Legalpedia Citation: (2014-03) Legalpedia 12589 (CA)
In the Court of Appeal
PORT HARCOURT
Mon Mar 31, 2014
Suit Number: CA/ PH/53M/2014(R)
CORAM
T. N. ORJI-ABADUA, J.C.A
PARTIES
FIRST CITY MONUMENT BANK PLC
APPELLANTS
TAMSTEL NIGERIA LIMITED & ORS
RESPONDENTS
AREA(S) OF LAW
APPEAL, COURT, JUDGMENT AND ORDER, JURISDICTION, PARTY, PRACTICE AND PROCEDURE, STAY OF EXECUTION
SUMMARY OF FACTS
The Applicant filed an application before the Court of Appeal, Port Harcourt Division, wherein it sought for a restraining order; an order staying further execution and or suspending the sale of the Appellant’s chattels and property in the inventory which were attached, seized and carted away by the 2nd set of Respondents in purport of the execution of a Writ of Attachment and Sale of Goods and Chattels; an order setting aside the already conducted execution by the 1st Respondent and the 2nd set of Respondents pursuant to the judgment of 15th May 2008, on the 4th of February 2014, and the Writ of Attachment and Sale of Goods and Chattels issued against the Applicant; an order releasing the chattels and property which are presently in the custody of the 2nd set of Respondents; and, an order declaring null and void the execution levied against the Applicant by the 1st Respondent and 2nd set of Respondents on the 4th day of February, 2014 as same was done fraudulently. This is in respect to a Judgment entered on behalf of the 1st Respondent by the High Court of Rivers State, Port Harcourt in suit No. PHC/381/2008, between Tamstel Nigeria Limited vs. Real Dredging and Marine Limited, EtekambaNsa, First Inland Bank Plc, Alala Mines Limited, Buz& Company, First Bank of Nigeria Plc and Victor Buzugbe delivered by Honourable Justice S.H. Aprioku of the Rivers State High Court, Port Harcourt, on the 15th day of May, 2008 in the sum of N62,400,000.00 (Sixty-Two Million, Four Hundred Thousand Naira) with interest at the rate of 17% per annum until judgment sum is paid, as the 1st Respondent and the 2nd set of Respondents have proceeded to levy execution on the Applicant’s goods chattels and property. The 1st Respondent did not file a counter-affidavit but rather opposed the application on grounds of law, while the other Respondents did not file any counter-affidavit nor written addresses.
HELD
Application Succeeds
ISSUES
1. Whether the execution levied on the Applicant while the application for stay of execution was pending was not invalid and incompetent.?
2. Whether from the circumstances the Honourable Court can set aside the execution that was carried out pursuant to the Writ of Fifa that was issued for the sum of N221,571,100.00.?
3. Whether the Honourable Court can stay further execution of the judgment of the Lower Court.?
RATIONES DECIDENDI
JUDGMENT AND ORDER
EXECUTION OF JUDGMENT – DUTIES AND LIABILITIES OF A SHERIFF IN THE EXECUTION OF JUDGMENT
“It is, therefore, prudent at this juncture to take cognisance of the decision of this Court in ABC Merchant Bank (Nig.) Ltd. vs. Panalpina World Transport (Nig.) Ltd. (2005) 4 NWLR Part 915 page 374, per Aderemi J.C.A; (as he then was), where it was expressed that a judgment Creditor and a Judgment Debtor are the persons respectively entitled to the benefit of, and liable under an enforceable judgment or order. The Sheriff who is an officer of the Court in the performance of his duty in relation to execution of judgment has as his duties and liabilities generally under the Writ in three fold, namely;
1. To the judgment Creditor, to obey the Writ and any lawful instructions that has been given to him;
2. To the judgment Debtor, not to do any act he is not authorised so to do;
3. To the Court, to make a return on the Writ if he is required so to do.- PER T. N. ORJI-ABADUA, J.C.A
JUDGMENT AND ORDER
EXECUTION OF JUDGMENT – INSTANCES WHERE THE SHERIFF OR BAILIFF OR OFFICER CHARGED WITH EXECUTION OF JUDGMENT CAN BE SUED BY THE JUDGMENT DEBTOR OR JUDGMENT CREDITOR
“The case of Domine vs. Grimsdall (1937) AER 119 was referenced therein and in which it was established that it is the law that the Sheriff or Bailiff or the officer charged with execution of judgment can be sued by the Judgment Debtor or Judgment Creditor for:
a) Illegal execution, e.g; an error in the levy;
b) Irregular execution e.g, levy by an unauthorised officer or;
c) Excessive execution.
The officer charged with the execution can also be sued by the Judgment Creditor for failing to protect his/her interests.
See Slated vs. Hawley (1845) 15 M & W 757 and Pitch vs. King (1844)”. PER T. N. ORJI-ABADUA, J.C.A
JUDGMENT AND ORDER, PARTY, PRACTICE AND PROCEDURE
EXECUTION OF JUDGMENT – WHETHER THE JOINDER OF A SHERIFF IN AN APPLICATION FOR SETTING ASIDE AN EXECUTION OF JUDGMENT ALREADY LEVIED BY HIM WILL VITIATE THE PROCEEDINGS
“It is evident in the instant proceeding that grave allegations of wrongful or illegal and excessive execution were made against the 1st Respondent and the 2nd set of Respondents. The Supreme Court, in Adisa vs. Oyinwola (2000) 10 NWLR Part 674 page 116, succinctly held that it is the duty of the plaintiff to bring to Court a party whose presence is crucial to the resolution of his case. Where he failed to do so, the appellate Court would strike out the action or order a retrial of the action. The essence being that only the plaintiff can decide on the person he believes he has right of relief against and then institute an action against him before the Court, though a person whose interest may be affected by the outcome of the case may apply to join as a co-defendant.
See Alhaji Salisu Ibrahim vs. Adaji Ojonye (2011) LPELR-CA/K/350/2016.
The same principle applies to applications by Applicants to set aside an execution of judgment already levied by the Judgment Creditor via the Sheriff or Bailiff of the Court. In Fabunmi vs. Oyewusi (1990) 6 NWLR Part 159 page 737, it was held that the Deputy Sheriff is the agent of the Judgment Creditor for the purposes of levying execution of the Judgment of the Court.
Also, in Re The Debtor vs. Goacher (1979) 1 All E. R. 870, it was held that the Sheriff is not simply an agent of the Judgment Creditor but has wider responsibilities which includes duties towards the official receiver or trustee in bankruptcy. As an agent of the Judgment Creditor, his name may also be mentioned in the application for setting aside an execution of judgment already levied by him. It is trite law mere joinder of his name will not vitiate or void the process. However, since the Sheriff, the Deputy Sheriffs and the Bailiffs were named as the officers critical to the entire process of execution of the judgments of the Court and since they can be sued for wrongful, illegal and excessive execution, it does not matter whether the proceeding was commenced by way of Motion with their names mentioned therein. The execution was allegedly levied while the Applicant’s Motion on Notice for an order of stay of execution Court is presumably pending before this Court. See also the case of Bello vs. INEC (2010) 8 NWLR Part 1196 page 342 where the Supreme Court expressed that it is settled that no cause or matter shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every cause or matter deal with matter in controversy so far, as regards the rights and interests of the parties actually before it.
The misjoinder is an irregularly that does not affect the competence or jurisdiction of the Court to adjudicate on the matter. –PER T. N. ORJI-ABADUA, J.C.A
STAY OF EXECUTION – GROUNDS ON WHICH AN APPLICATION FOR STAY OF EXECUTION CAN BE GRANTED
“To resolve this, it may be necessary hereat to beam on the decision in Intercontractors vs. UAC (1988) NWLR Part 76 page 303, per Karibi-Whyte, J.S.C; where it was stated that every judgment takes effect on pronouncement. A Judgment Debtor seeking to stay the execution must show that he is challenging the judgment, or is asking for time to comply with the terms of the judgment. If it is a challenge of the judgment, a Notice of Appeal ought to have been filed, or will, on undertaking, be filed. See Oladapo V. ACB (1951) 13 WACA 110. See also the decision of this Court in Shinning Star Nigeria Ltd &anor vs. A. K. S. Steel Nigeria Ltd &ors (2010) LPELR CA/L/558M/2009, per Saulawa, J.C.A; where the Supreme Court case of Oladapo vs. ACB (supra) was referred to. It was recognised that although the general principle is that for an application for stay of execution or proceedings to be worthy of being granted, it must be predicated upon certain grounds which include that there must have been filed a valid and pending appeal, however, an application for stay could be granted in exceptional circumstances without any pending appeal.
Further, in the case of Nigerian Agricultural Co-operative Bank Ltd. vs. Ozoemelam (2016) LPELR-26051 (SC), the Supreme Court, per Ngwuta, J.S.C; reiterated the principle that an application for stay of execution pending the determination of appeal presupposes that an appeal had been filed before or simultaneously with the application. After all, a major consideration in the application is whether or not there are arguable grounds of appeal. Be that as it may; in exceptional or appropriate circumstances, the order for stay may be granted when the appeal had not been lodged upon an undertaking to file the Notice of Appeal without delay. See NDLEA vs. Okorodudu (1997) 3 NWLR Part 492 page 221; Fatoyinbo vs. Osadeyi (2002) 5 SC Part 11 page 1.
All these established that even with or without a pending Notice of Appeal, an application for stay of execution can be considered by the Court where there is an undertaking by the Applicant to file the Notice or there is already pending, an application for leave to appeal or for extension of time to appeal which is a clear manifestation of the Applicant’s eagerness or intention or a seeming undertaking to file the Notice of Appeal the moment the order of the Court granting leave or extension of time to appeal is made therein. PER T. N. ORJI-ABADUA, J.C.A
STAY OF EXECUTION –EXERCISE OF THE COURT’S DISCRETION IN THE GRANT OF STAY OF EXECUTION
“What matters is the state of events at the time of considering the application or granting the order for stay of execution. At the time of consideration of this application, there was already filed, a Notice of Appeal by the Applicant pending before his Court.
In Nwabueze vs. Nwosu (1988) NWLR Part 88 page 257, the Supreme Court held the Court has discretion to grant stay of execution on being satisfied that there are exceptional circumstances which warrant the exercise of the Court’s discretion in the application’s favour. This is so whether there is an appeal pending or not -PER T. N. ORJI-ABADUA, J.C.A
JUDGMENT AND ORDER, STAY OF EXECUTION, COURT, PRACTICE AND PROCEDURE
STAY OF EXECUTION – STATUS OF AN EXECUTION LEVIED AGAINST A JUDGMENT DEBTOR WHILE AN APPLICATION FOR STAY OF EXECUTION IS PENDING
“In considering the first and second issues raised by the Applicant, that is to say, “Whether the execution levied on the Applicant while the application for stay of execution was pending was not invalid and incompetent, and “Whether from the circumstances the Honourable Court can set aside the execution that was carried out pursuant to the Writ of Fifa that was issued for the sum of N221,571,100.00, recourse should be had to the principle laid down in Vaswani Trading Co. vs. Savalakh and Co. (1972) All N.L.R 922 ,where the Writ was executed and possession wrested from the applicants whilst their Motion to the Court for a stay of execution was pending and awaiting a date to be assigned by the Court for the hearing of the application. The Supreme Court held that in the circumstances of the case, the action of the Respondents constitute an abuse of the process of the Court and that it was idle for the Respondents to argue that they were not aware of the pending proceedings in the Court. The Supreme Court further remarked that they were so aware, and even if that were not so the law clearly makes the Deputy Sheriff their agent in these matters by virtue of Order 11 Rule 29 of the Judgments (Enforcement) Rules, Cap. 189. The Supreme Court compared the scenario therein with the circumstances in Shekoni vs. Ojoko (1954) 14 W.A.C.A page 504, where the West African Court of Appeal, per Foster-Sulton, P, observed that: “In view of the fact that there was an appeal pending in a suit involving ownership of the land which is the subject of the present suit the proper course for the learned trial Judge to have adopted would have been to adjourn the case pending determination of the appeal with liberty to either side to apply for the hearing to be continued. To do otherwise would work an injustice to the appellants in the event of their appeal in Ekiti Divisional Native Court Suit No. 2 of 1949 being successful, as they could not then renew their claim in their present suit.”-PER T. N. ORJI-ABADUA, J.C.A
STAY OF EXECUTION – SPECIAL CIRCUMSTANCES WHEN AN APPLICATION FOR STAY OF EXECUTION WOULD BE GRANTED
“it is trite that when it comes to issue of stay of execution the Court of Appeal and indeed any Court as stated of the Supreme Court in Vaswani Case (supra) will not make the practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. However, in Odedeyi vs. Odedeyi (2000) 3 NWLR Part 650 page 655, the Supreme Court, per Belgore, J. S. C.,(as he then was) expounded that “the special circumstances” that can be advanced to justify a stay of execution is very wide and its category is not closed. A strong and substantial ground of appeal does not necessarily mean the appeal may succeed; certainly the Court must be wary of such ground so as not to prejudge the substantive appeal.
In cases where the res, the subject matter of the appeal, is at the risk of destruction if a stay is not granted, or its nature may be altered as to make it irreversible to its original state, or if it is monetary and the victorious party is a man of straw, and may not be able to redeem the money should the substantive appeal be decided against him, the Court in its discretion will grant a stay of execution pending determination of the appeal. PER T. N. ORJI-ABADUA, J.C.A
STAY OF EXECUTION, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE
STAY OF EXECUTION – WHAT CONSTITUTES “SPECIAL” CIRCUMSTANCES IN THE GRANT OF AN APPLICATION FOR STAY OF EXECUTION
“The word “special” or strong is taken as involving a consideration of some collateral circumstances and perhaps in some cases, inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the Court especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo. PER T. N. ORJI-ABADUA, J.C.A
STAY OF EXECUTION – PURPOSE OF A STAY OF EXECUTION
“It has been restated in a plethora of cases by the apex Court that the purpose of a stay of execution, proceedings or injunction is to preserve res and to maintain the status quo pending the determination of appeal. PER T. N. ORJI-ABADUA, J.C.A
STAY OF EXECUTION – CONSIDERATIONS BY THE COURT IN THE EXERCISE OF ITS DISCRETION IN THE GRANT OF AN APPLICATION FOR STAY OF EXECUTION
“The Court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issues being in status quo until the legal issues are resolved. In Ajomale vs. Yaduat (2) (1991) 5 NWLR Part 191 page 266, the Supreme Court stated that a stay may, in appropriate cases be granted on basis of balance of hardship; not on mere convenience of one Party.
In Shell Petroleum Development Company of Nigeria Limited vs. Ojiowhor Monday Amadi & Ors (2011) LPELR-3204 (SC), the Supreme Court reiterated that in exercising its discretion in an application for stay of execution the Court is enjoined to consider some conditions in granting or refusing the application, some of which are: (1) The grounds of appeal must raise substantial legal issues in an area of law that is novel or recondite; (2) The application must disclose special circumstances why the judgment should be stayed; (3) The application must disclose why matters should be put in status quo or preserve the res so as not to render the appeal nugatory.
It further stated that in considering whether the ground of appeal discloses substantial issue of law to be determined, it is not the duty of the Court at this stage to consider whether the appeal will succeed or not. It is sufficient if the ground raised a point of law on the face of it.
Also in Shinning Star Nigeria Limited & Anor vs. A.K.S Steel Nigeria Limited &Ors 2016 LPELR-4957 (CA), it was stated that granting an application for stay of execution or proceeding must be predicated upon the ground that there must have been a valid pending appeal.
However in Oladapo vs. ACB Ltd (1980) 13 WACA 110, NBN Ltd vs. NET Ltd (1986) 3 NWLR Part 31 page 667 it was held an application for stay would be granted in exceptional circumstances without any pending appeal which was asserted by the Applicant that a valid Notice of Appeal was filed after extension of time was granted to it on the 31st October, 2016 which has attached as Exhibit ‘N’ to the 3rd further Affidavit in support of this application. The grounds stated therein appear to me to have raised substantial and arguable issues of law and fact. Grounds 1, 2, 3 and 4 of the Applicants Grounds of Appeal and Exhibit ‘N’ obviously raised issues of law and fact. If Order 35 Rule 4 of the Rivers State High Court (Civil Procedure) Rules, 2010 authorised the High Court to award not less than 10% per annum and the 1st Respondent claimed post judgment interest at the rate of 10% per annum until the judgment debt is liquidated, but the trial Court awarded 17% in excess of what was claimed by the Claimant, then a lot of explanations in law need to be made at the time of hearing the appeal.
The law permitting a Court of law to award more than is claimed must be presented by the party arguing in support.
Also, where the res is established to be likely destroyed, damaged, or annihilated before the final determination of the substantive matter, the Court shall grant a stay. Further, in Sirpi Alusteel Construction (Nig.) Ltd vs. Snig (Nig.) Ltd (supra) cited by the Applicant’s Senior Counsel, this Court laid down some of the conditions that ought to be considered thus:
(1) Whether if the appeal succeeds, the Applicant will not be able to reap the benefit of the judgment on appeal. See Wilson vs. Church (No. 2) (1978) 12 (H. 1) 454, 458 and (2) where the judgment is in respect money and costs whether there is a reasonable possibility of recovering them from the Respondent if the appeal succeeds. See Lawrence Ogobegu Ebegbuna vs. James Omotunde Ebegbuna (1974) 3 WSCA 23. It was noted therein that poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the Appellant of the means of prosecuting his appeal. The Court seised with the question as to whether or not to grant a stay will look at the surrounding factors; the Court must by force of circumstance i.e. of necessity aim at preserving the res if it is capable of destruction or ruination should it change hands. Generally in the case of money judgment where the Applicant makes out a case convincing the Court that the Respondent will be unable to pay should the appeal be successful, the Court will be guided by prudence to invariably grant a motion for stay.-PER T. N. ORJI-ABADUA, J.C.A
CASES CITED
STATUTES REFERRED TO
1. Court of Appeal Rules, 2011
2. Judgments (Enforcement) Rules, Cap. 189
3. Rivers State High Court (Civil Procedure) Rules, 2010