Mr. Oweifa Dokubo & Ors V. Mobil Producing Nigeria Unlimited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A (Delivering the Leading Judgment)

Upon service of Notice of Appeal in Appeal No CA/C/189/2012 filed on 24/4/2012 by the Appellant/Respondent, in respect of Suit No. HEK/MISC.88/2012: Mobil producing Nigeria Unlimited v. Mr. Oweifa Dokubo & ors., the Respondents/Applicants filed this motion on notice on 12/9/2012, seeking the following orders:

1. An order dismissing in limine the 1st Respondent’s Appeal brought by means of notice of appeal dated and filed on the 24th day of April 2012 in Suit No. HEK/MISC.88/2012: Mobil Producing Nigeria Unlimited v. Mr. Oweifa Dokubo & ors., now entered as Appeal No CA/C/189/2012.
2. Any further order(s) as this Honourable Court may deem fit to make in the circumstance.

The grounds upon which this application is brought are that:

a. The Notice of Appeal filed on the 24th day of April, 2012 is an abuse of the process of court. It is incompetent, null and void ab initio.

b. As the Appellant/1st Respondent is neither a named party nor the garnishee against whom the order absolute was made for the payment of the judgment debt in respect of Suit No. HEK/MISC.88/2012 from which Appeal No CA/C/174/2006 arose, it has no locus standi, or right of appeal to prosecute any appeal challenging the order made against UBA Plc. for the Payment of the judgment debt in respect of the garnishee order absolute of 18/7/2006.

c. The Applicant ought to have sought an obtained leave of Court to file any appeal arising from, pertaining to or connected with the garnishee order absolute in accordance with the subsisting decision of this Honourable Court in Appeal No CA/C/174/2004: Mobil Producing Nigeria Unlimited v. Mr. Oweifa Dokubo & ors., delivered on 2nd December, 2010.

d. The purported appeal aforesaid is deliberately designed by the Appellant to frustrate the Applicants from reaping the fruits of their victory or from enforcing the money judgment that is due and payable by the Garnishee Bank, UBA Plc. by virtue of the garnishee order absolute made on the 18th July 2006 against which the Respondents have no validly filed pending appeal.

In support of this motion is an affidavit of 11 paragraphs deposed to by Clement Bassey, Esq., Legal Practitioner in the firm of E.B. Ukiri & Co. Counsel to the Applicants, with the authority of the Respondent/Applicant. Annexed to the affidavit are 4 exhibits marked Exhibits A – C.

In opposition to this motion, the Appellant/Respondent filed a counter affidavit of 55 paragraphs on 20/2/2013 deposed to by Ademola Obayomi Esq., Legal Practitioner in the firm of Ajumogobia & Okeke, Counsel to the Appellant/Respondent, with the authority of the Appellant/Respondent. Annexed to the counter affidavit are 5 exhibits marked Exhibits AO-01 – AO-05.

Upon the direction of the Court, a written address was filed on 8/2/2013 by E.B. Ukiri Esq. of Counsel for the Applicants/Respondents. Ademola Obayomi Esq. also filed a written address on 14/3/2013 but deemed properly filed and served on 18/3/2013.

The Respondents/Applicants had on 20/3/2013 filed an affidavit headed: “REPLY TO APPELLANTS COUNTER-AFFIDAVIT FILED ON 20-2-2013”.

However, on 16/9/2013, Mr. Ukiri said that they would not be relying on it. Mr. Ukiri filed a Reply on points of law on 26/3/2013; and, he submitted a list of Additional Authorities dated 10th June, 2013.

In this application, the 2nd Respondent in the application is the 5th Respondent in the substantive appeal. For avoidance of confusion, and, since it is the application being considered, this party shall be referred to as the 2nd Respondent. The written addresses were adopted by respective Counsel on 16/9/2013.

The complaint of the Respondents/Applicants is as follows: The High Court of Akwa Ibom State had on 18th July, 2006, made absolute a garnishee order nisi against the 2nd Respondent in Suit No. HEK/MISC.88/2012. The Appellant/Respondent had appealed against the said Order Absolute. But, the appeal was declared incompetent, null and void by this Court in Appeal No CA/C/174/2006 on 2nd December, 2010. Exhibit A and A1 are the Ruling of this Court and the enrolled Order. Thereafter, the High Court of Akwa Ibom State on 13th December, 2011, pursuant to its order absolute order of 18th July, 2006, ordered the 2nd Respondent, to pay over to the Respondents/Applicants the judgment debt together with its accrued interest. A copy of the said enrolled order was annexed as Exhibit B. There is no pending appeal by the said 2nd Respondent against the said order. That the order was not made against the Appellant/Respondent, which was also not a party to the proceedings thereat. The Appellant/Respondent, without prior leave of either the lower court or of this Court, filed a Notice of Appeal on 24th April, 2012 challenging the order made against the 2nd Respondent therein. A copy of the said Notice of Appeal is annexed as Exhibit C. The Respondents/Applicants contend that the Applicant/Respondent has no locus standi to challenge the said Order which was not directed against it, without leave of court being first sought and obtained. That the Notice of Appeal relating to the said garnishee order absolute of 18th July, 2006, made against the 2nd Respondent, is incompetent and an abuse of court Process.