HON. JUSTICE SOTONYE DENTON-WEST v CHIEF (ICHE) CHUKS MUOMA, SAN (CA/PH/244/07) [2007] NGCA 7 (27 November 2007)

In The Court of Appeal

(Port Harcourt Judicial Division)

On Tuesday, the 27th day of November, 2007

Suit No: CA/PH/244/07

Before Their Lordships

 Between

 And

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 11/9/07 and filed on 12/9/07 brought pursuant to Order 3 rule 3(1) & (4) Court of Appeal Rules, 2002, section 90 Sheriffs and Civil Process Act and the inherent jurisdiction of the court, the applicant herein seeks the following reliefs from this court:

"1. An order of this Honourable Court accelerating the hearing of this application.

2. An order of this Honourable Court granting stay of execution of the judgment of the Honourable Justice E. Thompson of the High Court of Rivers State, Port Harcourt Judicial Division delivered on the 6th day of December, 2006 and of all or any enforcement processes pending the determination of the appellant/applicant's appeal against the said judgment.

3. An order of this Honourable Court setting aside the Garnishee Order Nisi granted on the 25th day of July, 2007 by the Honourable Justice D.W. Okocha of the High Court of Rivers State, Port Harcourt Judicial Division and staying further hearing of the garnishee proceedings before the lower court.

4. Such further order as this Honourable Court may deem fit to make in the circumstances."

The application is supported by a 41-paragraph affidavit to which are annexed various exhibits marked 1-14 respectively. In opposition to the application, the respondent deposed to a 31-paragraph counter affidavit with supporting exhibits attached thereto and marked A-G respectively.
When the application came before the court on 24/9/07, the parties were ordered to file written addresses in support of their respective positions. The applicant's written address dated 2/10/07 was filed on 4/10/07. The respondent's written address dated 11/10/07 was filed on 17/10/07. The respondent filed a reply on points of law dated 19/10/07, which was deemed filed on 22/10/07.

On 22/10/07 both learned counsel adopted their respective written addresses. L.V.C. Michaels, learned counsel for the applicant urged us to grant the application, while B.E.I. Nwofor, SAN learned counsel for the respondent urged us to dismiss same with substantial costs.

The facts that gave rise to this application are comprehensively set out in the applicant's written address. Briefly they are as follows:

The respondent herein instituted suit No. PHC/756/2006 against the applicant before the High court of Rivers State, Port Harcourt Judicial Division under the undefended list to recover his fees in respect of the successful litigation conducted on the applicant's behalf before the said court. In accordance with the rules of that court the applicant filed a notice of intention to defend supported by an affidavit. On 6/12/06, the court entered judgment in favour of the respondent. Being dissatisfied with the judgment of the court, the applicant filed a notice of appeal against it on the same day. On 7/12/06, the applicant also filed an application for stay of execution of the judgment. The parties joined issues in respect of the application, exchanged written addresses and made several court appearances in respect thereof. On 5/3/07, the applicant filed a further notice of appeal to supersede the one filed on 6/12/06.

The pending application for stay of execution was reassigned twice before finally being set down for hearing on 25/9/06 before a third Judge, D.W. Okocha, J. On 12/6/07, the appeal was duly entered in this court. The applicant averred that the record was served on the respondent on 28/6/07.

It is the applicant's contention that despite the fact that the application for stay of execution was still pending and the parties had exchanged affidavits and written addresses in respect thereof, and notwithstanding the fact that the appeal had been entered in this court, the respondent on 5/7/07, filed a motion ex-parte for a garnishee order nisi against 13 garnishee banks to attach the judgment debt. The application was fixed for hearing on 25/7/07. The garnishee order nisi was granted on that day. Pursuant to another application dated 23/7/07, the respondent obtained a second garnishee order nisi on the same 25/7/07 against a further 6 garnishee banks. The court thereafter adjourned the garnishee proceedings to 24/9/07 for hearing, one day before the application for stay of execution was to be heard.

The applicant contends that she only became aware of the garnishee orders nisi when she attempted to withdraw some money from her account and was informed by the bank of the orders. It is her further contention that she was not served with the garnishee orders nisi. That she is stranded without money to meet her basic needs and those of her dependants. She also contends that the garnishee orders obtained while her application for stay of execution was pending and after the appeal had been entered before this court is an abuse of the court process.

On the competence of the application, learned counsel for the applicant submitted that by virtue of Order 3 rule 3(4) of the Court of Appeal Rules, 2002, an application of this nature could only be brought before this court after it had been heard and refused by the court below except where there are special or exceptional circumstances that make it impossible or impracticable to apply to the lower court. He argued that such special circumstances exist in the instant case because the motion for stay of execution was set down for hearing to a date almost two months after the grant of the garnishee orders nisi. He referred to paragraphs 21-23 of the supporting affidavit. He submitted that the application is competent. He cited the following cases in support: F.C.M.E. Ltd. v. Packoplast (Nig.) Ltd. (2000) 8 NWLR (Pt.669) 527 at 539 E-G; I.B.W.A. v. Pavex Int'l Co. (Nig.) Ltd. (2000) 7 NWLR (Pt.663) 105 at 133 C-D and at 144 -145 H-E.

On the conditions for the grant of an application for stay of execution he relied on the following authorities: Vaswani Trading Co. v. Savalakh & Co. (2000) FWLR (Pt.28) 2174; (1972) 12 SC 77; Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129 at 136; Martins v. Nicannar Foods Co. Ltd. (1988) 2 NWLR (Pt.74) 75 at 82-83 and Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627 at 643-644. He submitted that grounds 1, 2 and 6 of the superseding notice of appeal, attached to the Supporting affidavit and marked exhibit 3, raises substantial and arguable grounds of appeal, particularly having regard to the appellant's reliance on the case of Aruwa v. Abdulkadir (2002) FWLR (115) 677 at 690 C-H. He contended further that ground 3 of exhibit 3 raises the issue of the jurisdiction of the lower court and the competence of the entire proceedings before it.

He submitted that the balance of convenience in this matter weighs in favour of the applicant. He referred to paragraphs 23-24 of the applicant's supporting affidavit wherein it is averred that all the applicant's accounts have been frozen. He also referred to exhibit 4 (the application for stay of execution filed before the court below) attached thereto. He submitted that the respondent has not shown what and how he would suffer if the application is granted.

Learned counsel contended that the garnishee applications and orders nisi granted in respect thereof are incompetent having been initiated after the appeal had been entered in this court. He referred to Order 1 rule 21 of the 2002 Rules of this court and the case of: I.B.W.A. Ltd. v. Pavex Int'l Co. (Nig.) Ltd. (supra). He submitted that it amounts to an abuse of court process for the respondent to file a motion ex-parte to levy execution through garnishee proceedings while a motion on notice for stay of execution of the judgment is pending. He relied on Vaswani Trading Co. v. Savalakh (supra) at 2183 D; S.T.B. Ltd. v. Contract Resources Ltd. (2001) FWLR (Pt.72) 1922 at 1924, 1933 D-G and 1937-8 G-A; (2001) 11 NWLR (Pt. 725) 518; and Purification Techniques (Nig.) Ltd. v. A.G., Lagos State (2004) 9 NWLR (Pt. 879) 665 at 677-8 F-D. On what constitutes an abuse of court process, he cited the cases of: C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) 369; Ikine v. Edjerode (2003) FWLR (Pt.92) 1775 ratio 16; (2001) 18 NWLR (Pt. 745) 446. Relying on the authority of: Nigerite Ltd. v. Dalami Nig. Ltd. (1992) 7 NWLR (Pt.253) 288 at 292 ratios 7 & 8, learned counsel urged us to set aside the garnishee orders nisi.

He submitted that by virtue of section 83 (2) of the Sheriffs and Civil Process Act, 2004 and Order VIII rules 5, 6 and 8(1) of the Judgments (Enforcement) Rules, the applicant is a necessary party to the garnishee proceedings and ought to have been served with the orders nisi. He urged us to grant all the applicant's prayers.

In opposing the application the respondent relies on his counter affidavit dated and filed on 24/9/07 and particularly exhibits A-G thereto. Learned counsel for the respondent observed that the said counter affidavit has not been challenged or contradicted.

He submitted that although the general principles governing the grant or refusal of an application for stay of execution of a judgment are as stated by learned counsel for the applicant, there exist some additional considerations where the judgment appealed against is a monetary one. He submitted that the onus is on the party applying for a stay of execution to satisfy the court that special or exceptional circumstances exist, which make the grant of the order desirable. He relied on: Balogun v. Balogun (1969) 1 All NLR 349 at 351; Vaswani Trading Co. Ltd. v. Savalakh & Co. Ltd. (1972) 12 SC 77; Nwabueze v. Nwosu (1988) 9 SC 68; (1988) 4 NWLR (Pt. 88) 257; Government of Gongola State v. Tukur (1989) 9 SC 105; (1989) 4 NWLR (Pt. 117) 592; L.S.D.P.C. v. Citymark (West Africa) Ltd. (1998) 7 SC (Pt. 1) 59; (1998) 8 NWLR (Pt. 563) 681. He submitted that in the case of a monetary judgment the applicant must make a full and frank disclosure of all his assets and liabilities, income and expenditure. He cited the case of: Guinea Insurance Plc v. Monarch Holdings Ltd. (1996) 3 NWLR (Pt. 436) 365 at 367-8; Pamol (Nig.) Ltd. v. Illah Agric. Project Ltd. (2003) 8 NWLR (Pt.821) 38 at 53-4; Fasel Services Ltd. v. N.P.A. (2001) 11 NWLR (Pt.723) 35; S.P.D.C. Nig. Ltd. v. Okei (2006) 17 NWLR (Pt. 1007) 1 at 23 B-C. He referred to pages 16-19 of exhibit G attached to the counter affidavit (exhibit G is the counter affidavit filed in opposition to the application for stay before the court below) and submitted that the applicant's assets were deposed to on oath and that the averments have not been challenged. He submitted that an applicant for stay must not suppress or misrepresent facts.

Learned counsel submitted further that the special circumstances, which the court would take into consideration in the exercise of its discretion to grant or refuse a stay, are circumstances that go to the enforcement of the judgment and not those that go merely to its correctness. He relied on the case of: Prof V.O.S. Olunloyo v. Adedapo Adeniran (2001) 7 SC (Pt. III) 80 at 83, 84, 87-8; (2001) 14 NWLR (Pt.734) 699.

He argued that in the circumstances of the present case the applicant had failed to show that there was any further dispute between herself and the Rivers State Government in respect of the N230,000,000.00 she received as compensation or what she has done with the money. He contended that while the judgment obtained against the applicant was without interest, the applicant had deposited the compensation she received in an interest yielding account to the detriment of the respondent. He submitted that the applicant has not made full and frank disclosure of her assets and liabilities and is therefore not entitled to the exercise of the court's discretion in her favour.

Learned counsel observed that while the applicant filed an undated notice of appeal on 5/3/07 against the judgment of the High Court of Rivers State, holden at Port Harcourt per Elsie Thompson, J. (at pages 117-120 of the record and exhibit 3 attached to the supporting affidavit herein), there is no appeal against the garnishee order nisi made on 25/7/07 against 13 banks (garnishees) by D.M Okocha, J. shown in exhibit 9 attached to the supporting affidavit. He submitted that exhibit 9 represents a decision of the court within the meaning of sections 240 to 243 of the 1999 Constitution. He submitted that there is no appeal against the decision and therefore it cannot be set aside by way of a motion as the applicant seeks to do by prayer 3 of the instant application. He referred to section 15(2) of the Court of Appeal Act and submitted that the only option open to the applicant is to wait for the conclusion of the garnishee proceedings before the trial court and appeal against the decision arising therefrom.

Alternatively, learned counsel referred to the procedure governing garnishee proceedings as set out in the case of: In Re: Diamond Bank Ltd. (2002) 17 NWLR (Pt.795) 120 at 134. He submitted that a garnishee order nisi is an order of the court directing the garnishee to appear before the court to show cause why an order should not be made against it to pay to the judgment creditor the debt owed to the judgment debtor. He referred to: Federal Mortgage Bank Ltd. v. Desiree Gallery Ltd. & Anor. (2004) 13 NWLR (Pt. 891) 522 at 541. He submitted that non-service of a copy of the garnishee order nisi on the judgment debtor does not vitiate the order. Learned counsel further submitted that while the execution of a judgment entails the seizure and sale of chattels belonging to the judgment debtor under warrant of court, garnishee proceedings is an auxiliary method to that of execution for the enforcement of a judgment or order for payment of money, which enables the judgment creditor to attach the money due to the judgment debtor from a third person, the garnishee, who must be within jurisdiction. He submitted that there is a distinction between the enforcement of a judgment by a writ of execution and by garnishee proceedings, hence the exclusion of garnishee proceedings from the definition of a writ of execution in section 19 of the Sheriffs and Civil Process Act and the provision in Order VIII rule 7 of the Judgment (Enforcement) Rules that execution might issue against a garnishee. He submitted that in the circumstances the existence of an application for stay of execution of a judgment does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment. He referred to: Purification Techniques (Nig.) Ltd. v. A.-G., Lagos State & 30 Ors. (supra) at 678-9. He urged us to dismiss prayers 2 and 3 of the application.

In his reply address, learned counsel for the appellant submitted that the trial court had no jurisdiction to entertain the garnishee proceedings having regard to the provision of order 1 Rule 21 of the 2002 Rules of this court and the decision of the Supreme Court in: I.B.W.A. v. Pavex Int'l Co. (Nig.) Ltd. (supra). He submitted that having regard to the fundamental nature of jurisdiction, it could be raised at any stage of the proceeding and by any process. He referred to: Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 296; A.-G., Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ijebu Ode, L.G.A. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136. On this premise, he urged us to set aside the orders of the lower court, having been made without jurisdiction. He also relied on: Mcfoy v. U.A.C. (1961) A.C. 152 at 160.

The law is well settled that where the judgment of a court of competent jurisdiction is not manifestly illegal or wrong the Court of Appeal would be correct to presume that the judgment appealed against is correct or rightly made until the contrary is proved or established. See: In Re Diamond Bank Ltd. (2002) 17 NWLR (Pt.795) 120 at 134 G-H. For this reason the court will not ordinarily make a practice of denying a successful litigant of the fruits of his success unless under very special circumstances. In the case of: Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC. 77 at 81-82, the Supreme Court held that such special circumstances would involve the consideration of some collateral circumstances, and in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings and foist upon the court, especially the court of appeal, a situation of complete helplessness, 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 case succeeds in the court of appeal, there can be no return to the status quo. This represents the fundamental principle guiding the grant or refusal of an application for stay of execution of a judgment pending the determination of an appeal against it.

Both learned counsel have alluded copiously to the settled authorities on the factors the court would consider in the exercise of its discretion in an application of this nature. In the case of: Martins v. Nicannar Food Co. Ltd. & Anor. (1988) 2 NWLR (Pt.74) 75 at 83 C-F, the Supreme Court held that the factors for consideration would include:

"1. The chances of the applicant's appeal. If the chances are virtually nil, then a stay may be refused.

2. The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case;

3. Whether if the appeal succeeds the applicant will not be able to reap the benefit of judgment on appeal.

4. Where the judgment is in respect of money and costs, whether there is a reasonable probability of recovering these back from the respondent if the appeal succeeds.

5. 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."

It goes without saying that the discretionary powers of the court to grant or refuse a stay must be exercised judicially and judiciously. 

The first issue to be considered is whether this application is competent before this court having regard to the provisions of Order 3 rule 3(3) & (4) of the Court of Appeal Rules, 2002 (now Order 7 rules 3 & 4 of the Court of Appeal Rules, 2007). By virtue of Order 7 rule 3 of the 2007 Rules, where an application has been refused by the court below the applicant is at liberty to file a similar application before this court within 15 days after the date of refusal. Pursuant to Order 7 rule 4, an application shall not be made to this court in the first instance except where there are special circumstances, which make it impossible or impracticable to apply to the court below. In paragraphs 13-22, 28, 33, 34 & 35 of the affidavit in support of this application, the applicant deposed to the facts necessitating the present application. It was averred that while the application for stay of execution was pending before the trial court and after the appeal had been entered in this court the respondent herein initiated garnishee proceedings in respect of the judgment appealed against and obtained garnishee orders nisi. That the garnishee proceedings were adjourned to a date earlier than the date to which the application for stay had been fixed for hearing. That the garnishee proceedings would have been concluded before the hearing and determination of the application for stay of execution and would thus foist a fait accompli on the court below. That an application to set aside the garnishee orders nisi along with a motion ex-parte to be heard during the court's vacation was never fixed for hearing and consequently had to be withdrawn. 

In his counter affidavit, the respondent Chief Muoma learned SAN averred that the delay in the hearing of the application for stay of execution was occasioned by the applicant who had filed petitions against two of the learned Judges initially assigned to hear same, which led to the matter being reassigned to a third Judge. He did not however deny the existence of the garnishee proceedings or the orders nisi obtained therein.

It is not in dispute that the record of appeal herein was transmitted to this court on 12/6/07. By virtue of the provisions of order 4 Rule 10 of the 2007 Rules of this Court the appeal was deemed to have been entered in this court on that day. Order 4 rule 11 provides as follows: "After an appeal has been entered and until it has been finally disposed of, the court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in these rules, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court." 

See also: I.B.W.A. Ltd. v. Pavex Int'l Co. (Nig.) Ltd. (2000) 7 NWLR (Pt. 663) 105 at 133 A-C.
The appeal having been entered in this court on 12/6/07, I hold that the present application filed on 12/9/07 is competent.

I shall now consider the merits of the application. The applicant essentially relies on two main grounds in support of her application for stay: that the grounds of appeal are substantial and arguable with a high chance of success and that the balance of convenience is weighted in favour of granting a stay having regard to the peculiar circumstances of this case. I have examined the grounds of appeal set out in the notice of appeal filed on 5/3/06 attached to the supporting affidavit as exhibit 3, particularly ground 3 thereof, which challenges the legality and competence of the proceedings before the court below. I am of the view that there are substantial and arguable issues to be determined in the appeal. However, it is trite that the fact that there are arguable grounds of appeal does not automatically entitle the applicant to the grant of a stay, particularly where the res is money. See: Fasel Services Ltd. & Anor v. N.P.A. & Anor (2001) 11 NWLR (Pt.723) 35 at 41 C. The applicant must still show that there are strong reasons for granting a stay.

On the issue of balance of convenience the applicant relied on the averments in paragraphs 8, 23 and 24 of the supporting affidavit, exhibit 4 thereto and the respondent's counter affidavit and argued that she has shown the severe hardship and inconvenience she would suffer if the application is refused. Exhibit 4 is a copy of the application for stay of execution before the court below filed on 7/12/06. In paragraphs 23 and 24, the applicant averred that she was informed by her bank that pursuant to two garnishee orders nisi, obtained during the pendency of her application for stay, all her accounts had been frozen, thereby restraining her from making any withdrawals from any of her accounts. She averred that the orders nisi were infinite and not limited to the judgment sum of N23, 000,000.00. She averred that in the circumstances she is unable to meet even her basic needs and those of her children and dependants.

In summarising the submissions of learned counsel in their respective written addresses, I referred to Chief Muoma, SAN's contention that the garnishee proceedings are auxiliary proceedings, which are available to a judgment creditor alongside other methods for the enforcement of a judgment and that the existence of an application for stay of execution does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment.

He also argued, as noted earlier that the applicant failed to make a full and frank disclosure of her assets and liabilities and that she did not controvert the averments in the counter affidavit, which he deposed to in the court below giving particulars of her assets. It is a correct statement of the law that where a stay of execution is sought in respect of a monetary judgment, the applicant must come to equity with clean hands. He must make a full and frank disclosure. See: S.P.D.C. Nig. Ltd v. Okei (2007) 17 NWLR (Pt. 1007) 1 at 23 B-C; Fasel Services Ltd & Anor. v. NPA. & Anor. (supra) at 41 D-E.

With due respect to learned senior counsel, the basis of the applicant's application before this court is that pursuant to the garnishee orders nisi obtained against 13 garnishees in the first instance and 6 garnishees in the second, all her accounts have been frozen and she is unable to make any withdrawals whatsoever from any of her accounts. She has shown that all her financial obligations have been brought