ARGOS NIGERIA LTD. & ANOR. V. ALHAJI M. D. UMAR & ANOR.
(2002)LCN/1100(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of March, 2002
CA/K/286/M/01
RATIO
THE DUTY OF EXPECTED OF A JUDICIAL OFFICER
“The issue involved in the facts recorded above concern the confidence in the court and the requirement of judicial functionary to demonstrate the existence of justice in the court of law. The set of facts show in the printed record and the facts deposed to by the Sheriffs and Civil Process Law, and the norms expected of a judicial officer. Justice, it is said, as an aphorism, must not only be done it should be seen to be done.” Per OMAGE, J.C.A.
WHETHER THE FILING OF AN APPEAL OPERATES AS A STAY OF EXECUTION
“The filing of an appeal does not eo ipso operate as a stay of execution. See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77. However, where apart from filing an appeal, an appellant also filed an application for stay, the position should be different. See: Fabunmi v. Oyewusi (1992) 1 NWLR (Pt. 215) 35 where Ogwuegbu, JCA (as he then was) stated at page 45:- “The Supreme Court in Vaswanis case.(supra) at page 88 of the report stated that an appeal or the filing of it could not eo ipso operate as a stay of execution but where apart from filing an appeal an applicant also files an application seeking a stay of execution of the same judgment, the position should in practice be different. In such circumstances, a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that at that stage of the proceedings it is not possible for any party to present it with a fait accompli.” Per MUHAMMAD, J.C.A.
WHETHER IT IS REGULAR TO ISSUE A WRIT OF ATTACHMENT DURING THE PENDENCY OF A MOTION FOR STAY OF PROCEEDINGS
“The issuance of the writ of attachment during the pendency of the motion for stay is to say the least irregular. It is very contrary to our legal system and is not in accord with the rules of natural justice. The right thing to do, is to hear the motion and rule on it. If it is refused, the writ of attachment and sale of goods could be issued. It is wrong to issue the said writ without hearing and ruling on the motion. The issuance of the writ of attachment and sale of goods is definitely an abuse of the court’s process which is intended to over-reach the applicant. This, in my opinion, is one of the exceptional circumstances where the writ of attachment can be set aside. The issuance of the writ is not only offensive but condemnable.” Per MUHAMMAD, J.C.A.
WHETHER A COURT CAN SET ASIDE THE ISSUANCE OF A WRIT OF ATTACHMENT WHICH HAS BEEN LEVIED OR EXECUTED
“Under normal circumstances, this court will not set aside the issuance of a writ of attachment which has been levied or executed. However, in certain circumstances where the issuance of a writ of execution or attachment amounts to an abuse of the court’s process or over-reaching the other party, execution that has been carried out can be set aside. The Supreme Court in Vaswani Trading Company v. Savalakh & Co. (1972) 12 SC 77 stated at page 82:- “…the court and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the court to assume that role. In Sanni v. Odesanya (supra), in circumstances not dissimilar, this court ordered the setting aside of the writ of possession already executed and returned the parties to the original status quo pending the determination of the substantive motion for stay of execution” Per MUHAMMAD, J.C.A
JUSTICES
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
Between
- ARGOS NIGERIA LTD.
2. A. M. EGBAGBES Appellant(s)
AND
- ALHAJI M. D. UMAR
2. THE DEPUTY SHERIFF HIGH COURT OF JUSTICE, KADUNA Respondent(s)
R.D. MUHAMMAD, J.C.A. (Delivering the Lead Ruling): The applicants, who are the appellants in this appeal, brought this application asking for the following reliefs:
1. An order setting aside the writ of attachment dated the 11th day of July, 2001 signed by Justice Tanimu Zailani of the Kaduna High Court of Justice sitting at Kaduna as same is an abuse of process and issued without regard to the provision of Sherrifs and Civil Process Act.
2. An order directing the release of the appellants/applicants goods and chattels attached on the 8th August, 2001 and 13th December, 2001 respectively attached pending the hearing and determination of the hearing of the appeal entered at the Kaduna Court of Appeal.
3. An order restraining the respondents from further attaching the appellants/applicants goods and chattels acting pursuant to the said writ of attachment dated 11th July, 2001 pending the hearing and determination of this application.
4. An order restraining the respondents from selling, disposing and or auctioning of the appellants/applicants goods, properties and chattels attached on the 8th August, 2001 and 13th December, 2001 respectively pending the determination of this application and or substantive appeal.
5. Such further order(s) as this honourable court may deem fit to make in the circumstances.”
The application is supported by a 6 paragraphs affidavit and an affidavit of urgency of 13 paragraphs. The applicants also filed a further and better affidavit of 7 paragraphs. The respondents on the other hand filed a counter-affidavit of 7 paragraphs and another 7 paragraphs further counter-affidavit.
The facts that gave rise to these proceedings are that the 1st respondent herein instituted an action against the applicants herein at the Kaduna State High Court claiming the following:-
“1. The sum of N2.6 million being the outstanding balance of moneys collected for the supply of granite and marbles and which were not supplied.
2. The plaintiff further claims interest at the rate of 10% on the said sum of N2.6 million from 30/4/2000 when the defendant issued a bank cheque which was returned unpaid to date of judgment and thereafter interest to accrue at the rate of 5% until judgment is satisfied.”
The suit was brought and placed under the undefended list. The appellants sought and were granted extension of time to file their notice of intention to defend the suit. After hearing arguments from counsel to the parties, in a reserved ruling, the learned trial Judge held that the appellants don’t have any defence on the merit. He therefore entered judgment in favour of the respondents. This is what he said:-
“The totality of the respective averments of the parties established the claims of the plaintiff except for the 10% interest from 30/4/2000. The basis for the interest has not been established as required by law. The plaintiff is definitely entitled to the refund of the N2.6m. The defendants have not shown defence on the merit. Accordingly, I enter judgment for the plaintiff against the defendants in the sum of N2.6m with an interest at the rate of 10% per annum from today until the judgment sum is fully liquidated. I also award N1,500 cost for filing this case against the defendants.”
The appellants, being dissatisfied with this decision, they appealed to this court. The ruling of the lower court was delivered on 26/6/2001 and the appellant’s notice of appeal was filed on 28/6/2001 i.e. only two days after the ruling was delivered. On that same 28/6/2001, the appellants filed a motion on notice praying for an order staying the execution of the judgment given on 26/6/2001 pending the determination of the appeal filed. This motion was fixed for hearing on 17th day of July, 2001.
However, during the pendency of this motion and before the date it was fixed for hearing, a writ of attachment and sale of goods was issued by the Judge on the 11th July, 2001. The motion for stay was subsequently heard on the day it was fixed for hearing, i.e. 17/7/2001. Ruling was reserved. The ruling was eventually delivered on 7th day of August, 2001. The motion was dismissed. On the very day this ruling was delivered, the registrar signed judgments form 41 for the sale of the appellant’s moveable property.
It was then the applicants filed this motion, the subject of this ruling. I have at the beginning of this ruling produced in their entirety the reliefs being sought by the applicants. There is no need to reproduce them again. The learned senior counsel for the applicants while moving the motion submitted that the writ of attachment issued on 11/7/2001 is an abuse of the court’s process. He submitted that the writ of attachment and sale of goods was irregularly obtained as it was issued without due regard to the provision of the Sherrifs and Civil Process Act. He further submitted that the said writ was issued while the ruling for the application was pending after the court had heard counsel arguments on the motion for stay of execution. He also submitted that the writ of sale was taken out on 7/8/2001 the very day the Judge delivered the ruling. He submitted that this was contrary to Order 4 rule 1(2) of the Judgments (Enforcement) Rules which stipulated that it should be issued 3 days after the ruling and referred to the case of Union Bank Nig. Ltd. v. Fajebi Foods (1994) 5 NWLR (Pt. 344) 325 at 345.
The learned senior counsel also submitted there was no proof that the goods attached were sold. The Deputy Sherrif was given the power of sale and that there was no affidavit by the Deputy Sherrif that the goods have been sold. He said the respondents were aware of this motion, but went ahead to say they sold the property. He submitted that the court has a duty to ensure that it is not faced with fait accompli. He referred to Fabunmi v. Oyewusi (1992) 1 NWLR (Pt. 215) 35 at 45. He urged the court to grant the application.
Counsel for the respondent opposed the motion. He submitted that parties are bound by their affidavit and that the learned Senior Advocate was wrong to have stated things which were outside the affidavit they filed. He submitted that Order 4 rule 1(2) does not apply to our present case because the judgment was delivered on 26/6/01 and the writ was signed on 11/7/01. He also submitted that the goods attached have been sold and that he was not served with the motion dated 18/12/2001 until on the 16th January, 2002. He urged the court to refuse the application.
Under normal circumstances, this court will not set aside the issuance of a writ of attachment which has been levied or executed. However, in certain circumstances where the issuance of a writ of execution or attachment amounts to an abuse of the court’s process or over-reaching the other party, execution that has been carried out can be set aside. The Supreme Court in Vaswani Trading Company v. Savalakh & Co. (1972) 12 SC 77 stated at page 82:-
“…the court and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the court to assume that role. In Sanni v. Odesanya (supra), in circumstances not dissimilar, this court ordered the setting aside of the writ of possession already executed and returned the parties to the original status quo pending the determination of the substantive motion for stay of execution”
I will now consider the circumstances of this case to determine whether or not it falls within those special circumstances in which the writ of attachment can be set aside. I have earlier given chronicle of events that gave rise to this motion. I will refer to them where necessary, as I consider the submissions of counsel. The lower court’s decision which gave judgment in favour of the respondent was delivered on 26th day of June, 2001. The appeal against the said decision was filed on 28th day of June, 2001. Filed on the same day was the motion on notice to stay the execution of the said judgment. While this motion was pending, the Judge issued a writ of attachment and sale of goods. That was on 11th July 2001 while the motion was fixed to be heard on 17th July, 2001.
It could be seen that the motion for stay of execution was fixed by the lower court to be heard on the 17th day of July, 2001. However before the said 17th July, 2001, on 11th day of July, 2001, six days before the hearing of the motion for stay, the Judge issued a writ of attachment and sale of goods despite the pendency of the motion for stay of execution which he was aware of. The issuance of the writ of attachment during the pendency of the motion for stay is to say the least irregular. It is very contrary to our legal system and is not in accord with the rules of natural justice. The right thing to do, is to hear the motion and rule on it. If it is refused, the writ of attachment and sale of goods could be issued. It is wrong to issue the said writ without hearing and ruling on the motion. The issuance of the writ of attachment and sale of goods is definitely an abuse of the court’s process which is intended to over-reach the applicant. This, in my opinion, is one of the exceptional circumstances where the writ of attachment can be set aside. The issuance of the writ is not only offensive but condemnable.
The filing of an appeal does not eo ipso operate as a stay of execution. See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77. However, where apart from filing an appeal, an appellant also filed an application for stay, the position should be different. See: Fabunmi v. Oyewusi (1992) 1 NWLR (Pt. 215) 35 where Ogwuegbu, JCA (as he then was) stated at page 45:-
“The Supreme Court in Vaswanis case.(supra) at page 88 of the report stated that an appeal or the filing of it could not eo ipso operate as a stay of execution but where apart from filing an appeal an applicant also files an application seeking a stay of execution of the same judgment, the position should in practice be different. In such circumstances, a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that at that stage of the proceedings it is not possible for any party to present it with a fait accompli.”In U.B.N. v. Fajebe Foods (1994) 5 NWLR (Pt. 344) 325 the writ of attachment was set aside. In setting aside the writ, Salami, JCA stated at page 345:-
“The appellant appealed timeously against the decision of the court below and applied for an order of stay of execution in the court below. That application was disposed of on 5th October, 1993 by the learned trial Judge who refused same. On 7th October, 1993 barely two days after refusal of the application for a stay of execution and before the applicant could apply to this court, a writ of attachment had not only been issued but had also been executed with military precision in complete disregard of the provisions of section 18 of the Court of Appeal Act (supra) ….. Notwithstanding that the applicant had 15 days after the refusal by the court below to renew its application in this court by virtue of Order 3 rule 3(3) of the Court of Appeal Rules, 1981 the respondents stultified that right. In spite of this the applicant remained undaunted. It still went ahead to file its motion of stay of execution dated 7th October, 1993 the very day their property were being attached, on 8th October, 1993. The respondent’s conduct to my mind constitutes abuse of court’s process and must not be allowed to stand. The respondents should have abided by the expiration of the period of grace given to the applicant. The respondents’ pre-emptive strike is not only deliberate but also offensive as well as being irregular; it is intended to over-reach the applicant.”
When the motion was eventually heard (for what reason, I cannot tell, since writ of attachment has already been issued) it was refused. The ruling refusing the stay of execution was delivered on 7th day of August, 2001. On that same day the respondent was granted leave to sell the applicant’s moveable property. This is also wrong. It is contrary to Order 4 rule 1(2) of the Judgment (Enforcement) Rules which provides:-
“2. No other process shall, except by express leave of court, be issued until after the expiration of three days from the day on which judgment is given.”
I have already held that the issuance of the writ of attachment and sales of goods was an abuse of the court’s process and that the issuance of Judgments Form 41 was contrary to Order 4 rule 1(2) of the Judgment (Enforcement) Rules, the application succeeds and is accordingly granted. I make the following orders:-
1. The writ of attachment dated 11th day of July, 2001 issued by Tanimu Zailani, J. of the Kaduna High Court is hereby set aside.
2. Release of the applicants’ goods and chattels attached on 8th August, 2001 and 13th December, 2001 respectively. I make no order to costs.
OMAGE, J.C.A.: The applicant seeks the following reliefs:-
(i) An order to set aside the writ of attachment dated 11/7/2001 as same is an abuse of the process of the court, because it was issued without regard to the provisions of the Sheriffs and Civil Process Act.
(ii) An order directing the release of the appellants/applicants’ goods and chattels attached on the 8th August, 2001 pending the hearing and determination of the appeal entered in this court.
(iii) An order to restrain the respondents from further attaching the appellants/applicants goods and chattels, which were done pursuance to the writ of attachment dated 11th July, 2001 pending the hearing and determination of this application.
(iv) For an order to restrain the respondents from selling, disposing and or auctioning of the applicants’ goods’ properties and chattels attached on 8th August, 2001 and 13th December, 2001 respectively pending the determination of this application, and the substantive appeal.
The application is supported by an affidavit which described how the judgment creditor stormed the applicants’ premises and took away several items including the Mercedes Benz car of the applicants’ company and other properties. The applicants averred that the writ of attachment of their goods was irregularly obtained. The judgment of the court was deposed to have been delivered on 26th June, 2001 for the sum of N2,600,000.00 with interest and cost of N1,500.00 against the defendants now applicants. The printed record page 47 thereof shows that the applicants therein filed a motion on notice in which they sought from the court an order for a stay of execution of the said judgment.
The motion was filed 28/6/01 together with the motion of appeal against the judgment. The printed record shows that the learned trial court signed against the judgment debtor a writ of attachment for the sale of the property of the judgment debtors on 11th July, 2001. The printed record also shows that the trial court delivered a ruling on the 9th August, 2001 on the application to stay the execution of the judgment which the court refused. The applicants submit that it is inescapable to conclude that the learned trial Judge in the court below was aware of the existence of the motion for a stay of the execution of the judgment in the court on the 11th July, 2001, when the application for attachment was signed by him particularly as the application for attachment was made after the application for a stay of execution of applicants’ property has been filed on 28/6/01. The issue therefore, the applicants submitted, is that the court had determined on the 11th July, 2001 the applicants’ application for a stay of execution of their property and had refused same at that time before the motion for a stay of execution was argued and he ruled thereon on the 7th August. The respondents to the motion to set aside the writ of attachment denied all the averments in the applicants’ affidavit by a counter-affidavit filed on 21st January, 2002.
The respondents however deny the obvious reference made by the applicants to the sequence of event which is also recorded in the record of the proceedings in court. The poignant and therefore damaging to the issue of attachment signed by the Judge on 11th July, 2001, when a motion for a stay of execution was filed and pending before the court from the 28th June, 2001. In my view, it is incumbent and it behoved the Judge to delay his signature on the application seeking an order for attachment when he knew and should know that an application is pending before him which seeks an order for a stay of execution. Surely, the hearing of the application for a stay of execution was unnecessary when the Judge had signed an order to attach the same property that the court is being prayed to stay. The issue involved in the facts recorded above concern the confidence in the court and the requirement of judicial functionary to demonstrate the existence of justice in the court of law. The set of facts show in the printed record and the facts deposed to by the Sheriffs and Civil Process Law, and the norms expected of a judicial officer. Justice, it is said, as an aphorism, must not only be done it should be seen to be done. The conclusion is indeed inescapable to be made that the trial court had already decided to refuse the application of the applicants for a stay of execution before the motion was heard in court on 11/7/01. The motion seeking a stay of execution was made before the court on 28/6/01 while the order for attachment was made 11/7/01. It is true that three days have elapsed since the judgment was delivered on 26th June, 2001 as provided for in Sheriffs and Civil Process Act. Application for stay of the execution of the judgment filed on 28/6/01 was not preceded by the application to attach the property. The ruling of the court on 8th August, 2001 which refused the application appears to be and can rightly be said to be a “fait accompli”, for the court had, before hearing the motion decided to refuse the prayers. It reeks of suspicion. It is for the above reason that I agree with my learned brother R. D. Muhammad, JCA, that the application should succeed in whole and I so rule.
UMOREN, J.C.A.: I have had a preview of the ruling in draft of my learned brother, R.D. Muhammad, JCA, just delivered. I agree entirely with his reasoning and conclusion. I have nothing to add. I agree the application succeeds and ought to be and is hereby granted.
I also agree with all consequential orders made in the lead ruling including order as to costs.
Application granted.
Appearances
Alhaji Abdullahi Ibrahim, S.A.N.;
Charles Sule, Esq.,
Rotimi Oguneso, Esq.)For Appellant
AND
Sanusi Abubakar, Esq.For Respondent
