FIRST INLAND BANK (FINBANK PLC.) v. GINDIRI OIL AND MARKETING LIMITED & ORS.
(2013)LCN/5957(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
RATIO
“Where a Court or judge is aware of an application pending in a higher Court, like the Court of Appeal, in a case before it or him, but deliberately chooses to ignore it and proceeds to do any act in respect thereof, would tantamount to judicial insubordination or impertinence. It is an affront to the authority of the higher Court. This is so because all Courts created or established by the Constitution derive their jurisdiction, power and authority from it. The hierarchy of Courts dictates or provides for such power and authority. An inferior Court can not and should not defy or ignore such power and authority. To do so is distasteful and undesirable in the judicial processes. See Achebe v. Mbanefo (2007) 10 NWLR Pt.1043 P.490 @ 499 and Mohammed V. Olawunmi (1993) 4 NWLR Pt.287 P.254. Having found that there was in existence a pending application for the stay of the execution of the judgment delivered on 29/10/2009 in suit PLD/J/160/09 before this Court; and having found that the Respondents were aware of the pending application, and having found that there was execution of the said judgment, what next?. The law is trite that an act of a lower Court which was committed when there is a pending application before a higher court seeking the same order, is unacceptable in the judicial processes.” Per BDLIYA, J.C.A.
“What is the position of the law on the execution of a judgment when there is an application for stay of execution of a judgment or ruling? There are plethora of decided cases by the superior Courts where in the applicable principles of law have been enunciated. For instance in Vaswani Trading Co. V. Savalakh (1972) 1 All NLR P.77 the Supreme Court deprecated the action of carrying out the execution of a judgment when there was a pending application for stay of execution known to the trial Court and the parties. In Julius Berger (Nig) Plc. v. T.R. Comm. Bank (2007) 1 NWLR Pt.1016 p.540 @ 549 – this Court held that the failure of the officials of the trial Court to withhold the execution of the writ of attachment with the knowledge of the pending motion at the Court of Appeal was culpable. The Court went further to stated that once a Notice of appeal is filed and served on the other party and or the Lower Court, especially where the application is challenging a money judgment and there is an application for stay of execution, the appellate Court will then be in total control of the matter. The other party and the lower Court are prohibited from tampering with the res. In Denton-West v. Muoma 12(08) 6 NWLR Pt.1083 P.418 @ 450 – 451 this Court held that by virtue of the provisions of the court of Appeal Act and Rules, an appeal shall not ordinarily operate as a stay of execution. However, this does not give room for execution of judgment being carried out during the pendency of an appeal. Therefore, any action of any of the parties taken when an application for stay of execution is pending in the Court of Appeal must not be condoned by the Court. The Court went on to hold that it would amount to an effrontery on the authority of the higher court for a party or court to proceed with the execution of judgment knowing fully well that a motion for stay of execution is pending in that Court. See S.T.B. Ltd v. Control Resources Ltd (2001) NWLR Pt.725 P.518 and Nigerite Ltd. V. Dalami (Nig) Ltd (1992) 7 NWLR Pt. 253 P. 288.” Per BDLIYA, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling): The applicant/appellant was sued by the 1st and 2nd Respondent before the Plateau State High Court in suit No.PLD/J/60/90 claiming the sum of Fifty Million Naira (N50,000.000.00 as special and general damages for libel and breach of contract. The trial court in a default judgment delivered on 29/10/09 granted the reliefs sought by the plaintiff/respondents. The applicant was not satisfied by the default judgment, he then sought for an order setting aside the said judgment which the trial court refused in a ruling delivered on 15/4/2010. With leave of the trial Court the applicant filed an appeal to this Court. There was also an application for stay of the execution of the judgment of the trial Court which was refused in a ruling delivered on 15/4/2010. Not satisfied with the refusal of the stay of execution of the default judgment, the applicant filed an application for stay of the execution of the said judgment before this court. During the pendency of the said application, the Respondents carried out the execution of the judgment, hence the application to this Court seeking the following:…
(a) And order directing the Respondents to pay the sum of N2,028,700.00 being the judgment sum in this case which was executed by the Respondent during the pendency of the Motion on Notice dated and filed on 27/05/2010 pending the determination of the appeal No. CA/J/113/2010 – FIRST INLAND BANK (FINBANK) PLC V. GINDIRI OIL AND MARKETING LTD. & ORS.
(b) An order directing that this appeal No. CA/J/113/10 be heard on the appellant’s Brief of Argument.
(c) And such further Order’ (s) this Honourable Court may deem fit to make in the circumstances.
The application is predicated on five (5) grounds which are as follows:
(i) The High Court delivered a default judgment against the applicant in this case on 29th October, 2009.
(ii) The applicant on 3rd November, 2009 sought for the said judgment to be set aside and the High Court refused to set it aside on 15th April, 2009.
(iii) The applicant, with the leave of the High Court granted on 15th April, 2010, appealed to this Hon. Court. The Applicant applied for stay of execution of the said judgment and the lower Court refused that application on 21st May, 2010.
(iv) The applicant filed an application before this Court for stay of execution of the said judgment of the High Court. The said motion for stay of the judgment of the High court is still pending but the Respondents disregarded the motion before this Court and executed the judgment, hence this motion.
(v) The Appellant’s Brief of Argument had been filed and served on the 1st and 2nd Respondents on 5th July, 2010.
The application is supported by an affidavit. The 1st and 2nd Respondents filed a counter-affidavit and a Further Counter-affidavit. The 3rd to 5th Respondents filed a Counter-affidavit. The applicant filed a Reply to their Counter-affidavit. The applicant also filed a Reply to the further counter-affidavit of the 1st and 2nd Respondents. There is also a Reply to the Counter-affidavit of the 3rd to 5th Respondents. Sangie Esq. of learned counsel to the applicant abandoned prayer (b) and notified the court that the application is supported by an affidavit with 8 Exhibits “HCJ 1 and HCJ 8”. The relevant or material averments in these affidavits would be resorted to in course of this ruling where desirable.
Learned Counsel referred to the averments in these affidavits and submitted that this Court has the power to grant the order being sought. The case of Julius Berger (Nig.) Plc. Vs. T. R. Comm. Bank (2002) 1 NWLR Pt.1016 p.540 was cited to buttress the submission supra. It was his further submission that where a trial court refuses to grant a stay of execution of a judgment pending appeal, the parties have fifteen (15) days before any action can be taken on the execution of the judgment. If within the 15 days period no other application is made to a higher Court, the execution could be carried out. The case of Olaseni Vs. Olaseni (2010) 5 NWLR Pt.1187 p.225 was cited in aid. In this case at hand, it was submitted, the Respondents executed the judgment of 29th October, 2009 before the expiration of the 15 days when an application for an order to stay the execution of the said judgment was still pending before this Court. Learned Counsel further submitted that the act of the Respondents in executing the said judgment knowing fully well that there was a pending motion before this Court tantamount to utter disrespect to the Court. Therefore, the order being sought be granted in the interest of justice.
Abbar Esq. for the 1st and 2nd Respondents opposed the granting of the order being sought by the applicants. Learned counsel intimated the Court that a counter-affidavit and a further counter affidavit were filed which were dated 19th October, 2011 and 21st May, 2012 respectively. The Court was urged to dismiss the application of the applicant for it lacks merit. It was his further submission that the application dated 25th November, 2012, cannot stand in view of the existing application of 21st May, 2011, which had not been withdrawn. Abbar Esp. did submit that the execution had taken place, having been executed there is nothing the Court can do in the circumstances. This Court, it was contended, cannot order otherwise, unless it can be proved that the execution was done contrary to the law. In conclusion, learned Counsel submitted that there is no appeal against the judgment of the Court delivered on 29th October, 2009. That being the case, this application is incompetent. Responding, Sangie Esq. adumbrated that the trial Court must respect the authority of a superior Court by not doing anything in view of the pending application for stay of execution of the judgment before this Court.
Let me at this juncture take the issue of whether there is an appeal against the judgment 29th October, 2009, or not, and if not, what effect on the instant application before this Court? The averments contained in paragraphs 4(f) of the Counter-affidavit of the 1st and 2nd Respondents as well as that in Paragraph 4 (K) of the 3rd to 5th Respondents are germane. The averment in these paragraphs of the said counter-affidavits are reproduced hereunder for easy comprehension. Firstly paragraph 4(f) of the counter-affidavit of the 1st and 2nd Respondents.
“4(f) That since the default judgment delivered on the 29th October, 2009 was not appealed against up till this moment by the applicant, the respondents’ applied for the issuance of a writ of fifa and attachment dated and received by the applicant on the 16th April’ 2010”.
Secondly, paragraphs 4(K) of the 3rd to 5th Respondents are as follows:
“That the applicants Notice and Grounds of Appeal attached to Exhibit HCJ4 confirms the fact that there is no appeal filed before this Honourable Court against the lower court’s judgment delivered on the 29th October, 2009 vide Exhibit HCJ 1 attached to this application”
Abar Esq. of learned counsel to the 1st and 2nd Respondents did submit that the appeal dated and filed on 15th of October, 2010, was against the ruling delivered on the same date in the application for an order to set aside the default judgment, not against the default judgment in suit No. PLD/J/160/09 delivered on 29th of October, 2009. Is the learned counsel right? If so of what effect on the instant application under consideration? The Notice of Appeal for suit No. CA/J/113/2010 could be found on page 134 of the record of appeal. It is this:
“IN THE COURT OF APPEAL OF NIGERIA
HOLDEN AT JOS
BETWEEN:
FIRST INLAND BANK (FINBANK) PLC. APPELLANT
AND
1. GINDIRI OIL AND MARKETING LTD.
2. ALH. IBRAHIM BRAIMAH ISIAK RESPONDENTS
NOTICE OF APPEAL
ORDER 6 RULE 2
TAKE NOTICE that the appellant being dissatisfied with the Ruling of the High Court of Justice plateau State Jos contained in the said Ruling of the Court dated the 15th of April, 2010 date (sic) hereby appeal to the Court of Appeal upon the Grounds set out in Paragraph 3 and will at the hearing of the appeal seek the reliefs set out in Paragraph 4
And the appellant further states that the names and addresses of the person directly affected by the appeal are those set out in paragraph 5.”
It is beyond dispute the Notice of Appeal reproduced supra is in respect of the Ruling of the trial Court delivered on the 15th of April, 2010. However, this Ruling was delivered in an application pursuant to the judgment delivered on 29th October, 2009 in a suit between the applicant and the 1st and 2nd Respondents. In my view, whatever the result of the appeal against the ruling of 15th of April, 2010, it would have the same effect as if it were an appeal against the judgment of 29th of October, 2009. In other words if the appeal against the ruling of 15th of April, 2010 succeeds, the judgment of 29th of October, 2009 would be set aside. If it fails, the same would be affirmed. The effect would be same whether in an appeal against the ruling of 15b of April, 2010 or against the judgment of 29th October, 2009.
In my view, what really matters in this applications at hand is, whether there was an application for stay of execution by the applicant pending before this Court or not which was known to the Respondents at the time the said judgment was executed. I therefore hold that though the appeal filed is against the ruling of 15th of April, 2010, the instant application by the applicant is not incompetent. I am fortified in coming to this conclusion by the averments in paragraphs (e) to (h) of the Reply to the Counter-affidavit filed on the 15th of October, 2010 by the applicant. To fully appreciate the purport of these averments it is desirable to reproduce them hereunder. They are as follows:
“(e) The Applicant is challenging the default judgment of the lower Court through the process of application to set it aside.
(f) The lower court dismissed the Appellants/Applicant’s application to set it aside and same lower court granted Appellant leave to appeal against the said default judgment.
(g) The Appellant is to appeal against the said default judgment or seek to set aside by the same court and lager appeals against the ruling thereto.
(h) The Appellant’s appeal against the ruling to set aside the said default judgment is challenging the said default judgment.”
Was there an application filed before this Court by the applicant for an order to the execution of the judgment delivered on the 29th of October, 2009? If so, was it known to the Respondents or was their attention drawn to such application before the execution of the said judgment. A resort to the affidavit, counter-affidavits and the Reply to the Counter-affidavit filed before this Court is necessary at this juncture. This would, in my view, enable the Court to find out if there was such an application, and if so, whether the Respondents were aware of it or not, at the time they executed the said judgment.
Paragraph 3(b) of the applicant’s affidavit contains these averments:
“3(b) The applicant applied for stay of execution of the said judgment which application was refused on 21st of May, 2010 and the applicant after the said ruling filed a similar application in this Honourable Court on the same 27th of May, 2010. The said ruling is annexed hereto and marked as Exhibit HC32B”
Paragraph “4(e) of the 1st and 2nd Respondents Counter-affidavit is as follows:
“4(e) That in addition the Applicant filed a Motion for stay of execution which was dismissed on the 27th of May, 2010 and the Applicant purportedly filed a similar application before the Honourable Court of Appeal on the same 27th of May, 2010 and serve it on the Respondent at about 11:24 am.”
In the Reply to the further Counter-affidavit of the 1st and 2nd Respondents, the applicant averred as follows in Paragraph 3(c) thereof:
“3(c) The similar Motion on Notice was filed after the delivery of the lower court’s ruling by Samaila Mohammed a colleague in chambers.”
There is a Motion on Notice date d 27th of May, 2010 and filed on the 1st of June, 2010, which is Exhibit HCJ 4 attached to this application. It is a Motion filed in this Court praying for an order staying the execution of the judgment of the High Court Jos, in Suit No. PLD/J/160/09 between Gindiri Oil and Marketing Ltd, & Anor. Vs. First Inland Bank (Finbank) Plc delivered on the 29th of October, 2009. In view of the foregoing, I am satisfied that there was an application for an order to stay the execution of the default judgment delivered on the 29th of October, 2009 in Suit No. PLD/J/160/09, between Gindiri oil and Marketing Ltd, & Anor. Vs. First Inland Bank (Finbank) PLC.
Were the Respondents aware of the existence of the motion on Notice filed on the 1st of June 2010 by the applicant seeking for an order to stay the execution of the judgment delivered on 29th October, 2009. Again, a resort to the affidavit, counter-affidavits and Reply thereto is apt at this juncture.
Paragraph (3) (c) of the applicant’s affidavit in support of the application is germane. The averments contained therein are thus:
“3(c) The applicant’s counsel along with me’ my informant and Samaila Mohammed, another Secretary in Doka Chambers, Jos served the 1st and 2nd Respondent’s Counsel with the said motion on 276 May 2010 at 11:24am while at the officer of the lower Court were served with the same application on same date at 11:45am and this was pursuant to the undertaking made in the Court of Appeal to serve the Respondents with the said similar Motion”‘
Paragraph 4(e) and (h) of the Counter-affidavit of the 1st and 2nd Respondents are as follows:
*4(e) That in addition the Applicant filed a motion for stay of execution which was dismissed on the 27th of May, 2010 and the applicant purportedly filed a similar application before the Court of Appeal on the same 27th May, 2010 and served it on the Respondents at about 11:24am.”
“(h) That the attention of the Deputy Chief Registrar (Litigation) was only drawn to the aforesaid motion dated 1st of June, 2009 by a letter dated 3rd of April, 2010.”
Paragraphs 4(d),(e) and(f) of the further Counter-affidavit of the 1st and 2nd Respondents filed on 21st of May’ 20t2 are as follows:
“4(d) That he was not aware of the Applicant’s subsequent motion for stay of execution before this Court which was dated and filed on the 27th May, 2010.”
(e) That his attention was only drawn to the above motion of 27th May, 2010 vide Applicant’s motion dated and filed on the 1st of June, 2010, as I had inadvertently failed to draw his attention to same. The motion dated 1st June, 2010 is Exhibit “HCJ 4″ attached to the Applicant’s affidavit in support of this application.”
“(f) That by the time his attention was drawn to the motion for stay of execution dated 27th May, 2010, execution had been already levied by the bailiffs of the Lower Court.” The 3rd to 5th Respondents in their Counter-affidavit denied the averments contained in Paragraph 3(a) and (b) of the Applicant’s affidavit in support of the application for stay of execution filed before this Court. The applicant filed a Reply to the said Counter-affidavit of on 11th June, 2012. Paragraphs 3(a), (b), (c), (d) and (e) are relevant. The averments therein are reproduced hereunder:
“3(a) The depositions contained in the 1st and 2nd Respondents’ further Counter-affidavit filed on 21st of May, 2012 are not correct and they did not represent the trial positive of the factual situation in this case and my infinite A. A. Sangie Esq.; U. Ibrahim with the counsel to the 1st and 2nd Respondents and the Director of Litigation (D.C.R.) of the lower Court had a meeting on 28th of May, 2010 in the said D.C.R.S office a soul the pendency of the Applicant’s motion on Notice filed on 27th May, 2010 and the attention of all the Respondents was drawn to the pendency of the said motion.”
“(b) The similar motion filed by the Applicant in this Court was after the Ruling of the Lower our which dismissed the Applicant’s motion at 9:02 – 9.40.”
“(c)” The that similar motion on Notice was filed after the Lower Court sited Ruling by Samaila Limon Mohammed a colleague in chambers”
“(d)’That motion on Notice was served on the 1st Respondents’ Counsel’s Secretary in the presence of the 1st and 2nd Respondents’ Counsel.
“(e)” That Applicant’s Counsel along with my informant and the said Samaila Limon Mohammed served the similar Motion on Notice on the Lower Court through its registrar”.
The averments contained in the foregoing paragraphs of the affidavit, the Counter-affidavits and the further counter affidavits as well as the Reply thereto are admission of the service of the Motion on Notice filed on 1/6/2010. These averments have proved or established that the said motion on Notice filed on 1/6/2010 by the applicant was served on the Respondents. I therefore hold that the Respondents knew or were aware of the existence or pendency of the said application at the time they executed the said judgment.
What is the position of the law on the execution of a judgment when there is an application for stay of execution of a judgment or ruling? There are plethora of decided cases by the superior Courts where in the applicable principles of law have been enunciated. For instance in Vaswani Trading Co. V. Savalakh (1972) 1 All NLR P.77 the Supreme Court deprecated the action of carrying out the execution of a judgment when there was a pending application for stay of execution known to the trial Court and the parties. In Julius Berger (Nig) Plc. v. T.R. Comm. Bank (2007) 1 NWLR Pt. 1016 p. 540 @ 549 – this Court held that the failure of the officials of the trial Court to withhold the execution of the writ of attachment with the knowledge of the pending motion at the Court of Appeal was culpable. The Court went further to stated that once a Notice of appeal is filed and served on the other party and or the Lower Court, especially where the application is challenging a money judgment and there is an application for stay of execution, the appellate Court will then be in total control of the matter. The other party and the lower Court are prohibited from tampering with the res. In Denton-West v. Muoma 12(08) 6 NWLR Pt. 1083 P.418 @ 450 – 451 this Court held that by virtue of the provisions of the court of Appeal Act and Rules, an appeal shall not ordinarily operate as a stay of execution. However, this does not give room for execution of judgment being carried out during the pendency of an appeal. Therefore, any action of any of the parties taken when an application for stay of execution is pending in the Court of Appeal must not be condoned by the Court. The Court went on to hold that it would amount to an effrontery on the authority of the higher court for a party or court to proceed with the execution of judgment knowing fully well that a motion for stay of execution is pending in that Court. See S.T.B. Ltd v. Control Resources Ltd (2001) NWLR Pt. 725 P.518 and Nigerite Ltd. V. Dalami (Nig) Ltd (1992) 7 NWLR Pt. 253 P. 288.
Where a Court or judge is aware of an application pending in a higher Court, like the Court of Appeal, in a case before it or him, but deliberately chooses to ignore it and proceeds to do any act in respect thereof, would tantamount to judicial insubordination or impertinence. It is an affront to the authority of the higher Court. This is so because all Courts created or established by the Constitution derive their jurisdiction, power and authority from it. The hierarchy of Courts dictates or provides for such power and authority. An inferior Court cannot and should not defy or ignore such power and authority. To do so is distasteful and undesirable in the judicial processes. See Achebe v. Mbanefo (2007) 10 NWLR Pt.1043 P.490 @ 499 and Mohammed V. Olawunmi (1993) 4 NWLR Pt.287 P.254.
Having found that there was in existence a pending application for the stay of the execution of the judgment delivered on 29/10/2009 in suit PLD/J/160/09 before this Court; and having found that the Respondents were aware of the pending application, and having found that there was execution of the said judgment, what next?. The law is trite that an act of a lower Court which was committed when there is a pending application before a higher court seeking the same order, is unacceptable in the judicial processes.
The execution of the judgment delivered on 29/10/2009 by the respondents was carried out during the pendency of the applicant’s application for stay of execution before this Court. The execution of the judgment would render any order(s) that might be made by this Court, futile especially if the stay of execution order is granted. In the instant application, the applicant is seeking for an order directing that the sum of N2,028,700.00 be paid to the Court pending the determination of the application. The essence of an order staying the execution of a judgment is to ensure that the Res of the litigation is preserved or protected pending the disposal of the application so that whoever succeeds may not have a nugatory judgment. The just and fair order to make in the circumstances of this case is to ensure that the subject matter of the litigation is not destroyed pending the hearing of the application and the appeal by this Court.
In this regard, having given due consideration to the application of the applicant I am of the firm view that the granting of the order sought by the applicant is just, fair and equitable. Accordingly, I do hereby grant same, and direct that the sum of N2,028,781.00 be paid to the Chief Registrar of the Court of Appeal so that same be deposited into an interest yielding Account with a reputable Bank in Jos until the determination of the application for stay of execution by this Court.
RAPHAEL CHIKWE AGBO, J.C.A.: I have had the privilege of reading in draft the ruling delivered by my learned brother Bdliya, JCA and I agree completely with his reasoning and conclusions. It was highly contemptuous of the respondents to proceed to levy execution while aware of the subsisting motion before this court seeking a stay of execution. The authority of this court must be saved. The said exercise is a nullity. I too allow this application and abide by all the consequential orders contained in the lead ruling.
JUMMAI HANNATU SANKEY, J.C.A.: I read in advance the Ruling just delivered by my learned brother, Bdliya, J.C.A. I agree with his reasoning and conclusion.
Indeed, the affidavit evidence before this Court reveals that the Respondents went ahead to levy execution of the Judgment of the lower Court while being fully aware of a similar application for stay pending before this Court, which application had been duly filed and promptly served on the Respondents. The exhibits attached to Exhibit HCJ4 in support of the Applicant’s affidavit confirm the service of the motion for stay of execution on one Agnes Ihuagwara, Secretary at the office of S. Abar & Co. at 24 Tafawa Balewa Street, Jos on 27th May, 2010
Thus, the action of the Respondents in levying execution while being fully aware of the pendency of the motion for stay of execution before this Court was evidently intended and calculated to obstruct whatever order this Court is likely to make in the application before it. Their action is therefore intended to effectively render this Court helpless and present it with a fait accompli. See Alhaii B. M. Abubakar v. Unipetrol Nigeria Plc (2002) 4 SCNJ 362. This cannot be allowed to happen.
In the celebrated case of Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77, the Supreme Court strongly deprecated such behaviour and unhesitatingly and unwaveringly set aside a writ of possession executed during the pendency of an application for stay of execution. The Apex Court also strongly admonished that every Court of law has a duty to see that the res, the subject matter of litigation, is preserved. See also Ojukwu V Military Governor of Lagos State & another (1985) 2 NWLR (Pt.10) 806 @ 823- 824. The execution of the Judgment of the lower Court would most undoubtedly overreach the Applicant’s application to stay execution of the Judgment which is now still pending before this Court and render it nugatory.
In the result I entirely agree with my learned brother, Bdliya, JCA, that there is merit in this application. I also grant it and endorse the orders made in the lead Ruling.
Appearances
A. A. Sangei Esq.For Appellant
AND
S. T. Aba Esq. for the 1st Respondent.
F. B. Lotben DCL Ministry of Justice Plateau State for the 2nd and 3rd Respondents.For Respondent
