CHIEF OLUSEGUN ABRAHAM v. PRINCE SOLAGBADE AMODENI & ORS
(2019)LCN/13528(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/AK/253/2018(R)
RATIO
ORDER NISI: WHEN IT BECOMES OF NO PURPOSE
Since the trial Court, no doubt, has become functus officio, and the order spent, of what relevance or value is the Order NISI in that Court? Neither of the parties, i.e the Garnishees or Judgment Creditor can resort to it even as it only dangles as a sword of Damocles over the Appellants/Applicants head and with a nuisance value of use only by act of aberration. On the authority of Union Bank of Nigeria Plc v. Boney Marcus Industry Ltd, Nichmen Co. (Nig.) Ltd and Metcom (Nig.) Ltd the interim Order that the Order NISI is, is specifically set aside even if superfluously ordered; and the Appellant shall proceed to prosecute his appeal, if desirous; as the apex Court stated in Osareren v. FRN (2018) 10 NWLR (pt. 1627), page 221 at page 223 paragraph H per Eko, JSC.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
ORDER NISI: WHEN IS BECOMES VACATED BY OPERATION OF LAW
Drawing from the above, I come to the irresistible and inevitable conclusion that the Order NISI is deemed vacated by the operation of law, in the circumstances of this matter from the moment of the effluxion of time, and as further re echoed by the stay of execution and the instant Appeal pending.
Application succeeds and is granted as prayed.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
CHIEF OLUSEGUN ABRAHAM – Appellant(s)
AND
1. PRINCE SOLAGBADE AMODENI
2. KEYSTONE BANK LTD
3. FIRST BANK LTD
4. GUARANTY TRUST BANK LTD – Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling): By motion on notice dated 1st March, 2019 and filed on 4th March, 2019 brought pursuant to Section 6 of the 1999 Constitution of the Federation Republic of Nigeria, Order viii Rules 4(1) and 5(1) of the Judgment Enforcement Rules, Section 83 (2) of the Sheriffs and Civil Process Act, Cap 86 LFN 2004 and under the inherent jurisdiction of the Court. The applicant prays for the following orders;
1. An order discharging the Garnishee Order NISI made on the 20th day of December, 2017 in respect of suit No AIC/264/2014
2. And for such further Order or Orders as this Honourable may deem fit to make in the circumstances.
The Grounds for the application are:
1. That the Lower Court stayed the execution of this judgment unconditionally pending the determination of the appeal filed in this matter on 8th day of March, 2018.
2. The Lower Court refused to discharge the Garnishee Order NISI when it ruled on a similar application brought before it on 24 – 01- 2019.
3. The Appellants Brief of Argument was filed on 3 – 12
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2018 and Respondents Brief was filed on 10 – 12 – 2018.
4. Having regard to the surrounding circumstances of this matter, the Garnishee Order NISI had been over taken by events and therefore not sustainable.
In support of the application to set aside the Garnishee Order NISI, the Applicant relies on a 18 paragraph affidavit deposed to in support.
A Ruling refusing to discharge the Order NISI delivered on 31 – 01 – 2019 and marked as Exhibit B; and another Ruling granting an order of 18- 7 -2018 earlier made granting the Order for stay of Execution of the judgment delivered on 9th November, 2017. It is Exhibit A to the motion herein.
The Respondent, judgment Creditor/Garnishor on its part filed a counter affidavit of 15 paragraphs conceding to the annextures made to the Applicants motion in the main but faults the motion on the ground that it was a ploy to delay the hearing of the Appeal already lodged by the Applicant/Appellant, herein.
The Applicant had filed a written address which accompanied the said motion. The sole issue raised therein the written Address is
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to the effect that a situation of helplessness be not foisted on the appellate Court once an appeal has been entered thereat.
That every application from that moment must be made to the Appellate Court which is then seized of all the entirety of the case with regard to the subject matter of the Appeal.
That the appeal having been entered and Briefs filed since December, Decree NISI entered ought to be discharged in the interest of Justice. Counsel relies on Standard Trust Bank Ltd v. Contract Resources Nigeria Ltd (2001) 6 NWLR (pt. 708) 115 @ 126 par. A – D and Honourable Justice Denton West v. Chief Muoma (SAN) (2008) ALL FWLR (pt. 433) 142.
Counsel referred to the affidavit in support and the exhibits in support and urged that the grant of the order of unconditional stay of execution had made it imperative that the Decree or Order NISI be vacated by this Court. The cases of Governor of Oyo State v. Akinyemi (2003) 1 NWLR (pt. 800) 1 at 20 on the statutory and even inherent powers of the Courts whether of trial or appellate cadre to preserve the res in litigation is referred to. Kigo (Nig.) Ltd v. Holman Brother (Nig.) Ltd (1980) 5
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7 SC 60; Momah v. Vab Petroleum Incorporation (2000) 4 NWLR (pt. 654) 534 and Vaswani Trading Company v. Savalakh & Co. (1972) 12 SC 77 were also relied upon to contend that regards to the facts and circumstances of this application, this Court should grant the relief sought without ado.
This application was, rightly, not vehemently opposed as it seeks to only emphasize that the Res must be preserved pending the hearing and determination of the Appeal pending.
There is no disputing the pendency of the appeal and the filing and exchange of the Briefs of Argument as averred in the Appellants affidavit in support of the motion and as seen in the file of this Court.
The learned trial judge had rightly granted the application for the unconditional stay of execution of the judgment pending the hearing and determination of the appeal before this Court. By that order, and its incidences, all processes relating to the execution of the judgment which includes the Decree or Orders NISI stand suspended and no further steps could be taken on them by the Respondent Garnishor/Applicant, judgment creditor or even judgment creditor in the face
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of the pending appeal and order of stay of execution entered.
In any case, the learned trial judge had rightly refused to grant the application to set aside the order NISI for having become functus officio and without jurisdiction in the face of the appeal having been lodged in this Court. That Court cannot be faulted in that respect. It was right to so hold.
Having proceeded in insistence that the Order NISI be set aside, I do reason that in a sane society, which I do know, that we are as shown clearly by the learned trial judge, S. A. Bola J. the Decree NISI and its existence would not be an issue in the circumstances as its life span has expired. A Garnishee Order Nisi lasts for 14 days within which the Applicant may apply that it be made absolute.
Not having been made absolute or set aside, it had no existence of legal efficacy, thereafter its effluxion. The Decree NISI was an interim Order that did not dispose of the right of the parties in respect of the Res of the judgment. It had not conferred a final right on the judgment creditor to attach and have access to the use of the judgment Debtors funds in the Garnishee Banks; being a
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decision that had not disposed of the rights of the parties as yet, the creditor or garnishee cannot, in reliance on same, deny the Applicants from the use of their funds in the Accounts affected by the in-operative order NISI, for to do so, would amount to a subterranean or wrongful disobedience to the order of unconditional stay of execution subsisting.
In any case, the pending appeal in this Court has further rendered the otiose and in operative Order NISI vacuous, moribund and spent.
The order NISI was an interlocutory order that: (1) was not appealed within 14 days (2) was not made absolute and had not congealed; and even if it had, it had been stayed impliedly and effectively.
However, in the exercise of our powers under Section 16 of the Court of Appeal Act 2004, I order as follows: –
1. That the Appeal herein pending shall continue to act as a further stay of execution of all actions at the trial Court in respect of this case.
2. That the order NISI shall not be relied upon to tamper with the Applicants/Judgment Debtors Rights to ownership of property which includes the right to her monies in the respective
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accounts hitherto covered by the Order NISI and Order of stay of execution. I rely on Section 40 of the Constitution of the Federal Republic of Nigeria.
3. This Order, I make as the Courts will grant a remedy where there is a right. See the Family story by Lord Denning; Ubi Jus Ibi remedium where there is a right (in this case the right to the use, control and management of ones property which includes monies in Bank(s), there is a right to its use unless until deprived of same lawfully.
Since the trial Court, no doubt, has become functus officio, and the order spent, of what relevance or value is the Order NISI in that Court? Neither of the parties, i.e the Garnishees or Judgment Creditor can resort to it even as it only dangles as a sword of Damocles over the Appellants/Applicants head and with a nuisance value of use only by act of aberration. On the authority of Union Bank of Nigeria Plc v. Boney Marcus Industry Ltd, Nichmen Co. (Nig.) Ltd and Metcom (Nig.) Ltd the interim Order that the Order NISI is, is specifically set aside even if superfluously ordered; and the Appellant shall proceed to prosecute his appeal, if
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desirous; as the apex Court stated in Osareren v. FRN (2018) 10 NWLR (pt. 1627), page 221 at page 223 paragraph H per Eko, JSC
This being a Court of justice as well and not only of law, I shall invoke Section 168 (1) of the Evidence Act, 2011 to take as granted to the prosecutor the formal leave to file the amended charge.”
Drawing from the above, I come to the irresistible and inevitable conclusion that the Order NISI is deemed vacated by the operation of law, in the circumstances of this matter from the moment of the effluxion of time, and as further re echoed by the stay of execution and the instant Appeal pending.
Application succeeds and is granted as prayed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having perused the lead ruling served on me in draft form and the reference made by me to the Record of Appeal transmitted to this Court gingered me to accept in totality the reasoning and conclusion reached by my learned brother, Mohammed A. Danjuma, JCA.
I found the appeal meritorious as determined in the lead Ruling.
The application is therefore successful and the prayers therein granted.
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PATRICIA AJUMA MAHMOUD, J.C.A.: I have read in advance the ruling just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA. I agree with His Lordship’s reasoning and conclusions that this application has merit and is deserving of a favourable consideration.
The application succeeds and is hereby granted as prayed.
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Appearances:
K.O. Ijatuyi For Appellant(s)
Femi Emmanuel Emodamori, Esq. For Respondent(s)
Appearances
K.O. Ijatuyi For Appellant
AND
Femi Emmanuel Emodamori, Esq. For Respondent
