IBADAN ELECTRICITY DISTRIBUTION COMPANY PLC V. IN RE: ACCESS BANK PLC
(2022)LCN/16812(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/IB/44/2021
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
IBADAN ELECTRICITY DISTRIBUTION COMPANY PLC APPELANT(S)
And
1. OLUWADEMILADE PIUS ONIFADE (SUBSTITUTED PURSUANT TO THE ORDER OF THIS HONOURABLE COURT MADE ON 15/10/2021 2. NIGERIA ELECTRICITY LIABILITY MANAGEMENT COMPANY LIMITED IN RE: 1. ACCESS BANK PLC 2. ECOBANK PLC 3. FIDELITY BANK PLC 4. FIRST BANK NIG PLC 5. FIRST CITY MONUMENT BANK PLC 6. GUARANTY TRUST BANK PLC 7. POLARIS BANK PLC 8. STANBIC IBTC BANK 9. STANDARD CHARTERED BANK 10. UNION BANK OF NIGERIA PLC 11. UNITED BANK FOR AFRICA (UBA)PLC 12. ZENITH BANK PLC – GARNISHEES/RESPONDENTS RESPONDENT(S)
RATIO
WHETHER OR NOT AN ORDER OF GARNISHEE ABSOLUTE CAN BE MADE SUBJECT TO A FURTHER ORDER OF COURT
An order of garnishee absolute cannot be made subject to a further order of Court, it is executory and the one made here cannot be executed because there is another which countermanded the earlier order. It appears the trial Judge was in a haste to get the money out of the custody of the garnishee and in doing so created a quagmire that totally destroyed both orders.
The Court has the unfettered right to stay the execution of a garnishee order absolute and its obvious the Court below wanted to pull the carpet under the feet of the Court in an uningenuous way. In reality, the execution of the order to pay the attached funds to the judgment creditor cannot be completed as he cannot receive the attached funds with the contradictory nature of the orders made.
On whether the Court can order a stay of execution of the garnishee order absolute, made by the trial Court, the apex Court in the case of SANI V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2021) LPELR-53067(SC) where it held thusly:
“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 NIMPAR, J.C.A.
THE DUTY 0F THE COURT WHERE A GARNISHEE HAS APPEALED AGAINST A GARNISHEE ORDER
The law is settled that where a garnishee has appealed against a garnishee order- whether nisi or absolute, coupled with an application for stay of execution, it is incumbent on the Court seised of the case to protect the res pending the determination of the appeal. See Shell Petroleum Development Company (Nigeria) Ltd. v. Ojiwhor Monday Amadi (2011) 14 NWLR (Pt. 1266) 157 and Elder Dr. Friday Sani v. Kogi State House of Assembly & Ors (2021) 6 NWLR (Pt. 1773) 422. PER NIMPAR, J.C.A
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the National Industrial Court of Nigeria sitting in Ibadan and delivered by HON. JUSTICE J.D. PETERS on the 3rd March, 2020 in Suit No. NICN/AB/08/2015 wherein the lower Court granted a Garnishee Nisi order and Absolute Order in favour of the 1st Respondent. The Appellant dissatisfied with the decision, filed a Notice of Appeal and an Amended Notice of Appeal dated 7th day of December, 2021 setting out 4 grounds of appeal.
Facts leading to this appeal are straightforward and amenable to brief summary. There was a judgment in favour of the 1st Respondent and the 1st Respondent filed an application for garnishee proceedings in which an order for Garnishee Nisi was granted. The Appellant filed an application for leave to appeal against the judgment and the application was pending before the Court when the matter came up for the hearing of the 1st Respondent’s application for garnishee Order Absolute. The Appellant informed the trial Court that there was a pending application for leave to appeal and another application for stay of execution before the Court. The trial Court ruled that it will await the outcome of the Appellant’s application, however, on the next adjourned date 3rd March, 2020, the 1st Respondent informed the trial Court that the Motion for leave was struck out, without informing the Court that there was an instruction for the re-filing of the motion which the Appellant did on the 23rd January, 2020 before the said date for the garnishee proceedings would come up. The Appellant tried to pass across this update to the trial Court but it disbelieved the Appellant and proceeded to hear the application for garnishee absolute and went on to grant same. In the same vein, the trial Court made an alternate order directing the judgment sum to be paid into an interest yielding account to be kept by the Chief Registrar of the trial Court along the order of garnishee absolute.
The 1st Respondent argued that the lower Court had earlier adjourned for the pending Motion No.: CA/IB/M.141/2019 not Motion No.: CA/IB/M17/2020 as taunted by the Appellant, that there was no appeal entered before the Honourable Court as of 3rd March, 2020 and there was no leave granted to the Appellant on the said days. The Appellant aggrieved with the said ruling brought the instant appeal.
Pursuant to the rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellant’s brief settled by DELE ADESINA (SAN) FCIARB, it is dated 23rd day of February, 2022, filed on the same day. The Appellant distilled a sole issue for determination as follows:
1. Whether the lower Court did not reach a perverse decision when it departed from its earlier decision to await the outcome of the Appellant’s motion for leave to appeal pending before the Court of Appeal, and proceeded to grant a garnishee order absolute, while simultaneously making an order for the judgment sum to be paid into the Court. (Distilled from ground 1, 2, 3 and 4)
The 1st Respondent’s Brief settled by JOSIAH O. OGUNWALE, ESQ dated and filed on the 10th March, 2022. The 1st Respondent also distilled a sole issue for determination as follows:
1. Whether the Honourable lower Court rightly made the Garnishee absolute order in favour of the Judgment Creditor. (Formulated from the ground 1, 2 and 3 of the Notice of Appeal)
Thereafter the Appellant filed a reply brief dated 1st April, 2022.
APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submits that the trial Court was wrong when it proceeded with the hearing of the 1st Respondent’s application for garnishee order absolute for myriad reasons. According to the Appellant, it is trite that every Court’s decision is valid until it is set aside on appeal by a Superior Court because the Court has become functus officio as held in ROSSEK V. ACB (1993) 8 NWLR (PT. 312) 382, NWOKEDI V. OKUGO (2002) 16 NWLR (PT. 794) 441, AKERE V. GOVERNOR OF OYO STATE (2012) 12 NWLR (PT. 1314) 240, OGUNYADE V. OSHUNKEYE (2007) 15 FWLR (PT. 1057) 218, NWABUEZE V. OKOYE (1988) 4 NWLR (PT. 91) 664, A.G. ANAMBRA STATE V. A.G. FEDERATION (1993) 6 NWLR (PT. 302) 692, POPOOLA V. BABATUNDE (2012) 7 NWLR (PT. 1299) 302, PANALPINA WORLD TRANSPORT HOLDING AG V. JEIDOC LIMIED & ANOR (2011) LPELR-4828 (CA), THYNNE V. THYNNE (1996) 3 ALL ER 129, ARCON V. FASSADDI (NO. 4) (187) 3 NWLR (PT. 59) 42 NIGERIAN ARMY V. IYELA (2008) 18 NWLR (PT. 1118) 115, FBN V. TSA LTD (2010) 15 NWLR (1216) 247, IHEDIOHA V. OKOROCHA (2016) 1 NWLR (PT. 1492) 147, MOHAMMED V. HUSSEINI (1998) 14 NWLR (PT. 584) 108, ONYEMOBI V. PRESIDENT, ONITSHA CUSTOMARY COURT (1995) 3 NWLR (PT. 381) 50, SHODEINDE V. R.T.A.M.I. (1980) 1 SC 163, OBOROH v OGHUVWU (2000) 3 NWLR (PT. 647) 120, DIKE V. ADUBA (2000) 3 NWLR (PT. 647) 1, KALU V. ODILI (1992) 5 NWLR (PT. 240) 130 and Section 12(2)(a) of the National Industrial Court Act.
According to the Appellant, the lower Court had become functus officio with respect to the post-judgment proceedings in view of the decision made during the proceedings of 5th November, 2019 and as such all the orders made by the lower Court on 3rd March, 2020 were most respectfully in breach of this clear and unambiguous doctrine. Continuing, the Appellant submits that while the motion for stay execution of the substantive judgment was pending, the 1st Respondent filed a Motion Ex-parte dated 26th April, 2019 to commence garnishee proceedings and seeking a garnishee order nisi against the banks in respect of the judgment of the lower Court and the lower Court heard and dismissed the application in its entirety on the 17th June, 2019 however, the 1st Respondent filed a fresh application dated 24th June, 2019 seeking garnishee order nisi. The Appellant went further to discuss the essence of stay of execution as held in FRANCHAL V. NAB LTD (2000) 9 NWLR (PT. 691) 1, ELOBISI V. ONYEONWU (1989) 5 NWLR (PT. 120) 224, SANUSI V. AYOOLA (1992) 23 NSCC (PT. 111) 420 and MOBIL PRODUCING C. MONOKPO (2001) 18 NWLR (PT. 744) 212.
Relying on NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (PT. 1515) 536, the Appellant submits that where an application for stay of proceedings is pending before the Court of Appeal, a trial Court cannot competently proceed with garnishee proceedings, therefore, the Court can set aside the garnishee orders made by the lower Court on the 3rd March, 2020 because during the proceedings on 5th November, 2019, the lower Court was made aware of the existence and pendency of the processes existing before the Court of Appeal including the pending application for stay of execution of judgment. The Appellant cited FIDELITY BANK V. OKWUOWULU (2013) 6 NWLR (PT. 1349) 197 to urge the Court to resolve this sole issue raised for determination in favour of the Appellant.
1ST RESPONDENT’S SUBMISSION
ISSUE ONE
In arguing this issue, the 1st Respondent submits that the application upon which the Court adjourned, in order to make Garnishee Absolute Order was concealed by the Appellant because the application is Appeal No.: CA/IB/M.141/2019 and not CA/IB/M17/2020 as presented to Court by the Appellant. Continuing, the 1st Respondent contends that the unreported ruling of the Court of Appeal delivered on 2nd day of January, 2019 is cited to disprove the Appellant who has presented this appeal to put wool in the eyes of the Court as held in YORSHIRE INSURANCE V. CRAINE (1922) AC 541.
It is the submission of the 1st Respondent that Garnishee proceeding is an independent proceeding separate from the main case itself and there was no pending application against the garnishee proceeding because the application of the Appellant for stay of proceedings is not an appeal and the mere filing of an application for stay of proceedings does not operate as stay of execution as held in JOSIAH CORNELIUS LTD V. EZENWA (1996) 4 NWLR (PT. 443) 391, ENEGBEKE V. ENEGBEKE (1964) ALL NLR 102, SCOA NIG PLC & ORS V. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA & ORS (2006) NGCA 94, LAWAL V. ATT. GEN KWARA STATE (2012) ALL FWLR (PT. 618) 958, DENTON WEST V. MUOMA (2008) 6 NWLR (PT. 1083) 2007, VASWANI TRADING CO LTD V. SAVALAKH (1972) 12 SC 12 SC 77, LEKWOT V. JUDICIAL TRIBUNAL (1997) 8 NWLR (PT. 515) 22, Section 47 of the National Industrial Court of Nigeria Act and Order 64 Rule 8(1) (2) (3) of the National Industrial Court of Nigeria (Civil Procedure) 2017.
According to the 1st Respondent, the Appellant violated all Court rules in seeking to pervert the cause of justice which is unethical and the trial Court did not break any known law by granting the garnishee absolute. The 1st Respondent urged the Court to resolve this issue in favour of the 1st Respondent.
APPELLANT’S REPLY BRIEF
The Appellant submits that the 1st Respondent filed an incompetent brief by attaching documents to his brief because the Court of Appeal rules is clear that if a party wishes to rely on additional documents which do not form part of the record that party is obligated to seek the leave of the Court to bring in additional record of appeal as provided for in Order 8 Rule 6(1) and (2) of the Court of Appeal Rules 2021. The Appellant argued that attaching extraneous documents to the brief of argument is alien to the practice of law in Nigeria and urge the Court to disregard the 1st Respondent’s brief of argument and the extraneous documents attached to it. Again, the Appellant submits that the 1st Respondent failed to respond to the arguments canvassed in its brief of argument which is a tacit admission of facts as held in ETIM V. OBOT (2010) 12 NWLR (PT. 1207). Relying on NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (PT. 1515) 536, the Appellant submits that the decision of the trial Court is perverse and urge the Court to set it aside.
RESOLUTION
The appeal here is against the ruling of the trial Court granting the order of garnishee absolute and directed the Appellant to pay the judgment sum into an interest yielding account to be kept by the Chief Registrar of the trial Court. The grouse of the Appellant is that the lower Court proceeded to make the order of garnishee absolute inspite of pending processes at the Court of Appeal seeking stay of execution and leave to appeal.
Let me clear the contention of the 1st Respondent that the particular motion pending and mentioned to the lower Court was replaced by another motion when the lower Court granted the orders appealed against. That argument is nothing but preposterous and mere technicality. The undeniable fact is that there were pending applications and one of it is the application for stay of execution before the Court when the orders were deliberately made by the lower Court. The lower Court initially on its own and as the record of appeal indicates held thus:
“In view of the processes allegedly filed at the Court (sic). I am reluctant to hear the garnishee today. There is (sic) to ensure that any direction from the Court is not rendered nugatory.”
However, the same trial Judge on the next adjourned date, even when applications were still pending before the Court, strangely proceeded to hold thus:
“I am not unmindful of the fact (sic) that parties – this case are presently before the Court of Appeal. It is indeed in pursuance of that this order is made. The order of garnishee nisi is made by this Court on the 2/7/19 is hereby made absolute respecting the 5th garnishee – FCMB.
The judgment sum of one hundred and fifty million naira is hereby ordered to be paid into an account in the name of the Chief Registrar of this Court.”
It is clear from above that the trial Judge deliberately ignored the fact that parties were before the Court and he proceeded to do as he pleased in total disregard of the admonition of the apex Court for such trial Courts to stay proceedings in order not to tie the hands of the Court and render whatever the decision would be nugatory. In a haste to disregard settled principles, the Judge proceeded to make irreconcilable orders. The garnishee order absolute is a final order which can be executed without any further proceedings or order of Court.
It is therefore incongruous for such final order to be made along an order that the judgment sum be paid into an interest yielding account to be held by the Chief Registrar of the trial Court. Since the order absolute is final, how will the judgment creditor collect his money from the Chief Registrar and upon which order will the judgment sum be released to the judgment creditor? I agree with the Appellant that the orders are mutually exclusive and cannot co-exist at the same time and therefore strange that it was made. Being such a mix up, which order now prevails against the other? It was a total blunder which has not resolved the issue before the Court.
An order of garnishee absolute cannot be made subject to a further order of Court, it is executory and the one made here cannot be executed because there is another which countermanded the earlier order. It appears the trial Judge was in a haste to get the money out of the custody of the garnishee and in doing so created a quagmire that totally destroyed both orders.
The Court has the unfettered right to stay the execution of a garnishee order absolute and its obvious the Court below wanted to pull the carpet under the feet of the Court in an uningenuous way. In reality, the execution of the order to pay the attached funds to the judgment creditor cannot be completed as he cannot receive the attached funds with the contradictory nature of the orders made.
On whether the Court can order a stay of execution of the garnishee order absolute, made by the trial Court, the apex Court in the case of SANI V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2021) LPELR-53067(SC) where it held thusly:
“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 & amp Anor v. Amadi & amp Ors (2011) LPELR3204 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.”
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.
Furthermore, on the propriety of the lower Court in proceeding to make the order absolute even when it was brought to his attention that there was an application for leave to appeal and an application for stay of execution, the apex Court in the case of NIGERIAN BREWERIES PLC V DUMUJE (2016) 8 NWLR (Pt. 1515) 536 at 608 held as follows:
“It is important to note at this point that where there is a notice of appeal and a motion for stay of appeal in respect of the judgment ought to be enforced by garnishee proceedings, the Court will not proceed with the garnishee proceedings.”
The Court of Appeal rules provides that an application for leave to appeal is considered as an appeal and therefore there was a pending appeal before the Court that should have made the trial Court stay proceedings pending the determination of the appeal.
The Appellant dwelt so much on his contention that the lower Court lacked the jurisdiction to reverse himself after holding that he would await the resolution of the applications before the Court of appeal then suddenly went on to make garnishee order absolute and also the order for the money to be deposited in an interest yielding account with the lower Court. The outcome of the self-reversal are the two incongruous orders. Indeed, a Judge lacks the jurisdiction to reverse himself. In this case, the instigation came from the Respondent who made the Judge believe that the pending applications had been struck out. Ordinarily, the half-truth told the Court could be said to have caused the action of the trial Judge, however, the trial Judge shoot himself in the foot when he said:
“I am not unmindful of the fact that parties were before the Court of appeal” and then proceeded to do what cannot be justified.
Those words clearly show that the orders were deliberately made, it is quite unfortunate. I will refrain from saying more on this.
The orders were made with a view to render whatever orders the Court might make nugatory, however, in the haste, a confusion was created which now made all the effort to make the garnishee order nisi absolute a complete waste of judicial time.
The order making Garnishee order absolute against the 5th Garnishee/Respondent and the order directing that the money/judgment debt be paid into an interest yielding account to be opened by the Chief Registrar of the trial Court are hereby set aside for being in conflict with one another.
The Garnishee order nisi is restored pending the determination of the applications pending at the appeal against the judgment that gave rise to the order.
The appeal is meritorious and succeeds; the ruling delivered on the 3rd day of March, 2020 by HON. JUSTICE J. D. PETERS is hereby set side.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, YARGATA BYENCHIT NIMPAR, JCA just delivered.
I agree that having regard to the facts and circumstances of this case, the trial Court was rather hasty in making absolute the garnishee order nisi when there is an appeal, coupled with a motion for stay of execution pending in respect of the judgment and order of the lower Court.
The law is settled that where a garnishee has appealed against a garnishee order- whether nisi or absolute, coupled with an application for stay of execution, it is incumbent on the Court seised of the case to protect the res pending the determination of the appeal. See Shell Petroleum Development Company (Nigeria) Ltd. v. Ojiwhor Monday Amadi (2011) 14 NWLR (Pt. 1266) 157 and Elder Dr. Friday Sani v. Kogi State House of Assembly & Ors (2021) 6 NWLR (Pt. 1773) 422.
It is for the foregoing reasons and the very elaborate reasons given by my learned brother that I also allow the appeal and abide by all the orders in the leading judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in draft, the leading judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. Having carefully read same, I must say that His Lordship has ably and painstakingly dealt with the salient issues canvassed for the parties. I am at one with the reasoning and conclusion arrived therein that this appeal has substance and should be allowed. I therefore adopt the reasoning in the judgment of my learned brother as mine and have no hesitation in allowing this appeal. I abide by all the orders contained therein.
Appearances:
Ademola Adesina with him, I. Obasunloye & M.O. Ishola For Appellant(s)
J. O. Ogunwale with him, L. O. Raheem – for 1st Respondent
Oluwaseun Sofonwa holds the brief of Adebayo Badmus -for 2nd Respondent. For Respondent(s)
