Oboh & Anor V. Nigeria Football League Ltd & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C. 

On 9th July, 2013, at the suit of the named Appellants (as Claimants) at the High Court of Lagos State (Coram: O. A. Adefope-Okojie, J) “judgment as per the award of the Tax Master given on 28th September, 2012 in the sum of Two Hundred and Thirty-Three Million, Nine Hundred and Fifteen Thousand, Six Hundred and Forty Four Naira (N233,915,644.00) (was entered) in favour of the Claimants” and against the sole defendant, NIGERIA FOOTBALL LEAGUE LIMITED, at the said trial Court.

The records show that, on the said 9th July, 2013, the defendant (now the 1st Respondent in this appeal) was represented by a Counsel, Emmanuel Ochokwunu. The award of the Chief Registrar/Tax Master, affirmed and incorporated into the final decision on the 9th July, 2013 by the trial Court (O. A. Adefope- Okojie, J. (as she then was)] was made on 28th September, 2012.

The Appellants, as judgment creditors, in exercise of their rights and powers under Section 287(3) of the Constitution, providing inter alia that the decision of a High Court shall be enforced in any part of the Federation by all authorities and persons and the Court itself, proceeded by way of garnishee proceedings at the trial High Court to enforce the judgment dated 9th July, 2013. They proceeded against the League Management Company Limited and First Bank of Nigeria Plc, respectively the 2nd and 3rd Respondents in this appeal, as Garnishees. On 18th July, 2013, the trial High Court (G. N. Onyeabo, J.) granted “the garnishee order nisi against the garnishees attaching the sum owing in satisfaction of the judgment entered on 9th July, 2013 in favour of the judgment creditors”. G. N. Onyeabo J. further ordered that at the garnishees shall enter appearances within fourteen (14) days and shall file an affidavit to show cause why the order nisi should not be made absolute, attaching as exhibits – copies of the Statement of Account of the Judgment Debtor held by them”. G. N. Onyeabo, J. further ordered “the garnishees or their representatives shall also appear on the return date here fixed for 8th August, 2013 …”

The 2nd Respondent, as the 1st Garnishee, filed its affidavit to show cause on 7th August, 2013. In paragraph 25 of the affidavit, the 1st Garnishee denied being “indebted to the Judgment Debtor in the sum of N232,912,644.00 (Two Hundred and Thirty-Two Million, Nine Hundred and Twelve Thousand, Six Hundred and Forty-Four Naira) or in any other sum whatsoever and is neither charged with collecting nor is it the custodian of the Defendant/Judgment Debtor for the collection of all or any revenue accruing to the Defendant/Judgment Debtor”. In paragraph 6 of the said affidavit to show cause the 1st Garnishee had also averred:

6. That I know as a fact and can positively confirm that the Defendant/Judgment Debtor, now defunct, was declared illegal and void by the Honourable Justice D. U. Okorowo of the Federal High Court sitting in Abuja on 20th January, 2012 and was ordered to be wound up by the Corporate Affairs Commission in suit no. FHC/ABJ/CS/179/2010. Attached herewith and marked as Exhibit A is a Certified True Copy of the Enrolled Judgment Order of the Federal High Court.

The 2nd Garnishee Bank, on its part, had averred, in its affidavit to show cause, “that upon receipt of the said Order Nisi, the bank conducted a search on its data base to confirm whether the Judgment Debtor maintains any account with the bank”, and it discovered that the Judgment Debtor does not maintain any account with the 2nd Garnishee and further “that the 2nd Garnishee having no fund belonging to the Judgment Debtor to satisfy the judgment sum should be discharged”. The 2nd Garnishee did not furnish the Statement of Account of the 1st Garnishee, nor any further details from its data bank. This prompted the Judgment Creditors/Garnishers to file Further Affidavit in reply to the 2nd Garnishee wherein it is averred that “the 2nd Garnishee has funds of the 1st Garnishee sufficient to satisfy the judgment debt in whole or in part and has purportedly (sic: purposefully) allowed the 1st Garnishee withdraw same”. At the time the Garnishee order nisi was made the Judgment Creditors/Appellants had satisfied the trial Court (Onyeabo. J) that the 2nd Garnishee was warehousing N500,000,000.00 funds of the 1st Garnishee in the account No. 202318545.

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The Judgment Debtor’s Counter Affidavit of 22nd August, 2013 appears to suggest that, on 18th July, 2013, it appealed the decision of the trial High Court affirming its liability to pay the adjudged Judgment Debt. The Notice of Appeal and the proposed Amended Notice of Appeal (dated 4th October 2013) were exhibited in the affidavit in support of the motion filed on 4th October, 2013 at the Court of Appeal to show its pending appeal against the decision of 9th July, 2013. The allegedly defunct 1st Respondent, notwithstanding the decision/order of the Federal High Court in suit no. FHC/ABJ/179/2010, continued thereafter to remain active in business.

In the meantime O. A. Adefope-Okojie, J (as she then was), whose judgment was being enforced, heard the application for garnishee order absolute. On 21st January, 2014, she rendered her ruling, the subject of this appeal. Adefope-Okojie, J, in the said ruling seemed to have imposed on herself the burden and function of reviewing, renouncing, reneging and negating her decision of 9th July, 2013. In her ruling on the application for garnishee order absolute, Adefope-Okojie, J, had therein inter alia considered the Memorandum of Understanding on which the cause of action of the Claimants/Judgment Creditors (now the Appellants) was predicated. She found at page 447 of the record, among others, that “The Judgment Debtor, Nigeria Football League, I note, is not a party or a signatory to this agreement” and that “in addition, by the terms of this Memorandum, it is the League Management Company Limited that a Licence is given to administer football ‘together with all rights appertaining to the Nigeria Premier League’ “on this, she concluded that she was hesitant, in the circumstances, to “hold the 1st Garnishee bound to the Memorandum of Understanding to which it was not a party”. Further in the same ruling, Adefope- Okojie, J observed that Okorowo, J of the Federal High Court in the suit no. FHC/ABJ/CS/179/2010 had on 20th January, 2012 declared that the incorporation of the Nigeria Football League Limited, the Defendant/Respondent, “illegal and void – and also that (it) cannot administer football in all its ramifications”. It was on these bases that she declared/ruled that “an order absolute, as requested, cannot be made in the circumstances disclosed above”. She accordingly discharged the order nisi made by Onyeabo, J on 18th July, 2013.

The Court of Appeal (the lower Court) affirmed the decision of the trial Court (Adefope-Okojie, J) hence this further appeal. The main point of the lower Court’s decision is that the order nisi made by Onyeabo, J on 8th July, 2013 was literally unenforceable by the non-existence of the Defendant/Judgment Debtor, the 1st Respondent herein, and that it (the lower Court) “is reluctant to make pronouncement against non-existent and non-juristic personalities”. Against the decision the Appellants filed their Notice of Appeal on 4th August, 2016, containing 5 grounds of appeal and an amended Notice of Appeal containing 6 grounds of appeal dated 24th February, 2020, but deemed filed on 22nd September, 2020, was subsequently filed upon leave of Court.

Ordinarily, an amended notice of appeal completely obliterates the original notice of appeal amended. It no longer avails the appellant either to formulate his issues for the determination of the appeal therefrom or to argue his appeal on the original notice amended.

The 3rd Respondent’s Notice of Preliminary Objection filed on 14th October, 2020 is predicated on two grounds, namely: that the appeal is incompetent because (i.) it was initiated jointly by a non-juristic person, that is the 2nd Appellant, Emman I. Oboh & Associates, a person unknown to law; and (ii.) the issue formulated and argued in the Appellants’ brief are predicated on two Notices of Appeal – the original Notice of Appeal and the Amended Notice of Appeal.

I agree with the 3rd Respondent that it is the law that an appellant cannot rely on and argue his appeal on more than one notice of appeal because an issue in an appeal cannot be determined on two separate filed notices of appeal. CHUKWU v. THE STATE (2007) All FWLR 1224 at 1240. It also the law that a withdrawn notice of appeal is taken as abandoned.

Upon amendment of the notice of appeal upon leave of Court, the amendment goes to the roots and the amended notice of appeal, superseding the original notice of appeal, has the effect of completely obliterating the original notice of appeal which is taken to have been abandoned. Technically, it no longer avails the appellant to rely on the original notice of appeal, it having been amended and deemed abandoned.