ELDER DR. FRIDAY SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS

“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.” I completely agree with the view of his Lordship and I adopt same as mine. In the instant case, it is incumbent upon this Court, to protect the res, pending the outcome of the appeal lodged at the Court below. The proposition or notion that an Appellant in an appeal against a garnishee order absolute cannot apply for an order to stay or suspend the payment of the sum of money attached by the garnishee order absolute pending the determination of the appeal is therefore wrong. In the present case, the sums of money in the accounts of the 7th judgment debtor with the 14th garnishee attached by the order absolute of 19th June, 2019 have not been paid to the judgment creditor till now. In reality, the execution of the order to pay the attached funds to the judgment creditor has not been completed as he has not received the attached funds. 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 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.” –

“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. –

“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. –

“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. –

“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.” –

“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. –