ODOR & ANOR v. GOV OF IMO STATE & ORS
(2020)LCN/15357(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, August 07, 2020
CA/OW/357/2018
RATIO
GROUNDS OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST BE DEDUCED FROM GROUNDS OF APPEAL
We have stated several times that a Respondent is not permitted to formulate issue(s) for determination of appeal, outside the grounds of the Appeal, formulated by the Appellant. He can only distill a different or stranger issue for determination, if he (Respondent) had filed a cross-appeal or a Respondent’s Notice, to relate the strange issue for determination to the grounds of the cross-appeal or Respondents’ Notice. See the case of Citibank Nig. Ltd VsAbia State Internal Revenue Service (2018) LPELR – 46246 (CA):
“… It is also the law that a Respondent has no room to distill Issue(s) for determination of appeal, outside the grounds of appeal formulated by the Appellant, except he (Respondent) had filed a cross-appeal or Respondent’s Notice to accommodate the extraneous or strange issue(s). See Duru Vs Duru (2016) LPELR – 40444 (CA); Onuegbu & Ors Vs Gov. Imo State (2015) LPELR – 25968 (CA); Anyalenkeya Vs Anyalenkeya & Ors (2016) LPELR – 40218 (CA).
The said Issue 1 for determination of the Appeal by Respondents is hereby struck out, being unrelated to the grounds of Appeal and, therefore, incompetence. See Iroaganachi Vs Madubuko & Anor (2016) LPELR – 40048 (CA); Umanah Vs NDIC (2016) LPELR – 42556 (SC); Egbe Vs Alhaji (1990) 1 NWLR (Pt.128) 546. And Mato Vs Hember & Ors (2017) LPELR – 42765 (SC), where it was held:
“… issues for determination must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal… Any issue which does not arise from competent grounds of appeal or from any ground of appeal at all is incompetent and may be struck out. Ndulue Vs Ojiakor (2013) 8 NWLR (Pt.1356) 311. See also Skye Bank Plc Vs David &Ors (2014) LPELR – 23731 (CA); Shettima Vs Goni (2011) 11 NWLR (Pt.279) 413.” PER ITA GEORGE MBABA, J.C.A.
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
1. CHIEF EMMANUEL ODOR (Administrator Of The Estate Of SYLVANUS NMAZU ODOR (Deceased) 2. AUGUSTINE ODOR APPELANT(S)
And
- THE GOVERNOR OF IMO STATE 2. ATTORNEY-GENERAL OF IMO STATE 3. THE COMMISSIONER FOR LANDS, SURVEY & URBAN PLANNING, IMO STATE AND ACCESS BANK PLC RESPONDENT(S)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Imo State High Court in Suit No. HOW/51M/2017, delivered on 18/4/2018, wherein, following the Application of the Judgment/Debtors, in Suit No. HOW/616/2012, the Lower Court stayed the execution of the garnishee order absolute, made by the Lower Court to enforce the said judgment in the Suit No. HOW/616/2012, delivered on 16/3/2016. The order staying the execution of the Garnishee order absolute was made by Hon. Justice N.B. Ukoha, the same Judge who gave the judgment in Suit No. HOW/616/2012.
The Judgment creditor in Suit No. HOW/616/2012 had applied in Suit No. HOW/51M/2017 for Garnishee Order Nisi to enforce the said judgment, and the order Nisi was made, and later made absolute, on 19/10/2017, against the Garnishee – Diamond Bank Plc (now ACCESS BANK PLC). The Judgment debt or filed a motion for the trial Court to stay that order absolute. Delivering the Ruling on 18/4/2018, to stay the execution of the Garnishee Order absolute, the learned trial Judge said:
“It could be recalled that judgment was delivered in this case on 16/3/2016, thereafter, an Order Nisi, was made following by an Order of garnishee absolute, made on 19th October, 2017.
The Judgment/Debtor/Applicants had on 24/10/2017 filed an appeal against the said garnishee order absolute made on 19th day of October, 2017.
It is upon the bases (sic) of this appeal that the applicants have brought this motion, for an Order staying the execution of the said garnishee Order absolute, hence this ruling. Having gone through the affidavit evidence of both parties and the written submissions of Counsel, and the fact that the applicants are challenging the jurisdiction of this Court, in that according to them, they were not given fair hearing. It is therefore my considered view that the appeal Court should be given the opportunity to hear the appeal and make their findings, whether in the circumstances of this case, the applicants appeal is meritorious or not. In the light of the foregoing, I am of the view that the Order of stay of execution should be allowed, so that the status quo could be maintained pending the outcome of the appeal… the Applicants’ application is hereby allowed.” (See Page 100 of the Records of Appeal).
Appellants filed Amended Notice of Appeal on 19/6/2019 against the above decision, disclosing five (5) grounds of Appeal. They filed their Amended Brief of Argument on 18/6/2019, which was deemed duly filed on 16/6/2020, and a Reply Brief on 15/6/2020. In the Brief, Appellants distilled Four (4) Issues for the determination of the Appeal, namely:
(1) Whether the Lower Court was right in granting the application for stay of execution, after making a garnishee order absolute (Ground 1)
(2) Whether, in the circumstance, the Lower Court ought not to have followed and applied the decision of the Supreme Court in Zenith Bank Plc Vs Chief Arthur John &Ors (2015) 7 NWLR (Pt.1458) 393 (Ground 2)
(3) Whether the Lower Court became functus officio, after making the garnishee order absolute. (Ground 3)
(4) Whether, in the circumstance the judgment debtor/Respondents established special or exceptional circumstances to warrant the grant of the unconditional stay of execution (Grounds 4 & 5)
The 1st to 3rd Respondents filed their Brief on 9/6/2020 and distilled two (2) Issues for the determination of the Appeal, as follows:
(1) Whether the Garnishee Proceedings instituted by the judgment creditor before the lower Court was proper before the Court.
(2) Whether the Court properly made an Order for stay of execution in the circumstances of the case.
I observe that 1st to 3rd Respondents did not relate their Issues to any of the grounds of Appeal, and appeared to be completely outside the confines of the grounds of Appeal by the Appellant (except in respect of the Issue two). We have stated several times that a Respondent is not permitted to formulate issue(s) for determination of appeal, outside the grounds of the Appeal, formulated by the Appellant. He can only distill a different or stranger issue for determination, if he (Respondent) had filed a cross-appeal or a Respondent’s Notice, to relate the strange issue for determination to the grounds of the cross-appeal or Respondents’ Notice. See the case of Citibank Nig. Ltd VsAbia State Internal Revenue Service (2018) LPELR – 46246 (CA):
“… It is also the law that a Respondent has no room to distill Issue(s) for determination of appeal, outside the grounds of appeal formulated by the Appellant, except he (Respondent) had filed a cross-appeal or Respondent’s Notice to accommodate the extraneous or strange issue(s). See Duru Vs Duru (2016) LPELR – 40444 (CA); Onuegbu & Ors Vs Gov. Imo State (2015) LPELR – 25968 (CA); Anyalenkeya Vs Anyalenkeya & Ors (2016) LPELR – 40218 (CA).
The said Issue 1 for determination of the Appeal by Respondents is hereby struck out, being unrelated to the grounds of Appeal and, therefore, incompetence. See Iroaganachi Vs Madubuko & Anor (2016) LPELR – 40048 (CA); Umanah Vs NDIC (2016) LPELR – 42556 (SC); Egbe Vs Alhaji (1990) 1 NWLR (Pt.128) 546. And Mato Vs Hember & Ors (2017) LPELR – 42765 (SC), where it was held:
“… issues for determination must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal… Any issue which does not arise from competent grounds of appeal or from any ground of appeal at all is incompetent and may be struck out. Ndulue Vs Ojiakor (2013) 8 NWLR (Pt.1356) 311. See also Skye Bank Plc Vs David &Ors (2014) LPELR – 23731 (CA); Shettima Vs Goni (2011) 11 NWLR (Pt.279) 413.”
Arguing this Appeal, on 9/7/2020, Appellants’ Counsel, Leslie A. Njemanze, Esq, (who settled the brief of Appellants) on Issues 1, 2 and 3 (which he argued together), submitted that a garnishee proceeding is a process of enforcing a money judgment by the seizure or attachment of the debt due, accruing to the judgment debtor, which form part of his property available for execution. It is, therefore, a special way of execution of debt for which the ordinary methods of execution are in appropriate. Counsel said that, by the process, the Court has power to order a third party to pay, direct to the judgment creditor, the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings. He relied on UBN Plc Vs Boney Marcus Ind. Ltd (2005) 13 NWLR (Pt.943) 654 at 666; GTB PLC Vs INNOSON Nig Ltd (2017) 16 NWLR (Pt.1591) 181 at 197.
Counsel further submitted that garnishee proceedings, being one of the modes or methods of enforcement of a judgment debt, that a garnishee order absolute made in a proceeding, denotes that execution has already been levied against the property to which the order relates; that the money in the custody of the Garnishee with the garnishee order being made absolute, becomes wholly attached. Therefore, once a garnishee order absolute is made, the act of execution of the judgment is completed, and being a completed act, the Court cannot order a stay of execution, or an injunction. He relied on Zenith Bank Plc Vs John (supra).
Counsel added that the trial Court having made the garnishee order absolute on 19/10/2017, had become functus officio in the case, and so lacked the competence to entertain the application for stay by the judgment debtor/Applicant; he said that it (Court) was therefore precluded from, again, entertaining or considering the application. He relied on UBN PLC Vs Boney Marcus Ind. Ltd (supra); FBN Vs Jacob Agidi Nig. Ltd (2018) LPELR – 44997 (CA) and Dingyadi Vs INEC (2011) 10 NWLR (Pt.1255) 347 at 393, where the Supreme Court held, as follows:
“During the period, between when an Order nisi and order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties, as far as proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at the stage, being interlocutory would therefore not arise.” Per Adekeye JSC.
Counsel again relied on Mohammed Vs Husseini (1998) 14 NWLR (Pt.584) 108; Zenith Bank Plc Vs John (supra) and wondered why the Lower Court failed or refused to apply the said case of Zenith Plc Vs John, which was cited at the Lower Court! He relied on Amaechi Vs INEC (2008) 5 NWLR (Pt.1080) 227 at 379 –380; Dalhatu Vs Turaki (2003) 15 NWLR (Pt.843) 310 at 350 – 351, on the duty of Courts to obey the principles of stare decisis, or judicial precedent.
On Issue 4, whether the Judgment debtor/Respondent had established special or exceptional circumstances, to warrant the grant of the application to stay execution of the garnishee order absolute, Counsel answered in the negative. Counsel said that, though application to stay execution of judgment remains at the discretion of Court to grant or refuse, the Courts, usually, do not make the practice of depriving a successful party of the fruits of his judgment, at the instance of the unsuccessful party. He added that, where the Court is permitted to exercise its discretion to stay execution, it must weigh all options, and there must be valid and genuine reasons to predicate such decision; that the applicant must establish special or exceptional circumstances, to justify such decision being taken in his favour. He relied on Funduk Engineering Ltd Vs MC Arthur (1995 – 1996) ALL NLR 157; Royal Exchange Assurance Nig Ltd Vs Aswani Textile Ind. Ltd (1992) SCNJ (Pt.11) 346; Comex Ltd Vs Nigeria Arab Bank Ltd (1997) 4 SCNJ 38.
Counsel said that the Judgment Debtor/Respondent had failed to discharge that burden; that the allegation of denial of fair hearing by the Judgment debtor has no foundation, as it was done with the intention of arm twisting the Court to deny the Judgment creditors the fruits of the judgment they obtained. He relied on Magaji Vs Nigerian Army (2008) 8 NWLR (Pt.1089) 338; Ajomale Vs Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266; Fasel Services Ltd Vs NPA (2001) 11 NWLR (Pt.723) 35 at 41; Fatoyinbo Vs Osadeyi (2002) 11 NWLR (Pt.778) 384; Nwabueze Vs Nwosu (1988) 4 NWLR (Pt.88) 257; UBN Ltd Vs Odusote Book Stores Ltd (1994) 3 NWLR (Pt.331) 129; Ise Oluwa Nig. Ltd Vs Nig. Dist Ltd (2001) 6 NWLR (Pt.709) 427; and Chukwu Vs Onyia (1990) 2 NWLR (Pt.130) 80 at 84 – 85, with regards to the need to raise grounds of appeal with substantial and clear issues of law, and the fact that money judgment is scarcely stayed, rather the judgment debtor should deposit same in the Court.
Counsel urged us to resolve the Issues for Appellant and allow the Appeal.
The Garnishee/Respondent did not file any Brief. I have already struck out the 1st to 3rd Respondents Issue 1. On the remaining Issue 2, whether the Court properly made an order for stay of execution, in the circumstances, Counsel for 1st to 3rd Respondents, Adaku Ugboma (Mrs.) P.S.C. Imo, who settled the Brief, answered in the affirmative. She said that a stay of execution of judgment would be granted, once it is shown that the subject matter of the litigation will be destroyed and the appeal rendered nugatory, in the event of the Appellants’ success. She relied on Vaswani Trading Co. Vs Savalakh & Co. (1972) ALL NLR 483; United Spinners Ltd Vs Chartered Bank (2001) NWLR (Pt.66?) 640.
Counsel acknowledged the need to establish special and exceptional circumstances, to justify the grant of stay of execution, and said that depended on the circumstance of each case. He asserted that the trial Court had exercised its discretion, properly; and said that the trial Court was not functus officio when he made the order. Counsel added that the Appellants should have approached the trial Court, first, to set aside the order for stay of the execution, before coming to this Court, (if the Lower Court failed to discharge the order). He urged us to dismiss the Appeal.
RESOLUTION OF THE ISSUE
I think the main Issues for the determination of this Appeal are represented in Appellants Issues 1, 2 and 3, which can be summarized into one: whether the Lower Court had the vires to entertain the application, and to order a stay of execution of the garnishee order absolute, it earlier issued, on 19th October, 2017?
The authorities are replete on the position of and/or effect of an Order Absolute, made by a Court in a Garnishee Proceedings; that it amounts to an Order of execution of the Judgment, which the Judgment creditor applied to enforce by means of the garnishee process. In the case of Zenith Bank Plc Vs John & Ors (2015) 7 NWLR (Pt.1458) 393 (which was cited and relied upon at the Lower Court), the Supreme Court held:
“It is stating the obvious, that a Garnishee Order Absolute means an executed judgment, and being a complete act, one wonders how an order of stay can either be ordered or carried out. In this regard, I refer to the A.G. Anambra State Vs Okafor (1992) 2 NWLR (Pt.224) at 430; Badejo Vs Fed. Minister of Education (1996) 8 NWLR (Pt.464) 15.” Per Mary Peter – Odili JSC
In the said judgment above (Zenith Bank Plc Vs John (supra), my lord, Onnoghen JSC (as he then was, later CJN) said:
“It is not in dispute that a garnishee proceeding is one of the modes or methods of enforcement of a judgment debt, and that a Garnishee Order Absolute had been made by a Court of competent jurisdiction in this matter. Also, not in dispute, is the basic fact that there is no appeal against the said order absolute, pending in the Court below. It is settled law that once an execution is completed, you cannot order a stay of execution of the judgment, already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine, intended to cure his ailment. Put the other way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law, which does nothing in vain. In a situation where execution had been levied, the proper application is for an order of Court setting aside the writ of attachment or execution, if actual execution had not been carried out.”
In the same way, Mohammed JSC in that case said:
“The underlining principle that must inform our decision, in this matter, is that an injunction or stay does not proceed against a completed event; the order the application herein seeks to stay is a Garnishee Order Absolute, which by its very tenor, denotes that execution has already been levied against the property to which the order being sought, relates. The money with the Garnishee Order being made absolute becomes wholly attached…”
The above case (Zenith Bank Plc Vs John (supra)) was cited and relied upon at the Lower Court, together with other relevant cases, relied upon by Appellants in this Appeal, but surprisingly, the learned trial Court appeared not to have adverted its mind to them, and therefore embarked on making an order which amounts to a complete nullity, and ridicule of its Court, as the order the Court made is an impossibility, incapable of any enforcement. This is because the said judgment in HOW/616/2012, having been enforced by the Garnishee Order absolute, which the Court made on 19/10/2017, has become a completed act. As stated by my lord Onnoghen JSC (later CJN) in the case of Zenith Bank Plc Vs John (supra):
“it is settled law that, once an execution is completed, you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment…”
There is consensus in the decisions of the apex Court, that:
“a garnishee proceeding is one of the modes or methods of enforcement of a judgment debt and that a Garnishee Order Absolute, once made… by its very tenor, denotes that execution has already been levied against the property to which the order being sought, relates. The money, (in custody of the Garnishee), with the Garnishee Order being made absolute, becomes, wholly, attached.” See Zenith Bank Plc Vs John & Ors (2015) 7 NWLR (Pt.1458) 393.
In that situation, the Lower Court became functus officio in the Garnishee proceedings (HOW/51M/2017), having made its final order (the Garnishee order absolute) on 19/10/2017. The judgment Debtors/Respondents (who were parties at the Court below, had no competence to seek to reopen the case again by their motion(application) for stay of the Garnishee Order Absolute, feigning absence of jurisdiction in the trial Court, to make the Garnishee Order Absolute.
I think the Judgment Debtors were embarking on a course to abuse the Court process, and the learned trial Judge got trapped by the allegation of appeal and/or issue of jurisdiction, to make the illegal orders, in vain, as it cannot be enforced.
In the case of Union Bank of Nigeria Plc Vs Boney Marcus Ind. Ltd (2005) LPELR – 3394; (2005) 13 NWLR (Pt.943) 654 (which was referred to by Mohammed JSC in the above case of Zenith Bank Plc Vs John (supra), it was held:
“In the circumstance, this Court has become functus officio. The Latin Phrase, “functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. A Court is said to be functus officio in respect of a matter, if the Court had fulfilled or accomplished its function in respect of that matter, and therefore lack the potency to review, reopen or revisit the matter. Thus, once a Court delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment, except under certain conditions.” Per Akintan JSC.
In the case of Dingyadi Vs INEC (2011) 10 NWLR (Pt.1255) 347 at 393, the Supreme Court held:
“During the period between when an Order nisi and order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties, as far as proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at the stage, being interlocutory would therefore not arise.” Per Adekeye JSC
The above decision, (like the case of Zenith Bank Plc Vs John (supra)) is applicable to this Appeal. I therefore hold that the act of entertaining the application to stay the Garnishee Order Absolute that resulted in the Ruling, in this appeal (and the entire decision of the Court below) was a misadventure, an exercise in futility, incapable of any legal effect, in the circumstance.
The Appeal is, therefore, allowed being meritorious and the decision of the trial Court made on 18/4/2018 is accordingly set aside, as the Garnishee Order Absolute, made on 19/10/2017, executing the judgment debt in Suit HOW/616/2012, remains, and the Garnishee ordered to give effect to same.
The 1st to 3rd Respondents shall pay the cost of this Appeal, assessed at N50,000.00 (Fifty Thousand Naira) only, payable to the Appellants.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I agree with the reasoning and conclusion of my Noble Lord I. G. Mbaba, JCA that this appeal is meritorious and is hereby allowed. I abide by the consequential orders therein made.
Appearances:
L.A. NJEMANZE, ESQ., with him, K.I. UDUMA, ESQ. For Appellant(s)
ADAKU UGBOMA (MRS.) (P.S.C. IMO) (who settled the Brief)
GARNISHEE Unrepresented For Respondent(s)
