ASOLUKA v. ALGON & ORS
(2022)LCN/16295(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, May 19, 2022
CA/ABJ/CV/937/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
DR. CHRIS ASOLUKA (Doing Business Under The Name And Style Of NIPAL CONSULTING NETWORK) APPELANT(S)
And
1. ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON) 2. THE INCORPORATED TRUSTEES OF THE NIGERIA GOVERNORS’ FORUM – JUDGMENT CREDITORS/ RESPONDENTS AND 1. FIRST BANK OF NIGERIA PLC 2. ACCESS BANK PLC 3. FIDELITY BANK PLC 4. ECOBANK NIGERIA 5. ZENITH BANK PLC 6. UNION BANK OF NIGERIA PLC 7. STANBIC IBTC BANK PLC 8. POLARIS BANK LIMITED 9. FIRST CITY MONUMENT BANK LIMITED 10. UNITED BANK FOR AFRICA PLC 11. UNITY BANK PLC 12. HERITAGE BANK PLC 13. GUARANTY TRUST BANK PLC -GARNISHEES/RESPONDENTS RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS THE VERY DAY A PERSON SETS OUT TO PURSUE HIS LEGAL RIGHTS, THAT HIS RIGHT WILL BE REALIZED
Let me start by saying that when a person sets out to pursue his rights before a Court of law, it is not on the very day he files the action that he will realize the right being pursued. There are stages to follow methodically to arrive at the depot of the rights. In doing this, the claimant must put into gear the rules of Court. The crux of this case is whether the judgment of the trial Court resulting into a judgment debt because the judgment debtor has not yet satisfied the judgment thereby activating the gear to kick-start the enforcement of the judgment. There are more ways of enforcing the judgment of Court. One can adopt any of the means and the most preferred one is by Garnishee Proceedings. It is this practice that has caused some problems in the instant case.
Hitherto, it is of common knowledge that when there is an appeal on a decision of the lower Court, and there is a follow-up application for stay of execution before the appellate Court would expect that the lower Court will not enforce the judgment when there is a decision to be taken at the Court of Appeal. By the protocol of mutual respect to the Court and the rights of the appellant under the Constitution it is always necessary to wait for the appellate Court to finish before any form of enforcement can be conceived of.
Under the Court of Appeal (Fast Track) Practice Directions, 2021, the rules require that the Court may impose terms for the debt appeal and adopt strategies to reduce the time expended in every time sensitive appeal. Regulations 6 and 7 provide as follows:
6. The Court may exercise these case-management powers of its own initiative:
(a) shorten the time for compliance with any rule, practice direction or Court order;
(b) bring forward a proceeding;
(c) stay the whole or part of any proceedings or execution of the judgment, the subject matter of the appeal, either generally or until a specified date or event;
(d) consolidate proceedings;
(e) convene a case-management conference. The Court need not issue formal notices to the parties but may call the meeting by phone, fax or e-mail through a clerk, Registrar or other assistant; and
(f) take any other step or make any other order to manage the case and further the fundamental objective.
7. In making an order or before proceeding with an appeal, the Court may:
(a) impose conditions, including a condition to pay a judgment debt or other sum of money into Court; and
(b) specify the consequence(s) of failure to comply with the order or condition.
The main goal or objective of the Fast Track regulations is to ensure speedy determination of the appeals before the Court. The target is appeals that are fast tracked. PER ADAH, J.C.A.
THE POSITION OF LAW ON AN APPEAL
It is well settled in our law that an appeal is a constitutional right of a party who is aggrieved over any decision of a Court of trial. It is in furtherance of this right and it is ingrained in our procedure that once an appeal is pending, the lower Court must not do anything that would render the appeal nugatory or frustrate the appeal filed by the appellant. If the Court of Appeal is looking into the correctness or otherwise of a decision of the Court, the Court must not be seen or heard to be enforcing the same judgment most especially when the same appellate Court is seized of a Motion for Stay of Execution. In the instant case, no garnishee order absolute has been made. The trial Court refused to make the order nisi absolute and even vacated the order nisi. In the case of Elder Dr. Friday Sani v. Kogi State House of Assembly (2021) LPELR-53067 (SC), the Supreme Court held as follows:
“…On whether the Court below was right to order a stay of execution of the garnishee order absolute, made by the trial Court, the Court below held that the execution of a judgment ordering the payment of a specific sum of money does not end with the attachment of the property to the judgment debtor. It ends when the judgment sum is finally paid to the judgment creditor. Until the judgment sum is paid, to the judgment creditor, the process of execution can be stayed for legally recognized reasons. One of such reasons is that there is a pending appeal against the said judgment or order and that if the money is paid to the judgment creditor while the appeal is pending, it will render nugatory, the process and result of the appeal. The Appellant in an appeal against a judgment has a right to protect the appeal from being rendered nugatory and therefore has the right to employ the appropriate legal and equitable process to protect the appeal from being negated. One such process is an application for an order of Court staying the execution of the judgment, pending the determination of the appeal. It is part of the compendium of the Appellant’s right of appeal to be able to protect the exercise of that right from being rendered illusory. It is equally the duty of the Court to protect the appeal from being rendered nugatory. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of the Federal Capital Territory, Abuja, delivered on 8th September, 2020 in Suit No: FCT/HC/0217/2017.
The facts in brief are that on 6th August, 2020, the Appellant/Judgment Creditor applied by a Motion Ex-Parte brought pursuant to Section 83 Sheriffs and Civil Process Act, under Order 46 Rules 1 and 2 of the High Court of the Federal Capital Territory (Civil Procedure) Rules 2018 seeking to enforce the judgment by way of Garnishee Proceedings against the Garnishees/Respondent for the following Orders:
1. An order that all monies, debts owing or accruing due from the above named Garnishee in their offices in the Federal Capital Territory Abuja to the above named judgment Debtor (including monies and funds in judgment Debtors account number 5030081859 with Fidelity Bank Plc; monies and funds in judgment Debtors account number 0720380244 with Access Plc and monies and funds in judgment Debtors account number 1011394160 with Zenith Bank Plc) be attached to answer the judgment entered on the 17th day of July, 2020 in this suit for the sum of $6,966,000 (Six Million, Nine Hundred and Sixty-Six Thousand US Dollars).
2. An order that the above named Garnishee and above named judgment Debtor attend Court on a date to be fixed by the Honourable Court to show cause why the said Garnishees should not pay to the said judgment Creditor the monies, funds, debts due from it to the judgment Debtor or so much therefore as is sufficient to satisfy the judgment and the costs of this garnishee proceedings.
3. AND for such further order(s) as the Honourable Court may deem fit to make in the circumstances.
The application was anchored on four grounds. See pages 4 and 5 of the Record of Appeal together with a 13 paragraph affidavit in support of the Motion Ex-Parte deposed to by Dr. Chris Asoluka (See pages 6-9 of the record of appeal)
However, the judgment Creditors/Appellant’s Motion Ex-parte for the grant of Garnishee Order Nisi was moved and granted by the lower Court. And upon service of the said Garnishee Order Nisi on the 2nd Judgment Debtor/Respondent, he filed a Motion on Notice seeking to set aside the Garnishee Order Nisi on various grounds. The judgment Creditor/Appellant, in response to the Motion on Notice of the Judgment Debtor/Respondent filed a counter-affidavit and a written address in opposition to the motion on notice (See Page 130-151 of the Record). In a considered ruling delivered on the 8th September, 2020, the trial Court set aside the Order Nisi earlier granted and discharged the Garnishee Banks.
Dissatisfied with said decision, the Judgment Creditor/Appellant appealed to this Court vide a Notice of Appeal on the 8th September, 2020 and an Amended Notice of Appeal filed on the 25th January, 2021 but deemed properly filed and served on the 1st November, 2021. The Record of Appeal was transmitted to this Court on 6th November, 2020.
The parties filed and exchanged their respective briefs of argument. Judgment Creditor/Appellant’s Brief of Argument was filed on 25th January, 2021. The 2nd Garnishee/Respondent’s Brief of Argument was filed on 8th November, 2021. While the 13th Garnishee/Respondent’s Brief of Argument was filed on 7th September, 2021. The 1st and 3rd – 12th Garnishee/Respondents did not file any brief.
Counsel for the Judgment Creditor/Appellant submitted (3) three issues for the determination of this appeal. The three (3) issues are:
1. Whether the pendency of an appeal against the judgment of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/0217/2017 and the Motion for Stay of Execution of the said judgment Creditor/Appellant from commencing the garnishee proceedings. (Grounds 1, 2 and 4).
2. Whether the case of NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (PT. 1515) 536 is the latest and current authority on the issue of whether the pendency of an appeal and Motion for Stay of Execution precludes the commencement of garnishee proceedings. (Ground 3).
3. Whether the judgment Creditor/Appellant’s counsel had constructive notice of the pendency of an appeal against the aforesaid judgment and Motion for Stay of Execution of the said judgment. (Ground 5 and 6)
In response, counsel for the 2nd Garnishee/Respondent formulated a lone issue for the determination of this appeal, thus:
Whether the Jurisdiction of the trial Court was not all together ousted when it proceeded to adjudicate over the garnishee proceeding in the face of a Notice of Appeal and pending Motion for Stay of Execution and to make orders therein. (Grounds 1, 2, 3, 4, 5 and 6)
Also, counsel for the 13th Garnishee/Respondent formulated a lone issue for the determination of this appeal, thus:
Whether or not in the light of the decisions of the Court of Appeal in NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (PT 1515) 536 and AGIP OIL CO. LTD V. OGINI (2017) LPELR-42859 (CA), the lower Court was right to hold that the pendency of a Notice of Appeal and Motion for Stay of Execution of judgment precluded the judgment Creditor/Appellant from proceeding with garnishee proceedings. (Ground 1, 2, 3 and 4).
I shall adopt the three (3) issues formulated by the Judgment Creditor/Appellant these three issues cover all the issues formulated by the other parties in their respective briefs. I shall take the three issues together.
Issues One Two & Three:
These issues are – whether the pendency of an appeal against the judgment of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/0217/2017 and the motion for stay of execution of the said judgment Creditor/ Appellant from commencing the garnishee proceedings;
Whether the case of NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (Pt. 1515) 536 is the latest and current authority on the issue of whether the pendency of an appeal and motion for stay of execution precludes the commencement of garnishee proceedings; and
Whether the judgment Creditor/Appellant’s counsel had constructive notice of the pendency of an appeal against the aforesaid judgment and motion for stay of execution of the said judgment.
Learned counsel for Judgment Creditor/Appellant submitted on these issues that the nature and procedure for garnishee proceedings has been stated and reiterated by our Courts in several cases. Garnishee proceeding is a process of enforcing monetary judgment by the seizure or attachment of debts due and accruing to the judgment Debtor, which forms part of his property or funds in the hands of a third party for attachment. Counsel relied on the cases of UBN Plc v. Boney Marcus Ind. (2005) 13 NWLR (Pt. 943) 645 AT 666 Paras. D-F, GTB v. Innoson Nigeria Ltd (2017) 16 NWLR (Pt. 1591) 181 AT 197, Citizen International Bank Ltd v. SCOA Nig. Ltd (2006) 18 NWLR (Pt. 1011) 332, The Council of Kaduna Polytechnic v. Garba (2018) LPELR-46593 (CA), NITEL Plc v. I.C.I.C. (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356 AT 387 Para H, CBN v. Interstella Communication Ltd (2018) 7 NWLR (Pt. 1618) 294 AT 339 Paras. F-G, Purification Techniques (Nig.) Ltd v. AG Lagos State (2004) 9 NWLR (Pt. 879) 665 AT 678- 679 Para. G, UBN Plc v. Ekanem (2010) 6 NWLR (Pt. 1190) 207, NAOC v. Ogini (2011) 2 NWLR (Pt. 1230) 131; Denton West v. Muoma (2008) 6 NWLR (Pt. 1083) 418 AT 442; In RE: Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120; Nigerian Agip Oil Co. Ltd v. Ogini (2017) LPELR-42859 (CA).
Learned counsel for the appellant argued that in relying on and or applying the decision in Nigerian Breweries Plc v. Dumuje (supra) the lower Court had, with the greatest respect, erroneously held the case to be the “latest and current authorities on this vexed issue”. The judgment in Nigerian Breweries Plc v. Dumuje (supra) was delivered on 15/7/2015 while the judgment in Nigerian Agip Oil Co. Ltd v. Ogini (supra) is the latest decision on the point and ought to have been followed and applied by the lower Court, in keeping with the principles of stare decisis. Counsel relied on the cases of Purification Techniques (Nig.) Ltd v. AG Lagos State (Supra), NITEL Plc v. I.C.I.C (Supra), Mobil Producing Nigeria Unlimited v. Monokpo (2001) FWLR (Pt. 49) 1516, T.S.A Industries Ltd v. Kema Investments Ltd (2006) 2 NWLR (Pt. 964) 300, GTB Plc v. Innoson (Nig.) Ltd. (2017) 16 NWLR (Pt. 1591), NAOC v. Godstime Hart (2018) LPELR-44622 (CA) and UBA v. Ekanem & Anor (2009) LPELR-8428.
Learned counsel for the Judgment Creditor/Appellant submitted that an affidavit of service deposed to by the person effecting the service setting out the facts, place, mode and date of service and describing the process or document served shall be prima facie and not conclusive proof of the matters stated in the affidavit. Counsel relied on the cases of Schroeder v. Major (1989) 2 NWLR (Pt. 101) 3 AT 11, Okoye v. Centre Point Merchant Bank Ltd (2008) 15 NWLR (Pt. 1110) 335, Idisi v. Ecodril (Nig.) Ltd (2016) 12 NWLR (Pt. 1527) 355, Emeka V. Okoroafor (2017) 11 NWLR (Pt. 1577) 410 AT 469 Paras. A-D, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274 AT 349, Okoye v. Centre Point Merchant Bank Ltd (Supra) Pages 355 & 357, Falobi v. Falobi (1976) NMLR 169, Falola v. Union Bank of Nigeria Plc (2005) 126 LRCN 911; The Honda Place Ltd v. Globe Motors Ltd (2005) 14 NWLR (Pt. 945) 273. Counsel urged the Court to allow the appeal.
In response, learned counsel for the 2nd Garnishee/Respondent submitted that the jurisdiction of the trial Court was all together ousted when it proceeded to adjudicate over the garnishee proceedings in the face of a notice of appeal and pending motion for stay of execution and to make orders therein. This issue goes to the root of vires of the trial Court to adjudicate being a threshold issue of jurisdiction. It is pertinent to state that jurisdiction of Court is a crucial question of competence which is extrinsic to the adjudication on the merits. Counsel relied on the cases of Madukolu v. Nkemdilim (1962) 2 N.S.C.C. 374 AT 379 LL. 50-55, 380 LL. 1-5; Shelim v. Gobang (2009) 12 NWLR Pt. 1156, 435 AT 460 Paras. D-F; Onyekwuluje & Anor v. Animashaun & Anor (2019) LPELR-46528 (SC) Pp 29-29 Paras. B-F; Mohammed v. State (1991) LPELR-1901 (SC); Mohammed & Anor v. Gwarzo & Ors (2017) LPELR-43190 (CA) (Pp. 16-16 Paras. A-C; Animashaun & Ors v. Bakare & Ors (2010) LPELR-9029 (CA) (Pp 18-19) Paras. B-B.
Learned counsel for the Garnishee 2nd Respondent submitted that Garnishee proceeding is a proceeding for the enforcement and execution of a final judgment of Court. It is equally trite law that a party aggrieved by the decision of a Court other than the Apex Court can appeal against such decision and once a party exercises his right to appeal, both the Court and parties are enjoined to preserve the res by maintaining the status quo so as not to interfere with the res and prejudice the outcome of the appeal thereby rendering the judgment of the Court nugatory. Counsel relied on the cases of Daily Times v. Kusamotu (2002) LPELR-10993 (CA), Pp. 20-2- Paras. B-C; Section 18 of the Court of Appeal Act Cap 36 Laws of the Federation of Nigeria (LFN) 2004; Vaswani Trading Company v. Savalakh & Company (1972) 12 SC P. 50 AT P.54; Peter Cheshe & Anor v. NICON Hotels Ltd & Ors (1998) 12 NWLR Pt. 576 AT Page 93 Para. H; Jonpal Ltd v. AfriBank (Nig.) Ltd (2002) 8 NWLR (Pt. 822) 290 AT 306 Paras. A-D; Onuaguluchi v. Ndu (2000) 11 NWLR (Pt. 679) 519 AT 559, Paras. A-B; A.D.H. Ltd v. Amalgamated Trustees Ltd (2007) All FWLR (Pt. 392) 1781 AT 1840 Paras. C-D.
Learned counsel for the Garnishee 2nd Respondent further submitted that the case Nigerian Agip Oil Co v. Ogini was delivered on the Monday, 5th July, 2010 but was only reported in law pavilion in 2017, the proper citation of the case is (2010) 2 NWLR (Pt. 1230) 131 while Nigerian Breweries v. Dumuje was in (2016) 8 NWLR (Pt. 1515) 536. He contended that the appellant is again, misleading this noble Court on the facts of Nigerian Agip Oil Co. Ltd v. Ogini & Ors (2017) LPELR-42859 (CA). Counsel relied on the case of Sokoto State Govt v. Kamdax (Nig.) Ltd (2004) 9 NWLR (Pt. 878) 34 AT 375; Vaswani v. Savalakh (1972) 12 SC 77; Purification Techniques Nig. Ltd V. AG Lagos State (2004) 9 NWLR (Pt. 879 665 AT 678 E- G; NAOC v. Ogini (2011) 2 NWLR (Pt. 1230) 131 AT 147 D-G; UBA v. Ekanem (2010) 6 (Pt. 1190) 207 AT 224 C-E; NITEL v. (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356 AT 388; Abacha v. Kurastic Nigeria Ltd (2014) LPELR-22703 (CA) (Pp. 77- 77 Paras. A-F; Mohammed & Anor., v. Sallau & Ors (2015) LPELR- 40752 (CA). Counsel urge the Court to dismiss the appeal.
Learned counsel for the Garnishee 13th Respondent submitted that in the instant case, the issue of law under contention as majorly raised in the Appellant’s Grounds of Appeal is “whether the pendency of an appeal and motion for stay of execution can preclude a garnishee proceeding”? The answer to this question can be found in extant recent decisions of the Court of Appeal. Particularly the case of Nigerian Breweries Plc v. Dumuje, Nigerian Agip Oil Co. Ltd v. Ogini (2017) LPELR-42859 (CA), Purification Techniques v. A.G. Lagos State (2004) 9 NWLR (Pt. 879) 665, Denton West v. Muoma (2008) 6 NWLR (Pt. 1083)418, NITEL Plc v. I.C.I.C. (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356. Counsel urged the Court to dismiss the appeal.
Let me start by saying that when a person sets out to pursue his rights before a Court of law, it is not on the very day he files the action that he will realize the right being pursued. There are stages to follow methodically to arrive at the depot of the rights. In doing this, the claimant must put into gear the rules of Court. The crux of this case is whether the judgment of the trial Court resulting into a judgment debt because the judgment debtor has not yet satisfied the judgment thereby activating the gear to kick-start the enforcement of the judgment. There are more ways of enforcing the judgment of Court. One can adopt any of the means and the most preferred one is by Garnishee Proceedings. It is this practice that has caused some problems in the instant case.
Hitherto, it is of common knowledge that when there is an appeal on a decision of the lower Court, and there is a follow-up application for stay of execution before the appellate Court would expect that the lower Court will not enforce the judgment when there is a decision to be taken at the Court of Appeal. By the protocol of mutual respect to the Court and the rights of the appellant under the Constitution it is always necessary to wait for the appellate Court to finish before any form of enforcement can be conceived of.
Under the Court of Appeal (Fast Track) Practice Directions, 2021, the rules require that the Court may impose terms for the debt appeal and adopt strategies to reduce the time expended in every time sensitive appeal. Regulations 6 and 7 provide as follows:
6. The Court may exercise these case-management powers of its own initiative:
(a) shorten the time for compliance with any rule, practice direction or Court order;
(b) bring forward a proceeding;
(c) stay the whole or part of any proceedings or execution of the judgment, the subject matter of the appeal, either generally or until a specified date or event;
(d) consolidate proceedings;
(e) convene a case-management conference. The Court need not issue formal notices to the parties but may call the meeting by phone, fax or e-mail through a clerk, Registrar or other assistant; and
(f) take any other step or make any other order to manage the case and further the fundamental objective.
7. In making an order or before proceeding with an appeal, the Court may:
(a) impose conditions, including a condition to pay a judgment debt or other sum of money into Court; and
(b) specify the consequence(s) of failure to comply with the order or condition.
The main goal or objective of the Fast Track regulations is to ensure speedy determination of the appeals before the Court. The target is appeals that are fast tracked.
In the instant appeal, the judgment creditor had taken out Garnishee Proceedings to recover the judgment debt. In the case of Emmanuel Oboh & Anor v. Nigeria Football League Ltd & Ors (2022) LPELR-56867 (SC), the Supreme Court held:
“Garnishee Proceeding, according to Akintan, JSC, in Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd (2005) 13 NWLR (Pt. 943) 654 at 666, are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is a specie of execution of adjudged debt for which ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due or accruing from him to the judgment debtor, as much of it as may be sufficient to satisfy the amount of judgment and the costs of the garnishee proceedings. The judgment creditor first makes the application to the Court for garnishee proceedings. The order of Court then comes in two stages. The first is garnishee order nisi which directs the garnishee to pay the sum covered by the application either to the Court or the judgment creditor within a stated time unless the party (the garnishee), against whom the order is made, shows good cause why the payment should be made. If no sufficient good cause is shown the Court then makes the garnishee order absolute directing the third party (the garnishee) to pay over the amount specified to the judgment creditor or to the Court, whichever is more appropriate. See Choice Investment Ltd v. Jeromnimon (1981) QB 149 at 154 – 155; Union Bank Plc v. Boney Marcus Industries Ltd (supra). At the stage of garnishee order nisi the amount standing to the credit of the judgment debtor in the hands of the third party (the garnishee) is, or has been, attached, that is garnished. In Sokoto State Government v. Kamdax Nig. Ltd (2004) 9 NWLR (Pt. 878) 345 at 380, it was stated: “Where the judgment creditor has garnished the debt standing to the credit of the judgment debtor in the hands of the garnishee, upon service of the order nisi from the Court, the garnishee becomes a custodian of the whole of the judgment debtor’s fund attached.” See also Azubuike v. Diamond Bank Plc (2014) 8 NWLR (Pt. 1394) 116 (CA). In making the order nisi, the trial Court exercises its undoubted judicial discretion judicially and judiciously.”
This now leads us to the burning issue in this case. It is whether the trial Court should continue to enforce the judgment of garnishee order when there is an application for stay of execution and an appeal on the judgment.
It is well settled in our law that an appeal is a constitutional right of a party who is aggrieved over any decision of a Court of trial. It is in furtherance of this right and it is ingrained in our procedure that once an appeal is pending, the lower Court must not do anything that would render the appeal nugatory or frustrate the appeal filed by the appellant. If the Court of Appeal is looking into the correctness or otherwise of a decision of the Court, the Court must not be seen or heard to be enforcing the same judgment most especially when the same appellate Court is seized of a Motion for Stay of Execution. In the instant case, no garnishee order absolute has been made. The trial Court refused to make the order nisi absolute and even vacated the order nisi. In the case of Elder Dr. Friday Sani v. Kogi State House of Assembly (2021) LPELR-53067 (SC), the Supreme Court held as follows:
“…On whether the Court below was right to order a stay of execution of the garnishee order absolute, made by the trial Court, the Court below held that the execution of a judgment ordering the payment of a specific sum of money does not end with the attachment of the property to the judgment debtor. It ends when the judgment sum is finally paid to the judgment creditor. Until the judgment sum is paid, to the judgment creditor, the process of execution can be stayed for legally recognized reasons. One of such reasons is that there is a pending appeal against the said judgment or order and that if the money is paid to the judgment creditor while the appeal is pending, it will render nugatory, the process and result of the appeal. The Appellant in an appeal against a judgment has a right to protect the appeal from being rendered nugatory and therefore has the right to employ the appropriate legal and equitable process to protect the appeal from being negated. One such process is an application for an order of Court staying the execution of the judgment, pending the determination of the appeal. It is part of the compendium of the Appellant’s right of appeal to be able to protect the exercise of that right from being rendered illusory. It is equally the duty of the Court to protect the appeal from being rendered nugatory. In S.P.D.C. (Nig.) Ltd. & Anor v. Amadi & Ors (2011) LPELR-3204 SC, this Court per Muntaka Coomassie, JSC, held that “…In an application for stay of execution the Court has a primary duty to protect the res from being destroyed, annihilated or demolished. The Court has a duty to ensure that the res is intact, not necessarily for posterity, but for the immediate benefit and pleasure of the party who is finally in victory in the litigation process. This is necessary because if the res is destroyed in the course of litigation before the party gets judgment, then he has no property to make use of in the way he wants as the owner and the direct result in such ab circumstance is that the victor without a difference, an empty victory. He leaves the Court empty handed. In real fact he leaves the Court in victory without victory. If the res is destroyed, annihilated or demolished before the matter is heard on appeal, then this Court will be reduced to a state of hopelessness and that will be bad, very bad indeed. This Court, like every other Court cannot give an order in vain. The Court will then be reduced to a situation where it can bark by the use of its judicial powers under Section 6 (6) of the 1979 Constitution but cannot bite.” I completely agree with the view of his Lordship and I adopt same as mine. In the instant case, it is incumbent upon this Court, to protect the res, pending the outcome of the appeal lodged at the Court below. The proposition or notion that an appellant in an appeal against a garnishee order absolute cannot apply for an order to stay or suspend the payment of the sum of money attached by the garnishee order absolute pending the determination of the appeal is therefore wrong.
…
In the final analysis, I answer the question, “whether the Court below was right when it granted the 1st Respondent’s application for stay of execution of the ruling of the trial Court pending the determination of the 1st Respondent’s appeal”; in the affirmative.”
From this decision of the Supreme Court, what is of primary concern is the res. The Court will not allow the res to be dissipated and cause a fiat-accompli. If it is lawful and legitimate for this Court to order a stay of proceedings in a Garnishee Proceedings of the lower Court, then one cannot find any merit in this appeal.
From the foregoing therefore, I come to the conclusion that this appeal is lacking in merit. The appeal is hereby dismissed.
The parties are to bear their respective costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, Stephen Jonah Adah, JCA, and I am in total agreement with the reasoning and conclusion reached therein.
I therefore also find the appeal lacking in merit and it is hereby dismissed.
I make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I am opportuned to read in draft the lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA just delivered and I agree with the finding and conclusion reached therein that this appeal is unmeritorious and it is dismissed by me as well.
The decision of the High Court of the Federal Capital Territory, Abuja delivered on 8th September, 2020 in Suit No. FCT/HC/0217/2017 is hereby affirmed.
Appearances:
K.C.O Njemanze, SAN, with him, Ramat Isa Oguta, Esq., and C.C. Tom Onukwugha, Esq. For Appellant(s)
O.C. Uju-Azonji, Esq. – for 1st Respondent
S.I. Ameh, SAN, with, J.S. Okutepa, SAN, Dr. Garba Tetengi, SAN, A.O. Akinboro, SAN, Christopher Iloka Esq. and C.L. Keudeoba Esq. for 2nd Respondent
Chief C.P. Oli, Esq., with him, L.K. Onyemkpa, Esq. – for 13th Respondent
Peter Eriuwode, Esq., with him, Adachukwu Ezeofor, Esq. – for 3rd Respondent
B.K. Barikpoa, Esq. – for 2nd Respondent
U.C. Ndubuisi, Esq. – for 5th Respondent.
1st, 6th, 9th and 12th Garnishee Respondents, served but not represented
4th, 7th, 8th, 10th, and 11th Garnishee Respondents, served but not represented For Respondent(s)
