Hon. Justice Sotonye Denton-west V. Chief (Iche) Chuks Muoma, San (2007)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

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.