme Court. The lower court therefore had no jurisdiction to entertain any further proceedings in the matter. The order made on 13/12/11 were made without jurisdiction; relying on Ogundipe vs. Akinloye (2002) 10 NWLR (PT 775) 312 at 336-337: Orizu v. Ofomata (2007) 13 NWLR (pt 1052) 487. It is further submitted that the order ought to have been set aside by the lower count at the instance of the Appellant/Respondent for being a nullity; relying on Tomtec Nigeria Ltd. v. Federal Housing Authority (2009) 18 NWLR (PT 1173) 358, Onwuka vs. Omonuju (2009) 11 NWLR (PT 1151) 174.
On Issue No 3, it is submitted that the instant appeal was against the decision of 24/4/2012, which dismissed the Appellant/Respondent’s motion dated 22/12/2011 praying for an order to set aside the decision of 13/12/2011. It is submitted that the Notice of Appeal speaks for itself. The parties to this appeal are the same parties to the Appellant/Respondent’s dismissed motion on notice dated 22/12/2011.
On Issue No 4, it is submitted that in the light of the circumstances leading to this Appeal, the interest of justice would be better served by allowing this Appeal to be heard on the merits. The Court is urged to dismiss the application of the Respondents/Applicants.
Mr. Ukiri for the Respondents/Applicants filed a Reply on points of law on 26/3/2013.
The facts and arguments on either side of this application appear complicated. But I shall attempt to fairly simplify the facts as are relevant for purposes of determining the present application. I shall also adopt the issues as formulated by the Appellant/Respondent.
The Appellant/Respondent was the judgment debtor in PHC/2192/2000. The Respondents/ Applicants were the judgment creditors. They commenced garnishee proceedings in PHC/1207/2006 to recover the judgment debt of N28, 496,342.00. The 2nd Respondent was the garnishee. The Appellant/Respondent was not made a party to the garnishee proceedings.
The Respondents/Applicants obtained an Order nisi which was later made absolute on 18/7/2006. The Appellant/Respondent appealed against that Order in CA/C/174/2006. However, upon a preliminary objection by the Respondents/Applicants, a different panel of this Court struck out the Application. The Appellant/Respondent appealed further to the Supreme Court. The said further appeal, SC/58/2011, was entered in the Supreme Court on 19th October, 2011.
The said Judgment sum had meanwhile been paid into an interest yielding account upon the orders of the Port Harcourt Division of this Court.
After the Appellant/Respondent’s application in CA/C/174/2006 was struck out, the Respondents/Applicants, in HEK/MISC.31/2006, before the High Court, Akwa Ibom State, Eket Division, filed an application, ex-parte, seeking an order to have the 22nd Respondent release to them the Judgment sum with the accrued interest, which was now N86, 231,367.55. The High Court, Eket Division granted the said Order on 13/12/2011. At this material time, the appeal to the Supreme Court in respect of CA/C/174/2006, which was a further appeal arising from the garnishee proceedings in PHC/1207/2006 on the Judgment debt from PHC/2192/2000, was of ready entered and pending before the Supreme Court.
The Appellant/Respondent filed a motion on notice on 22/12/2012, before the lower court seeking to have the Order made ex-parte on 13/12/2011 set aside on the grounds, inter alia, that it was obtained upon misrepresentation and deliberate concealment of facts. The Respondent/Applicant filed a preliminary objection. On 24/4/2012, the Akwa Ibom State High Court, Eket Division in HEK/MISC.31/2006 dismissed the Appellant/Respondent’s motion and upheld the preliminary objection. The Appellant/Respondent has now appealed over that decision of 24/4/2012. This present appeal is therefore in respect of the decision of 24/4/2012.
In considering the issues for determination as raised by the parties, one must bear in mind certain essential facts:

1. The Order of this Count made on 2/12/2010 in CA/A/174/2006 attached as Exhibit A1, by the Respondent is as follows:

“IT IS ORDERED:
1. There is no competent Notice of Appeal upon which the Application to challenge the Record of 18/7/2006 is predicated.

2. The Application is therefore incompetent and it is accordingly struck out with N20, 000.00 as Costs to 1st – 4th Respondents.”

The Court made these orders upon the consideration, per Akaahs JCA (as he then was), that:

“Although the Appellant is the judgment debtor and it is money standing to its credit that is being garnished from United Bank for Africa Plc., nonetheless the proceedings is between the Judgment creditors and the Bank and the Appellant can only appeal as an interested Party after it has sought and obtained leave to do so. The Appellant has not satisfied this Court that it was granted leave before it filed its Notice of Appeal.”

If there is no competent Notice of Appeal because the Appellant did not satisfy the Court that it was granted leave before it filed its Notice of Appeal, then there was nothing before the Court of the material time to sustain an appeal. The essence of the Orders made by this Court was therefore that there was no appeal pending before it.

2. The lower court in hearing the ex-parte application in HEK/MISC.31/2006 had said as follows:

“COURT: The facts leading to this application are that on the 18/7/2006 this court presided over by my learned brother Honourable Justice Enefiok Udoh by an order absolute entered Judgment in favour of the Judgment Creditor/Garnishors/Applicants against the Garnishee – United Bank for African (sic) Plc.

The Garnishee Bank did not appeal against the order absolute but the Judgment Debfor Mobil Producing Unltd did in appeal No CA/C/174/2006. The appeal was declared incompetent by the Court of Appeal, Calabar Division and same was struck out by that court.
The Garnishors have come to court by this application to have the Garnishee release the Judgment debt to them as if is due to them.
That is the crux of the matter of this application.”

The Court proceeded to grant the Orders sought.

3. The Appellant/Respondent herein as Appellant in CA/C/174/2006, had filed a further appeal to the Supreme Court. But, no mention was made of the fact that there was a further Appeal to the Supreme Court on the said decision of this Court in Appeal No CA/C/174/2006, which had been entered in the Supreme Court as SC/58/2011 on 19th October, 2011.

4. The Amended Notice of Appeal which was deemed on 16/9/2013, as well as the Notice of Appeal filed on 24/4/2012, state as follows:

“TAKE NOTICE that the Appellant being dissatisfied with the decision of the High Court of Akwa Ibom State, contained in the Ruling of Honourable, Justice E.A. Ebienyie dated the 24th day of April 2012, pursuant to the 1st – 4th Respondents’ preliminary objection dated 20th January 2012, doth hereby appeal to the Court of Appeal against the said decision upon the grounds set forth in paragraph 3 hereunder and shall at the hearing seek the relief set forth in paragraph 4.”

The Relief sought, as set out in paragraph 4 thereof, is:
AN ORDER OF THIS HONOURABLE COURT SETTING ASIDE THE DECISION of the High Court of Akwa Ibom State, delivered by Honourable, Justice Ekerete A. Ebienyie on April 24, 2012 and granting the Prayers contained in the Appellant’s motion dated December 22, 2011.

5. The instant appeal is against the decision of 24/4/2012.

Now, the well-articulated position of the law is that once an appeal has been entered in the appellate court, the lower court ceases to have jurisdiction to hear any application in respect of the matter. See: Ogunremi & Anor v. Dada (1962) 2 SCNLR 417: Coke vs. Adeyemo (1965) ALL NLR 125 of 128. An appeal is said to be entered when all the records of appeal is transmitted to the appellate court and the matter is entered in the cause list. See: Ezeokafor vs. Ezeilo (1999) 6 S.C. (PT 11) 1: Esiri vs. Idika (1987) 4 NWLR (Pt. 66) 503. But once the appeal has been entered, the court below no longer has jurisdiction to entertain any application brought before it, except to carry out the orders of the appellate court. See: Mobil Plc. vs. Agadaigho (1988) 2 NWLR (Pt.77) 383 S.C. [1988] 1 N5CC 777.
A court order can be regarded as a nullity where, for instance, the court has acted without jurisdiction or the judgment or order was obtained by fraud, or where there has been non-compliance with a fundamental procedural rule which has led to breach of fundamental right to fair hearing. See; Okafor vs. A.G., Anambra State (1991) 2 SCNJ 345; Purification Techniques (Nig.) Ltd vs. A.G., Lagos State (2004) 9 NWLR (PT 879) 665.
It is not in issue that the Appellant/Respondent filed an appeal of the Supreme Court which was entered on 19th October, 2011. This appeal was from the decision of this Court in CA/C/174/2011, upon which the lower court in HEK/MISC.31/2006 based its decision on 13/12/2011 given on 24/4/2012, subject matter of this appeal. Therefore, as at 13/12/2011 when the order of the lower court was made upon consideration of CA/C/174/2011, there was already a further pending appeal to the Supreme Court. It follows therefore that the lower court did not have jurisdiction to entertain the matter. An order of court made without jurisdiction is a null order. For if court does not have jurisdiction no matter how well conducted the case may be, the whole exercise even if it results in delivering judgment, is a nullity in law. See: Madukolu & Ors v. Nkemdilim & ors (1962) 2 SCNLR 342: (1962) NSCC 374: (1962) 1 All NLR 587: AG, Kano State vs. AGF (2007) 6 MJSC 161. A fortiori, the decision of 13/12/2011 was a nullity.
Mr. Obayomi has rightly submitted for the Appellant/Respondent that a party who is affected by a null order is ex debito justitiae entitled to have the null order set aside by the court which made the order: or, by a court of concurrent jurisdiction. See: Otu vs. ACB International Bank Plc. (2008) 33 NSCQR (Pt. 1) 143, (2008) 3 NWLR (PT 1073) 179: Dingyadi vs. INEC (No 2) (2010) 18 NWLR (PT 1224) 154: Offodile vs. Egwuatu (2006) 1 NWLR (PT 961) 421. The party affected by the said null order need not necessarily file an appeal. The court that made the null order may in its inherent jurisdiction, set it aside. See: Okoye vs. N.C.F.C. (1991) 7 S.C. (PT 111) 33; Okafor vs. A.G., Anambra State (1991) 2 SCNJ 345. Issue No 2 is resolved in favour of the Appellant/Respondent.

The term ‘locus standi’ simply denotes the legal capacity to institute proceedings in a court of law. Locus standi will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected. See: Adesanya v. President (1981) 5 S.C. 112 at p. 162, (1981) 2 NCLR 358; Thomas vs. Olufosoye (1986) 1 NWLR (PT 18) 669 at 684-685; Orogan vs. Soremekun (1986) LPELR-2772 (SC): Odeneye v. Efunuga (1990) 7 NWLR (PT 164) 618.
Suit NO HEK/MISC.83/2011 were garnishee proceedings to which the Appellant/Respondent was not made a party. And, indeed, the Appellant/Respondent need not be made a party to garnishee proceedings; a garnishee proceeding being a separate and distinct action between the judgment creditor and the garnishee. This is notwithstanding the fact that it is the judgment debt that gave rise to the garnishee proceedings. However, the judgment debtor must be served with the order nisi. See: Section 83(2) Sherriff and Civil Process Act 1990: Cross River State Forestry Comm. vs. Anwan (2012) LPELR- 9479 (CA).
It is contended that the Appellant/Respondent is a person affected by Orders flowing from the proceedings and in the circumstance, qualifies as a ‘person interested’. A person interested includes a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. See: Ojukwu v. Military Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806; Mbanu v. Mbanu (1961) 1 All NLR 652; Maja v. Johnson (1951) 13 WACA 194: In Re Ogunmowuola (1996) 2 NWLR (Pt. 428) 90; Aliyu v. Adewuyi (1996) 4 NWLR (Pt. 442) 284: Gbadomosi v. Kano Travels Ltd. (2000) 8 NWLR (Pt. 608) 243: Re: Opekun (2004) 6 NWLR (Pt. 870) 576. A person is legally interested if the answer to the question in issue may curtail his legal rights. The test of interest to determine a person interested is whether the person could have been joined as a party to the suit. See: Ijelu vs. L.S.D.P.C. (1992) LPELR-1464 (SC), (1992) NWLR (PT 266) 414: Yakubu vs. The Governor, Kogi State (1995) 8 NWLR (PT 414) 386; Enyibros Food Processing Co. Ltd vs. N.D.I.C. (2007) 3 S. C. (PT. II) 175.
In Bello vs. INEC (2010) 8 NWLR (PT 1196) 342, the Supreme Court, per Adekeye JSC, said:
“While parties in the case of Green v. Green (1987) NSCC pg. 115 of 121 is defined as “persons whose names appear on the record as plaintiff or defendant”, in the case of Fawehinmi v. NBA (No 1) 1989 2 NWLR Pt. 105 pg. 494 at pg. 550 – A party is defined as follows:
“A party to an action is a Person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) by or against whom a legal suit is sought whether natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested and not parties.”

The fact that the Appellant/Respondent, who is the judgment debtor in the Garnishee proceedings, is an interested party in the proceedings cannot be downplayed. An interested party may bring an application to set aside a judgment or an order, which affects his interest and which amounts to a nullity. But, his application must be brought within the parameters of the law.
Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999, as amended qualifies a person who is interested to file an appeal in respect of a matter in which he is interested. The Section provides:
Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceeding at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter…”
These fundamental provisions cannot be disregarded.
The Appellant/Respondent without doubt is an interested person, in the light of the events and circumstance leading to this appeal. But, the door to enable enforcement of the right of appeal in vindication of that interest can only be opened upon leave of court first being sought and obtained, pursuant to the provisions of Section 243 (a) of the Constitution. An interested person in a matter must seek leave of Federal High Court, the High Count of a State or of the Court of Appeal to do so. See also: Enyibros Foods Processing Co. Ltd. v. N.D.I.C. (supra); The Institute of Chartered Accountants of Nigeria (ICAN) vs. Unegbu & ors. (2011) LPELR-9062 (CA).
In the case of Ogembe vs. Usman (2011) LPELR-8155(SC), the Supreme Court per Galadinma JSC clearly said:
“Right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court and the Court of Appeal to this court is provided for in the constitution. In this appeal, the appellant filed an application to appeal as an interested party against the decision of the Federal High Court. In that case he is required to file an application for Leave to appeal by virtue of S. 243(a)”
As rightly pointed out by Mr. Ukiri, the Appellant/Respondent who was not a named party in HEK/MISC.83/2011, cannot change the parties to the proceedings by including itself without leave of court. The Appellant/Respondent required leave of court to entitle him to appeal as a person interested. See: In Re Madaki (1996) 7 NWLR (PT 459) 153; F.A.A.N. vs. Bi-Courtney Ltd. (2011) LPELR- 1974 (CA).
I therefore am of the firm view, having regard to the mandatory provisions of Section 243(a) of the 1999 Constitution, as amended, that the Appellant/Respondent requires leave of court to pursue the present appeal. Issues 1 and 3 are thus resolved against the Appellant/Respondent.

On Issue 4, I will emphasize that the court can never fend itself to be used as machinery for fraud. But in order to assist the court perform its functions optimally as machinery for justice, the Appellant/Respondent should initiate the appeal process in the manner constitutionally provided.
Appeal No CA/C/189/2012, being filed without leave of court, is incompetent, and the Court is bereft of the necessary vires to entertain it.
This application of the Respondents/Applicants therefore succeeds. Appeal No CA/C/189/2012 is hereby struck out.

MOHAMMED LAWAL GARBA, J.C.A: My learned brother Onyekachi, A. Otisi, JCA had availed me of the draft of the lead ruling written by her in this application, before today. The issues that require decisions in the application have been ably considered and the view expressed as well as the conclusions on them are the same with mine.
I would like to emphasise that the 1st Respondent/Appellant requires leave of Court to Appeal against any decision in respect of the order absolute in the garnishee proceedings between the 2nd respondent and the Applicants/Respondents before the High Court, as a judgment debtor who was not a party of any stage of those proceedings. The 1st Respondent/Appellant cannot properly appeal as of right under the general principle of law that a person affected by an order of court made without jurisdiction has the right to have it set aside ex debito justitie. The 1st Respondent/Appellant may have a right as a party affected by the order absolute or even as a party having interest in the matter being the owner of the funds the subject matter of the garnishee order absolute, but being the judgment debtor who was not a party in the proceedings, such a right can only be properly and competently exercised in accordance with the provisions of the relevant law and established judicial practice, as was demonstrated in the lead Ruling. In the case of P.P.M.C. v Dolphi Petroleum Incorp. (2005) 8 NWLR (928) 458 at 484, it was held that garnishee proceedings are between the judgment creditor and the garnishee and that the judgment debtor is not a party and has no right of appeal in respect thereof. See also Purification Techniques Nig. Ltd v. A-G Lagos State (2004) 9 NWLR (879) 665, (04) ALL FWLR (211) 1479: UBA v. Ekanem (2010) 6 NWLR (1190) 207 at 206 & 227 paragraph D-E.
Furthermore, the Supreme Court in the very recent case of A.D.H. Ltd. v Min… FCT (2013) 8 NWLR (1357) 493 at 579 had held that a person, who was not a party to a suit in which an order of court was made against party to the suit, has no right to apply for the setting aside of the order of court.
For the above and the more elaborate reasons set out in the lead ruling, I join in striking out the notice of appeal filed by the 1st Respondent/Applicant in Appeal No. CA/C/189/2012 for being incompetent on ground of failure to seek and obtain the requisite prior leave of court. I assess costs of N30, 000.00 in favour of the Applicants/Respondents, to be paid by the 1st Respondent/ Appellant.

UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form, the judgment just delivered by my brother Onyekachi A. Otisi, JCA. I agree that where leave of court is required as a condition precedent, it must be obtained. The leave gives the court the necessary vires to proceed. Where leave is not obtained, the Court is robbed of jurisdiction. In the present case leave was not obtained for the party seeking leave to appeal as an interested party before he filed his processes including his name.
For this and the more robust reasoning in the lead judgment, this suit is incompetent and therefore struck out. I abide by all the other orders contained in the lead judgment.

Appearances

E.B. Ukiri, Esq.For Appellant

AND

A.S. Obayomi, Esq.For Respondent