ZABUKA (NIG) LTD v. ADE ALAREGE & ORS
(2022)LCN/16653(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, June 01, 2022
CA/A/940/2018
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Muhammed Mustapha Justice of the Court of Appeal
Between
ZABUKA NIGERIA LIMITED APPELANT(S)
And
1. ADE ALAREGE (Trading Under The Name And Style Of Ade A!Arege & Co) 2. MRS HALIMA BAWA 3. DEPUTY SHERIFF, HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA RESPONDENT(S)
RATIO
THE PURPOSE OF A PRACTICE DIRECTION
Practice Directions of any sort, provide guides on how to comply with existing rules of Court. In Unilag v. Aigoro (1984) 11 sc 152 AT 159, the Supreme Court defined Practise Direction as:
“a direction given by the appropriate authority stating the way and manner a particular rule of Court should be complied with, observed or obeyed.”
Similarly, in Nwoko v. Nzekwo (2012) 12 NWLR (Pt 1313) 160 AT 175, this Court held that a Practice Direction is a written explanation or guideline on how to proceed in a particular area of law or Court. Practice Directions have the force of law and parties must adhere to it. This simply means that Practice Directions are supplemental protocol to the Rules of Civil and Criminal Procedure in any given Court. It seeks to regulate procedural matters which have already been provided for by the rules. It follows then that Practice Directions cannot introduce provisions inconsistent with the rules and cannot therefore provide explanations on subjects not contemplated by the rules or other existing law. It then goes without saying that practice directions will not have the force of law if they conflict with the Constitution of the Federal Republic or any statute which enables them. PER TSAMMANI, J.C.A.
WHETHER OR NOT THE COURT CAN RAISE ISSUES SUO MOTU
As a general rule, a Court of law can raise an issue of fact or law suo motu but before its resolution, it must afford the parties, particularly the party to be affected adversely by the issue, an opportunity to address it on the issue. See the cases of Akere & Ors v. Governor of Oyo State & Ors (2012) 12 NWLR (Pt. 1314) 240, Amale v. Sokoto Local Government (2012) 2 SCM 45 and Sanni v. Ademiluyi (2003) 4 SCM 145. The trial Court in its Judgment at page 381 of the record, made a distinction between a stay of execution and a suspension of an execution. It then held that:
“Suspension of execution is different from stay of execution. The latter is intended to preserve the res pending appeal. The former is not focused on appeal but for some other reasons, which includes a willingness to satisfy a judgment debt before the goods are auctioned or where an application is made to Court complaining of attachment of goods of a third party, not being the judgment debtor.” PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja Judicial Division, delivered by Valentine As-hi, J on the 4th day of July, 2018 in SUIT NO: FCT/CV/1339/15.
The facts are that the 2nd Respondent was a yearly tenant in the Appellant’s six bedroom semi-detached duplex situate at 53, Euphrates Crescent, Off Aguiyi Ironsi Street, Maitama, Abuja. The Appellant and the 2nd Respondent agreed that the tenancy would run from the 3rd of February, 2015 to the 2nd of February, 2016. Upon the expiration of the rent, the 2nd Respondent failed to renew or vacate the Appellant’s Property. This led to a suit with Suit No: FCT/HC/CV/1339/15 commenced by the Appellant against the 2nd Respondent for the recovery of possession of its property which was settled amicably, and a consent judgment entered by the lower Court on the 18th day of May, 2015 wherein the 2nd Respondent was directed to pay to the Appellant as rent, the judgment sum of by three instalments.
The 1st and 2nd instalments were paid but then failed to pay the 3rd instalment. This then led the Appellant to apply for the execution of the consent judgment which was granted vide a Writ of Attachment and Sale of Goods and also a warrant for Possession of Premises dated the 15th of March, 2017 and 21st of March, 2017 respectively. The 2nd Respondent then filed a motion praying for an order of the lower Court granting leave to her to effect payment by instalments in accordance with the provision of Order 39 Rule 8(1) and (2) of the High Court of the FCT (Civil Procedure Rules) 2004 dated the 27th March, 2017. The 2nd Respondent then wrote to the Chief Registrar of the High Court of the FCT, notifying him of the pendency of proceedings before the High Court. The 2nd Respondent also included the Deputy Sheriff as a party to the action and caused to be served on him, the application seeking suspension of the execution to make way for payment in instalments.
Notwithstanding the steps taken by the Appellant, the execution of the judgment was carried out by the enforcement unit of the High Court of the FCT. This led to the 2nd Respondent to file an application dated 20th April, 2017 seeking an order of the lower Court setting aside the execution of 11th April, 2017. The 2nd Respondent’s argument was that the execution was levied even though there was a pending application dated 27th March, 2017, which was before the Court. The lower Court in its decision set aside the execution levied on the 11th April, 2017. It is this decision that has led to this appeal.
The Notice of Appeal consisting of three (3) Grounds of Appeal was filed on the 06/07/2018. The Appellant’s brief of argument which was settled by Tunde Ahmed Adejumo Esq., was filed on the 16th November, 2018 and deemed filed on the 2nd of December, 2021. In it, two issues were distilled for determination viz:
1. Whether or not the lower Court was right to set aside the execution of 11th April, 2017 when same was carried out in compliance with the lower Court’s Practise Direction for the enforcement unit.
(Grounds 2 and 3)
2. Whether or not the Appellant’s right to fair hearing, was breached when the lower Court held suo motu that a “stay of execution” is different from “suspension of execution” and applied same to the determination of the case without affording the Appellant an opportunity to be heard on the said point.
(Ground 1)
The Respondent’s Brief of Argument was filed on the 16th June, 2021 but deemed properly filed on the 2nd of December, 2021. Therein, three (3) issues were distilled for determination as follows:
1. Whether in view of the affidavit evidence, exhibits and the applicable Practice Direction for the enforcement unit, 2016 before the Court below, the lower Court was right to set aside the execution carried out on the 11th of April, 2017.
(Grounds 2 and 3)
2. Whether having regards to the issues raised by all the parties, Rule 2 of the Practice Direction for the Enforcement Unit, 2015 did not frontally come up for interpretation by the invocation of the principle of “expression unius est exclusion alterius”, and if it did not, was the Appellant in any way by the circumstances of this case, prejudiced,
(Ground 1)
3. Whether this honourable Court can affirm the decision of the lower Court on the ground that the Appellant and the 3rd Respondent ought to suspend the execution since aside the solicitor’s letter of 23rd March, 2017, the Appellant and the 3rd Respondent were in addition, served with the motion for leave to pay the Judgment sum which represented rent for a subsisting tenancy.
(Notice of Intention to Contend)
I have carefully reflected on the issues raised by the parties. I find that the Respondent’s issues encompass the Appellant’s two issues. In that respect, I shall determine this appeal on the two issues formulated by the Appellant.
Now, on issue one, learned counsel for the Appellant began by referring to Section 274 of the 1999 Constitution of the Federal Republic of Nigeria as the enabling authority granting the Chief Judge of the High Court of the Federal Capital Territory the powers to enact the Practice Direction for the Enforcement Unit, 2016. He added that the Practice Direction for the Enforcement Unit, 2016 regulates the manner in which judgments of the lower Court are to be executed as well as the manner in which any execution which has been approved by a judge of the High Court of the Federal Capital Territory, Abuja can be halted, suspended or even set aside. That, the Supreme Court have consistently held that Practice Directions have the force of law as rules of Courts do. The cases of Dr. Arthur Agwuncha Nwankwo & 2 Ors v. Alhaji Umaru Yar’adua & 40 Ors (2010)3-5 SC (Pt. iii) 1, Buhari v. Independent National Electoral Commission & Ors (2008) 12 SC (Pt. i) 1 were cited in support.
Learned counsel for the Appellant went on to submit, relying on the above cited cases that the procedures and guidelines stated in the Practice Direction for the Enforcement Unit, 2016 have the force of law and are binding on parties and the lower Court. That compliance with all the procedures and guidelines is a condition precedent before any execution can be considered valid. He relied on the case of Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & 2 Ors (2010) 4-7 SC (Pt. 1) 76.
Learned counsel for the Appellant also argued that the execution was carried out in compliance with the clear and unequivocal provisions of Section 1 & 2 of the Practice Direction for the Enforcement Unit, 2016. That the use of the word “shall” in Section 2 of the Practice Direction for the Enforcement Unit, 2016 connotes a command to the Enforcement Unit to promptly carry out the execution once a judge of the lower Court signs the Writ of Execution, which does not give room for discretion as to whether or not to give effect to the said Writ of Execution. This, counsel argued can only be varied or not given effect to, by a formal order of Court suspending or stopping the Writ of Execution. That, the Practice Direction for the Enforcement Unit, 2016 uses the word ‘unless’ to introduce the only circumstances in which a duly executed Writ of Execution would not be given effect by the Enforcement Unit of the lower Court. He relied on the case of Wuyep v. Wuyep (1997) 10 NWLR (Pt. 523) 154 165, Para F.
Learned counsel for the Appellant went on to submit that the word ‘unless’ as used in Section 2 of the Practice Direction denotes the only condition under which the Execution Unit shall not promptly carry out the execution upon receipt of a Writ of Execution. That failing an order of Court suspending, staying, halting or stopping the Writ of Execution, any execution carried out is valid. That the totality of facts, circumstances and affidavit evidence before the lower Court would reveal that there was no formal order of Court halting, staying, or suspending the Writ of Execution. He referred this Court to pages 301 – 322 (3rd respondent’s counter-affidavit and written address) of the record of appeal. That where the law prescribes a particular method of carrying out a duty, only that method must be adopted. The case of C.C.B (Nig) Plc v, A.G., Anambra State (1992) 8 NWLR (pt. 261) 528 AT p. 556 (Para G – H) was cited in support.
It is further submitted by learned counsel to the Appellant that the facts stated in the 3rd Respondent’s counter-affidavit was never controverted and that where a party does not controvert clear assertions, in the opposition party’s affidavit, such a party is deemed to have admitted the truth of the assertions. The cases of – Hillary Farms Ltd v. M/V Mahtra (2007) 14 NWLR (Pt. 1054) 210 237, Paras G – H, Ugwuanyi v. Nicon Insurance Plc (2013) 11 NWLR (Pt. 1366) 546 AT p. 584, Paras F – G. were cited in support.
Learned counsel also submitted that the rationale of the lower Court for interfering with the execution of 11th April, 2017 was that the Chief Registrar should have stopped the execution as the 2nd Respondent’s motion to pay the judgment sum in instalments operated as a caveat (page 381 Record of Appeal) which showed that the lower Court interpreted the Practice Direction in a way which confers powers on the Chief Registrar which have not been granted to him by the Practice Direction. That, from the perusal of the duties of the Chief Registrar under the Practice Direction, the power to halt the execution of a judgment is not conferred. That where specific powers are conferred on a person or body, it is only that body that can lawfully exercise that power. He relied on the cases of Anyebe v. State (1986) 1 NWLR (Pt. 14) 39 AT 43, Paras B – C.
Learned counsel for the appellant submitted that it is also a settled principle of law and interpretation of statutes that the express mention of one thing has the effect of excluding all other. See Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 AT 499 Paras F – G. That the omission of the Chief Registrar from the persons conferred with the power to halt, stay, or suspend an execution pursuant to a duly signed Writ of Execution is that the Chief Registrar cannot exercise the powers as conferred in Section 2 of the Practice Direction for the Enforcement Unit, 2016.
Learned counsel for the Appellant contended that the interpretation given by the lower Court of the provisions of the Practice Direction to the effect that a duty is conferred on the Chief Registrar to halt the execution upon the receipt of a motion for instalment payments, is extraneous to the Practice Direction and is ultra vires the powers of the Chief Registrar. That when the words of an enactment are clear and unambiguous, such words are to be given their literal and ordinary meaning. He relied on the case of Ayoade v. Military Gov. Ogun State (1993) 8 NWLR (Pt 309) 111 AT 127. That a solicitor’s letter or a caveat is not one of the methods via which a duly executed Writ of Execution would not be given effect to by the Enforcement Unit of the lower Court.
Learned counsel for the Appellant submitted further that the rationale for setting aside the execution of 11th April, 2017 was the position of the lower Court at page 381 of the record, that the Practice Direction for the Enforcement Unit, 2016 only mentions motions for stay of execution and interpleader summons. That since the 2nd respondent filed a motion for payments in instalments, the Practice Direction does not apply. That the distinction the lower Court attempted to make between an application for instalment payments and an application for stay of execution, with regards to when a Chief Registrar should act under the Practice Direction and halt, stay, suspend an execution, is perverse and leads to absurdity. That the Practice Direction makes no attempt at distinguishing between applications that are capable of halting executions and applications that are not capable of stopping or halting execution.
Learned counsel to the Appellant concluding on this issue submitted that the essence of the Practice Direction is that once a judge of the lower Court has given approval for the execution of the judgment of the Court, no applications can prevent the Enforcement Unit of the Court from giving effect to the duly signed Writ of Execution. That it is only a formal order of a judge of either a magistrate Court, High Court, Court of Appeal or Supreme Court that can suspend the said Writ of Execution. That a statute should not be interpreted in a way that would defeat its object. That the lower Court lacked the jurisdiction to set aside the said execution and urged this Court to resolve this issue favour of the appellant and set aside the decision of the lower Court.
Learned counsel for the 2nd Respondent on his part submitted that the Appellant and the 3rd Respondent should not have treated the 2nd Respondent’s motion to liquidate the monetary judgment sum by three instalments as permitted by the Rules of the High Court of the FCT with disdain and ignominy. Learned counsel then contended that the lower Court was right when it held that the Chief Registrar ignored the caveat and failed to stop the execution. That the law is trite that a party served with a Court process is under a legal obligation to maintain status quo pending the determination of the proceedings. He relied on the case of Oduwaiye v. Onakomaiya & Anor (2017) LPELR — 43741 (CA). He argued further that it amounts to a gross error for a recipient of a Court process such as the 3rd Respondent to contend that the Practice Directions for the enforcement unit of the High Court takes precedence over the Constitutional duty of all authorities and persons to refrain from any conduct that may impinge on the inherent judicial powers of the Court as defined under Section 6 of the 1999 Constitution. That the constitution of the Federal Republic of Nigeria saddles the Courts with the solemn duty of preserving the res. The cases of Finbank Plc v. Gindiri Oil and Marketing Ltd & Ors (2013) LPELR – 20275 (CA), NIC & Anor v. First Continental Insurance CO Ltd (2006) LPELR — 5935 (CA) were cited in support.
Learned counsel for the 2nd Respondent went on to submit that by the tenor of Section 34(3)(a) of the 1999 Constitution of the Federal Republic of Nigeria, when processes have been filed in Court, the doctrine of sub-judice applies. That the duty of a Court when an application is pending before it is to consider it one way or another before giving its ruling. He relied on the case of Egege & Anor v. Registered Trustees of Gospel Deliverance Mission (2017) LPELR – 43063 (ca), Chime v. onyia (2009) 2 NWLR (Pt. 11241) (CA). That the 3rd Respondent acting in concert with the Appellant cannot prevent the High Court of the FCT from performing its constitutional duty in hearing and determining the 2nd Respondent’s application one way or another. That the Appellant’s arguments that the Practice Direction of the Enforcement Unit of the High Court of the FCT is the highest in the hierarchy of our laws is misconceived. Counsel argued further that the Appellant’s argument that the use of the word shall in Section 2 of the Practice Direction for the Enforcement Unit 2016 renders the provision mandatory is spurious as it is subordinate to the spirit and intendment of the Constitution.
On the argument of the Appellant that the 2nd Respondent did not traverse their deposition at paragraph 52 of the counter-affidavit, it is submitted for the 2nd Respondent that it is not the 2nd Respondent’s case that the execution was carried out contrary to an order of the lower Court staying execution but that it was the execution that was carried out despite the pendency of the 2nd Respondent’s application to pay the judgment sum in instalments in accordance with applicable rules of Court. Learned counsel for the 2nd Respondent then referred to the rules of Court under which the 2nd Respondent brought the motion on Notice. He then pointed out that the monetary judgment was for a subsisting tenancy and that there was nothing in the judgment that empowered the Appellant to apply for the issuance of warrant of possession.
Learned counsel also contended that on the face of Exhibit Further 2 at page 332 of the record, the appellant was at all material times the landlord and the 2nd Respondent was the lawful tenant of the Appellant as the tenancy relationship had not been terminated. That the Appellant deceived the lower Court into signing an order for attachment of the 2nd respondent’s premises. That a judgment obtained by fraud is a nullity and ought to be set aside. He cited on the case of Oladosu & Anor v. Olaojoyetan & Anor (2012) LPELR – 8676 (CA) in support. That when a matter has been submitted to a Court of law for determination, parties must refrain from acting in a manner that will prejudice the decision of the Court. The case of Ezegbu v. First African Trust Bank Ltd (1992) 1 NWLR (Pt. 220) 669 AT 724 was then cited in support.
On the Appellant’s argument that the Deputy Sheriff of the High Court not being a judge could not have halted the execution of a signed order of the High Court, learned counsel for the 2nd Respondent argued that this position is fallacious and of no moment. That the question is whether the Deputy Sheriff upon becoming aware of the pendency of the motion, could validly proceed to levy execution in defiance to the judicial authority of the cower Court? That the lower Court only applied the sacrosanct principle of expressio unjus est exclusio alterius to the provisions of Section 2 of the Practice Direction for the Enforcement Unit, 2016 to conclude that in any event, an application for instalment payment was not contemplated by the section, as the express mention of one thing meant the exclusion of others not mentioned. He relied on the case of Commissioner for Local Govt & Chieftaincy Affairs & Anor v. Onakade (2016) LPELR – 41133 in support.
Learned counsel then submitted that the pronouncement the Court made at page 381 of the record on the intention of the rule maker is in line with the decision of the Supreme Court in the case of Abah v. Monday (2015) 14 NWLR pt 1480 p. 569.
Learned counsel then contended that the decision of the 3rd Respondent to proceed with the execution defeats the essence of the Supreme Court decision in Odedo v. Oguebego (2015) 13 NWLR Pt. 1476 p. 229 where the Apex Court held that all applications brought properly before the Court must be heard and parties given an opportunity to be heard before a decision can be given against him. He then urged this Court to resolve the issue in favour of the 2nd Respondent.
Now, the question this issue seeks to answer is whether the execution was carried out in compliance with the law, and whether the lower Court was right in setting aside the execution of 11th April, 2017. Practice Directions of any sort, provide guides on how to comply with existing rules of Court. In Unilag v. Aigoro (1984) 11 sc 152 AT 159, the Supreme Court defined Practise Direction as:
“a direction given by the appropriate authority stating the way and manner a particular rule of Court should be complied with, observed or obeyed.”
Similarly, in Nwoko v. Nzekwo (2012) 12 NWLR (Pt 1313) 160 AT 175, this Court held that a Practice Direction is a written explanation or guideline on how to proceed in a particular area of law or Court. Practice Directions have the force of law and parties must adhere to it. This simply means that Practice Directions are supplemental protocol to the Rules of Civil and Criminal Procedure in any given Court. It seeks to regulate procedural matters which have already been provided for by the rules. It follows then that Practice Directions cannot introduce provisions inconsistent with the rules and cannot therefore provide explanations on subjects not contemplated by the rules or other existing law. It then goes without saying that practice directions will not have the force of law if they conflict with the Constitution of the Federal Republic or any statute which enables them.
Learned Counsel for the Appellant has argued that the Practice Directions for the Enforcement Unit, 2016 which regulates the manner in which judgments of the lower Court are to be executed and halted is enabled by Section 274 of the 1999 Constitution. He has also stated that the execution of 11th April, 2017 was carried out in compliance with the clear provisions of Sections 1 and 2 of the Practice Directions of the Enforcement Unit, 2016. I find it pertinent to reproduce Section 274 of the 1999 Constitution and Sections 1 and 2 of the Practice Directions of the Enforcement Unit, 2016.
Section 274 provides:
“Subject to the provisions of any law made by the House of Assembly of a State, the Chief Judge of a State may make rules for regulating the practice and procedure of the High Court of the State.”
Sections 1 and 2 of the Practice Directions of the Enforcement Unit, 2016 provide:
Section 1:
“The execution unit shall not initiate or engage in any form of communication with the judgment creditors, judgment debtors or their counsel.”
Section 2:
“Upon receipt of a writ of execution duly signed by a High Court Judge or Magistrate, the Execution Unit shall promptly carry out the execution unless same is recalled or formally stayed by a judge/Magistrate or Court of Appeal or Supreme Court.”
From the above, it is clear that the requirement of execution is that it is carried out promptly. The provision also makes it possible for the execution to be halted, stayed or suspended by a judge, magistrate or justices of any of the higher Courts of record. To my mind, the question is, is the interpretation of these sections wide enough to capture the filing of processes seeking to make payment in instalments, as a means of halting or staying execution as envisaged by the sections? It is true that processes filed are not to be considered Court orders as they have not passed through the requisite processes to becoming a Court order. It will also amount to a case of putting the cart before the horse, for such processes may either result in the granting or denial of an order sought.
Indeed, it is trite that the res of any litigation be maintained lest the res is depleted resulting in a futile judgment or order of Court. In OYEYEMI & ORS V. IREWOLE LOCAL GOVT IKIRE (1993) LPELR – 2881 SC, it was held per Nnaemeka-Agu , J.S.C that:
“…it must be noted that the whole purpose of an order to maintain the status quo is to preserve the res, the subject matter of the litigation, from being wasted, damaged, or frittered away, with the result that if the appeal succeeds, the result would be nugatory in that the successful appellant could only reap an empty judgment.”
The question then is, having received the processes and notice of the application before the Court in the form of the solicitor’s letter, should the execution have been halted pending the hearing of the motion? The trial Court was of the view that it is outrightly wrong for the deputy sheriff to have ignored the application for payments in instalments merely because the practice direction says he must be served with a formal Court order to that effect. I am drawn to the argument of the Appellant that the requirement of the law is that a Court order duly signed by a judge is the only means by which the execution could have been halted. Now, the position of the law where a statute prescribes a particular mode of performing a particular action is that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other, must have to be adopted. See Co-operative & Commarca Bank Nig Plc v. Ag Anambra State Anor (1992) LPELR – 875 (SC). This position of the law holds true, be it substantive or procedural, that method and no other should be the one to be adopted in the performance or conduct of the stated duty or act.
It is the 2nd Respondent’s case that the execution was carried out despite the pendency of the application before the Court to pay in instalments not that the execution was carried out contrary to an order. Now, I have gone through the record of proceedings. I find particularly at page 34 to 38 of the record, the motion on notice filed by the 2nd Appellant dated the 27th of March, 2017 wherein the 2nd Respondent sought the order of the lower Court to pay in instalments and an order suspending the execution of the judgment. Now, the date which this motion was filed is not clear. However, the date the execution was carried out was on the 11th of April, 2017 which is 19 clear days from the date the 2nd Respondent wrote a letter dated 23rd March, 2017 informing the Chief Registrar of the pendency of the motion before the Court seeking to suspend the execution of the judgment. It is therefore clear that the 2nd Respondent had evinced the desire and willingness to pay, though instrumentally by the filing of the motion to that effect. The Chief Registrar as Deputy Sheriff had a duty to exercise caution and halt execution in order to await the hearing and determination of the motion for instalmental payment. On that note, I resolve this issue against the Appellant.
On issue two (2), learned counsel for the Appellant submitted that there is no difference between a suspension of execution and a stay of execution. Learned counsel cited the case of Integration (Nigeria) Ltd v. Zumafon (Nig) Ltd (2014) LPELR – 22012 (SC) where it was held that a stay of execution is the postponement, hafting or suspension of judgment of a Court.
Learned counsel for the Appellant then submitted that the law is trite that a Court of law is duty bound to confine its decisions to the issues properly raised by the parties before it. That, where a Court raises an issue suo motu, it has a duty to invite the parties to address it before arriving at a decision. That failure to do so is a breach of the parties’ right to fair hearing and would amount to a miscarriage of justice. He relied on the case of Kraus Thompson Org. Ltd v. Unical (2004) 9 NWLR (Pt. 879) 631 AT 651, paras G – H in support.
Learned counsel for the Appellant then submitted that the issue of a distinction between a “suspension of an execution” and a “stay of execution” was not canvassed by either the Appellant or the Respondent. That the issue was not in the contemplation of the parties but was raised suo motu by the lower Court for the first time without calling the parties to address it on the point. That the Court’s failure to invite the parties to address it on this point, before arriving at a decision has breached the appellant’s right to fair hearing and occasioned a miscarriage of justice. He relied on the case of Wagbatsoma v. F.R.N. (2018) 8 NWLR (Pt. 1621) 216 Paras D – F.
Learned counsel for the Appellant, then contended that a mere breach of a party’s right to fair hearing is sufficient to declare the decision a nullity. He submitted that the failure of the lower Court to call the parties to address it on the issue it raised suo motu breached the Appellant’s right to fair hearing and occasioned a miscarriage of justice. We were urge to resolve those issues in favour of the Appellant and allow the appeal.
Learned counsel for the 2nd Respondent then queried, whether the lower Court raised the issue of stay of execution and suspension of execution suo motu. It was then submitted that the lower Court was called upon to interpret Section 2 of the Practice Direction of the Enforcement Unit, 2016 and so, relied on the provisions of the Practice Direction of the Enforcement Unit, 2016 and other applicable laws. That only Courts of law can interpret statutes and parties need not be consulted once a statutory provision has been submitted for interpretation. Learned counsel for the 2nd respondent cited the cases of Darma & Ors v. Mustapha (2014) LPELR – 23734 (ca), Ekengwu v. Ekengwu (2018) LPELR – 45070 (CA) to submit that, an issue would be said to have been raised suo motu when the Court on its own considers a matter or point material to and for proper determination of the case.
It is also submitted by learned counsel for the 2nd Respondent that the case ofIntegration (Nigeria) Ltd v. Zumafon (supra) relied upon by the Appellant on the definition of a stay of execution was cited out of context as the case is not on all fours with the instant case. He stated that in that case, the issue before the Court was whether the appellants therein were entitled to a grant of stay whereas in the instant case, the issue was the interpretation of the practice directions, the place of an application for payment of judgment sum in instalments as there was no application for stay of execution strictu sensu. That the question of distinction between a suspension of execution and a stay of execution was merely obiter and did not form the crux or ratio decidendi of the lower Court’s decision. That it follows that the Appellant’s right to fair hearing was not trampled upon. That assuming without conceding that the lower Court even raised a new issue suo motu, the Appellant was not prejudiced as it did not form a reason for the decision. That even where a Court raises an issue suo motu, the failure to have addresses by the parties does not in all situations affect the decision. That is only material if it has led to miscarriage of justice.
Learned counsel for the 2nd Respondent submitted that the requirement of fair hearing in judicial and quasi-judicial proceedings is not a technical requirement, but that of substantial fairness. That the Appellant who submitted the provision of Rule 2 of the Practice Direction for determination cannot turn around and contend that it was not specially called upon to be heard. See Onifade v. Olayiwola & Ors (1990) LPELR – 2680 (sc), Pam & Anor v. Mohammed & Anor (2008) LPELR – 2895 (SC). We were then urged to resolve this issue in favour of the Respondents.
The crux of this issue is whether or not the Court raised an issue suo motu and if it is found that it did, whether or not there was a need for the Court to call the parties to address it on the issue so raised. In the instant case, it was in the course of evaluating and resolving the issues presented before it, that the learned trial Judge observed that there is no difference between a suspension of execution and a stay of execution and that the Court is duty bound to confine its decision to the issues properly raised by the parties before it. I have gone through the record of proceedings particularly at page 381 of the record and I am of the view that the distinction the learned trial judge attempted to give on the difference between a stay of execution and a suspension of execution was not necessary. This is because a stay of execution is an application that seeks to halt or suspend the execution of a judgment, it is intended to preserve the res pending appeal. This may be due to an appeal being filed and the need to preserve the res pending the outcome of the appeal or perhaps as in this case, representing a willingness to satisfy the judgment debt by making payments in instalments. I must observe though that an injunction or a stay of execution merely suspends the rights of the successful party until the appeal is decided. To insist on a difference between a stay of execution and a suspension of execution was capable of obfuscating the issues and likely to divert the attention of the Court from the real issues in controversy.
On raising an issue suo motu, it is to be noted that learned counsel for the Appellant raised the issue of breach of their right to fair hearing when the trial Court delved into a distinction between a stay of execution and a suspension of execution and resolved same suo motu without affording the parties an opportunity of addressing the Court on the issue.
As a general rule, a Court of law can raise an issue of fact or law suo motu but before its resolution, it must afford the parties, particularly the party to be affected adversely by the issue, an opportunity to address it on the issue. See the cases of Akere & Ors v. Governor of Oyo State & Ors (2012) 12 NWLR (Pt. 1314) 240, Amale v. Sokoto Local Government (2012) 2 SCM 45 and Sanni v. Ademiluyi (2003) 4 SCM 145. The trial Court in its Judgment at page 381 of the record, made a distinction between a stay of execution and a suspension of an execution. It then held that:
“Suspension of execution is different from stay of execution. The latter is intended to preserve the res pending appeal. The former is not focused on appeal but for some other reasons, which includes a willingness to satisfy a judgment debt before the goods are auctioned or where an application is made to Court complaining of attachment of goods of a third party, not being the judgment debtor.”
The above, to my mind does not constitute raising afresh issue that would warrant parties to the suit to address the Court on it. I am in agreement with learned counsel for the 2nd Respondent that the statement was made in the course of resolving the issues and does not in itself constitute a ratio of the decision, capable of adversely affecting the rights of the parties. Perhaps using the word “raised” is inappropriate in these circumstances as it presupposes a formulation of an issue which is not the case in this matter. Undoubtedly, and at the risk of being repetitive, the point raised and addressed by the trial Court is the distinction between a stay of execution and a suspension of execution. Noting the difference will not in any way adversely affect the right of either party to the suit. The stance of the trial Court cannot be impugned in my humble view as it does not amount to raising issue suo motu. But as I have already stated that there is no distinction between a stay of execution and a suspension of execution this exercise becomes merely academic. The Appellant should not be heard to cry when in fact, neither its right to fair hearing had been breached nor had there been a miscarriage of justice. Indeed, the issue of breach to fair hearing should not be one raised carelessly, or as a matter of course. There must be cogent and substantial grounds upon which it is raised and then presented to the Court. In SABURI ADEBAYO VS A-G. OGUN STATE (2008) 33 NSCQR 1, the Supreme Court per Niki Tobi, held clearly as follows:
“The fair hearing provision in the Constitution is the machinery or locomotive of justice not a spare part to propel or invigorate the ease of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.”
Having thus determined, I hereby resolve this issue, also, against the Appellant.
I have carefully read the arguments of learned counsel for the 2nd Respondents on issue 3 raised in the said 2nd Respondent’s Brief of Argument. The said issue is said to be distilled from a Respondent’s Notice filed by the 2nd Respondent. It should be noted that, a Respondent’s Notice as envisaged by Order 9 Rule 2 of the Court of Appeal Rules, 2021 is intended to give liberty to a Respondent to contend that the decision of the trial Court be affirmed on grounds, other than those relied on by the Court. This is distinct from a cross-appeal, which is usually filed by a Respondent who seeks to challenge a part of the decision of the trial Court.
Now, I have carefully read and reflected on the grounds stated for raising the Respondent’s notice and the arguments thereon. I have also soberly reflected on the decision appealed against, particularly at page 382 lines 14 – 26 of the record of appeal, where the learned trial Judge held as follows:
“…this Court had no jurisdiction to issue on writ of possession since the judgment sought to be enforced did not extend to an order of possession of premises. Despite that, I am not inclined to grant prayer 4 which seeks to put the Judgment debtor back into possession. So much time has lapsed ever since the wrongful eviction. It will be difficult now to ascertain at what rate of rent and the length of stay in the premises, if I should make such an order as there is not enough material placed before me to enable me take an informed decision concerning such a relief that has high economic content. The judgment debtor may wish to proceed to Court and claim damages against those who caused her pain arising from the wrongful execution and eviction.”
In view of the above portion of the ruling of the learned trial Judge, I am of the view, which I hold, that a pronouncement on issue 3 raised by the Respondent may lead to a decision which may conflict with that decision. This is particularly considering ground 3 in support of the Respondent’s notice and the arguments thereon. I therefore discountenance the said Respondent’s notice and issue 3 distilled therefrom.
On the whole, it would be seen that issue 1 and 2 raised by the Appellant, have been resolved against the Appellant. The appeal therefore, lacks merit. It is hereby dismissed. I award One Hundred Thousand naira (N100,000.00) as cost against the Appellant, in favour of the 2nd Respondent only.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Haruna Simon Tsammani, JCA, which has just been rendered was made available to me in draft.
Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I agree with the views expressed in the leading judgment. The manner in which the issues thrust up for resolution in the appeal were resolved are in accord with my views.
Consequently, I adopt the reasoning and conclusion in the leading judgment as mine and equally join in dismissing the appeal and on the same terms as set out in the leading judgment. I abide by the order as to costs.
MUHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA.
I am in agreement with the reasoning and conclusion contained in the lead judgment and have nothing to add thereto.
I too find the appeal unmeritorious and accordingly dismiss it. I abide by the orders of my lord in the lead judgment including order as to costs.
Appearances:
Tunde Ahmed Adejumo; Esq For Appellant(s)
Opemipo Osunlefi; Esq for the 1st Respondent.
T.P. Tochukwu; Esq with him B.O. Ejere; Esq for the 2nd Respondent.
3rd Respondent not represented. For Respondent(s)