SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2021)

SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS

(2021) LCN/4972(SC)

In The Supreme Court

On Friday, February 05, 2021

SC.1179/2019

Before Our Lordships:

Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria

Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumi juJustice of the Supreme Court of Nigeria

Abdu Aboki Justice of the Supreme Court of Nigeria

Between

ELDER DR. FRIDAY SANI (MAKAMA) APPELANT(S)

And

KOGI STATE HOUSE OF ASSEMBLY 2. RT. HON. IMAM UMAR (SPEAKER, KOGI STATE HOUSE OF ASSEMBLY) 3. HON. GODWIN OSUYI 4. GOVERNOR, KOGI STATE 5. COMMISSIONER FOR JUSTICE AND ATTORNEY GENERAL OF KOGI STATE 6. ACCOUNTANT GENERAL OF KOGI STATE 7. KOGI STATE GOVERNMENT AND 1. ACCESS BANK PLC 2. DIAMOND BANK PLC 3. ECOBANK NIGERIA PLC 4. FIDELITY BANK PLC 5. FIRST BANK PLC 6. FIRST CITY MONUMENT BANK PLC 7. GUARANTEE TRUST BANK PLC 8. KEYSTONE BANK LIMITED 9. POLARIS BANK LIMITED (FORMERLY SKYE BANK PLC) 10. UNION BANK OF NIGERIA PLC 11. UNITY BANK NIGERIA LIMITED 12. UNITED BANK FOR AFRICA PLC 13. WEMA BANK PLC 14. ZENITH BANK RESPONDENT(S)

RATIO

THE PURPOSE OF FILING A PRELIMINARY OBJECTION

This Court has countlessly stated that a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See:
Odunukwe v. Ofomata (2010) LPELR 2250 SC
Ndigwe v. Nwude (1999) 11 NWLR pt.626 p.314,
NEPA v. Ango (2001) 15 NWLR pt.737 p.627. Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See:
Muhammed v. Military Administrator Plateau State (2001) 16 NWLR pt.740 p.524;
NDIC v. Oranu (2001) 18 NWLR pt.744 p.183. PER ABOKI, J.S.C.

WHETHER OR NOT THE LOWER COURTS HAVE JURISDICTION AND POWER TO SIT ON APPEAL OVER THE JUDGEMENT OF THE SUPREME COURT

My Lords, the law is settled, and as rightly stated by learned senior counsel for the Appellant, that the Court below, and other Courts subordinate to this Court, lack the jurisdictional competence and power to sit on appeal over the judgment of this Court. This is the import of Section 235 CFRN 1999 as amended.
The Court below, in Okonkwo V. FRN (2011) LPELR 4723 CA, lent its voice to the above, when it held, per Garba JCA (as he then was) that:
“By the provisions of Section 235 of the 1999 Constitution, no other body or person has the jurisdiction or power to review, for the purpose of any relief claimed in respect thereof, a decision or determination by the Supreme Court of any issue in any case. The Section makes the following provisions:-
“235. Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court” Put simply, there is no appeal from or against any decision or determination by the Supreme Court in any case under the above provisions. The decision or determination by the Supreme Court of any issue in a given case is therefore final and not subject to an appeal to any other body or person. In this regard by the hierarchy of the Courts created by or pursuant to the provisions of the Constitution, the Supreme Court is at the Apex of all other Courts in the Country and its decisions bind all other Courts of subordinate jurisdiction. As a consequence, a Court with sub-ordinate jurisdiction to that of the Supreme Court under the Constitution lacks the power, authority or jurisdiction to review a decision or determination by the Supreme Court on any pretext whatsoever.”
In FBN Plc v. TSA Ind. Ltd (2012) LPELR 4714 SC, this Court stated as follows:
“There is no doubt that this Court does not have the power or competence or jurisdiction to consider an application to review its judgment once delivered. The Supreme Court being the final Court of Justice of Nigeria, its decision is final and cannot be altered or reviewed by any other Court or by itself except by itself on exceptional and specific circumstances.” PER ABOKI, J.S.C.

WHETHER OR NOT THE COURT OF APPEAL HAS THE RIGHT TO ORDER A STAY OF EXECUTION OF A GARNISHEE ORDER ABSOLUTE MADE BY A TRIAL COURT

On whether the Court below was right to order a stay of execution of the garnishee order absolute, made by the trial Court, the Court below held that the execution of a judgment ordering the payment of a specific sum of money does not end with the attachment of the property to the judgment debtor. It ends when the judgment sum is finally paid to the judgment creditor. Until the judgment sum is paid, to the judgment creditor, the process of execution can be stayed for legally recognized reasons. One of such reasons is that there is a pending appeal against the said judgment or order and that if the money is paid to the judgment creditor while the appeal is pending, it will render nugatory, the process and result of the appeal. The Appellant in an appeal against a judgment has a right to protect the appeal from being rendered nugatory and therefore has the right to employ the appropriate legal and equitable process to protect the appeal from being negated. One such process is an application for an order of Court staying the execution of the judgment, pending the determination of the appeal. It is part of the compendium of the Appellant’s right of appeal to be able to protect the exercise of that right from being rendered illusory. It is equally the duty of the Court to protect the appeal from being rendered nugatory.
In S.P.D.C (Nig) Ltd & Anor v. Amadi & Ors (2011) LPELR3204 SC, this Court per Muntaka Coomassie JSC held that “… In an application for stay of execution the Court has a primary duty to protect the res from being destroyed, annihilated or demolished. The Court has a duty to ensure that the res is intact, not necessarily for posterity, but for the immediate benefit and pleasure of the party who is finally in victory in the litigation process. This is necessary because if the res is destroyed in the course of litigation before the party gets judgment, then he has no property to make use of in the way he wants as the owner and the direct result in such a circumstance is that the victor has on his land a barren victory, a victory without a difference, an empty victory. He leaves the Court empty handed. In real fact he leaves the Court in victory without victory. If the res is destroyed, annihilated or demolished before the matter is heard on appeal, then this Court will be reduced to a state of hopelessness and that will be bed, very bad indeed. This Court, like every other Court cannot give an order in vain. The Court will then be reduced to a situation where it can bark by the use of its judicial powers under Section 6 (6) of the 1979 Constitution but cannot bite.” PER ABOKI, J.S.C.

ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This appeal is against the decision of the of the Court of Appeal, holden at Abuja, delivered on the 28th of August, 2019, staying the execution of the Ruling of the trial High Court of the Federal Capital Territory, Abuja.

The facts leading to this appeal, can be summarized as follows:
The Appellant herein, instituted a suit at the High Court of Kogi State, Lokoja, against the Respondents, wherein judgment was delivered on the 29th of June 2017. The 1st Respondent herein, dissatisfied with the part of the judgment setting aside the suspension of the Appellant from the 1st Respondent (i.e, the Kogi State House of Assembly), appealed to the Court of Appeal, Abuja.

The Court of Appeal, upon hearing the appeal, delivered its judgment on the 20th of March, 2018, allowing the appeal and remitting the case back to the Chief Judge of Kogi State for re-assignment to another Judge to be heard by way of a Writ of Summons.

The Appellant, aggrieved by this decision of the Court of Appeal, Abuja, appealed to this Court vide its Notice of Appeal filed on the 22nd of March, 2018. This Court, upon hearing the appeal, allowed same in part, and held inter alia as follows:
1. The judgment of the Court below be and is hereby set aside
2. The judgment of the trial Court is hereby restored and affirmed
3. That the Respondents be and are hereby ordered to pay the Appellant all his pending salaries, allowances, emoluments and monies due to him and allowed to resume his legislative duties forthwith
4. The cost of this appeal is fixed at One Million Naira against each set of Respondents and in favour of the Appellant.

Consequent upon this decision of the Supreme Court, the Appellant herein, commenced garnishee proceedings at the High Court of the Federal Capital Territory, Abuja against the Respondents seeking the following reliefs:
1. GARNISHEE ORDER NISI as in form 26 of the Sheriff and Civil Process Act; against the Garnishee herein, attaching the sum of N210,820,000.00 (Two Hundred and Ten Million, Eight Hundred and Twenty Thousand Naira only), due and accruing to the Judgment Debtor/Respondents in custody of the garnishees with particular reference to the accounts stated in the schedule
2. AN ORDER RESTRAINING/PROHIBITING garnishees from paying out or transferring monies due and accruing to the Judgment Debtors in their custody (in the accounts provided in the schedule below), pending when the Garnishees can show cause why they cannot be ordered to pay the said monies to the Judgment Creditor/Applicant
3. The sum of Ten Million Naira only being the cost of the garnishee proceedings
4. AND FOR SUCH ORDERS or further orders as this Honourable Court may deem fit to make in the circumstances of this case

The 1st Respondent filed a Notice of Preliminary Objection challenging the garnishee proceedings, inter alia that the judgment of this Honourable Court upon which the garnishee proceedings was predicated, did not contain any specific amount as to the Appellants pending salaries, allowances, emoluments and monies due to him, hence there was nothing in the Supreme Court judgment specifying that the Appellant be paid the sum of N210,820,000.00 (Two Hundred and Ten Million, Eight Hundred and Twenty Thousand Naira only).

The Trial Court delivered its Ruling on the 19th of June, 2019 and dismissed the 1st Respondent’s Preliminary Objection and proceeded to make the garnishee order nisi, absolute against the funds standing to the credit of the 7th Respondent, in the custody of the 14th Garnishee/Respondent, as per the Appellant’s reliefs.

Dissatisfied with the Ruling, the 1st Respondent appealed to the Court of Appeal, Abuja. The 1st Respondent also filed a Motion for stay of execution of the Trial Court’s Ruling, pending the determination of the appeal filed at the Court of Appeal. In further support of the application, the 1st Respondent filed a further and better affidavit. The Appellant in opposition to the application for stay of execution, filed a counter affidavit, in reaction to the 1st Respondent’s application. The other set of Respondents did not oppose the application.

Written addresses were ordered, filed and exchanged and in its Ruling delivered on the 28th of August, 2019, the 1st Respondent’s application was granted and the Court of Appeal ordered that the execution of the Trial Court’s Ruling be stayed, pending the determination of the 1st Respondent’s appeal.

The Appellant, thoroughly dissatisfied with this order of stay of execution of the Trial Court’s Ruling, appealed to this Court. His Notice of Appeal, filed on the 9th of September, 2019, contains four grounds, as was listed at pages 718 – 727 of the Record.

The Appellant filed a Brief of Argument, on the 22nd of October, 2019, and raised the following issues for determination:
1. Whether the Court below has the jurisdiction to hear, determine and grant the motion for stay of execution of the garnishee order absolute made by the trial High Court which executed the judgment of the Supreme Court in the judgment it delivered on the 18th day of January, 2019 in Appeal No. SC.327/2018?
2. Whether the Court below was right to have held that the trial Court was silent on the objection or the issue raised by the 1st Respondent that the Supreme Court did not order for the payment of any specific amount to the judgment creditor and indeed whether the Court below was right to have ordered stay of execution of the garnishee order absolute on this ground?

The 1st Respondent filed its brief on the 5th of November, 2019 and distilled this lone issue to wit:
“Whether the Court below was right when it granted the 1st Respondent’s application for stay of execution of the ruling of the Trial Court pending the determination of the 1st Respondent’s appeal.”
A brief of argument was also filed on behalf of the 2nd – 7th Respondents on the 9th of November 2019, and the following issues were formulated. They are:
1. Whether the Court below has the requisite vires and discretion to make an order of stay of execution of a garnishee order absolute in the circumstances of this case?
2. Whether a Judgment Debtor has sufficient legal interest in the subject matter of garnishee proceedings to confer him with the locus to have an application for stay of execution, heard, determined and all issues raised therein Addressed by the Court?
3. Whether a garnishee order absolute without more, qualifies as a completed act which can no longer be stayed by order of Court?

No briefs of argument were filed on behalf of the 1st – 13th Garnishees/Respondents.
The 1st Respondent raised a Preliminary Objection to the hearing of the appeal on the ground that the notice of appeal is against an interlocutory decision, for which leave is required, and no leave was sought and obtained.

He cited and relied on a plethora of authorities, including Section 21(1) (2) and (3) of the Supreme Court Act, and the case of Ajuwa & Anor v. SPDC Nig Ltd (2011) 18 NWLR (Pt. 1279) 797.

Arguing in opposition, it is submitted for the Appellant that the grounds of appeal complained about, involve questions of law, for which no leave is required. He commended this Court to the provisions of Section 233(2)(a) of the CFRN 1999, as amended and the Triana Ltd & Anor v. Ezenwa & Anor (2016) LPELR -41414 CA, amongst others.

In determining into what category a ground of appeal falls, it has been enjoined again and again by this Court that the Court must look closely at the main ground with the particulars thereof to see whether it is a ground of law or mixed law and facts or fact simpliciter. This consideration stems from the fact that it is not sufficient that counsel of the appealing litigant has branded a ground of appeal a ground of law, for the Court to accept it to be so, or for it to be taken as a ground of law. See: Shittu v. P.A.N. LTD (2018) 15 NWLR 195 I have perused the grounds of appeal in contention, and their particulars, which for ease of reference, are reproduced as below:
GROUND ONE
The learned Justices of the Court of Appeal Abuja Judicial Division erred in law and acted without jurisdiction, when they granted the stay of execution of the garnishee order absolute in favour of the Respondents/Judgment Debtor.
PARTICULARS OF ERROR
a. The Judgment executed vide the garnishee orders absolute was the judgment of the Supreme Court delivered on 18th January, 2019.
b. The affidavit in support of the Appellant’s motion before the trial Court shows specifically that it was the judgment of the Supreme Court in Appeal No: SC.327/2018, delivered on 18th January, 2019 that the Appellant sought to enforce.
c. The Respondents/Judgment debtors deliberately refused to obey the judgment of the Supreme Court (5) months after delivering.
d. The Court below has a constitutional duty to enforce the said judgment of the Supreme Court and not to stay the enforcement of same.
e. The Court below does not have the powers and the jurisdiction to stay the execution of the judgment of the Supreme Court.
f. The Respondents/Judgment Debtors who were in contempt and or disobedience of the judgment of the Supreme Court cannot be granted the indulgence of the exercise of equitable jurisdiction.
g. The order made absolute on 19th June, 2019 was a complete act which cannot be stayed.
h. An order of Court made in favour of the Appellant on the 19th June, 2019 cannot be stayed as done in this case.
i. The Respondents/Judgment Debtors filed the motion to taunt the Supreme Court
GROUND TWO
The learned Justices of the Court of Appeal Abuja Judicial Division erred in law when they held that: “the 1st Judgment Debtor/Appellant/Applicant is a necessary party to the garnishee proceedings and has sufficient legal interests in the subject of the garnishee proceedings that confer on him the standing to bring this application,” and then proceeded in this grave error to grant the application for stay of execution.
PARTICULARS OF ERROR
a. The garnishee order absolute made on 19th June, 2019 was not made against the account of the 1st Respondent/Judgment Debtor.
b. The garnishee order was made absolute against the account of the account of the 7th Respondent/Judgment debtor, Kogi State Government with Zenith Bank Plc.

The 1st judgment debtor/Respondent was not affected by the order absolute which was made against the account of the 7th Respondent. Kogi State Government with Zenith Bank Plc.
d. Garnishee proceedings are sue generis and is strictly between the judgment creditor and the garnishee and the 1st Respondent/Judgment Debtor cannot be a necessary party.
e. The 1st Respondent/Judgment debtor does not have the right to file an application for stay of execution
f. The application of the 1st respondent/Judgment debtor did not contain any cogent or substantial reason.
g. The 7th Respondent/Judgment Debtor did not file any appeal against the decision of the trial Court.
h. The garnishee order absolute made on 19th June, 2019 did not deprive the 1st Respondent/Judgment debtor of an entitlement or anything which she has a legal right to demand.
i. The Court below cannot stay the garnishee order absolute in favour of the 1st Respondent/Judgment Debtor who did not suffer any wrong.
GROUND THREE
The learned Justices of the Court of Appeal Abuja Judicial Division erred in law when they held that: “the Ruling of the trial Court did not determine the issue raised for its determination under this objection, which is, whether the judgment of the Supreme Court ordered the payment of any specific amount to the judgment creditor. The Ruling was silent on this issue and proceeded to make the garnishee order absolute against the 14th Garnishee respect of Accounts Numbers 1014586566 AND 1010895770 and ordered that the 14th Garnishee pay the sum of N210,820,00.00 to the judgment creditor forthwith, and then proceeded in this grave error to grant the application for stay of execution on the ground that the Appellant misrepresented facts to the trial Court that the amount due to him was N210,000,000.00 instead of N15,782,893.62.
PARTICULARS OF ERROR
a. The Judgment of the Supreme Court delivered on 18th January, 2019, ordered the 1st Respondent/Judgment debtor and the 2nd-7th Respondents/Judgment debtors to pay the Appellant all his salaries, allowances, emoluments and monies due to him.
b. The Respondents/Judgment Debtors deliberately refused to comply with the said judgment of the Supreme Court.
c. The Appellant wrote several demand letters to the Respondents/Judgment Debtors specifying the salaries, allowances, emoluments and monies due to him.
d. The Respondents/Judgment Debtors did not dispute or contest the amount contained in the demand letters written to them.
e. The salaries, allowances. Emoluments and monies due to the Appellant are statutorily provided.
f. There was no contention as to the amount the Respondents/Judgment debtors own the Appellant.
g. The Appellant was a member of the Kogi State House and was receiving salaries, allowances, emoluments and monies before he was illegally and unconstitutionally suspended.
h. There was nothing in the judgment of the Supreme Court delivered on the 18th of January that stated that the Respondents/Judgment debtor should compute or calculate the salaries, allowances, emoluments and monies of the Appellant.
i. The trial Court considered all issues and objections raised by the Respondents/Judgment debtors before delivering its Ruling.
j. The Court below was wrong to have held that the trial Court was silent on issues.
GROUND FOUR
The learned Justices of the Court of Appeal Abuja Judicial Division, erred in law when they held that a garnishee order absolute is not a completed act and proceeded to grant stay of execution.
PARTICULARS OF ERROR
a. The motion ex parte for garnishee order nisi filed on 8th May, 2019 and granted on the 20th May, 2019.
b. The Trial Court considered all the issues raised by the Respondents vide their notice of preliminary objection.
c. The Trial Court made the garnishee order nisi, made absolute on 19th June, 2019, arose from and pursuant to the judgment of the Supreme Court in Appeal No: SC.327/2018, delivered on 18th January, 2019.
d. The Justices of the Court below were wrong and acted without jurisdiction when he granted the motion for stay of execution.
e. The act restrained by the order of 28th day of August, 2019 was a completed act, in the circumstance of this case.
f. The Court below ought to have ordered the Respondents to pay the money into an interest yielding account of the Court’s registry pending the hearing and determination of the appeal.

Sifting through the grounds of appeal alongside the particulars it is apparent that in ground 1, the grouse of the Appellant is the lack of jurisdiction of the Court below to grant a stay of execution of the garnishee order absolute, made by the trial Court. In respect to ground 2, the Appellant complains of the locus standi of the 1st Respondent to bring an application of stay of execution. In ground 3, the Appellant’s complaint is that the Court below committed an error in law, when it held that the trial Court failed to consider all issues and objections raised by the Respondents/Judgment debtors before delivering its Ruling. The grouse of the Appellant in ground 4, is that the Court below erred in holding that a garnishee order absolute, is not a completed act, and therefore, stayed its execution.
Clearly, from the complaints which propelled this appeal, taken together with the particulars, there is no gainsaying that they are all grounds of law. It is a fact that to distinguish a ground of law from a ground of fact, is usually difficult but when the case on appeal has to be whether the grounds reveal a misunderstanding by the Court below of the law or a misapplication of the law to the facts already proved or admitted, it is clearly a question of law. I refer to NNPC v. Famfa Oil Ltd. (2012) 17 N.W.L.R. (Part 1328) S.C. 148.

From the foregoing, there is no foundation on which this preliminary objection can be anchored as the four grounds of appeal are grounds of law within the ambit of Section 233(2) of the CFRN 1999, as amended, for which no leave needs be sought for or obtained as appeals on such, are of right.
Having said that, the preliminary objection being unmeritorious, is hereby overruled.

The 2nd – 7th Respondents also filed a Notice of Preliminary Objection against the hearing of the appeal, on the ground of proliferation of the Appellant’s Issue Two.

It is argued for the 2nd – 7th Respondents that issues for determination in an appeal must not only arise from and relate to the grounds of appeal filed, it must also be such a proposition of law or of fact or both; so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court. The case of Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt 99) 566, was cited in reliance.

Learned counsel for the 2nd – 7th Respondents contended that it is wrong for an Appellant or Respondent to load many complaints in one issue for determination or create subsections under an issue, which according to him, amounts to proliferation of issues. The case of Agbiti v. The Nigerian Navy (2011) LPELR 2944 -SC was relied on.
This Court is urged to strike out the Appellant’s Issue (b)

In response, it is submitted for the Appellant that a preliminary objection is an inappropriate mode of challenging the jurisdiction of a Court when contesting some grounds of appeal. According to learned senior counsel for the Appellant, since the 2nd – 7th Respondents are challenging ground 3 of the notice and grounds of appeal, it ought to be by way of a motion on notice, and not by preliminary objection.

He urged this Court to dismiss the preliminary objection.
This Court has countlessly stated that a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal usually on grounds of incompetence. See:
Odunukwe v. Ofomata (2010) LPELR 2250 SC
Ndigwe v. Nwude (1999) 11 NWLR pt.626 p.314,
NEPA v. Ango (2001) 15 NWLR pt.737 p.627.

Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See:
Muhammed v. Military Administrator Plateau State (2001) 16 NWLR pt.740 p.524;
NDIC v. Oranu (2001) 18 NWLR pt.744 p.183.

I shall proceed to examine the objection wrongly couched as a preliminary objection as I cannot brush it aside. The Appellant’s 2nd issue reads as follows:
“Whether the Court below was right to have held that the trial Court was silent on the objection or the issue raised by the 1st Respondent that the Supreme Court did not order for the payment of any specific amount to the judgment creditor and indeed whether the Court below was right to have ordered stay of execution of the garnishee order absolute on this ground?”

I do not see how this issue in question was proliferated. There is no doubt that the issue in contention is inelegantly couched but the meaning is however clear, which is “Whether the Court below was right to have ordered a stay of execution of the garnishee order absolute on the ground that the trial Court was silent on the issue raised by the 1st Respondent that the Supreme Court did not order for the payment of any specific amount to the judgment creditor?”

I see no merit in the 2nd – 7th Respondent’s preliminary objection and it is accordingly dismissed.
The learned counsel for the 14th Garnishee/Respondent also filed a preliminary objection on the incompetence of ground 3 of the notice and grounds of appeal. According to him, ground 3 does not allege any misunderstanding or misapplication of the law to the facts and therefore does not qualify as a ground of law. That being the case, in the absence of leave of this Court being first sought and obtained, the ground of appeal is incompetent and liable to be struck out. Learned senior counsel for the Appellant argued otherwise.

For the umpteenth time, the essence of a preliminary objection is to terminate an appeal in limine. Any objection to a ground or some grounds of appeal, not the entire appeal, is by way of motion on notice which could be argued in the brief vide Okereke v. James (2012) 16 NWLR (Pt. 1326) 339 at 348- 349.

Be that as it may, I have here before held that the grounds of appeal in this appeal raise issues of law for which no leave is required. The preliminary objection of the 14th Garnishee/Respondent is hereby dismissed.

After a review of the grounds of appeal and the issues raised as well as the arguments canvassed therein, I hold the view that the substance of this appeal can be determined by answering the sole question asked by the 1st Respondent, which is “whether the Court below was right when it granted the 1st Respondent’s application for stay of execution of the Ruling of the Trial Court pending the determination of the 1st Respondent’s appeal.”

In canvassing this issue, it is submitted for the Appellant that the Court below had no jurisdiction to hear, determine and grant the motion for stay of execution of the garnishee order absolute, made by the trial Court.

Learned senior counsel for the Appellant posited that the Court below lacked the jurisdictional competence and power to sit on appeal over a judgment of this Court or to order a stay of execution of same. He relied on the provisions of Section 287(1) of the CFRN 1999, as amended, as well as the following cases:
Ogunlana v. Dauda (2010) 1 NWLR (PT 1176) 534;
Okonkwo v. F.R.N. (2011) 11 NWLR (PT 1258) 215;
TSA Ind. (Nig) Ltd v. F.B.N. Pic (No. 2) (2012) 14 NWLR (PT 1320) 372

Another point made by learned senior counsel on behalf of the Appellant is that the Court below lacked the jurisdiction to stay the execution of the garnishee order absolute, made by the Trial Court, because the said order was a completed act, which cannot be stayed. He commended this Court to these cases:
Zenith Bank Ltd v. John (2015) 7 NWLR (PT 1458) 393;
U.B.N. Plc v. Boney Marcus Ind. Ltd & Ors (2005) 13 NWLR (PT 943) 654

Learned senior counsel pointed out that the 1st Respondent, who initiated the motion for stay of execution lacked the locus standi to file the appeal before the Court below, in that the garnishee order absolute made by the trial Court was made against the 14th Garnishee, i.e. Zenith Bank Plc and against the account of the 7th Judgment Debtor/Respondent domiciled with the 14th Garnishee. He invited this Court’s attention to page 431 of the Record.

He maintained that the trite principle of law is that a party who applies to set aside the orders of Court duly obtained must not only establish his locus standi but he has to go further to state in his affidavit what personal interest he has in the disputed order and how his interest arose or is affected, and this the 1st Respondent did not do. He placed reliance on these cases:
Adeleke v. Adesina (2010) 18 NWLR (Pt.1225) 449;
Obala of Otan-Aiyegbanju v. Adesina (1999) 2 NWLR (Pt. 590) 163;
F.B.N v TSA Ind. Nig. Ltd (2010) LPELR 1283 SC

Learned Silk contended that the reliance on the case of Gwede v. Delta State House of Assembly (2019) 8 NWLR (Pt. 1673) 30 @ 50, by the Court below in staying the execution of the garnishee order absolute, was misconceived as the case of Gwede (supra), is not on all fours with the instant case.

He opined that the Court below was wrong to have ordered a stay of execution of the garnishee order absolute on the ground that the Trial Court was silent on the issue raised by the 1st Respondent that the Supreme Court did not order for the payment of any specific amount to the judgment creditor. He drew this Court’s attention to Pages 148 – 149; 152 – 153; 407 – 408; 411 – 412; and 415 – 416 of the Record and submitted that having failed to contradict the amount contained in the demand letters, the Respondents have conceded to the amount and the trial Court was therefore right to have made the garnishee order absolute.

He concluded by urging this Court to resolve the issues in his favour and set aside the decision of the Court below and affirm the judgment of the Trial Court.

In response to the above, it is submitted for the 1st Respondent, that it is glaring from the facts leading to this appeal that the stay of execution grant by the Court below, was in respect of the Ruling of the High Court of the Federal Capital Territory, Abuja, delivered on the 19th of June, 2019, and not against the judgment of this Court, as erroneously argued by the Appellant.

Learned counsel for the 1st Respondent contended that the Appellant’s arguments that the 1st Respondent had no locus standi to file an appeal against the Ruling of the Trial Court, on the ground that the garnishee order absolute was against the 14th Garnishee/Respondent, is misleading, as the 1st Respondent was actively involved in the matter at the Trial Court. He relied on the case of Gwede v. Delta State House of Assembly & Anor (2019) LPELR – 47441 SC.

Learned counsel for the 1st Respondent postulated that for a judgment sum to be attached in a garnishee proceeding, it must be clearly ascertained and properly situated in the judgment of the Court and the Court below was right to have stayed the execution of the garnishee order absolute, made by the trial Court, in respect of a purported sum that is non-existent and not located anywhere in the judgment of this Court, sought to be enforced by the Appellant.

He argued that it was the failure of the Trial Court to consider the issue of whether there was any specific amount stated in the judgment of this Court and the depositions in the 1st Respondent’s affidavit in support of the preliminary objection as to what the Appellant is entitled to, that occasioned a miscarriage of justice against the 1st Respondent, and hence its appeal to the Court below.

He maintained that the 1st Respondent was clearly a person aggrieved by the Ruling of the Trial Court which necessitated the appeal to the Court below and was therefore clearly clothed with the requisite locus standi. He called in aid the case of Societe Generale Bank v. Afekoro (1999) 11 NWLR (Pt. 628) 521.

On the issue raised by the Appellant that the garnishee order was not made against the account of the 1st Respondent but that of the 7th Respondent, learned counsel for the 1st Respondent invited the attention of this Court to an excerpt of the judgment of the Court below, at Page 706 of the Record, and submitted that the garnishee proceedings was against all the Respondents, and not just the 7th Respondent.

On whether the Court below was right to have stayed the execution of the garnishee absolute order, it was submitted for the 1st Respondent that Courts have a judicial duty to preserve the res in litigation pending the determination of an appeal so as not to render the appeal nugatory and leave the successful party with a hollow victory. The case of SPDC v. Amadi (2011) LPELR – 3204 was cited in support.

This Court is urged to discountenance the arguments of the Appellant, dismiss the appeal and affirm the Ruling of the Court below.
In reply, it is submitted for the Appellant that the failure of the 1st Respondent to answer the points raised and argued in the Appellant’s brief of argument means that those points have been conceded. Reliance was placed on the case of Nwankwo & Ors v. Yar’Adua & Ors (2010) LPELR 2109.
He again urged this Court allow the appeal.

On their part, it is argued for the 2nd – 7th Respondents that the Court below, vide Section 17 of its Act as well as Order 4 Rule 6 of the Court of Appeal Rules, is vested with the discretion to make an order of stay of execution of the judgment of a Court from which an appeal lies to the Court of Appeal, and make orders by way of injunctions etc; pending the hearing and determination of such appeal.

Learned counsel for the 2nd – 7th Respondents contended that the condition precedent for seeking an order of stay of execution from the Court below is that the Appellant must have lodged an appeal against the decision of the Court being challenged, and pursuant to Section 17 of the Court of Appeal Act, as well as Order 4 Rule 6 of the Court of Appeal Rules 2016, the Court below was right to assume the jurisdiction to determine and grant the application for stay of execution.

He noted that contrary to the Appellant’s arguments, the Court below was not sitting on appeal on the decision of this Court, or refusing to enforce the order of this Court. According to him, the thrust of the appeal at the Court below was the determination of the propriety or otherwise of the order absolute in view of the discrepancy in the computation of the entitlements of the Appellant herein.

Relying on the case of Gwede v. Delta State House of Assembly (supra), it is canvassed for the 2nd – 7th Respondents that a judgment debtor, as in the instant case, should always be heard and the Appellant’s submissions that the Respondents (particularly the 1st Respondent), have no locus standi, cannot avail the Appellant. Learned counsel posited that it is improper to enforce the judgment of this Court against the Respondent without ascertaining to what extent the judgment is to be enforced, and the Court below was therefore right, to hold as it did, that the Ruling of the Trial Court did not determine the issue raised for its determination under this objection, which is whether the judgment of this Court ordered the payment of any specific amount to the judgment creditor.

He stated that the question still left for determination in the Court below is whether the garnishee order absolute made attaching the sums belonging to the Respondents in the accounts with the 14th Garnishee/Respondent can stand without a reconciliation of what the correct sum accruable to the Appellant would be. This being a crucial issue of law and fact to be resolved by the Court below in the main appeal, it is only proper in law and in the circumstance, to grant an order of stay of execution of the garnishee order absolute, to preserve the res, as rightly done by the Court below.
This Court is urged to resolve the issues raised in this appeal against the Appellant and dismiss the appeal.

Arguing in reply, it is submitted for the Appellant that contrary to the arguments canvassed on behalf of the 2nd – 7th Respondents, the trial Court not only considered the all the issues submitted to it for adjudication, but rightly pronounced on them. Learned counsel for the Appellant maintained that the Court below was wrong in its decision being challenged and the arguments of the 2nd – 7th Respondents herein do not show any justification for that decision to stand.
This Court is again urged to allow the appeal.

For the 14th Garnishee/Respondent, it is submitted that garnishee proceedings are distinct enforcement procedures and not proceedings for reviewing the decisions of any Courts, and so, any decision rendered by a Court on a garnishee proceeding can be subjected to an appeal by a party aggrieved. He relied on the following cases:
U.B.N Plc V. Boney Marcus Ind. Ltd (2005) 13 NWLR (Pt. 943) 654
CBN v. Interstella Communications Ltd & Ors (2018) 7 NWLR (Pt. 1618) 284.

According to learned counsel for the 14th Garnishee/Respondent, the argument of the Appellant that the Court below was without jurisdiction to sit on appeal over the decision of this Court is baseless and his reliance on Section 287(1) CFRN 1999 as amended, is grossly misplaced and cannot avail him.

On the lack of jurisdiction of the Court below to make an order staying execution, it is contended for the 14th Garnishee/Respondent that the arguments of the Appellant that a garnishee order absolute is a completed act and thus cannot be stayed, does not represent the true position of the law and the cases cited by the Appellant in support of his arguments are inapposite and inappropriate in the instant appeal.

Learned counsel for the 14th Garnishee/Respondent maintained that a garnishee order absolute, like any other order of Court, can be stayed, pending the determination of any appeal against it.

On the lack of locus standi by the 1st Respondent, it is submitted for the 14th Garnishee/Respondent, that the 1st Respondent had the requisite locus standi to approach the Court below.

The arguments canvassed on behalf of the 14th Garnishee/Respondent are basically the same arguments canvassed by the 1st, 2nd – 7th Respondents and no purpose will be served in rehashing same.
This Court is urged to dismiss the appeal and affirm the Ruling of the Court below.

The Appellant’s reply to the 14th Garnishee/Respondent is in purport, the same arguments put forward in the reply to the 1st, 2nd – 7th Respondents. I see no use reproducing them.

I therefore find the Appellant’s arguments, that the Court below sat on appeal over the judgment of this Court; baseless and unfounded and a misrepresentation of the facts. I attach no weight to them.

On the issue of the locus standi of the 1st Respondent to file an appeal against the Ruling of the Trial Court, this Court’s decision in Gwede v. Delta State House of Assembly & Anor (2019) LPELR 47441 SC, is most instructive. It was held as follows:

“Let me state briefly that in garnishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex – parte application in Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is made ex – parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor … It has to be noted that at the stage of the ex – parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would say in NAOC Ltd v Ogini (supra), the subsequent hearing envisage a tripartite proceedings in which the three parties are represented. I am persuaded to agree with the learned counsel for the 1st Respondent herein that at this stage of the proceedings, the three parties can be heard by the Court before an order absolute is made depending on the facts and circumstance of the case. I say so advisedly bearing in mind that garnishee proceedings is in the nature of enforcement of the judgment of a Court of law and does not permit the re-opening of hearing in a matter which has been settled in the judgment sought to be enforced… There appears to me that by a combination of Section 83(2) of the Sheriff and Civil Process Act and Order VIII Rule 8 of the Judgment Enforcement Rules, a judgment debtor, after being served with order nisi can be heard by the Court only if or where he observes irregularities in what is presented before the Court by the judgment creditor. Why I say so is that at that stage, it is not an opportunity to reopen the case which judgment has been entered. It is strictly for the enforcement of such judgment. Thus, where the judgment sought to be enforced is certain, in terms of the parties, the judgment sum and the party adjudged the debtor, then the judgment debtor has nothing to say in the proceedings. However, where, as in this case, the judgment sum is not certain and the party adjudged as the debtor is confused by the judgment creditor, I think that justice demands that the ”judgment debtor” be heard in such circumstance. In other words, it is not cast on stone that a judgment debtor cannot be heard in garnishee proceedings. It is the Court that will determine whether he should be heard or not. If the application of the judgment debtor before the Court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard. I am persuaded by some Court of Appeal authorities in this matter including but not limited to Barbedos Ventures Ltd v Zamfara State (2017) LPELR-42499, CA, Nigerian Breweries Plc v Dumuje (Supra). The 1st Respondent’s grievance at the trial Court is that the Appellant wrongfully labeled it as the judgment debtor and its funds were therefore, improperly garnished. Despite presenting cogent reasons to discharge the garnishee order nisi, the Federal High Court proceeded to make the garnishee order nisi absolute. I commend the Court of Appeal which painstakingly reviewed the matter and set aside the judgment of the learned trial Judge. In this matter, the Appellant failed to make full and frank disclosure before the Federal High Court hearing the garnishee proceedings. First, the appellant represented that he is entitled to a judgment debt of N490,803,002.00 when, in actual fact, neither the Supreme Court’s judgment of 24th October, 2014 nor the consequential order of 26th October, 2015 enumerated any specific sum of money the appellant was to be paid. This Court only ordered that Mr. Edoja Rufus Akpodiete, the removed member of the 1st Respondent should refund all the salaries and allowances he received while sitting as “member” of the 1st Respondent. One wonders how the Appellant was able to compute those sums of money by himself alone outside the judgment of the Court and tag it as the judgment sum. In garnishee proceedings, the judgment sum must be certain and can be located in the judgment. It is not to be left to conjecture.”
Towing this Court’s line in the case of Gwede v. D.S.H.A. & Anor supra, the Court below held as follows, at page 708 of the Record:
“The fact is common knowledge in Nigeria and need no proof as it is not reasonably open to question that the 1st judgment debtor/appellant is part of the 7th judgment debtor, being its legislative arm and its funds are custodied and released to it by the 7th judgment debtor. So that it is obvious that if its debt to the judgment is recovered from the 7th judgment debtor’s funds in its account with the 14th garnishee, the 7th judgment debtor can recover same from the 1st judgment debtor’s funds in its custody. The 1st judgment debtor/appellant/applicant is contending that the salaries, emoluments, allowances, and monies due to the judgment creditor is N15,782,893.62 and not N210,820,000.00, computed by the judgment creditor and which the trial Court has ordered the judgment debtors to pay to the judgment creditor. It is entitled to be heard on the issue of the exact amount of money that represents the pending salaries, allowances, emoluments and monies due to the judgment creditor. ”
I hold the view that this decision of the Court below is unimpeachable, and see no reason to disagree with it. The consequence is that the 1st judgment debtor/1st Respondent is a necessary party to the garnishee proceeding and has sufficient legal interest in the subject of the garnishee proceedings that confer him with the legal standing to bring an appeal against the Ruling of the Trial Court.

It follows therefore that the decisions of this Court in Zenith Bank Plc v. John (2015) 7 NWLR (PT 1458) 393; Union Bank of Nig. Plc. v. Boney Marcus Ind. Ltd (2005) 13 NWLR (PT 943) 654; and UBA v. Ekanem (2010) 2 NWLR (PT 1177) 181; are not applicable here.
In Zenith Bank Plc v. John supra, there was no appeal against the garnishee order absolute. There was no pending appeal whose res needed protection by an order of stay of execution. By not appealing against the garnishee order absolute, the garnishee and the judgment debtor accepted it as valid, binding and conclusive. It was in that context that this Court held that the garnishee order absolute could not be stayed as it had become conclusive and binding and there was nothing left for the Court to determine.
The decision on Union Bank of Nig. Plc v. Boney Marcus Ind., supra, is also not applicable to this case because the issue dealt with in that case is whether a garnishee order absolute is an interlocutory or final decision. It was held that it was a final decision. This Court did not decide the issue of whether an order of garnishee made absolute is a completed act of execution of judgment.

Similarly, the decision in UBA Plc v. Ekanem supra, is not applicable to this case because the facts of that case are different from those of the present case. The execution of the judgment of the writ of attachment had commenced. The judgment debtor had even started paying the judgment sum after notice of attachment was served on it by issuing a bank draft to the judgment creditor. However it refused to give value to the draft and applied to the trial Court for permission of the Court not to give value to the bank draft in the sum of N5 million naira it issued to the bailiff and secondly the sum of N500 it paid to the Bailiffs be returned to it pending the determination of the motion for stay of execution of the main judgment and the one for stay of execution of a subsequent garnishee order absolute in execution of the same judgment. In that case, there was no pending appeal against the garnishee order absolute.
In the final analysis, I answer the question, “whether the Court below was right when it granted the 1st Respondent’s application for stay of execution of the Ruling of the Trial Court pending the determination of the 1st Respondent’s appeal”; in the affirmative, and resolve this issue against the Appellant.

Consequently, I find this appeal devoid of merit and I accordingly dismiss it. The Ruling of the Court below, delivered on the 28th of August, 2019, staying the execution of the garnishee order absolute, made by the High Court of the Federal Capital Territory, Abuja, pending the determination of the substantive appeal in Appeal No: CA/A/579/2019; is hereby affirmed.
I make no order as to costs.

OLABODE RHODES-VIVOUR, J.S.C.: I read a draft copy of the leading judgment delivered by my learned brother ABOKI JSC. I agree with his lordship that there is no merit in the Appeal. It is also dismissed by me.

I also agree with the pronouncement made by his lordship on the Ruling of the Court of Appeal delivered on 28 August, 2019.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother ABDU ABOKI JSC just delivered and being in entire agreement with the reasoning and conclusion therein made, I adopt same as mine in dismissing the unmeritorious appeal. I abide by the order on costs therein as well.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment just delivered by my learned brother, Aboki, JSC, and I do agree with him that this Appeal totally lacks merit, and must, therefore, be dismissed. He dealt decisively with the issue of whether the Court of Appeal was right to grant the Application for stay of execution of the trial Court’s Ruling pending the determination of first Respondent’s Appeal, and anything I may add would only detract from his sound reasoning, which I adopt as mine in its entirety, as they represent my views on the said Issue.

The end result is that I also dismiss this Appeal and affirm the Ruling of the Court of Appeal. I abide by the consequential orders that he made in lead Judgment, including the order as to no costs.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother ABDU ABOKI, JSC, and I agree that this appeal lacks merit and should be dismissed.

Only one issue stands out starkly for consideration here. It is the status and locus of a judgment debtor to file an application for stay of execution of the Garnishee Order Absolute. This issue had been settled by this Court in Gwede v. Delta State House of Assembly & Anor (2019) 8 NWLR pt. 1673 pg. 30 at 50, a judgment of this Court on all fours with the facts of this case. The judgment debtor has abundant and not merely sufficient legal interest.
The law is that the person whose money with the garnishee is being attached has a right to stay the attachment of his money by Garnishee Order absolute pending the conclusion of any legal process to challenge the decision of the garnishee proceedings or the substantive case that formed the basis of the garnishee proceedings.
In fact, Gwede v. Delta State House of Assembly Supra decided in 2019 has answered the main issue submitted for determination in this appeal. The distinction without a difference which learned Appellant’s counsel sought to make between this appeal and Gwede did not take into consideration the far reaching settled points in Gwede in respect of the status of the judgment in garnishee proceedings.

I agree with the Court below that the judgment of this Court was in respect of an unliquidated sum of money yet to be agreed and ascertained by the parties. The ascertainment of a calculated sum to which a Garnishee Order may apply had not been done. As was stated clearly in Gwede v. Delta State House of Assembly, this is one of the instances where the judgment debtor may step in to protect the res. Indeed the Court must also step in to protect the judgment debt sought to be attached before all issues in controversy in the garnishee or appellate proceedings are settled.
This appeal has no merit and is therefore dismissed. I abide by the order as to costs. Appeal dismissed.

Appearances:

J.S. OKUTEPA, SAN, with him, SLYVIA E. OKAPI, OJONIMI S. APE, AYOBAMI K. OKE and CHISOM L. IKENDEOHA For Appellant(s)

ABDULWAHAB MUHAMMAD, with him, BARBARA SALIHU – for 1st Respondent
N.Y. ABDULLAHI, with him, D. MATHIAS – for 2nd – 7th Respondents
OGUNMUYIWA BALOGUN, with him, GODWILL IWUAJOKU and SAMUEL EZENWOYE – for 8th Respondent For Respondent(s)

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