INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL GOVERNMENT OF NIGERIA v. RIOK NIGERIA LIMITED & ORS
(2018)LCN/11947(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of June, 2018
CA/A/482/2017
RATIO
COURT AND PROCEDURE: ABUSE OF COURT PROCESS
This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWL.R (Pt..1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
‘Abuse of Court process generally means that a party in litigation takes a most unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.'” PER PETER OLABISI IGE, J.C.A.
JUSTICES
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL
GOVERNMENT OF NIGERIA (Also known as Association of
Local Governments of Nigeria (ALGON) representing all the Local government Councils and Area Councils of Nigeria) Appellant(s)
AND
1. RIOK NIGERIA LIMITED
2. THE FEDERAL GOVERNMENT OF NIGERIA
3. THE HONOURABLE
ATTORNEY GENERAL OF THE FEDERATION & MINISTER OF JUSTICE
4. THE HONOURABLE MINISTER OF FINANCE
5. INCORPORATED TRUSTEE OF NIGERIAN GOVERNORS FORUM
6. THE EXECUTIVE SECRETARY, NIGERIAN GOVERNORS FORUM
7. GUARANTY TRUST BANK (GTB)
8. ACCESS BANK Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
By an amended originating summons dated the 23rd day of May, 2017 but filed on 24th May 2017 the 1st respondent as plaintiff approached the Federal High Court of Nigeria Abuja Division seeking for determination of six questions against the Appellant and 2nd -3rd Respondents as follows:
1. WHETHER in view of the Judgment of the Federal High Court in SUIT NO: FHC/ABJ/CS/130/13 BETWEEN LINAS INTERNATIONAL LTD. & 235 ORS. VS. the Federal Government of Nigeria & 3 Ors., which suit was initiated by ALGON, the 5th Defendant which decided that the Federal Government is owing the Local Governments in Nigeria from refunds the FGN made to the London and Paris Club, the Federal Government is right to have instead of following the Court’s Order as contained in the said Judgment, warehoused part of the Judgment sum at Guaranty Trust Bank (GTB) in Account No. 0231533758 and Access Bank Plc, in Account No: 0720380244 belonging to the Nigerian Governors Forum without fulfilling the obligations of ALGON as Plaintiff in that suit, to the Plaintiff in this suit to the effect that the plaintiff is to be paid before any other payment.
2. WHETHER the 1st to 3rd Defendants can set aside any money from the London/Paris Club refund to Local Governments for payment to any person or body whatsoever including the 5th Defendant without first of all paying the Plaintiff its money as ordered by the Court in Judgment in Suit No; FCT/HC/CV/2129 BETWEEN RIOK NIG. LTD & 3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON).
3. WHETHER in view of the fact that the Hon Attorney General of Federal having given consent for the execution of the Judgment in suit No: FHC/ABJ/C5/130/13 BETWEEN LINAS INTERNATIONAL LTD & 235 ORS. VS. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS., the 1st – 3rd Defendants can now pay part of the Local Governments money to the Governors Forum Accounts with the 7th and 8th Defendants without recognizing the Judgment against ALGON in SUIT NO: FCT/HC/CV/2129 BETWEEN RIOK NIG. LTD 3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON) which directed that the Plaintiff should have a first line charge and first priority in payment of the London and Paris Club debt refund.
4. WHETHER in view of the fact that the Federal Government having commenced obedience of the Orders of the Court in SUIT NO: FHC/ABJ/CS/130/13 BETWEEN LINAS INTERNATIONAL LTD. & 235 VS. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS. by making part payment of the Judgment sum to other persons other than Riok Nig. Ltd. Which has led to warehousing part of the money in Guaranty Trust Bank and Access Bank, the 7th and 8th Defendants, it is not proper or contempt of Court from the Defendant’s to have commenced payment to Nigerian Governors Forum (NGF) and to Local governments without Governors obeying the Order of Court that gave priority of payment to Riok Nig. Limited.
5. Whether the Federal Government continuing the refund of Local Governments monies as ordered in the Judgment of Ademola J. without paying the Plaintiff is not a disobedience of the Order of Hon. Justice V. B Ashi made on 1st September, 2014, in SUIT NO: FCT/HC/CV/2129 BEWTEEN RIOK NIG. LTD & 3 OR5 V. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON).
6. WHETHER the monies paid and will continue to be paid Nigerian Governors Forum Accounts with the 7th and 8th defendants or to any other bank or to any person or body in respect of London/Paris club refund does not belong to both local governments and States.
In anticipation of favourable answers to the above questions the 1st Respondent claimed the following reliefs viz:-
1. AN ORDER of this Honourable Court directing the 7th and 8th Defendants to pay to the Plaintiff the money in Account Nos: 0720380244 and 0720311376 kept at Access Bank and Account Nos: 0231533758 and 0023577047 kept at Guaranty Trust Bank (GTB) and any other account in the name of the Nigerian Governors Forum in the two Banks in relation to the London/Paris Club debt refund to defray the judgment sum against the 4th Defendant or part thereof in SUIT NO: FCT/HC/CV/2129/2014 BETWEEN RIOK NIG. LTD &3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON).
2. AN ORDER directing the 1st to 3rd Defendants to pay to the Plaintiff the outstanding part of its Judgment sum in SUIT NO: FCT/HC/CV/2129 BETWEEN RIOK NIG. LTD & 3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON) as a first line charge from the money the 1st to 3rd Defendants set aside from the London/Paris club refund for the payment of derivation for oil producing states and local governments and commitments on behalf of the Local Governments.
3. AN ORDER that the 1st to 3rd Defendants should not make further payments in respect of London/Paris refund without first of all paying the plaintiff as contained in the Judgment of Hon. Justice V.B. Ashi made on September 1st 2014, in SUIT NO: FCT/HC/CV/2129 BETWEEN RICK NIG. LTD & 3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON).
OR IN THE ALTERNATIVE
4. AN ORDER for the money due to the Plaintiff in the judgment in SUIT NO: FCT/HC/CV/2129 BETWEEN RICK NIG. LTD & 3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA ASSOCIATION OF LOCAL (ALSO KNOWN AS GOVERNMENTS OF NIGERIA (ALGON) be transferred to the Ministry of Justice to pay Riok Nig. Ltd. The Plaintiff after confirmation that the project for which the Judgment was obtained has been commenced by Rick Nig. Ltd., the Plaintiff herein.
5. SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit and expedient to make in the circumstances of this case.
After the exchange of relevant processes between the parties the matter was duly heard by the learned trial Judge and a considered judgment was given on 20th day of June 2017.
“It should also be observed that it is the duty of every person and authority in this Country to obey and give effect to Judgments and Orders of Courts established by the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Let me state with all due respect to the learned senior counsel for the Defendants that the Judgments in contention are the Judgment of Courts of co-ordinate jurisdiction with this Court.
How can this Court have the power to interpret the Judgments of the two High Courts by saying that it is does not apply to same of the parties and apply to other parties? Do I even have power to inquire into the Judgments of my Learned Brothers in this Court and the FCT High Court? The answer is definitely in the negative.
On the whole, I find merit in the Plaintiff’s case and it should succeed. However, in view of the peculiar nature of the matter, I am of the humble view that it is the alternative relief being claimed by the Plaintiff in the Amended Originating/summons that should be granted. In consequence of the above, I make the following Orders: –
“An order is hereby made directing that the money due to the Plaintiff in the Judgment in suit No.FCT/HC/CV/1229/2014 BETWEEN RIOK NI6. LTD & ORS VS. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ALGON) be transferred to the Hon. Attorney General of the Federation and Minister of Justice to pay the Plaintiff Rick Nig. Ltd, after the attorney General of the Federation and Minister of justice has carried out investigation and confirm to this satisfaction that the project for which the Judgment was obtained has been commenced by Rick Nig. Ltd the Plaintiff and that there is no feature in the project that will prevent the said payment to the Plaintiff.”
The Appellant was aggrieved by the aforesaid decision and has by her notice of appeal dated the 3rd day of July, 2017 and filed on 5th day of July, 2017 appealed to this Court on three grounds as follows:
2. PART OF THE DECISION COMPLAINED OF: THE ENTIRE DECISION
3. GROUNDS OF APPEAL
GROUND ONE:
The learned trial judge erred in law and acted outside the Court’s constitutional jurisdiction when he entertained the 1st Respondent’s (Riok Nigeria Ltd) suit which was a cause of action unknown to law and ought not to be entertained, it being a mere debt or matters arising from contractual relationship of two non-governmental organizations and thereby occasioned a grave miscarriage of justice”.
GROUND TWO:
“The learned trial judge erred in law when he ordered that “the judgment debt owed the plaintiff by Incorporated Trustees of Local Governments of Nigeria (also known as Algon) be transferred to the Attorney-General of the Federation and Minster of Justice to pay the Plaintiff (Riok Nig. Ltd).” When the Constitutional jurisdiction of the Court does not extend to disputation of debt owned by a private and non-governmental person and the order is null and void and of no effect and thereby occasioned a grave miscarriage of Justice”.
GROUND THREE:
“The learned trial Judge erred in law when he gave an ‘order directing that the money due to the Plaintiff in judgment in suit No: FCT/HC/CV/2129/2014 BETWEEN RIOK NIGERIA LIMITRED AND 3 ORS V. INCORPORATED TRUSTEES OF LOCAL GOVERNMENT OF NIGERIA (ALSO KNOWN AS ALGON) be transferred to the Hon. Attorney-General of the Federation and Minster of Justice, to be paid to Riok Nig. Ltd after the Hon. Attorney-General and Minister of Justice has carried out investigation and confirm his satisfaction that the project for which the judgment sum was obtained has been commenced by Riok Nig. Ltd. the Plaintiff and there is no feature that they present the said payment to the Plaintiff” and thereby occasioned a grave miscarriage of Justice to the detriment of the Appellant”.
PARTICULARS OF ERROR IN LAW:
1. The Court lacks the judicial power to make the order and the decision is not enforceable.
2. The project for which the judgment obtained sum was not enforceable in law as same was fundamentally and incurably defective.
3. Payment cannot lawfully be paid for contract that has not been executed according to the contract of the parties.
3. The decision of the learned trial Judge is a nullity.
4. RELIEF SOUGHT
1. An Order allowing this appeal and setting aside the decision of the trial Court made on the 10th day of June, 2017.
2. An Order setting aside the entire proceedings same being unknown to law and void ab initio.
The Appellant’s brief of argument dated 12th day of July 2017 was filed on 13th July, 2017 while the Respondent’s brief of argument dated 7th September, 2017 was filed on 8th September, 2017. The 1st Respondent incorporated Notice of Preliminary objection into the brief and argued the same. It is also relevant to state that 1st Respondent also separately filed in the registry of this Court motion on Notice wherein the said Notice of preliminary objection was replicated. The motion was dated 27th October, 2017 as filed the same date. The body of the said motion on notice reads thus:
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 6 RULE 1, ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES, 2016 AND UNDER THE INHERENT JURISDICTION OF THE COURT
TAKE NOTICE that Counsel to the 1st Respondent shall before or at the hearing of this appeal raise and rely on a preliminary objection on points of law to urge this Honourable Court to strike out this appeal for being incompetent and being an abuse of Court’s process.
GROUNDS FOR THE OBJECTION
i. The Appellant is not an aggrieved person.
ii. Ground 3 of the Notice of Appeal is incompetent in that:
(a) the particulars are at variance with the main ground.
(b) Particulars 2 and 3 did not arise from the judgment appealed against.
(c) the order contained in the main ground is not against the Appellant.
iii. The Appeal constitutes an abuse of Court’s process.
TAKE FURTHER NOTICE that at the hearing of this application, the 1st Respondent/Applicant shall rely on and make use of all the processes filed and exchanged in this appeal including the Record of Appeal.”
The Appellant filed Appellant’s reply brief of POINTS OF LAW TO THE 1ST RESPONDENT’S BRIEF on 6th day of February 2018. It is dated 15th February, 2018 and was deemed properly filed on 19th, March, 2018
The pedestal upon which the said objection was hinged is that the appeal is incompetent and constitutes an abuse of Court process.
It is unarguable that an incompetent appeal cannot bestow jurisdiction to an Appellate Court to adjudicate on an appeal. An Appellant’s Notice of Appeal must comply with the statute and the constitutional provisions giving rights of appeal. See (1) RALPH UWAZURIKE & ORS VS. A.G. FEDERATION (2007) 8 NWLR (PART 1025) ALSO REPORTED IN (2007) SCM 193 AT 200 PER OGBUAGU, JSC who said:
“It is not in doubt that appeals are creatures of statutes, so the jurisdiction of the Court of Appeal to adjudicate on any matter brought to before it is statutory and so guided by the rules of the Court. The failure of the appellant or appellants to comply with statutory provisions or requirements presented by the relevant laws or rules (which are in the nature of a subsidiary legislation perforce must be obeyed) under which such appeals may be competent and properly before the Court will certainly deprive the Appellate Court jurisdiction to entertain and or adjudicate on the appeal.”
2. NONYE IWUNZE V THE FRN (2015) 6 NWLR (PART 1404) 580 AT 596 D – E PER RHODES – VIVOUR, JSC who said:
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the rules of Court. The Court of Appeal would lack Jurisdiction to hear an appeal of the appellants who fails to comply with statutory provisions or the relevant rules of Court the originating process in all appeals is the Notice of Appeal.
Once it is found to be defective the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form.”
The issue of competency of the appeal herein as raised by the 1st Respondent borders on jurisdiction of this Court. It is therefore pre-eminently necessary that this Court must first attend to the objection in order to determine its merit or otherwise for if the appeal is incompetent this Court will be bereft of vires to adjudicate on the appeal. BARRISTER ORKER JEV & ANOR VS. SEKAVDZUA IYORTYOM & OR (2014) 8 SCM 131 AT 151 E where my lord OKORO JSC said:
“Let me quickly add here that a preliminary objection which borders on jurisdiction cannot be brushed aside by the Court regardless of the manner in which it was raised. Such issues, I must say can be raised for the first time in the Court with or without leave. See Nnonye v. Anyichie (2005) All FWLR 253, 604.”
The submission of Appellant on ground of the objection is that the Appellant is not an aggrieved person in that no relief was sought against it and no decision was made by the trial Court affecting the rights of the Appellant. That only an aggrieved party can appeal a judgment. He relied on the cases of: (1) ADELEKE V. ASESOWA (2010) 18 NWLR (PT. 12525) 449 AT 469 E-H. (2) MOBIL PRODUCING NIG. UNLTD V. MONOKPO (2003) 8 NWLR (PT.8537) 346 AT 398-399. He submitted that Appellant lacks locus to maintain the appeal against 1st Respondent.
Ground 2 of the objection deals with allegations that ground 3 of the Appellants Appeal bears particulars that are wholly unrelated or relevant to the said ground of appeal. That this makes ground three of the appeal incompetent. He relied on the case of KANO ILE PLC VS. G & H NIG LTD (2002) 2 NWLR (PT.251) 420 AT 444 AND HONIKA SAWMILLS LTD. V. HOFF (1994) NWLR (PT.326) 252 AT 262.
That the Appellant is estopped from contesting the order of lower Court directing 2nd, 3rd and 4th Respondents to give effect to the decision of FCT High Court in its judgment.
On ground 3, the learned counsel to the 1st Respondent submitted that this appeal is an abuse of Court process in that the appellant is a judgment debtor to the 1st Respondent in the sum of $318,807,950:596 by virtue of judgment of the Federal Capital territory High Court earlier variously referred to in 1st Respondent brief, according to her learned counsel. That the judgment is valid and subsisting. That Appellant in paragraphs 7 and 10 of its counter Affidavit expressed willingness to meet its liability under the Federal High Court decision of 2013. That this appeal now seeks to frustrate a subsisting judgment of the Federal Capital Territory High Court with a view to avoid its obligations to 1st Respondent and to the irritation and annoyance of 1st Respondent. That it is an abuse of Court process. He relied among other cases on the decision in ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) ALL FWLR (PT.262)1855 AT 1902. He urged the Court to dismiss the appeal.
The learned counsel to the Appellant contended that the Appellant was joined by the 1st Respondent to her action knowing that without the presence of Appellant the case could be determined. That Appellant was joined because the 1st Respondent believed she had a case with Appellant. He reproduced the reliefs sought at the lower Court by 1st Respondent.
That the learned trial judge quoted copiously the counter affidavit of the Appellant on page 717 of the record and stated that by the terms of the contract award letter the payment for the contract was made from judgment sum in favour of the Appellant in FHC/ABJ/130/13 BETWEEN LINAS INTERNATIONAL LTD. & ORS. VS. THE FEDERAL GOVERNMENT & ORS.
That the 1st Respondent acknowledged the relevance of the Appellant to it. He referred to her as judgment debtor in the sum of $318,807,950.396 by virtue of judgment of Federal Capital Territory. That pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended the appellant had right of fair hearing and the right to appeal.
With regard to ground 2 the learned Counsel submitted that particulars 2 and 3 of ground 3 contained in the Notice of Appeal are complaints of the fact that the project for which judgment is given is unenforceable and fundamentally incurable. That the contract has not been executed according to the contract of the parties. That the particulars are compatible with the grounds of appeal. He relied on SHUAIBU V. NICON (2002) 12 NWLR (PART. 780) 116 AT 130 A-B.
On whether this appeal is an abuse of Court process, the learned counsel stated that the appeal herein is not against the judgment of Federal Capital Territory High Court but Federal High Court. He relied on the Notice of appeal on pages 738-739 of the record and the case of P.D.P VS. SYLVA (2012) ALL FWLR (PT. 637) 606 AT 635-636 H-A to contend that the appeal is not an abuse of process. He urged this Court to dismiss the preliminary objection.
Now Order 7 Rules 2, 3 and 4 of the Court of Appeal Rules 2016 provide as follows:
“2. (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under “distinct heads the grounds upon which the Appellant intends to rely at the hearing of the” appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the Appellant or his legal representative.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
4. The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.”
It is glaringly stated by the rules of this Court that Notice of Appeal shall contain grounds of Appeal couched distinctly, concisely and if a ground or grounds of appeal complains or complain of misdirection or error in law as it is common in the drafting of grounds of appeal the particulars of error and the nature of the misdirection must be clearly stated.
I am of the firm view that Rules of Court must be obeyed. However where a breach of the rule is not substantial and not injurious or inimical to the interest of the adversary and it is pardonable, this Court will where the interest of justice demands it treat the breach as mere irregularity. I have earlier on in this proceeding reproduced the three grounds of appeal filed by the Appellant as contained on pages 738-739 of the record.
A calm reading of the judgment of the Lower Court clearly shows that Appellant is affected by the judgment of the lower Court appealed against. It cannot be seriously contended that the Appellant is not an aggrieved party. The judgment of the lower Court on the alternative relief directly affects the Appellant since the Appellant did not submit to judgment on any of the reliefs sought and in fact Appellant filed a counter Affidavit against the reliefs sought on the originating summons.
This leads me to ground three which the respondent stated has particulars that are not in tandem with the said ground 3 of the appeal. I am of the view that with or without the particulars aforesaid and which 1st Respondent is contending to be void the said ground three of appeal is competent.
After all, the most important thing pertaining to drafting of grounds of appeal is to make them explicit and lucid enough to make the respondent to the appeal understand the real complaints embedded in the grounds of appeal against the judgment.
Once the Respondent is not misled or confused as to the part of the judgment appealed against in the grounds of appeal, the Court will not allow technicality to render the appeal or any of its ground incompetent. See (1) ADEROUNMU V. OLOWU (2000) 4 NWLR (PT.652) 253 AT 265 PER AYOOLA JSC who said:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality, whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and, that such grounds should not be vague or general in terms and must disclose a reasonable round of appeal, is to give sufficient notice and information, to the other side, of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.”
2. JOHN ENEH VS. KENN OZOR & ANOR (2016) 16 NWLR (PT.1538) 219 AT 234 E-G per SANUSI JSC.
3. CHIEF UJILE D. NGERE & ANOR V. CHIEF JOB WILLIAM OKURUKET IV & ANOR. (2017) 5 NWLR (PT.1559) 440 AT 466 D-E PER ARIWOOLA, JSC who said:
“Ordinarily, and this should be realized, that particulars of the error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are specifications of the error or misdirection in order to make clear how the complaint is to be canvassed in attempting to demonstrate the flaw in a relevant aspect of the judgment. Particulars are not to be made independent of the complaint in a ground of appeal but ancillary to it. See; Ogundare Osasona v. Adetoyinbo Ajayi (2004) 5 SCM 130; (2004) 14 NWLR (Pt. 894) 527.”
I have carefully considered the grounds of appeal filed as contained in the Appellant’s Notice of appeal and the particulars given in those grounds, I cannot see how the nature, or form of the particulars affected adversely, the substance of the complaints of the appellants against the judgment appealed against. The objection to the particulars of the grounds of appeal lacks merit and I so hold.
On whether the appeal is an abuse of Court process, I am of the strong view that the appeal is not an abuse of Court process. The Appellant was made a party to the suit by 1st Respondent and judgment was given against her at lower Court notwithstanding her opposition to the case. The Appellant has the constitutional right of appeal against the judgment. The 1st Respondent’s notice of preliminary objection is clearly devoid of merit and it is hereby dismissed. See FLORENCE ACHONU VS. OLADIPO OKUWOBI (2017) 14 NWLR (PT. 1584) 142 AT 171 F-H 60 172 A-C per GALINJE, JSC who said:
“Finally, the essence of the grounds of appeal is to give sufficient notice to the adverse party of the nature of the appellant’s compliant that such adverse party will be confronted with in Court. Once the notice is passed and the adverse party reacts to it without any complaint, it means the notice is clear and well understood. In Aderounmu v. Olowu (2000) SCNJ 180, (2000) 4 NWLR (Pt. 652) 253 at 265 paragraph E-G, which was cited and relied upon, by learned counsel for the respondent, this Court per Ayoola JSC said:-
”The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding, that it did not conform to a particular form.”
The 1st respondent relied on Section 233 (5) of the 1999 Constitution to contend that the Appellant not being aggrieved person lacks locus standi to appeal.
I am of the firm view that the argument goes to no issue in that Section 233 (5) of the Constitution governs appeal from this Court to Supreme Court and not an appeal from the Federal High Court or other High Courts to this Court which is governed by Sections 241-243 of the said Constitution to this Court from the lower Court. The appellant has the constitutional right to appeal against the judgment. The 1st Respondent’s Notice of preliminary objection is clearly devoid of merit and it is hereby dismissed.
NOW TO THE MERIT OF THE APPEAL
The learned Counsel to the Appellant EYITAYO FATOGUN, ESQ distilled two issues for determination viz:
1. “Whether the Federal High Court has the power to entertain the claims of the 1st Respondent and exercise judicial powers thereon. (Grounds 2)
2. Whether the orders made by the learned trial judge is a proper exercise of judicial powers including discretion having regards to the evidence before the Court (Ground 3).
The learned Counsel to the 1st Respondent CHIEF OLUSOLA OKE, SAN who settled the 1st Respondent’s brief of argument formulated an issue for determination which is:
“Whether having regard to issues formulated for determination, the reliefs claimed in the originating summons and affidavit evidence in support thereof, the trial Court was without jurisdiction to have entertained the case.”
The issue formulated by the Appellant will be treated in sequence.
ISSUE 1:
“Whether the Federal High Court has the power to entertain the claims of the 1st Respondent and exercise judicial powers thereon.”
The learned Counsel referred to the originating summons of 1st Respondent on pages 6-7 of Vol. 1 of the record that the claim of the 1st Respondent was founded on a contract between the Appellant and 1st Respondent with respect to the judgment between Linos International Limited against the Federal Government in suit No. FHC/ABJ/C5/130/2013. That the 1st Respondent was not a party but 1st Respondent obtained judgment at the Federal Capital Territory High Court in suit FHC/HC/CV/2129/2014 against the Appellant.
The learned Counsel to the Appellant then referred to Section 251 (1)-(3) of the Constitution of Nigeria 1999 as amended as encapsulating the jurisdiction of the Federal High Court and submitted that the Federal High Court enjoys exclusive jurisdiction with respect to matters listed in Sub section 1 in particular of the aforesaid Section 251 of the 1999 Constitution as amended. He stated that the learned trial judge captured the essence of 1st Respondent’s case at page 708-911 but that the most relevant is at page 711 whereat the learned trial judge said:
“That unless restrained by the 1st ? 3rd Respondents will disburse and continue to disburse part of the London/Paris Club debt refund to the detriment of the plaintiff who has commenced the execution of the project for which payment of money expended by the plaintiff is tied to the payment of the London Club debt refund to the 4th Defendant and from which the 4th Defendant specifically agreed to pay the plaintiff money as a first line charge.”
The learned Counsel to the Appellant submitted that the original jurisdiction of the Federal High Court under the Constitution does not accommodate any of the claims in favour of the plaintiffs/1st Respondent or against every of the respondents that is Appellant and the others. That the claims of the 1st respondent did not relate to any interpretation of Constitution or any action affecting the validity of any of the executive or administrative action or decision of the Federal Government or any of its agency.
He therefore opined that the 1st Respondent’s claims are outside the Federal High Court’s jurisdiction. He relied on the cases of:
1. KAKIH V. PDP (2014) 15 NWLR (PART 1430) AT 413-414
2. NEPA V. EDEGBERO (2002) 12 5CNJ 173 AND AGBULE VS. WR & P.T LTD (2013) 6 NWLR (PT.1350) 318 AT 348.
That at best the claims arose from a decision of a Court established under the 1999 Constitution as amended.
That the enforcement of judgment between the Appellant and the 1st Respondent, principally would not amount to judgment for payment of a debt, award of the Federal Government. That the concluding order of the lower Court showed the nature of the 1st Respondent’s claim that is the order of the lower Court on appeal herein for he relied on pages 733-734 of VOL. II of the records.
That the learned trial judge acted without jurisdiction in matter of simple contract and that the decision is a nullity and being nullity this Court has jurisdiction to set aside the null judgment. He relied on the following cases:
1. ONUORAH VS. KRPC LTD. (2005) 6 NWLR (PT.921) 393 AT 397.
2. OKOYODE V. FEDBA (2006) ALL FWLR (PT.298) 1200 AT 1204.
The learned senior Counsel to the Appellant drew the attention of this Court to Section 287 (3) of the provisions of the 1999 Constitution as amended to submit that the Federal High Court has no jurisdiction to enforce the decision of the Federal Capital Territory High Court that the Federal High Court is not a Court of competent jurisdiction to the Federal Capital Territory High Court. That all Courts of coordinate jurisdiction shall enforce their decision by all the processes prescribed by law. That the decision of the Federal High Court enforcing the judgment of a coordinate High Court is clearly inconsistent with the provision of the Constitution and that it is a nullity and should be set aside.
In conclusion the learned silk to the Appellant urged this Court to set aside the judgment delivered in favour of the 1st Respondent enforcing or directing the decision of a Court of the Federal Capital Territory by the process of originating summons:
In response to the above submission the learned senior counsel to the 1st Respondent CHIEF OLUSOLA OKE, SAN stated that a calm perusal of the claim and the record before this Court would show that the issue or contract or liability thereon was not before the lower Court in that the same has been laid to rest permanently between the Appellant and first Respondent by virtue of the Federal Capital High Court judgment in suit FCT/HC/CV/2129/2016 between the 1st Respondent and Appellant. He relied on pages 85-103 of the record. He also relied on the counter Affidavit of the Appellant on pages 254-256 of the record. That there is nothing in the questions and reliefs sought in the originating summons and the Affidavit support inviting the Court below to decide, interpret, or enforce simple contract as contended by Appellant.
According to the learned silk the suit before the lower Court was meant to question and did question the decision or action of the 2nd-4th Respondent in their refusal or failure to recognise and protect 1st Respondent’s right acquired by law by virtue and under the judgment of Federal Capital Territory in breach of Section 287 (3) of the 1999 Constitution as amended. That it also challenged the failure of 2nd, 3rd and 4th Respondents to comply with Federal High Court’s decision in the case BETWEEN LINAS INTERNATIONAL LTD. V. THE FEDERAL GOVERNMENT OF NIGERIA & ORS, in what learned silk called “in the breach of the right of the 1st Respondent to be paid before any payment to the Appellant from the sum due under the above judgment.
That it is an action challenging the administrative or executive decision of 2nd, 3rd and 4th Respondents which affected or infringed the right of 1st Respondent and that it is well within the jurisdiction of lower Court pursuant to Section 6 (6)(a) (b) and Section 251(1)(R) of the 1999 Constitution of the Federal Republic of Nigeria as amended. That 1st Respondent has by virtue of FCT High Court judgment acquired vested right over the money due to the Appellant from the judgment debt in the Federal High Court against the 2nd, 3rd and 4th Respondents.
He quoted and relied on portion of FCT High Court judgment. That order absolute in the garnishee proceeding in FHC/ABJ/130/13 vested legal rights to 100% of the judgment sum in the Respondent therefore 2nd, 3rd and 4th Respondents “as authorities” and “persons” are bound by Section 287(3) of the Constitution to give effect to the order of the Court in FCT/HC/CV/2129/14. That the 2nd, 3rd and 4th Respondents are in breach of 1st Respondents vested right in FHC/ABJ/C5/130/13 in breach of Section 287 (3) of the Constitution and thus: it was a cause of action or a right enforceable against 2nd, 3rd and 4th Respondents relying on the cases of:
1. ADEGBITE V. AMOSU (2016) 15 NWLR (PT. 1536) 405 AT 427 C – D and
2. GBILEVE V. ADDINGI (2014) 16 NWLR (PT. 1433) 394 AT 4319.
On what determines jurisdiction the cases of SKYE BANK PLC VS. CHIDIEBERE (2017) 7 NWLR (PT. 1564) … and NNPC V. FAMFA (2012) 17 NWLR (PT.1328) 148 AT 189.
He also relied on the six questions for determination and reliefs sought by 1st Respondent as plaintiff on pages 3-65 of the record. He then reiterated submissions earlier made to the effect that the lower Court had the jurisdiction to entertain the action by virtue of Section 287 (3) of the Constitution aforesaid.
That the facts of this case must be distinguished from a situation where a party who had earlier obtained judgment before a Court of competent and exclusive jurisdiction later proceeded to another Court of co-ordinate jurisdiction over the subject matter to make the same claim upon the same facts as those before the earlier Court.
That unlike the above scenario, the 1st Respondent’s action before the lower Court was simply for the interpretation of enforcement of a constitutional provisions and to challenge the administrative or executive action/decision of the Federal Government and its agency and agent. He urged the Court to resolve issue one in 1st Respondent’s favour.
It must be noted that the 2nd to 8th Respondents did not file Briefs of Arguments in this matter.
However the Appellant filed a Reply Brief in reply on point of law to the submissions of 1st Respondent in paragraphs 6.1 to 6.38 of her Brief of Argument. The Appellant’s learned Counsel submitted that the only Court with jurisdiction to make pronouncement as contained on the alternative relief is Federal Capital Territory High Court pursuant to Section 257 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and the case of SAVANNAH BANK V PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (1987) 1 NWLR (PT. 49) 212 and the case of KAKIH V PDP (2014) 15 NWLR (PART 1430) 413 – 414.
It is no longer debatable that Courts are creatures of the Constitution and the Statutes and the Constitution and Statutes define their areas of jurisdiction. A Court or Tribunal must possess the necessary vires to try or embark on adjudication of any cause or matter. See:
1. IKECHUKWU V. FRN (2015) 7 NWLR (PART 1457) 1 AT 23H-24A – B per NGWUTA, JSC;
2. GOYANG KAYILI VS ESLY YILBUK & ORS (2015) 7 NWLR (PART 1457) 26 AT 52H TO 53A per OGUNBIYI, JSC;
3. ALHAJI JIBRIN ISAH VS INEC & ORS (2016) 18 NWLR (PART 1544) 175 AT 222H per RHODES-VIVOUR, JSC who said:
“Jurisdiction is the legal power that a Judge has to hear and determine a case. It is usually conferred on the Court by the Constitution or Statute. It is a threshold issue, the heart-beat of a case. Once a Court lacks jurisdiction to hear a matter and it proceeds to hear the matter no matter how well handled the entire proceedings are a nullity no matter how well handled. That explains why the issue of jurisdiction can be raised at anytime, in the trial Court, the Court of Appeal or in the Supreme Court for the first time. See A. G. – Anambra State v. A.G., Federation (1993) 6 NWLR (Pt. 302) p. 692; Barclays Bank of (Nig.) v. Central Bank of (Nig.) (1976) 6 SC 175; Dangana & Anor. v. Usman & Ors. (2012) 2 SC (Pt. iii) p. 403, (2013) 6 NWLR (Pt. 1349) 50; Usman Dan Fodio University v. Kraus Thompson Organisation Ltd. (2001) 15 NWLR (Pt. 736) p. 305.”
4. ATTORNEY-GENERAL OF KWARA STATE VS. ALHAJI SAKA ADEYEMO (2017) 1 NWLR (PART 1546) 201 AT 239C – E per RHODES-VIVOUR, JSC who also said:
“Jurisdiction is the authority, given to the Court by the Constitution, legislation to decide matters that come before it. Jurisdiction is a threshold issue. So once raised it must be resolved quickly. It is so fundamental in that if a Court hears a case in which it has no jurisdiction, no matter how well the case was conducted and decided, it would be declared a nullity.
See Madukolu v. Nkemdllim (1962) 2 NSCC p. 374; (1962) 2 SCNLR 341; A.G Lagos State v. Hon. Justice L.J. Dosunmu (1989) 3 NWLR (Pt. III) p. 552; Dangana & Anor v. Usman & 4 Ors.(2012) 2 SC (Pt. III) p. 103, (2013) 6 NWLR (Pt. 1349) 50; NURTW & Anor v. R.T.E.A.N & 5 Ors.(2012) 1 SC (Pt. II) p. 119 (2012) 10 NWLR (Pt. 13 (7) 170.
“Jurisdiction is so fundamental and so it may be raised in the trial Court or Court of Appeal or in the Supreme Court for the first time.”
5. RT. HON. ABDULAHI BELLO & ANOR VS HON. YUSUF AHMED TIJANI DAMISA & ORS (2017) 2 NWLR (PART 1550) 455 AT 475 B – E per SANUSI, J5C who said:
“Issue of jurisdiction is a threshold issue which obviously is of paramount importance and therefore when raised, it must be looked into first or at least at the earliest opportunity, more especially because any proceedings conducted without jurisdiction, no matter how well it is conducted, is a nullity.
See Elugbe v. Omokhafe (2004) 11-12 SC 60; (2004) 18 NWLR (Pt. 905) 319. Before a Court can be said to be competent to have jurisdiction in respect of matter be it an appeal or case of first instance, it must be satisfied of the existence of the underlisted 6 conditions, namely:
(a) It must be properly constituted with regard to the number and qualification of the members,
(b) The subject matter of the action must be within its jurisdiction
(c) The action or appeal is initiated by due Process of law and;
(d) Any condition precedent to the exercise of its jurisdiction must have been fulfilled or met.
See Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 587: (1962) 2 SCNLR 341; Dangana & Anor v. Usman & 4 Ors (2012) 2 SC (Pt. III) 103; (2013) 6 NWLR (Pt. 1349) 50: N.U.R.T.W. & Anor v. R.T.E.A.N. & Ors (2012) 1 SC (Pt. II) 119; (2012) 10 NWLR (Pt. 1307) 170.”
In civil matter it is the claims or reliefs as endorsed on the writ of summons and statement of claim that determine the jurisdiction of the Court or Tribunal seised of the matter. As a corollary to this, it is also the reliefs of the Plaintiff as claimed on an originating summons and Affidavit(s) in support thereof that determine the jurisdiction of the Court to adjudicate on the Originating Summons. I call in aid the cases of:
1. GOYANG KAYILI VS ESLY YILBUK & ORS (2015) 7 NWLR (PART 1457)26 538 per OGUNBIYI, JSC who said:
‘It is the plaintiff’s clam in a matter that determines the jurisdiction of the Court. See Rt. Hon. Chibuike Rotimi Amaechi v. INEC (No.1) 18 NWLR (pt. 1065) 42 at 48. See also Akinfolarin v. Akinnola (1994) 3 NWLR (pt. 335) 659 and Adeyemi v. Opeyori (1976) 9 ? 10 SC 31 at 51.”
2. ALHAJI JIBRIN ISAH VS INEC & ORS (2016) 18 NWLR (PART 1544) 175 AT 2230 where my Lord, RHODES – VIVOUR, JSC had this to say:
“It is a fundamental principle that jurisdiction is determined by the claimant/plaintiff’s claim and not by the defence, and so the writ of summons and statement of clam which contains the claim before the Court are the documents that must be examined in detail to ascertain whether it comes within the jurisdiction conferred on the Court where the originating process is an originating summons jurisdiction is determined by considering the questions, reliefs and affidavit filed in support.”
I have already laid out the questions for determination and reliefs sought in the originating summons. It is here necessary to reproduce in entirety the Affidavit in support of the Amended Originating Summons. It consists of 19 paragraphs which are as follows:-
AFFIDAVIT IN SUPPORT OF THE ORIGINATING SUMMONS
I, DANIEL NWOKEDI, Adult, Male, Christian and a Nigeria Citizen of P/t 2107 Ahmadu Bello Way, Area 3, Garki, Abuja, do hereby make, oath and state as follows:
1. That I am the Group Managing Director of the Plaintiff Company, and by virtue of which I am conversant with the facts herein deposed to in this affidavit in relation to this case.
2. That I have the consent and authority of the Plaintiff to depose to this Affidavit on its behalf.
3. That the Plaintiff is a Company incorporated in Nigeria which its office is at Plot 2107 Ahmadu Bello Way, Area 3, Garki, Abuja.
4. That the 1st – 2nd Defendants are the Federal Government of Nigeria, the Chief Legal Officer of the Federation, while the 3rd Defendant is the Hon. Minister in charge of the Finance of the Federal Government of Nigeria respectively, 1st and 2nd Defendants are C/O the Office of the Attorney General of the Federation and Minister of Justice, Attorney General’s Chambers, Federal Ministry of Justice Maitama, Abuja, while the 3rd Defendant is C/O Federal Ministry of Finance Headquarters, Central Business District, Abuja all within the jurisdiction of this Honourable Court.
5. That the 4th Defendant is a registered body representing all the Local Government Councils and Area Councils of Nigeria with registered office at Plot 2652 Yedseram Street, Cadastral Zone A6, Maitama, Abuja within the jurisdiction of this Honourable Court.
6. The 5th Defendant is the registered body comprising of all the 36 State Governors in Nigeria and the 6th Defendant runs the day to day administration of the body from their office at Asokoro District, Abuja within jurisdiction.
7. The 7th and 8th Defendants are bankers with branches throughout Nigeria especially a branch office at Wuse Abuja, Access Bank Abuja Regional Office, Abuja respectively.
8. The Plaintiff on the 1st of September, 2014 obtained judgment against the 4th Defendant herein at the FCT High Court in Suit No. FCT/HC/CV/2129/2014 between RICK NIG. LTD & 3 ORS VS. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ALGON). A copy of the Certified True Copy of the said Judgment is hereby attached as EXHIBIT “A”.
9. The Judgment sum comprised in the said judgment was tied to the judgment sum awarded by the Court in SUIT NO; FHC/ABJ/CS/130/13 BETWEEN LINAS INTERNATIONAL LTD & 235 ORS vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS, which judgment was about the London/Paris Debt refund in which suit the 4th Defendant was one of the Plaintiffs. A copy of the Certified True Copy of the said Judgment and the Judgment Order are hereby attached as EXHIBIT “B” and “B1” respectively.
10. That pursuant to the judgment in paragraph 9 above, the Federal High Court, Abuja Coram: A.F.A. Ademola, J. granted a Garnishee Order Absolute in favour of the Judgment Creditors in that cases inclusive of the 4th Defendant. The 2nd Defendant herein had given his consent as the Chief Legal Officer of the Federal Government of Nigeria and on behalf the other Federal Government bodies sued in that matter. A copy of the Certified True Copy of the said Order Absolute is hereby attached and marked as EXHIBIT “C”.
11. That pursuant to the said Garnishee Order Absolute the Federal Government of Nigeria commenced the releasing of the judgment sum in SUIT NO: FHC/ABJ/CS/130/13 BETWEEN LINAS INTERNATIONAL LTD d 235 ORS vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS, in tranches through the office of the 3rd Defendant and has released part of the money to States and Local Governments and to the Nigerian Governors Forum, the 5th Defendant herein, being managed by the 6th Defendant without taking into congnize (sic) the Judgment obtained by the Plaintiff herein in Suit No. FCT/HC/CV/2129/2014 between RIOT’ NIG. LTD & 3 ORS VS. INCORPORATED TRUSTEES OF THE ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ALGON) which has prioritized payment of the London/Paris Club debt refund to the Plaintiff as a first line charge.
12. That the 1st to 3rd Defendants also set aside monies for payment of derivation to oil producing States and Local Governments and other monies for commitments to States and Local Governments from the Paris/London Club refund.
13. That the 1st to 3rd Defendants had gone ahead in disobedience of the order of the Court as stated in paragraph 11 above, to deposit part of the judgment sum in SUIT NO: FHC/ABJ/CS/130/13 BETWEEN LINAS INTERNATIONAL. LTD & 235 ORS vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS in Accounts No: 0720380244, Amount: N8, 843,599,700.00, and Account No: 0720311376 kept at Access Bank and Account No: 023.1533758, Amount: $18,000,000 USD and Account No:0023577047 kept at Guaranty Trust Bank GTB and any other account in the name of the Nigerian Governors Forum at the 7th and 8th Defendants’ banks in relation to the London/Paris Club Debt refund for disburse/neat to other persons and bodies in Nigeria and will go ahead to disburse the said fund without taking into account the interests of the Plaintiff as afore-stated.
14. That unless restrained by this Honourable Court the 1st-3rd Defendants will disburse and continue to disburse part of the London/Paris Club Debt refund to the detriment of the Plaintiff who has commenced the execution the project for which payment of the money expended by the Plaintiffs tied to the payment of the London Club debt refund to the 4th Defendant and from which the 4th Defendant specifically agreed to pay the Plaintiff its money first line charge.
15. That the Plaintiff is equally seeking in the alternative that the judgment due to the Plaintiff’s in SUIT NO: FCT/HC/CV/2129/2014 BETWEEN RIOK NIG. LTD & 3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION LOCAL GOVERNMENTS OF NIGERIA (ALGON) be paid to the Minister Justice to be paid to the Plaintiff after confirmation that the project for which the judgment was obtained has been commenced by the Plaintiff.
16. That I rely on the Amended Originating Summon.
17. That it is of utmost importance and in the interest of justice that the six questions posed by the Plaintiff for resolution in this suit be answered one way or the other and as the case determined by the Court before any of the parties can take any further action in this matter.
18. That none of the Defendants will be prejudiced by the grant of the reliefs sought by the Plaintiff in this suit.
19. That I depose to this affidavit in good faith conscientiously believing same to be true in accordance with the Oaths Act, LFN, 2004.”
The questions for determination and the reliefs sought on the Originating Summons of the 1st Respondent are clearly outside the purview and jurisdiction donated to the Federal High Court under and by virtue of Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
This Court has already taken that position on the said originating Summons and the Order made in the alternative by the lower Court on the alternative relief sought by the Appellant in the sister appeal which is CA/A/558/2017 – INCORPORATED TRUSTEES OF NIGERIAN GOVERNORS FORUM & ANOR V. RIOK NIGERIA LIMITED & ORS delivered on 23rd day of March, 2018 by me.
This Court said at pages 31 – 33 as follows:-
“A careful and calm reading of the questions for determination as indorsed on the Amended Originating Summons herein, the reliefs sought upon the determination of the said questions and the Affidavit in Support of the said Originating Summons just reproduced, there is no doubt in my mind that the aim and intendment of the 1st Respondent’s action is for interpretation of the judgments of the Federal High Court in SUIT NO: FHC/ABJ/CS/130/13 BETWEEN LINAS INTERNATIONAL LTD & 235 ORS vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS and judgment in SUIT NO: FCT/HC/CV/2129/2014 BETWEEN RIOK NIG. LTD & 3 ORS V. INCORPORATED TRUSTEES OF THE ASSOCIATION LOCAL GOVERNMENTS OF NIGERIA (ALSO KNOWN AS ASSOCIATION LOCAL GOVERNMENTS OF NIGERIA (ALGON).
The action herein also sought for an Order to enforce judgment in SUIT NO: FHC/ABJ/CS/130/13 BETWEEN LINAS INTERNATIONAL LTD & 235 ORS vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS in which enforcement of the judgment and payments of funds to those designated therein are being carried out, disbursed and paid even as admitted by the Affidavit of the 1st Respondent.
The action is also instituted or consummated in flagrant breach of the law, rules and procedure pertaining to enforcement of judgment(s), and order in order to obtain a more favourable or further Orders in addition to the Orders made in favour of 1st Respondent in SUIT NO: FCT/HC/CV/2129/2014 for enforcement by Order/Judgment of a Federal High Court contrary to the Orders contained in the aforesaid judgment of Federal Capital Territory High Court to wit:-
”IT IS THEREFORE HEREBY ORDERED THAT: –
‘The defendant pays to the Plaintiffs forthwith, jointly and severally a total sum of $797,019,876.49 USD (Seven Hundred and Nineteen Seventy Million, One Hundred and Nineteen Thousand Eight Hundred and Seventy-six United State Dollars, Forty-Nine Cents), representing 25% of the judgment sum of $3,188,079,505.96 USD in SUIT NO: FHC/A&T/C5/130/13 BETWEEN LINAS INTERNATIONAL LTD & 235 ORS vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS, payable and distributed as follows:
1. 1st Plaintiff: RIOK NIGERIA LIMITED the sum of $318,807,950.596 (Three Hundred and Eighteen Million, Eight Hundred and Seven Thousand, Nine Hundred and Fifty United State Dollars Five Hundred and Ninety six Cents) representing 10% of the judgment debt and being payment of contract price for the provision of Boreholes, among others in all the 774 Local Government Area and Area Councils of Nigeria, which sum is further broken down and to be paid out as follows: –
a. To the 1st Plaintiff, RIOK NIGERIA LIMITED the sum of $315,619,871,1 USD to be paid into FBN PLC A/C No:2025947832 (First Bank Plc).
b. To Prince Orji Nwafor-Orizu, $2,709, 867.67 050 to be paid into Diamond Bank PLC A/C No: Account No: 0051329942.
c. To Barrister Bello Olaitan Busayo $478,211.92 USD to be paid into FBN A/C No: 2025921142 (Bank: First Bank of Nigeria Plc).
d. Payments in (b) and (c) above, being legal fees for professional services rendered to the 1st Plaintiff in respect of the contracts awarded to the 1st Plaintiffs.”
4. The plaintiffs jointly and severally are hereby authorized to register and/or execute the amount making up 25%, of the Judgment sum in suit No. FHC/ABJ/CS/130/13, to be paid to them before payment to the defendant, as if the said sum has been assigned to the plaintiffs by a separate instrument under seal.”
It is very obvious or clear that the judgment of the Federal Capital Territory High Court Abuja in SUIT NO: FCT/HC/CV/212.9/2014 had already prescribed mode of enforcement of the judgment sum in favour of 1st Respondent as Co-Plaintiff against the 5th Respondent and not against any other person.”
And on pages 36 – 39 this Court held:-
“I have no doubt in my mind that the learned trial Judge has no jurisdiction or competence to adjudicate on the questions contained in the Amended Originating Summons, the reliefs sought in the main and in the alternative. The action did not and does not avail the 1st Respondent. The learned trial Judge greatly erred in law in his assumption of jurisdiction to interpret the aforesaid judgments vide Originating Summons when judgment(s) of Courts cannot be classified as instrument, statute document or will. The whole exercise is an aberration in judicial process and a complete nullity. See the case of RACE AUTO SUPPLY COMPANY LIMITED & ORS VS ALHAJA FAOSAT AKIB (2006) 13 NWLR (PART 997) 333 AT 351 E – 352 A – E per MOHAMMED, JSC who said:-
In this appeal, it is necessary to examine the status of the Lagos High Court consent judgment of Obadina, J. (as he then was) of 4-5-98 which was placed before Shitta-Bey, T. of the same Lagos High Court for interpretation by the appellants under Order 46 Rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994 which provides:
“Any person claiming to be interested under a deed will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for declaration of the rights of the parties interested.”
The question is whether the consent judgment of 4-5-98 between the parties which was before the trial Court for interpretation on the application of the appellants comes within the definition of “written instrument” capable of being accommodated under the rule. The word ‘instrument’ is defined in Strouds Judicial Dictionary, as ‘anything reduced to writing, a document of formal or solemn character’. However, whether anything reduced to writing is an instrument largely depends on the con in which it is used. For example the same Strouds Judicial Dictionary, Volume 3 at page 1386 stated plainly that “orders of Court were not instrument within Apportionment Act, 1834”. One may find support in this observation by Stroud to say that a judgment of a Court of law can hardly be accommodated under the words “other written instrument” under Rule 1 of Order 46 of the Lagos High Court (Civil Procedure) Rules, 1994, under which the appellants filed their application for the interpretation of the consent judgment of 4-5-98. In other words a judgment of a Court of law cannot be subjected to interpretation by a Court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligation of parties under Order 46 Rule 1 of the Lagos High Court (Civil Procedure) Rules.
In any case, even if the consent judgment in the present case were to be regarded as instrument under Rule 1 of Order 46, the provision would not give a High Court jurisdiction to determine any question of construction or interpretation arising from the judgment of a Court of co-ordinate jurisdiction like the Lagos High Court presided by Obadina, J. (as he then was) and the same Court as presided by Shitta-Bey, J. or that of a higher Court like the Court of Appeal or this Court. If a judgment of a Court of law were to be regarded as an instrument like a deed or will, then even the judgment of the Court of Appeal or this Court could be subjected to interpretation by the High Court under Order 46 Rule 1 which is rather absurd. In the present case therefore, the Court below was quite right in its decision that the trial Lagos High Court presided over by Shitta-Bey, J. lacked competence to subject the consent judgment of the same Court delivered by Obadina, J.) As he then was) to interpretation of the contents or terms thereof.”
To my mind the whole gamut of the questions postulated for answers and the reliefs sought therein were in effect an invitation to the lower Court to sit over the judgments of Courts of coordinate jurisdiction and to sit as appellate Court on the judgments of his learned brothers which he could not rightly do under the Constitution of the Federal Republic of Nigeria and the law. If a judgment does not meet the claim of the party or it is not as favourable to his interest as he may have fathomed out, the option open to him is to appeal the judgment and not to approach Courts of coordinate jurisdiction to appraise, reappraise, modify or give different impression of what the judgment given in his favour or against him conveys with a view to obtaining more favourable decision from the other Courts of the same status. The latter Court will lack the jurisdiction to intervene. See:-
1. HON. A.G. OF LAGOS STATE VS THE HON. A.G. OF THE FEDERATION & ORS (2014) 4 SCM 1 AT 41F TO 42A, 50G-G and 73I TO 74 A – B;
2. SPDC (NIG) LTD VS CHIEF TIGBARA EDAMKUE ORS (2009) 14 NWLR (PART 1160) 1 AT 28F-H TO 29A per OGBUAGU, JSC.”
I agree with the learned Counsel to the Appellant in this appeal that the trial Court acted without jurisdiction and its decision is a nullity. The action of the 1st Respondent is also not within the purview of Section 287 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended in that it was not a party to suit No. FHC/ABJ/CS/130/13 and no judgment was given in its favour by Ademola – J in that action.
Issue 1 is resolved against the 1st Respondent and in favour of the Appellant.
ISSUE 2
WHETHER THE ORDERS MADE BY THE LEARNED TRIAL JUDGE IS A PROPER EXERCISE OF JUDICIAL POWERS INCLUDING DISCRETION HAVING REGARDS TO THE EVIDENCE BEFORE THE COURT.
The learned Counsel for the Appellant stated that the 1st Respondent said the claim for payment of the sum due from the contract executed by the parties was for a Memorandum of Understanding (MOU) executed by ALGON the Appellant and the Respondent (RIOK NIGERIA LTD). That in paragraph 5 of Appellant’s Counter Affidavit it was stated that the Plaintiff is yet to handover the projects to the Defendant on pages 254-255 as the record.
That the above is the foundation for the 1st Respondent’s entitlement to be paid money claimed and ordered to be paid. That the 1st Respondent did not deny the assertion of the Appellant in the Counter Affidavit and thus deemed to be true. That 1st Respondent did not file any further of Affidavit in denial to challenge or correct the deposition in the Counter Affidavit. That the lower Court was thus bound to accept the position of Appellant as true in the absence of any further Affidavit. He relied on the cases of:-
1. KOTOYE V SARAKI (1993) 5 NWLR (PART 945) 14 NWLR (PT. 296) 710 AT 723;
2. HONDA PLACE V GLOBE MOTOR HOLDINGS LTD (2005) 14 NWLR (PT. 945) 273 AT 293 – 294;
3. ONAGORUWA VS ADENIJI (1993) 5 NWLR (PART 293) 317 AT 339F.
That unfortunately the learned trial Judge did not advert to or have regard to the Appellant’s deposition but that the trial Judge declared that 1st Respondent be paid judgment sum because the contract has been commenced by RIOK NIGERIA LTD (1st RESPONDENT) whereas, according to Appellant’s learned Counsel, the Judgment Debtor who contracted with the 1st Respondent asserted non performance of the contract. That the trial Judge rather directed that the mere commencement of the contract with evidence of the stage 1 percentage of conclusion or evidence of the 1st Respondent deserving to be paid should be fully paid.
That the Court has no right to make contract for the parties and are bound by the contract entered into by the parties. He relied on the cases of OMEGA BANK PLC VS OBC (2005) 8 NWLR (PART 928) 547 AT 574 – 575 and LARMIE VS DPM AND SERVICES LTD (2005) 18 NWLR (PART 958) 88 AT 459.
He further submitted that where a Court finds that a claim is against public policies, public morality or illegal, suit/contract cannot be given judicial seal of approval and public resources frittered away. He relied on the case of NNADOZIE VS MBAGWU (2008) 3 NWLR (PART 1074) 363 AT 394 – 395 H – B.
That the lower Court was in grave error when it gave judgment to the 1st Respondent which occasioned a grave miscarriage of justice. That the failure of learned trial Judge is a denial of the right to fair hearing. He urged this Court to resolve this issue in favour of Appellant, allow the appeal and set aside the judgment of lower Court as having violated the Appellant’s right to fair hearing.
In response to the Appellant’s arguments under Issue 2 the learned Silk to 1st Respondent is of the opinion that the argument was based on total misconception of the case before the lower Court. That the 1st Respondent’s case has nothing to do with any contract but a challenge to the action or decision of the 2nd, 3rd and 4th Respondents which sought to deprive or deny the 1st Respondent the legal right acquired under a valid and binding judgment and also that the action invited the lower Court to determine if 2nd – 8th Respondents as authorities and persons were not in breached of their duties to give effect to the decisions of the FCT High Court when the 2nd, 3rd and 4th Respondents proceeded to pay money to the Appellant and 5th – 6th and 8th Respondents contrary to the tenor and positive order that 1st Respondent be paid first before any payment to Appellant.
On failure of the 1st Respondent to deny paragraph 5 of Appellant’s Counter Affidavit, the 1st Respondent’s learned Counsel stated that no order was sought or made against the Appellant, to which the depositions that was not denied can ground a defence. That the deposition in the Counter Affidavit of Appellant are in tune with 1st Respondent’s questions and reliefs sought on the originating summons. That cases relied upon by Appellants were cited out of con. He urged this Court to strike out the appeal for being incompetent or to dismiss same.
It must be noted that by the judgment given on the alternative relief sought on the originating summons the learned trial Judge interfered with the judgment of the Federal Capital Territory High Court by actually modifying the orders contained in FCT/HC/CV/2129/2014 between the 1st Respondent and three others as Plaintiffs and the Appellant as a Defendant. It tantamount to sitting as appellate Court over the judgment of the Federal Capital Territory High Court.
Perhaps it is here necessary to reproduce again the claims in the said case at FCT High Court and the judgment given in favour of the Plaintiffs in FCT/HC/CV/2129/2014 viz:-
1. RIOK NIGERIA LIMITED
2. XI NIGERIA LIMITED
3. SNECOU GROUP OF COMPANIES LIMITED
4. A4 ASSOCIATE LIMITED
VS
INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA (ALGON)
One of the Declarations sought against the Appellant in that case is as follows:-
“A DECLARATION that in view of the award of contracts by the defendant to the Plaintiffs, the Memorandum of Understanding (MOU) and Irrevocable Standing Payment Order (ISPO) entered into by the defendant in favour of each of the Plaintiffs for payment for the contracts to be from the Judgment sum of $3,188,079,505.96 USD in SUIT NO: FHC/ABJ/C5/130/13 BETWEEN LINAS INTERNATIONAL. LTD & 235 ORS Vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS. particularized as follows: –
a. The 1st Plaintiff is entitled to be paid the sum of 318,807,950.596 USD, representing 10% of the said Judgment sum, for the provision of Boreholes among others in all the 774 Local government Areas and Area Councils of Nigeria.
b. The 2nd plaintiff is entitled to be paid the sum of 159,403,975.298 USD representing 5% of the said Judgment sum for the supply of Water Tankers and other auxiliary services associated therewith in the 774 Local government Areas and Area Councils of Nigeria.
c. The 3rd Plaintiff is entitled to be paid the sum of $159,403,975.298 USD, representing 5% of the said Judgment sum for the supply of Fire Fighting Trucks, maintenance of the trucks and other auxiliary services in different locations in the 774 Local Government Areas and Area Councils of Nigeria.
d. The 4th Plaintiff is entitled to be paid the sum $159,403,975.298, USD, representing 5% of the said judgment sum for the provision of Consultancy Services for education material and digitalization of Nigerian Languages and other auxiliary services.”
Part of the Orders made by the learned trial Judge (Coram V. B. ASHI, J) in favour of the 1st
Respondent in this appeal in that case are as follows:-
IT IS THEREFORE HEREBY ORDERED THAT: –
The defendant pays to the Plaintiffs forthwith, jointly and severally a total sum of $797,019,876.49 USD (Seven Hundred and Nineteen Seventy Million, One Hundred and Nineteen Thousand Eight Hundred and Seventy-six United State Dollars, Forty-Nine Cents), representing 25% of the judgment sum of $3,188,079,505.96 USD in SUIT NO: FHC/ABJ/C5/130/13 BETWEEN LINAS INTERNATIONAL LTD & 235 ORS vs. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS, payable and distributed as follows:
1. 1st Plaintiff: RICK NIGERIA LIMITED the sum of $318,807,950.596 (Three Hundred and Eighteen Million, Eight Hundred and Seven Thousand, Nine Hundred and Fifty United State Dollars Five Hundred and Ninety six Cents) representing 10% of the judgment debt and being payment of contract price for the provision of Boreholes, among others in all the 774 Local Government Area and Area Councils of Nigeria, which sum is further broken down and to be paid out as follows: –
a. To the 1st Plaintiff, RICK NIGERIA LIMITED the sum of $315,619,871.1 USD to be paid into FBN PLC A/C No: 2025947832 (First Bank Plc).
b. To Prince Orji Nwafor-Orizu, $2, 709, 867.67 USD to be paid into Diamond Bank PLC A/C No: Account N: 0051329942.
c. To Barrister Bello Olaitan Busayo, $478,211.92 USD to be paid into FBN A/C No: 2025921142 (Bank: First Bank of Nigeria Plc).
d. Payments in (b) and (c) above, being legal fees for professional services rendered to the 1st Plaintiff in respect of the contracts awarded to the 1st Plaintiffs.”
The last order made by the learned trial Judge at FCT High Court to cover the four Plaintiffs in Suit No. FCT/HC/CV/2129/14 is as follows:-
“The plaintiffs jointly and severally are hereby authorized to register and/or execute the amount making up 25% of the Judgment sum in suit No. FHC/ABJ/CS/130/13, to be paid to them before payment to the defendant, as if the said sum has been assigned to the plaintiffs by a separate instrument under seal.” See pages 564 – 582 of the record.
The 1st Respondent claimed that the judgment sum in Suit No. FCT/HC/CV/2129/14 just reproduced was tied to the judgment sum awarded by the Court in SUIT NO. FHC/ABJ/CS/130/13
BETWEEN:
1. LINAS INTERNATIONAL LTD. & 235 ORS.
2. INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA
(The Plaintiffs suing for themselves and as representatives APPLICANTS of All The Local Government Councils and Area Councils of Nigeria) – JUDGMENT/CREDITORS
AND
1. THE FEDERAL GOVERNMENT OF NIGERIA
2. THE ATTORNEY-GENERAL OF THE FEDERATION
3. THE HON. MINISTER OF FINANCE
4. THE ACCOUNTANT-GENERAL OF THE FEDERATION – JUDGMENT/DEBTORS
RESPONDENTS
AND
CENTRAL BANK OF NIGERIA – GARNISHEE
which judgment according to the 1st Respondent was about the London/Paris Debt Refund in which Suit the Appellant in this appeal was one of the Plaintiffs. See paragraph 9 of the Affidavit in Support of 1st Respondent’s Originating Summons on pages 561 – 562 of the record. The Appellant here was 236th Plaintiff in Suit No. FHC/ABJ/CS/130/13 (pages 587 – 616 of the record).
All the reliefs sought by the Plaintiffs in the said suit were all granted by the Federal High Court (Coram: A. F. A. ADEMOLA -J) as follows:-
“Having resolved the two questions raised in the originating summons in the affirmative, I hold that the claims of the Plaintiffs as endorsed on the originating summons succeed in their entirety.
Accordingly, it is hereby ordered as follows:-
1. A DECLARATION is made that the Defendants utilization of monies that form part of the Federation Account for London Club Debt Buy Back in 1992 and 2002; and London Club Debt Exh. Payment in 2006 without the authorization of the other tiers of Government including the Local Government Councils and Area Councils of Nigeria is contrary to Section 162 (1); (3) (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. A DECLARATION is made that the Defendants utilization of monies that form part of the Federation Account for London Club Debt Buy in 1992 and 2002; and London Club Debt Exit Payment in 2006 without the authorization of the other tiers of Government including the local Government Councils and Area Councils of Nigeria is contrary to Section 162 (1); (3) (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
3. A DECLARATION is made that the Local Government Councils and Area Councils in Nigeria are entitled to the sum of $2, 624,812, 616, 76 being their share of the sum utilized by the Defendants for debt services by way of first line charges between June 1999 – March, 2002.
4. An Order of Court is made mandating the Defendants to pay the Local Government Councils and Area Councils of Nigeria the sum of $563,266,889.20 being their share of the sums utilized by the Defendants for London Club Debt Buy Back in 1992 and 2002; and London Club Debt Exit Payment in 2006.
5. A DECLARATION is made that the Plaintiffs are entitled to the payment of the sum of $3,188,079,505.96 (Three Billion, One Hundred and Eighty Eight Million, Seventy Nine Thousand Five Hundred and Five USD, Ninety Six Cents) from the Defendants.
6. The Defendants are hereby ordered as follows:-
(a) To pay the sum of $3,188,079,505.96 to the Plaintiffs.
(b) To deduct at source 20% of the judgment sum and pay same to the 1st Plaintiff through its Solicitors Joe Agi, SAN into Skye Bank Plc – Sort Code 076151019 – Account No. 10600003931 being the agreed consultancy fees of the 1st Plaintiff for its services to the other Plaintiffs.
(c) To also deduct at source another 15% of the judgment sum for utilization on security and health care delivery all over the Federal Republic of Nigeria, 10% of which shall be utilized for the provision of mobile Health Care System in the 774 Local Government Councils in Nigeria pursuant to the award of contract by the Plaintiffs to
WELLS PROCUREMENT SERVICES LIMITED.
There shall be no Order as to Cost.
HON. JUSTICE A.F.A. ADEMOLA
JUDGE
03/12/2013”
It is also necessary to reproduce the Garnishee Order Absolute that followed the decision of Ademola J, in FHC/ABJ/CS/130/13. The entire Garnishee Order Absolute reads:-
“IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BETWEEN:
SUIT NO: FHC/ABJ/C5/130/13
1. LINAS INTERNATIONAL LTD. & 235 ORS.
2. INCORPORATED TRUSTEES OF ASSOCIATION OF
LOCAL GOVERNMENTS OF NIGERIA
(The Plaintiffs suing for themselves and as representatives of All The Local Government Councils and Area Councils of Nigeria) – JUDGMENT CREDITORS/ APPLICANTS
AND
1. THE FEDERAL GOVERNMENT OF NIGERIA
2. THE ATTORNEY-GENERAL OF THE FEDERATION
3. THE HON. MINISTER OF FINANCE
4. THE ACCOUNTANT-GENERAL OF THE FEDERATION – JUDGMENT DEBTORS/ RESPONDENTS
AND
CENTRAL BANK OF NIGERIA – GARNISHEE
ORDER ABSOLUTE
UPON this Garnishee proceedings dated and filed on the 30th day of March, 2015 by the Judgment/ Creditors/Applicants.
AND AFTER hearing Ahmed Raji (SAN) with Adeola Adedipe Esq, Victor Okwudiri Esq., N. I. Zarumi, Esq, Zekeri Garuba, Esq, O. Omo-Eghareva (Miss) Esq. for the Garnishee (CBN) urging the Court to grant the reliefs as contained in the Preliminary Objection and Prince Nwafor-Orizu, Esq., Ikechukwu Ezechukwu (SAN) with Ikechukwu Obianyor Esq., S.E. Nwabueze, Esq., for the third/Applicants and Abubakar Musa C.S.E for 4th Judgment Debtor and JOE Agi (SAN) WITH Chief Henry Akunebu, Esq., O. E. Ekengba, Esq. for the Judgment/Creditor/Applicant opposing the Preliminary Objection and the third Party/Applicants Motion.
AND the Court having delivered Ruling this 27th day of June, 2015, make the following orders.
IT IS HEREBY ORDERED AS FOLLOW:-
1. That all the Applications for 3rd parties Applicants are hereby struck out.
2. That the Order Nisi dated 1st day of April, 2015 is hereby made ABSOLUTE.
3. That Garnishee (C.B.N.) shall pay over the Judgment debt of (Three Billion, One Hundred and Eighty Eight Million, Seventy Nine Thousand Five Hundred and Five Dollars, Ninety Six Cents) to the Local Governments in Nigeria to be warehoused in the Central Bank for disbursement to them less 20% Consultancy Fees.
4. The Garnishee (C.B.N.) shall forthwith pay 20% of the above Judgment Debt of $3,188,079,505.96 (Three Billion, One Hundred and Eighty Eight Million, Seventy Nine Thousand Five Hundred and Five Dollars, Ninety Six Cents) to the 1st Judgment Creditor through its solicitors JOE AGI ASSOCAITES into Stanbic IBTC Bank Sort Code 221070424 Account No. 0001725341.
ISSUED AT ABUJA under the seal of the Court and hand of the Presiding Judge this 29th day of June, 2016.”
A close reading of the judgment of the Federal High Court in SUIT NO: FHC/ABJ/C5/130/13 reveals that the 1st Respondent is not a beneficiary or person entitled to any sum of money under the said judgment. It is also clear that the Garnishee Order Absolute does not decree anything in favour of the 1st Respondent in this appeal.
The 1st Respondent had argued that her action is not about any contract but a challenge to the action or decision of 2nd, 3rd and 4th Respondents which sought to deprive or deny her of a legal right acquired under a valid binding and subsisting judgment. The 1st Respondent is not a party to the Suit FHC/ABJ/C5/130/13 and so could not have acquired any legal interest under the judgment emanating therefrom. There is nothing touching and concerning the 1st Respondent’s interest in the said judgment.
The 1st Respondent also stated further in paragraph 6.40 of her Brief of Argument that the Suit leading to this appeal invited the lower Court to determine whether the Defendants therein, now 2nd – 8th Respondents as authorities and persons were not in breach of their duties to give effect to the decisions of the FCT High Court when, according to 1st Respondent, the 2nd, 3rd and 4th Respondents proceeded to pay money to the Appellant and the 5th, 6th, 7th and 8th Respondents, who received the money contrary to the tenor of clear and positive Order that the 1st Respondent be first paid before any payment to the Appellant.
Again there is nothing in the judgment of the Federal High Court per ADEMOLA, J and in the Garnishee Order Absolute containing any such pronouncement. The 2nd, 3rd and 4th Respondents were/are not under any obligation or duty to pay any sum of money to the 1st Respondent as there was no Order or Judgment in favour of 1st Respondent mandating such payments to 1st Respondent. As for the judgment of Federal Capital Territory High Court in FCT/HC/CV/2129/2014 contained on pages 564 – 582 of the record, the final Order in there is that the Plaintiffs which included the 1st Respondent were authorized to register and or execute the amount making up 25% of the judgment sum in Suit No. FHC/ABJ/C5/130/13, to be paid to them before payment to the Defendant as if the said sum has been assigned to the Plaintiffs by a separate instrument under seal.
The 1st Respondent has not shown that it has followed the procedure prescribed by the Order of Federal Capital Territory High Court to register and or execute the amount making up the 25% of judgment sum in FHC/ABJ/CS/130/13. There is nothing to show that 1st Respondent complied with the Court Order.
The judgment and Orders of the FCT High Court did not place any obligations on 2nd – 8th Respondents to perform any act or refrain from any act pertaining to the 1st Respondent under the FCT High Court Judgment aforesaid. The 1st Respondent is rather the one breaching and flouting the Federal Capital Territory High Court’s judgment/Order in Suit No. FCT/HC/CV/2129/2014 and not the Appellant. The processes before the Court disclose that the Memorandum of Understanding existing between the Appellant and the 1st Respondent for sinking of boreholes in the 774 Local Government Areas and Area Councils and payment thereof was/is contingent upon payments to the Appellant, moneys due to it (Appellant) under the Judgment in FHC/ABJ/CS/130/13 and not otherwise.
The 1st Respondent has no legal right to ask for the alternative relief contained in the Originating Summons seeking for the enforcement of the Federal Capital Territory High Court’s Judgment in Suit No. FCT/HC/CV/2129/2014 by seeking for a transfer of judgment sum in that action to the Ministry of Justice which has no business whatsoever with the Memorandum of Understanding between the Appellant and the 1st Respondent and when the Ministry of Justice is not a party to the contract.
More importantly the lower Court has no vires to make the Order sought not being the Sheriff or Bailiffs mandated under the Sheriff and Civil Process Act to enforce and execute judgment. I agree with the submissions of the learned Counsel to the Appellant that the lower Court is not a person or authority under Section 287(3) of the Constitution to enforce the judgment of the Federal Capital Territory High Court since they are both (FCT High Court and Federal High Court) Courts of coordinate jurisdiction.
Judgment can only be enforced against a person against whom judgment is given and it is enforceable by the Court that gives or had given such enforceable executory judgment and not through institution of an action or suit. It is for the 1st Respondent to approach the FCT High Court to enforce its judgment if there is any enforceable or executory judgment against any of the 2nd ? 8th Respondents or the Appellant. See CHIEF UJILE D. NGERE & ANOR VS CHIEF J. W. OKURUKET “XIV” & ORS (2014) 11 NWLR (PART 1417) AT 173 C – H per RHODES- VIVOUR, JSC who said:-
”The Court of Appeal granted a perpetual injunction restraining the applicants from laying any claim to the stool of Okan-Area of Ngo yet while that order still stands the 1st applicant in his affidavit introduced himself as of the Palace of Okan-Ama Ngo. This amounts to disobedience of the orders of the Court of Appeal. The question to be answered is whether the applicant (who is now a contemnor) should be heard and can be entitled to the discretion of this Court”
Section 287(3) of the Constitution reads:
“287(3) The decisions of the Federal High Court the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities, and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively.”
The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every Court has inherent power to proceed to enforce judgments at once.
The enforcements on delivery can only be interrupted by a stay of execution provided there is an appeal.
Parties are thus bound to obey Court orders that are clear and unambiguous, notwithstanding the fact that the order may be wrong. So long as a party refuses to implement or obey a Court order he would not be given a hearing in any subsequent application. See Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) p.539; Governor of Lagos State v. Ojukwu (1986) 3 NWLR (Pt. 26) p.39.”
(underlined mine)
The 1st Respondent’s suit was/is in clear breach of the provisions of the Sheriff and Civil Process Act and Judgments Enforcement Procedure Rules all pertaining to method of enforcing monetary judgments. See:-
1. GOVERNMENT OF GONGOLA STATE VS ALHAJI UMARU ABBA TUKUR (1989) 9 SC 105 AT 122 – 123 per NNAEMEKA-AGU, JSC who said:-
“In the case of Akunnia v. Attorney-General of Anambra State (1977) 5 S.C. 161, at p. 177, this Court came to the same conclusion where it drew a distinction between an executory and a declaratory judgments. Both must be obeyed but it is only the former that can be executed: such an execution may be stayed. The question is whether the judgment in this case is among those that were capable of execution.
Now what is the meaning of execution? I think execution simply means the process whereby a judgment or order of a Court of law is enforced or given effect to according to law. Our Sheriffs and Civil Process Act (Cap 189) Laws of the Federation, 1958, deals elaborately with process for execution that are recognised at law. Just as judgments can often be executed according to the provisions of that Act or the corresponding Laws of a State; it is only those judgments that are capable of execution that their execution can be stayed.
I therefore wish to begin my consideration of the main issue raised by this appeal by pointing out that although every judgment of a Court must be obeyed and is effective from the date of its delivery or from such a date as the judgment itself appoints the method of enforcement of a particular judgment depends upon the type of judgment. In the sum:-
(i) A judgment/order for payment of money may be enforced by a writ fiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a judgment debtor’s summons.
(ii) A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or a commits/order.
(iii) A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution or their value, a writ of sequestration or writ of committal.
(iv) A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person.
For these see Sections 20, 24, 25, 35, 38, 44, 55, 57, 58, 65, 82 and 83 of the Sheriffs and Civil Process Act (Cap. 189) Laws of the Federation – 1958.”
2. CHIEF M. O. OLATUNJI V OWENA BANK PLC & ANOR (2008) 8 NLWR (PART 1090) 668 AT 678H TO 680 A per MUSDAPHER, JSC later CJN (Rtd,) of blessed memory who said:-
Now: it is agreed by both the appellant and the respondents that the relevant statutory provisions that fall for consideration in this appeal are; Section: 20(1) of the Sheriffs and Civil (Process)
Act and Section 20(2) and Order IV Rule 1(1) and 2 of the Judgment Enforcement) Rules made pursuant to Section 94 of the aforesaid Act. The provisions read: –
“Section 20(1)
Any sum of money payable under a judgment of a Court may be recovered, in case of default or failure of payment thereof forthwith or at the time or times and in the manner thereby directed, by execution against the goods and chattels and the immovable property of the judgment debtor in accordance with the provisions of this Act.
Section 20 (2)
The Registrar on the application of the judgment creditor shall cause to be issued a writ of attachment and sale whereby the Sheriff shall be empowered to levy or cause to be levied by distress and sale of goods and chattels, wherever they may be found within the division or district of the Court, the money payable under the judgment and the costs of the execution. Order IV Rule I and Rule II Judgment (Enforcement) Rules made pursuant to Section 94 of the Act read.
Rule 1
No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the Court for giving possession, until after the expiration of fourteen days from the day which the judgment is given”
Now, considering these provisions, the question may be asked when does a judgment to pay a sum of money becomes recoverable. Can a judgment creditor apply for a writ of fifa immediately a judgment is pronounced or must a judgment creditor wait for a default or failure to satisfy the judgment debt or must the judgment creditor wait for 14 days or 3 days after the judgment?
In my view, unless the Court otherwise orders a judgment of Court to pay money takes effect from the day it is pronounced or delivered in Court. However, the Court at the time of making any judgment or order/ or at any time afterwards may direct the time within which the payment or other act is to be made or done. A person directed by a decree or order of Court to pay money or to do any other act is bound to obey the decree or order: without any demand for payment or performance and if no time is therein expressed he is bound to do so immediately the decree or Order is pronounced.
The law is settled that where procedure is laid down for the attainment of a legal right or thing that procedure and none other should be followed. See:-
1. FESTUS IBIDAPO ADESANOYE & ORS VS PRINCE FRANCIS GBADEBO ADEWOLE (2006) 14 NWLR (PART 1000) 242 AT 269A – E per NIKI TOBI, JSC who said:-
‘Where a statute clearly provides for a particular act to be performed; failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision.
In such a situation, the consequences of non- compliance with the statutory provision follow notwithstanding that the statute did not specifically provide for a sanction. The Court can, by the invocation of its interpretative jurisdiction, come to the conclusion that failure to comply with the statutory provision is against the party is default.’
2. AGIP (NIGERIA) LTD VS AGIP (PETROLI) INTERNATIONAL & ORS (2010) 5 NWLR (PART 1197) 347 AT 419 H TO 420 A per ADEKEYE, JSC who said:-
”More important is that where statute or rule of Court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent.
In the case of Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877 Pg. 144 at page 221, the Court decided that:
“It is elementary law that a plaintiff in the commencement of an action, must comply strictly with the provisions of the enabling law. He cannot go outside the enabling law for redress.”
I am of the firm view that this action is an excursion in deep-seated abuse of Court Process particularly in view of the Federal Capital Territory High Court decision still subsisting in favour of the 1st Respondent. See:-
1. CHIEF GREAT O. OGBORU & ANOR V DR. E. E. UDUAGHAN & ORS (2013) 13 NWLR (PART 1370) 22 AT 59 B – F per OGUNBIYI, JSC;
2. TIMIPRE SYLVA VS INEC & ORS (2015) 16 NWLR (PART 1486) 576 AT 623 – 624 G – C per NGWUTA, JSC.
3. HON. JUSTICE TITUS ADENIYI OYEYEMI RTD & ORS VS HON. TIMOTHY OWOEYE & ORS (2017) 12 NWLR (PART 1580) 364 AT 397 C – H per BAGE, J5C who said:-
“The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the later manifestly an unpardonable abuse of Court process.
This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWL.R (Pt..1051) 392 at 419-420, paras. H-C on the meaning of abuse of Court process and held that:
“Abuse of Court process generally means that a party in litigation takes a most unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.”
Issue 2 is resolved against the 1st Respondent in favour of the Appellant. The Appellant’s appeal is meritorious. The Appellant’s appeal is allowed on the two issues nominated for determination.
The Order made on the alternative claim of the 1st Respondent by the lower Court on 20th day of June, 2017 as contained in the Judgment delivered by HON. JUSTICE A. R. MOHAMMED is hereby set aside in its entirety. It is a complete nullity.
Order is hereby made striking out the 1st Respondent’s Suit No. FHC/ABJ/CS/356/2017 for lack of jurisdiction on the part of the Federal High Court of Nigeria.
The 1st Respondent shall pay costs assessed at N50, 000.00 (Fifty Thousand Naira) to the Appellant only.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, PETER OLABISI IGE, JCA, I agree with the reasoning, conclusions and orders therein.
MOHAMMED MUSTAPHA, J.C.A.: I had the advantage of reading a draft copy of the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA. I agree with his reasoning and conclusion.
I abide by the consequential orders made therein including the order for costs.
Appearances:
EYITAYO FATOGUN, ESQ. with him, ITUNU ODUOKOYA, ESQ. and
FUNMBI AKINMUSITI, ESQ.For Appellant(s)
CHIEF AWA KALU, SAN with him, CHIEF OLUSOLA OKE, SAN OLAJIDE AJANA, ESQ; IKORO, N. A.ESQ; OLUWASEYI BAMIGBOYE, ESQ.- for 1ST RESPONDENT.
O.A. HALLIDAY, ESQ.- for 2ND and 3RD RESPONDENTS
C. E. NDUKA-for 7TH RESPONDENT.
J. S. OKUTEPA, SAN; with him, AARE OLUMUYIWA AKINBORO, SAN, U. O. SULE, ESQ; O. S APEH, ESQ. and B. LAWAN, ESQ.- for 5TH and 6TH RESPONDENTS
MODESTUS ALOZIE – for 8TH RESPONDENTFor Respondent(s)
