KEYSTONE BANK v. CLARKE
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, July 22, 2020
Before Our Lordships:
Philomena Mbua Ekpe Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
KEYSTONE BANK LIMITED APPELANT(S)
JOSEPH ONORIOTAKPO CLARKE RESPONDENT(S)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National Industrial Court, Uyo judicial division Coram, Honourable O. A. Obasaki Osaghe delivered on 14th November, 2018 wherein leave was granted to the judgment creditor to issue a writ of execution and levy execution against the movable properties of the 1st judgment debtor in satisfaction of the previous judgment of the Court delivered on 25th September, 2015. At page 229 of the record of appeal, learned trial judge held as follows:-
“In any event by virtue of Section 47 of the NIC Act, 2016, an appeal to the Court of Appeal from the decision of this Court shall not operate as a stay of execution.
Consequently, leave is granted the judgment creditor/applicant to issue a writ of execution against the moveable properties/chattels/goods of the 1st judgment debtor respondent in satisfaction of the judgment debt outstanding which has been calculated to be N75,181,689,96 and is unchallenged or disputed by the 1st judgment debtor respondent.”
Dissatisfied, appellant appealed to this Court through notice of appeal filed on 22nd
November, 2018. The said notice of appeal at pages 230 – 235 of the record of appeal contains six grounds of appeal. The appellant thereafter filed another notice of appeal on 2nd April, 2019. The subsequent notice of appeal also contains six grounds of appeal. On 27th May, 2019, appellant sought and was granted leave to amend the notice of appeal which amended notice of appeal contains seven grounds of appeal.
Distilled from the amended grounds of appeal, learned counsel for the appellant, Bassey B. Anwanane, Esq., formulated the following five issues for the determination of this appeal. These issues are:-
1. Whereas this case, an appeal lies only by leave of the Court of Appeal and an application is pending at the Court of Appeal was the Court below (trial Court) right to ignore the pendency of that application and to treat its judgment against which there was an extant application for leave to appeal pending at the Court of Appeal as having not been appealed against. (Distilled from ground 1).
2. Was the Court below right to have ignored the pendency of an application made at the Court of Appeal for the stay of execution of the
judgment of the Court below, which application was fully disclosed to and exhibited before the Court below and to instead proceed to grant leave to levy execution, notwithstanding the pendency of the application for stay at the Court of Appeal? (Distilled from ground 2).
3. Where, as in this case the record of appeal cannot be compiled and transmitted until the leave to appeal has been obtained was the Court below right when it ordered execution to be levied on the ground that the record of appeal had not been transmitted, even though an application for leave to appeal had been brought and was pending at the Court of Appeal to the knowledge of the Court Below? (Distilled from ground 3).
4. Did the purported sum of N75,181,689.96, ordered to be levied in execution by the parties appealed, or formula from which that sum can be calculated determined by or in the judgment itself and if it was not, was the Court below right in ordering the levying of execution in that sum? (Distilled from ground 6).
5. In all the circumstances of this case, was the Court below right when it granted leave to the respondent to purport to levy execution of its judgment
on the excuse that there was no evidence that leave to appeal had been obtained, and on the ground that the appellant’s opposition to the respondent’s application to levy execution was intended simply to deny the respondent the benefit of his judgment. (Distilled from grounds 4, 5, and 7).
On the part of the respondent, Seun Ajobiewe, Esq., formulated two issues for the determination of this appeal thus:-
1. Whether the lower Court was right in granting the respondent’s leave to execute the judgment of the lower Court.
2. Whether the lower Court was right in granting leave in the sum of N75,181,689.96?
In addition, learned counsel to the respondent raised a preliminary objection to the hearing of the appeal on the following grounds:-
(1) That by virtue of the leave granted by the lower Court for the respondent to levy and execute the judgment of the lower Court, the judgment of the lower Court was executed and levied on the 7th of February, 2019.
(2) That even if this Honourable Court should set aside the ruling of the lower Court granting the respondent leave to enforce its judgment, the judgment has already been
levied and executed and respondent has already reaped the benefit of the judgment making this whole appeal process to be empty and academic in nature.
Arising from the said preliminary objection, learned counsel formulated a lone issue for its determination thus:-
Whether this appeal is not academic and lacking in practical value to the appellant thereby robbing this honourable Court of jurisdiction to entertain it?
At the hearing of the appeal on 23rd June, 2020, learned counsel for the appellant, Bassey B. Anwanane, Esq., adopted and relied on the appellant’s brief of argument filed on 7th June, 2019 and the appellant’s reply brief filed on 25th July, 2019 in urging this Court to allow the appeal. The respondent’s brief of argument incorporating the preliminary objection, filed on 10th July, 2019 was deemed argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2016 after confirming service of hearing notice on the respondent’s counsel on 17th June, 2020.
I have carefully gone through the two sets of issues formulated by learned counsel on both sides which are seemingly the same expect for matters of
semantics. The two issues formulated by the respondents are concise and quite apposite to the just determination of the appeal. In fact, the appellant’s five issues can conveniently be condensed into the two issues of the respondent. That being the case, I shall determine this appeal on the basis of the two issues formulated by the respondent.
Before delving into the respective argument of counsel, let me first of all consider the preliminary objection and if need be proceed to the main appeal.
Proffering argument on the lone issue for the preliminary objection, learned respondent’s counsel submits that a Court will not adjudicate on a matter which is an academic exercise because the Court deals with live issues and steer clear of those issues that are academic and are of no practical value after the Court has expended its judicial time in giving a decision. He referred to OGBONNA V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1997)5 NWLR (prt 504) 281 at 287, and BUHARI V. OBASANJO (2003)16 NSCQR 68 at 88 to the effect that a Court would not act in vein or give an order which cannot be enforced.
Learned counsel contend that the judgment
of the lower Court being the subject matter of this appeal having been executed and in satisfaction of the judgment, the appellant had already paid the respondent, the outcome of this appeal became an academic exercise.
Responding to the preliminary objection, learned counsel for the appellant contend that having gone against every legal precept to partially execute the ruling despite pending processes, the respondent cannot be permitted to take further advantage of his own wrong. And that the ruling sought to be reversed cannot be considered spent in view of the outstanding balance. He referred toNWOSU NORTH AND SOUTH INTERNATIONAL LTD & ANOR V. NIGERIA INTERNATIONAL TRADING AND INDUSTRIAL CORPORATION LTD (2014) LPELR-23425 (CA) in submitting that allowing this appeal has the effect of substituting the judgment of the lower Court as every act done in pursuance of the said ruling stand reversed.
Still in argument, learned counsel submits that where a Court has jurisdiction to hear and determine a matter it also has jurisdiction to make consequential orders to give effect to its judgment. He referred to APC V. KARFI (2018)6 NWLR (prt 1616) 479.
The main issue in contention is that having executed the ruling now on appeal, and the respondent having enjoyed the fruits of his judgment, there is therefore nothing left. In other words, the appeal is a mere academic exercise.
A suit is academic where it is merely theoretical makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit can as well be academic if it is not related to practical situation of human nature and humanity. Thus, once a suit no longer has live issues for determination such a suit can be said to be academic. See PLATEAU STATE V. A.G., FEDERATION (2006)3 NWLR (prt 967) 346 and DAHIRU V. APC (supra).
It is pertinent to state at this juncture that the judgment which was the subject of execution was the judgment of the lower Court delivered on 25th of September, 2014. The respondent has succinctly put his case at paragraphs 2 (i) – (v) of the affidavit in support of the notice of preliminary objection thus:-
2. That I am informed by Seun Ajobiewe, Esq., in our office on the 3rd of July, 2019 at about 11am and I verily believe him as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
- That the respondent approached the National Industrial Court of Nigeria via a motion ex parte filed on the 2nd of February, 2018 and sought the leave of the Court to issue a writ of execution to enforce the judgment of the National Industrial Court to enforce the judgment of the Court delivered on the 25th of September, 2014 which the respondent computed to be in the sum of (Seventy five Million, One Hundred and Eighty One Thousand, Six Hundred and Eighty Nine Naira, Ninety Six Kobo) N75,181,689.96.
ii. The National Industrial Court ordered that the respondent should make the application on notice and put the appellant on notice since it was monetary in nature and which was computed by the respondent to be the sum of (Seventy Five Million, One Hundred and Eighty One Thousand, Six Hundred and Eighty Nine Naira, Ninety Six Kobo) N75,181,689.96, the respondent filed another application on 1st June, 2018 for leave on notice to the appellant. The application was moved and granted, leave to execute the judgment of the National Industrial Court was granted on the 14th of November, 2018.
iii. That while the respondent was waiting for the Sheriffs of the
National Industrial Court to enforce the judgment of the Honourable Court, he was served with the processes of the appellant on the 28th of November, 2018 seeking to stay the execution of the judgment of the National Industrial Court. The said application was heard on the 28th of January, 2019 and refused on the ground that the appellant had not satisfied the condition necessary to grant it stay of execution.
iv. The judgment of the National Industrial Court was enforced on the 7th of February, 2019 in absence of an order staying the said execution and the National Industrial Court had since released the sum of Sixty Million Naira to the respondent in part satisfaction of the judgment sum.
v. That this appeal will serve no purpose but to waste the judicial time of this Honourable Court, as the cause of action had been spent and extinguished, making this appeal academic, hypothetical and lacking in practical utility value.
In response, the appellant averred in paragraphs 3 (a) – (p) of the counter-affidavit of the appellant to respondent’s notice of preliminary objection as follows:-
3. I wish to highlight that the
respondent’s affidavit is false and totally misleading. I therefore vehemently deny paragraph 2 of the respondent’s affidavit, particularly but not exclusively subparagraphs (iv) and (v) thereof. The full and true facts of the matter are as follows:-
(a) On the 14th of November 2018, the Court below in its ruling granted leave to the respondent to issue writ of execution to levy execution of the judgment in NICN/CA/108/2012. The said ruling is the subject of this appeal.
(b) On 27th November 2018, the appellant filed a Motion for Stay of Execution of the Ruling at the Court Below. It was eventually heard and refused on the 28th January 2019.
(c) On 20th December 2018, the appellant filed an application before this honourable Court, seeking leave to appeal against the said ruling of 14th November 2018. The application was numbered as Appeal No. CA/C/498M/2018.
(d) Upon the refusal of the appellant’s motion for stay of execution by the Court below on 28th January 2019, the appellant proceeded to file another Motion for Stay of Execution before this honourable Court on the 4th February 2019. That motion for stay was also
numbered as Appeal No. CA/C/498M/2018.
(e) The application for leave to appeal referred to in Subparagraph (c) above was eventually heard and granted by this honourable Court on 25th March, 2019. When the Record of Appeal was compiled and transmitted to the Registry of this Court pursuant to the leave granted the Court, the Registry elected to number it/this Appeal as Appeal No. CA/C/160/2019.
Unlawful levying of Execution
(f) While the several applications referred to in Subparagraphs (c), (d) and (e) above were all pending, the respondent, on 7th February, 2019, acting in conjunction with the Chief Registrar of the Court below, laid siege upon all the appellant’s business premises within Uyo Metropolis, shut down the generators and compute devices of the appellant, and stationed armed policemen outside the appellant’s premises.
(g) Upon being informed of the respondent’s actions, the appellant’s counsel met with the respondent’s counsel, Esther Archibong Esq., and a staff of the Chief Registrar of the Court Below, one Mrs. Nsidibe Okon at about 10:30am and showed to them, a copy of the appellant’s motion
for stay of execution filed on 4th February, 2019, referenced in subparagraph (d) above. However, both the respondent’s counsel and the Chief Registrar of the Court below refused to acknowledge the motion for stay of execution, insisting that they would not call off the execution until there is an order from the Court of Appeal.
(h) At about 11:30am, our Senior Partner, Mr. Bassey Anwanane, went to the office of the Registrar of the Uyo Judicial Division of the Court Below, Mr. Peter Ortese, and again showed him a copy of the Motion for Stay of Execution filed on 4th February, 2019, and offered to serve him a copy of the said process. The Registrar declined such service and refused to call off the ongoing execution, insisting upon being served by a Bailiff of the Court of Appeal, before taking any action.
(i) It was then that the appellant’s counsel realized that the motion for stay of execution of 4th February, 2019 had not been served despite having mobilized for service. The appellant’s counsel had to immediately mobilize again for the Bailiff of the Court of Appeal to serve the respondent and the Registrar of the Court Below.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
(j) The Bailiff of the Court of Appeal, Mr. Pius Offong, eventually arrived Uyo from Calabar and served the Motion for Stay of 4th February, 2019 on the Registrar of the Uyo Judicial Division of the Court below at about 3:00pm. The respondent’s counsel was also served at about 3:35pm on the 7th of February, 2019, but refused to accept and acknowledge the service. A Certified True Copy of the Affidavit of Service sworn to by Mr. Pius Offong is attached hereto and marked as Exhibit PO 1.
(k) To the appellant’s chagrin, despite the service of the motion for stay of execution on the respondent and the Chief Registrar of the Court Below, they refused to stop or abate the execution.
(l) The appellant being thus inveigled, pressured, most horribly embarrassed and constrained and, it is fair to say, coerced (its services at all three branches having been disrupted throughout the day, its computers disconnected, its generators shut down, its customers stranded and incalculable harm done to its business, reputation and helpless customers), even during and after the service of the aforesaid motion for stay of execution of 4th February, 2019, was thus
compelled to issue six (6) Manager’s Cheques of N10,000,000.00 (Ten Million Naira) each, worth a total of N60,000,000.00 (Six Million Naira) in the name of the “Chief Registrar of the National Industrial Court, Uyo”.
(m) The Chief Registrar’s staff collected the said cheques at 5:30pm on the same 7th February, 2019. Receipt was acknowledged by one Mrs. Nsidibe Okon, Executive Officer of the 1st defendant who acted as one of the Bailiff or Sheriffs of the Court Below. A copy of the 6 Manager’s Cheques and acknowledgement are attached hereto as a single document and marked as Exhibit PO 2.
(n) It was only after the collection of the Manager’s Cheques that the respondent vacated the appellant’s premises and released its plants and equipment.
(o) The next day, 8th February, 2019, the appellant, through its counsel wrote to the Chief Registrar of the Court Below, copying the respondent’s counsel, demanding that in the light of the pending applications for leave to appeal and motion for stay of execution before the Court of Appeal in Appeal No. CA/C/498M/2018, the Manager’s Cheques should not be
cashed, or if cashed, the value thereof should not be paid over to the respondent as such monies if paid over would be dissipated and unrecoverable, thus foisting this honourable Court with a fait accompli. A copy of the appellant’s counsel’s letter dated 8th February 2019 is attached hereto and marked as Exhibit PO 3.
(p) Neither the Chief Registrar nor the respondent has responded to that letter till date. However, I know for a fact that the Chief Registrar of the Court Below cashed the N60,000,000.00 Manager’s Cheques on 14th February 2019.
The question here is the appellant’s appeal spent, speculative and not related to practical situation of human nature and humanity? I do not think so in view of the averments in paragraphs (c), (d) and (e) of the counter affidavit which shows that the appellant had put spirited efforts in staying the execution of the judgment and the ruling seeking to levy the execution of same. The appellant had also filed an appeal. Although an appeal perse does not operate as a stay of execution of a judgment, in order not to inflict on the higher Court a completed act, the practice has been that a
fiat accompli should not be imposed on the higher Court. This is done to prevent impugning the jurisdiction of a superior Court. See ODOGWU V. ODOGWU (1992)2 NWLR (pt 225) 539.
It is also clear from the respondent’s averments above that execution of the judgment is not yet completed and therefore, the appeal is not imaginary and not based on real facts. It is also not academic and hypothetical because the issue being canvassed was in relation to money which is still outstanding. In the result, the preliminary objection is bereft of any merit and it is accordingly overruled.
Turning back to the main appeal, learned counsel for the appellant on the first issue contend that an appeal in the case lies only with leave of Court of appeal and an application for such leave was pending at the Court of Appeal but same was ignored by the lower Court. Likewise, the lower Court ignored its application for stay of execution of the substantive judgment pending at the Court of Appeal. He thus submits that the lower Court was wrong to have ignored all these pending processes and proceeded to grant leave of execution with a view of foisting a fiat accompli on
this Court. He referred to VASWANI V. SAVALAKH (1972)7 NSCC 692 at 697 to effect that when an application for a stay of execution is pending, parties should not act in such a way as to present the higher Court with a fiat accompli.
On the second issue, learned counsel for the appellant contend that specificity is mandatory for a monetary judgment and since the respondent did not claim any specific sum or monetary relief in the substantive suit, there was no factual, or legal justification for granting execution in the sum of N75,181,689.96 or any other sum. He submits that the sum of money ordered to be levied in execution cannot be calculated from the judgment sought to be enforced.
Responding to the first issue, learned counsel to the respondent submits that a judgment of a Court cannot be stayed until a prayer for stay of execution is made and granted. He referred ZENITH BANK LTD V. ALOBU (2017)4 NWLR (prt. 1554) 135 at 140.
Still in argument, learned counsel submits that an appeal does not and cannot act as a stay of execution of the judgment of the Court relying on Section 47 of the National Industrial Court Act, 2006, Order 64 Rule 14(3) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 .
and the case of FATOYINBO V. OSADEYI (2002)11 NWLR (prt 778) 384.
On the second issue, learned counsel argued that most labour matters has to do with imprecise judgment sum and therefore a judgment creditor is entitled to all his salaries/monies/interest or income from the date judgment was delivered until the day it is executed or satisfied without stating the actual figure and thus at the time of enforcing such judgments such amounts are computed at the Registry of the Court.
Some of the principle guiding of application for stay of execution have been stated in plethora of judicial decisions as including (a) The existence of special or exceptional circumstances; (b) Preservation of the res or subject matter of litigation to ensure that the appeal is not rendered nugatory upon successes (c) the subject matter of the appeal and the request for the stay having or sharing the same substratum, (d) where the applicant will be financially handicapped to prosecute the appeal, even though poverty perse is not a ground for granting an application for stay of execution where appeal
raises an arguable or substantial issue. The onus is however placed squarely on the applicant to establish one or more of these principles. See KIGO V. HOLMAN BROS (NIG) LTD (1980)5-7 SC 60, SHODEINDE V. THE REGISTERED TRUSTEES OF THE AHAMMDIYAH IN ISLAM (1980)1-2 SC 63 and VASWANI TRADING CO. V. SAVALAKH & CO. (supra).
It is instructive to note also that certain events occur which make the successful party to wait for a while till the appeal filed by the judgment debtor has been disposed. These includes where execution will have the effect of destroying the subject matter of the action (b) where execution will foist on the Court especially, the Court of appeal a situation of complete helplessness (c) where execution will render nugatory any order or orders of the Court of appeal, (d) where the execution will paralyze the exercise of the litigant his constitutional right of appeal, (e) where the appellant cannot be referred to his status quo if the appeal succeeds or (f) where the appellant has an important point of law to argue on appeal. In JULIUS BERGER (NIG) PLC T.R. COMM. BANK (2007)1 NWLR (Prt 1016) 540 at 549 it was held that once a notice of appeal is
filed and served on the other party and the lower Court, especially where the applicant is challenging a money judgment and has applied to the lower Court for a stay of execution the appellate Court will then be in total control of the matter and the other party and lower Court are prohibited from tampering with the res.
I have considered the affidavit evidence placed by the parties in respect of the said application for stay of execution vis-a-vis the spirited efforts made in that regards by the appellant. I am convinced that the execution of the judgment of the lower Court was capable of foisting on this Court a situation of complete helplessness and also render nugatory any order of this Court. Thus, the exceptional circumstances make the successful party to wait for a while so that the appellant should pursue the pending applications before this Court. I therefore resolved the first issue in favour of appellant.
The appellant’s contention on the second issue is that the computation made in awarding judgment in favour of the respondent was arbitrary and not based on any standard of formula. Thus, the judgment was imprecise and not certain.
It is on record that the respondent was on suspension from May, 2009 and all what the lower Court was expected to do was to determine at what point the outstanding salaries should be computed.
In the unreported appeal NO. CA/C/293/2019 which is an offshoot of the present appeal this Court, per Nimpar JCA has opine and I totally endorsed the opinion that in wrongful termination, the only remedy available to the respondent has been crystallized by law and not open to the discretion of the trial Court. Thus, it was not judicious to award salaries until employment is terminated and beyond judgment. Also the salaries and allowances cannot include the period of litigation when the employment was not one with statutory flavor. That being the case, the computation in the judgment the subject matter of the appeal No. CA/C/293/2019 above, was imprecise and incapable of been enforced. I also resolved the second issue in favour of the appellant.
In the final analysis, the appeal is allowed and the execution of the judgment by the lower Court is hereby set aside. Parties shall bear their respective costs.
PHILOMENA MBUA EKPE, J.C.A.: I have had the
privilege of reading in draft the judgment just delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusions reached therein and have nothing extra to add.
The appeal is hereby allowed.
HAMMA AKAWU BARKA, J.C.A.: I was opportune to have read in draft the judgment of my learned brother Muhammed L. Shuaibu, JCA.
I agree that there is merit in this appeal and that it be allowed. I abide by the order as to costs made by SHUAIBU, JCA, in the lead judgment.
Anwanane B. Bassey For Appellant(s)