Legalpedia Citation: (2023-06) Legalpedia 66306 (CA)

In the Court of Appeal

KANO JUDICIAL DIVISION

Tue Jun 27, 2023

Suit Number: CA/KN/146/2018

CORAM

Uzo Ifeyinwa Ndukwe-Anyanwu JCA

Patricia Ajuma Mahmoud JCA

Gabriel Omoniyi Kolawole JCA

PARTIES

UNITED BANK FOR AFRICA PLC

APPELLANTS

AMINU LAWAL ATANA

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondent in this appeal mistakenly transferred N54,973,493.00 to Account No 1004872552 in the same Appellant bank. When the Respondent realised his mistake, that same day he instructed his manager of the same bank to reverse that transfer. The recipient also gave two instructions by email Exhibits AA1 and AA2 to his account officer and the manager informing them of the transfer and gave instructions that the money should be reversed to the Respondent. This the Appellant bank failed to or neglected to do.

After some time, the Respondent as plaintiff filed an action in Court for the reversal of this money. The lower Court found for the Respondent and gave judgment in his favour on 31st July, 2017.

By 28th August, 2017, a garnishee proceeding was instituted by the Respondent against the Central Bank of Nigeria (CBN) on 31st July, 2017, the Appellant as judgment debtor filed a notice of appeal. A motion for stay of execution was also filed in the High Court which was later withdrawn and struck out. Another motion for stay was subsequently filed in this Court. The Appellant’s counsel stated that whilst this was pending, the lower Court decreed the garnishee order nisi absolute. This order absolute of the lower court is the basis of this appeal.

 

HELD

Appeal dismissed

ISSUES

Ø Whether the lower court rightly decreed an order absolute despite the pendency of a motion for stay of execution?

RATIONES DECIDENDI

ORDER OF COURTS – THE CONDUCT OF COURTS REGARDING COURT ORDERS – WHEN AN ORDER OF COURT IS NOT OBEYED

As it stands today, the Courts do not tolerate any party disobeying Court Orders in any guise. See HART VS HART (1990) LPELR 1354 where WALI JSC held

“As O’LEARY, J. (A CANADIAN JUDGE) PUT IT IN CANADIAN METAL CO. LTD. V. CANADIAN BROADCASTING CORP. (NO. 2) [1975] 48 DLR (3D) 641 AT 669- “To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn… If the remedies that the Courts grant to correct wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the Courts will quickly result into the destruction of our society.” Per WALI, JSC

In SHUGABA VS U.B.N. PLC (1999) LPELR 3068, it was also held

“… While I agree that it is not desirable for the Courts to make unbridled orders, and that Court should not do anything to put a clog in the wheel of justice, orders of the Court are to be respected and obeyed. The dignity and honour of Court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. Consequently, non-compliance with an order of Court makes a matter or suit incompetent. I entirely with respect, agree with the stand taken by the Supreme Court in the case of ODOGWU V. ODOGWU (1992) 2 NWLR (PT. 225) P. 539 AT 558-559 PER KARIBI WHYTE JSC thus – ‘The grant of stay of Execution is entirely within the discretion of the Court making the order. For an applicant to be entitled to the exercise of discretion he must bring his conduct within the legitimate scope of the exercise of discretion. See LEAVIS V. LEAVIS (1921) P. 299. Hence, where he is in continuing disobedience of order of Court. I do not conceive it legitimate to consider the exercise of discretion in his favour. See Gower v. Gower (1938) p. 106. The contumacious behaviour is more egregious and censorious where the applicant seeks the discretion of the Court to endorse such a behaviour.” Per WALI, JSC

RHODES-VIVOUR JCA warned against the dangers of disobeying Court orders in UWAZURUIKE VS A.G.F (2013) LPELR 20392:

“The well laid down position of the law is that anyone who is served with, or becomes aware of a valid Order of Court should ensure that he obeys it in full. Failure to obey a valid Court order may amount to wilful breach of it which could lead to contempt proceedings with serious consequences. See MOBIL OIL NIG. LTD. V. ASSAN 1995 8 NWLR PT. 412 P. 129.” Per RHODES-VIVOUR, JCA. – Per U. I. Ndukwe-Anyanwu, JCA

ORDER OF COURT – ENFORCEMENT OF THE ORDERS OF COURT – CONDUCT OF COURTS

Can a party in contempt of a Court order come before another Court seeking for other orders? I think not. See ABBI VS PRINCEWILL (2011) LPELR 3952:

“… I earlier stated that it is apparent from page 292 of the Record that the learned trial Judge acknowledged that the order made on 31st July, 2000 was a subsisting order. The order was violated, and it is that order that the application before the learned trial Judge was trying enforce. That order is enforceable under Section 287 (3) OF THE 1999 CONSTITUTION THAT PROVIDES. 287. (3) The decisions of the Federal High Court, a High Court and all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively. When a Court finds itself in this situation the remedy is clear. It will not only frown against it. The Court must in addition take a positive and mandatory act in order to instil judicial discipline on the erring party and in order to maintain, restore and preserve the dignity and respect of the Court. This includes the undoing of what has been done by the erring party irrespective of what the Court will decide on the merits, when the matter is properly heard. See EZEGBU V. F.A.T.B (SUPRA) AT PAGE 725, DANIEL V. FERGUSON (SUPRA) AT PAGE 30. Every judge worth his office will not condone such a conduct that denigrates the authority, dignity and respect of the Court. It goes without further emphasis that Courts preserve their authority jealously. This is further bolstered by Section 17 (2) (e) of the 1999 Constitution that says that in furtherance of the social order, which is founded on ideals of justice, among others, the independence, impartiality and integrity of Courts of law shall be secured and maintained. No other person maintains and secures the independence and integrity of the Courts more than the judges themselves who sit and preside in those Courts.” Per EKO, JCA.

He who comes to equity must come with clean hands. How can a party in contempt of Court come before another Court seeking orders? The Appellant must purge itself and not be indulged by this Court. – Per U. I. Ndukwe-Anyanwu, JCA

COURT ORDERS – WHEN COURT ORDERS ARE TREATED WITH DISRESPECT

It is disheartening to treat the order of Court with disrespect and disdain. If the remedies granted by the Court to correct wrongs are ignored or outrightly disobeyed, it will be a clear invitation to jungle justice as every citizen will then take the law into their hands. Loss of respect for Court will go against the very fabric of society resulting in its destruction. For this reason, a party who acts in complete contempt of Court as the Appellant has done does not deserve the exercise of the Court's discretion in his favour. – Per P. A. Mahmoud, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

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