SUNNET SYSTEMS LIMITED v. NIGERIA ELECTRICITY REGULATORY COMMISSION
(2014)LCN/7520(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of November, 2014
CA/A/493/2013
RATIO
COURT: DECISION; WHETHER A COURT MUST BASE ITS DECISIONS ON FACTS BEFORE IT
The law is trite that a court must base its decisions on facts before it, that is so ingrained that it needs no restatement; that being so, is the statement on page 136 of the record, to the effect that unscrupulous civil servants committed the 1st respondent to avoidable liability, based on facts before the court. per. MOHAMMED MUSTAPHA, J.C.A.
COURT: FUNTUS OFFICIO ; WHETHER ONCE AN ORDER IS MADE ABSOLUTE THE COURT BECOMES FUNTUS OFFICIO
From the onset it is important in the considered opinion of this court to clarify that the injunction made by the trial court is not akin to an order made after a garnishee order absolute; if it were so it would have been out rightly a nonstarter; U.B.N V BONEY MARCUS IND. LTD (2005) 13 NWLR part 943 at 654; it is indeed trite that once an order is made absolute the court becomes functus officio, that much is clear. per. MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
SUNNET SYSTEMS LIMITED Appellant(s)
AND
1. NIGERIA ELECTRICITY REGULATORY COMMISSION
2. FIRST BANK NIG. PLC. Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment):
FACTS IN BRIEF:
This is an appeal against the ruling of the High Court of the Federal Capital Territory in suit No. FCT/HC/CV/979/2011, presided by Hon. Justice V.B. Ashi, challenging the jurisdiction of the court on the restraining order on the garnishee order absolute, made on the 27th of March, 2013.
The appellant commenced the suit by way of writ of summons; upon being served the 1st respondent applied for a stay of proceedings pending arbitration; the application was granted.
On conclusion of arbitration the appellant applied for the arbitral award adopted as judgment of court; the award was recognised by a ruling of the court on the 20th of March, 2013.
The appellant commenced garnishee proceedings, leading to the grant of a garnishee order nisi, on the 27th of March, 2013; while the order absolute was being awaited the respondent filed a stay of execution of the judgment.
The trial court dismissed the motion for stay and made the garnishee order absolute, but ordered the 2nd respondent not to release the said judgment sum to the appellant; the appellant challenged that ruling, but it too was dismissed on the ground that the true identity of the appellant is not clear. This is what led to this appeal, by a notice of appeal dated and filed at the lower court on the 13th of August, 2013 on the following grounds:
GROUND ONE:
The learned trial judge erred in law when after he had dismissed the judgment debtor’s motion for stay of execution and granted the judgment creditor’s application for a garnishee order absolute still went ahead and restrained the garnishee from releasing the judgment sum to the judgment creditor/appellant.
GROUND TWO:
The trial judge erred in law when he held as follows: “in the face of this mix up I am forced to ask the question, is it right and just to make payment out of duly appropriated public funds to an entity whose true identity and legal status appear to be shrouded in doubt merely because some unscrupulous civil servants decided to unjustly commit a federal government agency engaged to provide regulatory services in a critical area of public need in avoidable liability.
GROUND THREE:
The trial court erred in law when he held in his ruling of the 27th May, 2013 that he was functus officio with regard to the substantive matter, yet restrained the garnishee from releasing the judgment sum on the basis of the legal status of the appellant.
GROUND FOUR:
The trial judge erred in law when he held in his ruling delivered on the 1st July 2013 that the inclusion of an omnibus prayer cannot preclude a court from exercising its inherent power to make other or further orders aimed at doing justice as the order made could have been made if no motion for stay had been brought.
Henry A. Iyanya Esq. learned counsel for the appellant formulated the following issues for determination by this court from the grounds of appeal filed:
1. Did the trial judge have the competence or jurisdiction to restrain the garnishee from releasing the judgment sum to the appellant after having dismissed the motion for stay of execution and granted the garnishee order absolute?
(Ground one).
2. Whether the finding of the trial court that the judgment debtor/respondent was unjustly committed to avoidable liability by unscrupulous and capricious civil servants is based on any iota of evidence before him and thereby justify the conclusion reached? (Ground two).
3. In view of the fact that there was no application challenging the legal status of the appellant and the fact that the issue of the legal status was a fact deposed to in an affidavit in support of a motion for stay of execution already dismissed, whether the court can still rely on these same facts to restrain the garnishee from releasing the judgment sum to the appellant (Ground three).
Henry Michael-Ihunde Esq., learned counsel to the respondents adopted the issues as formulated; the issues as formulated by the appellant suffice for the determination of this appeal:
ISSUE ONE:
Did the trial judge have the competence or jurisdiction to restrain the garnishee from releasing the judgment sum to the appellant, after having dismissed the motion for stay of execution and granted the garnishee order absolute? (Ground one).
It is submitted for the appellant while referring to FIB V CITY EXPRESS BANK (2005) 1 WRN 113 at 116 that once a court has taken a decision with respect to an issue it becomes functus officio with regard to that issue; as such the trial court had become functus officio, and therefore lacked jurisdiction to make any order restraining the garnishee from releasing the judgment sum, after it dismissed the motion to, stay of execution and granted the garnishee order absolute.
That a garnishee order absolute is a final order of the court, once made that order can only be undone on appeal; the court was referred to UNION BANK PLC V BONNEY (2005) 7 S.G part 11 at 70.
That also the order made was never sought for in the application for stay of execution; as the prayers sought were for an order of stay of execution, and in the alternative the judgment sum be paid to the chief registrar of the FCT High Court along with the omnibus prayer.
Learned counsel contended the trial court could not have relied on the omnibus prayer as claimed, because the omnibus prayer was dismissed along with the motion for stay of execution; he referred this court to GARUBA V KIC LTD (2005) 13 WRN 1 at 7 and urged this court to set aside the subsequent order of injunction by the trial court.
It is submitted for the respondents that the trial court has the power based on its findings in the affidavits deposed to by the parties, to order as it did; especially when the respondents deposed that the appellant’s name is not on the register of companies in the Corporate Affairs Commission; the order absolute also having been made on the bases of the finding that restrained the payment, effectively meant that the order was therefore not absolute.
That also only a juristic person can sue and be sued, and Sunnet Systems Ltd is not a competent and juristic person to sue in law; the court was referred to NDUKA V EZENWAKU (2001) 6 NWLR part 709 at 512 and QUO VADIS HOTELS V COMMISSIONER FOR LANDS, MID WESTERN STATE (1973) 6 SC 71.
Learned counsel further submitted that the issue of functus officio does not arise, as the finding was made in the same ruling and not a subsequent application; he urged the court to resolve the issue in favour of the respondents.
It is indeed the position of the law as submitted by learned counsel for the appellant that a garnishee order absolute, where made, it is final; it is a final decision of the court to all intents and purposes: ODUTOLA v. ODEIRINDE (2004) 12 NWLR part 888 at 574.
Having said that the questions involved in this case appear to border on jurisdiction of the trial court; first SUNNET SYSTEMS LTD is clearly not one and the same with SUNNET SYSTEMS AND DATACOM SERVICES LTD; second but by no means less significant is whether the appellant is a juristic person, if not, then it definitely cannot sue or be sued in the first place.
The respondent it should be noted deposed to an affidavit dated 20th May 2013, that the appellant is not registered with the corporate affairs commission, as per page 84 of the record of proceedings; page 86 also contains exhibit NERC 1, a copy of the search report; this happened before the composite ruling on the application for stay of execution was refused and the garnishee order was made absolute.
On whether the appellant is the same with SUNNET SYSTEMS AND DATACOM SERVICES LTD it is clear that the two are not one and the same by any stretch of imagination; this court finds it hard to be swayed by the argument on behalf of the appellant that the two are the same, or that given the chance the appellant would have applied to amend its name to reflect the correct name.
How does one amend the name of a company not registered to reflect that of a registered company? This beats imagination.
Would it also have made any difference if the respondents referred to the appellant as Sunnet Systems and Datacom Services Ltd, in some transactions? And where are the documents where such reference is made any way?
Indeed even if this reference exists, it would not have made any difference in the considered opinion of this court, in the least! Because, first it would have meant that the respondent was misled into believing that that is actually the name of the appellant’ so the reference if any, cannot be mistaken for acquiescence on the part of the respondent.
I did say from the onset that this issue may appear to border on the jurisdiction of the trial court; if the two names are not one and the same, or better put, if the appellants is not a juristic person, while the other name is; and the court knowingly or unknowingly granted garnishee order absolute in such circumstances, that order then was clearly made without jurisdiction.
Where garnishee order nisi and absolute are made without jurisdiction, it is within the jurisdiction of the lower court to set those orders aside, on the application of an aggrieved party; this court is borne out in this belief by the authority of NJEKWU V KSMCI (2003) 10 NWLR part 827 at 41.
Better still, if the court had no jurisdiction to make the order that it made, it had jurisdiction to rescind it; on this again this court is fortified by its decision it AKINBOBOLA V PHIPSON FISKO (1991) 1 NWLR part 167 at 273.
For these reasons, this issue is resolved in favour of the respondents, and against the appellant without much ado.
ISSUE TWO:
Whether the finding of the trial court that the judgment debtor/respondent was unjustly committed to avoidable liability by unscrupulous and capricious civil servants is based on any iota of evidence before him, and thereby justifies the conclusion he reached? (Ground two).
It is submitted for the appellant that any decision of the court not based on facts before the court is perverse; he referred the court to ALAWODE v ADEDIRAN (2013) 15 WRN at 110; that also there was no allusion by any party in the proceedings to “…unscrupulous civil servants who fraudulently committed the respondent to any avoidable liability…”, as stated by the lower court at page 136 of the record of proceedings; and that being so, the injunction is perverse and ought to be set aside.
It is submitted for the respondents that the lower court has the power to make findings from the affidavit in support of the motion for stay, wherein it was deposed, based on the findings at corporate affairs commission that the appellant is a non juristic person, especially as the appellant did not challenge that deposition.
That a court cannot make an order in favour of a non existing person, by reason of which such person lacks locus standi; he referred the court to NDUKA V EZENWAKU supra; and argued that the statement complained of is an obiter dictum, not binding on the ruling of the court below: the court was further referred to EBERE V ONYENGE (2000) 2 NWLR part 643 at 80.
The law is trite that a court must base its decisions on facts before it, that is so ingrained that it needs no restatement; that being so, is the statement on page 136 of the record, to the effect that unscrupulous civil servants committed the 1st respondent to avoidable liability, based on facts before the court?
At the risk of repetition, it is noted, the respondents filed a further and better affidavit on the 20th of May, 2013 and deposed therein, at paragraph 5 to the effect that a search conducted at the corporate affairs commission showed that the appellant is not registered with the commission; and the search report was attached as exhibit NERC1, see pages 84 and 85 of the record of proceedings This deposition was not refuted.
This being the case the lower court was right in ordering, by way of an injunction that no money be paid to a non juristic person that is not only common sense, but what the law expects; as that is the only way of righting an apparent wrong and AKINBOBOLA V. PHIPSON FISKO supra justifies that.
The rationale in the afore mentioned authority is that courts of law which are also courts of justice, should be able to right clear and apparent wrong, especially where the wrong was allowed to be committed without jurisdiction.
The statement complained of is simply an obiter by a perplexed judge about how the lower court got to the position; the statement was not some information gathered from somewhere else, its source is the further affidavit of the 29th of May, 2013, particularly the realization, as a result of the undisputed deposition that the appellant is not a juristic person.
This being the case, the conclusions reached by the trial court is beyond reproach; I accordingly resolve this issue in favour of the respondents, and against the appellant.
ISSUE THREE:
In view of the fact that there was no application challenging the legal status of the appellant and the fact the issue of the legal status was a fact deposed to in an affidavit in support of a motion for stay of execution already dismissed, whether the court can still rely on those same facts to restrain the garnishee from releasing the judgment sum to the appellant. (Ground Three).
It is submitted for the appellant that the court cannot grant an order not sought, the only exception being consequential orders which flow from an order already made.
That also in view of the fact that there was no application directly challenging the legal status of the appellant, except for the affidavit in support of the motion for stay of execution, which was dismissed; it follows that all the facts in support of that motion had perished along with it.
This is more so learned counsel argued because the appellant had even in response forwarded documents to show that the issue of the name was a mere misnomer which the appellant would have corrected if properly challenged; he referred to ZAIN NIG. LTD V. MOHAMMED KAWU ILORIN (2010) 10 WRN at 38 and AKEEM V. UNIVERSITY OF IBADAN (2003) 6 WRN 141 at 145.
He urged this court to set aside the order of injunction made by the trial court as the court had no jurisdiction to do so.
It is submitted for the respondents that the court has jurisdiction to make consequential orders from the facts of the case taken holistically, and that it must not flow from a particular application; learned counsel referred this court to AKEEM V UNIVERSITY OF IBADAN supra.
That it would have been wrong to award the judgment sum to a non juristic person; he referred this court to NDUKA V EZENWAKU supra; and urged this court to discountenance the submissions of learned counsel for the appellant.
From the onset it is important in the considered opinion of this court to clarify that the injunction made by the trial court is not akin to an order made after a garnishee order absolute; if it were so it would have been out rightly a nonstarter; U.B.N V BONEY MARCUS IND. LTD (2005) 13 NWLR part 943 at 654; it is indeed trite that once an order is made absolute the court becomes functus officio, that much is clear.
The challenge here is that the trial court realised from the depositions in paragraph five of the further and better affidavit of the 20th May, 2013, particularly exhibit NERC1, see pages 84 and 85 of the record of proceedings, that the appellant may be a non juristic person; the injunction was simply an effort at making sure that the damage if any is controlled, see ONJEWU V K.S.M.C.I (2003) 10 NWLR part 827 at 41, where this court held that: “the orders of garnishee nisi and absolute having been made without jurisdiction, it is within the jurisdiction of the lower court to set those orders aside on the application of a party aggrieved by the orders…”
The trial court did not know, because it had no way of knowing, on the face of it that the appellant may not be a juristic person; it only found that out in Exhibit NERC1. Contrary to the contention of learned counsel to appellant the authority of ZAIN NIG. LTD V MOHAMMED KAWU ILORIN supra referred to supports the principle of law in ONJEWU V. K.S.M.C.I also supra, both of which support the conclusions arrived in this case by the trial court; the two authorities are not contradictory, but supplementary. Accordingly this issue too is resolved in favour of the respondents and against the appellant.
Having resolved all the issues for determination in favour of the respondents, and against the appellant, the appeal fails for lack of merit, and it is accordingly dismissed.
The decision of the trial court is affirmed, with no order as to cost on either side.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft form the leading judgment of my learned brother, Mohammed Mustapha, JCA.
I have nothing to add to the reasoning and conclusions of my learned brother, save to say that I agree that this appeal lacks merit and I also, dismiss it.
There is no order for costs.
TANI YUSUF HASSAN, J.C.A.: I have had the opportunity of reading in draft the lead Judgment just delivered by my lord, Mohammed Mustapha JCA. I am in agreement with the reasoning leading to the dismissal of the Appeal. If I may add, the trial’s Court observation and granting of an injunction has saved the Judgment sum from being transferred into the hands of a non juristic person.
I also dismiss the Appeal.
Appearances
Chuka IloejeFor Appellant
AND
Henry Michael-Ihunde, Esq.For Respondent
