Union Bank of Nigeria Limited V. Fajebe Foods and Poultry Farms & Anor (1994)

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ISA AYO SALAMI, J.C.A. 

This is an application brought as per motion on notice dated 7th October, 1993 in pursuance of Section 18 of the Court of Appeal Act, 1976 seeking the following reliefs as amended-
“(1) An order for stay and or suspension of execution of the judgment of His Lordship Kuforiji, J., delivered on the 26th of July, 1993 pending the final determination of the defendant’s appeal to the Court of Appeal, Ibadan.
(2) An order restraining the plaintiff/respondents from taking further steps in the levy of execution and more particularly from disposing of or selling the defendant/appellant’s properties attached on the 7th day of October, 1993.
(3) An order releasing to the defendant/appellant its properties against which execution were levied on the 7th of October, 1993”

The judgment being sought to be stayed is in respect of two separate suits (AB/128/86 and AB/47/87) which were consolidated at the trial. The motion on notice was brought (in) pursuance of Section 18 of the Court of Appeal Act, 1976. It is supported by an affidavit, a further affidavit and a further and better affidavit, another affidavit by one Ola Animashaun is attached to the further and better affidavit. The respondents deposed to counter-affidavit and further counter affidavit. It is pertinent to mention, at this stage, that the appellant counter-claimed against the plaintiff in Suit No. AB/128/86. The learned trial Judge concluded his reserved and well considered judgment as follows:-
“The judgment of this court shall therefore be as follows:-
(a) In respect of Suit No. AB/128/86 judgment for the plaintiff against the defendant Bank for the sum of N2.55 Million.
The counter claim is hereby struck out.
(b) In respect of Suit No. AB/47/87 judgment is hereby entered for the plaintiffs against the defendant Bank in the following terms:
(1) Declaration that the exercise (of) the power of sale of the mortgage in respect of properties:-
(i) situated at Aiyetoro Road opposite Premier Grammar School Abeokuta covered by Certificate of Occupancy No. 00001492 and registered as No. 16/16/235.
(ii) situated at Akewe village off Aiyetoro Road, Abeokuta covered by Certificate of Occupancy No. 0001440 registered as 17/17/235,
both taken as security for loan facilities has not arisen.

(2) Declaration that the Publication by the defendant bank of an Auction Notice on page 10 of the Daily Sketch of the 18th day of May, 1987 in respect of the said properties and the pasting of the Auction Notices on the walls of the properties and in various parts of Abeokuta is improper, null and void.
(3) Judgment for 1st and 2nd plaintiffs against the defendant bank for the sums of N1 Million and N0.25 Million respectively as damages for libel.”

The applicant is dissatisfied with the decision of the lower court and has apparently appealed to this Court on two separate notices of appeal respectively dated 26/7/93 and 30/7/93. The former is attached to further and better affidavit deposed to by one Abayomi Bisuga on 4th August, 1993 while the latter is exhibited hereto affidavit deposed to on 8th October, 1993. I say the applicant has seemingly appealed because none of the notices of appeal bears a date of filing although settlement of records dated 27/9/93 is exhibited to the affidavit in support of the motion. It is, therefore, presumed that the notices of appeal have been filed since there can be no settlement of record before an appeal is brought.

The learned Senior Counsel for applicant after referring the Court to the various affidavit deposed to in support of the application proceeded to demonstrate the apparent injustice the refusal may work on the applicant. In showing that it is not equitable to refuse the application he told the Court that the judgment debt and costs inclusive is about N3, 000,000.00 in contrast to N1,000,000.00 loan the respondents took from the appellant which has escalated to N21, 000,000.00 which is still in their hands. It is also his contention that the respondents might not be in a position to refund judgment debt in event of their appeal pending in this Court succeeding. He cited the cases of Royal Exchange Assurance Nigeria Limited & Ors v. Aswani Textiles Limited (1992) 3 NWLR (Pt. 227) 1, 8 and Nigerite Limited v. Dalami (1992) 7 NWLR (Pt. 253) 288, 301. Before urging the Court to grant the application he referred to paragraphs 14 and 15 of an affidavit deposed to by one Mr. Sowunmi wherein the applicant is prepared to settle for a conditional stay of execution subject to payment of the judgment debt into an interest yielding account. This offer was rejected by the learned counsel for respondents.

Learned counsel for respondents is opposed to granting of all the reliefs sought which opposition is founded on a counter-affidavit and a further counter-affidavit. He contended that the power of this Court to grant a stay of execution seems taken away by or spent with the execution of the judgment. Counsel then concluded that applicant ought to have approached the court below and not this Court under Section 53 of the Sheriffs and Civil Process Law Cap. 117 of the Laws of Oyo State, 1978.

His contention on ousting of the competence or jurisdiction of this Court to act under Section 53 of Cap. 117 is founded on the case of Mr. Tokunho Onagoruwa & Anor v. Alhaja Taibat Adeniji (1993) 5 NWLR (Pt. 293) 317. He argued further that the applicant have not shown exceptional circumstances why it did not go to the High Court to seek the relief set out under Section 53 of the Sheriffs and Civil Process law and referred to the case of Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 172.

On the stay of execution he argued that the applicant is not entitled having not shown special circumstances. He contended that paragraphs 5, 6, 7, 9, 10 and 11 of affidavit deposed to by Bisuga offend against provisions of Sections 87 and 88 of the Evidence Act. He further contended that Exhibits A84 and A85 are form Co7 which merely state the directors and not the state of the first respondent’s account and for that reason not admissible. He contended further that respondents are in a position to refund the judgment debt should the appeal be decided against them and in favour of applicant. Finally, counsel submitted that the grounds of appeal or part thereof are incompetent.

Pausing here I propose to consider and resolve the objections raised by the learned counsel for respondents. On the competence of the grounds of appeal or some of them, the learned counsel for respondents failed to analyse any of the grounds with a view to showing that they are incompetent. In spite of this observation of mine, I have examined the grounds of appeal set out in notice of appeal dated 26th July, 1993 and they appear to me prima facie competent for the purpose of this court id est the Court of Appeal. I say for the purpose the Court of Appeal, in the circumstance of this case, because appeal lies to this Court from final decisions of the High Court as a court of first instance by virtue of Section 220(1)(a) of the 1979 Constitution of the Federal Republic of Nigeria, as of right irrespective of the nature of the grounds of appeal. An appeal from a final decision of a High Court as a court of first instance based solely on an omnibus ground could not be said to be incompetent. I have in the light of this provision of the Constitution examined all the grounds of appeal and they are of mixed law and facts for which no leave is required to canvass them in this Court. The learned counsel for respondents may be on a firmer ground if such grounds of appeal are directed to a decision of this Court, without leave of either this Court nor of the Supreme Court being first sought and obtained, on a further Appeal to the Supreme Court. So also would they be incompetent if they were filed without leave in respect of a further appeal from a High Court to this Court. The general ground otherwise referred to as the omnibus is although inelegantly couched cannot be said to be incompetent because the purpose of inserting the word “weight” in the general ground is to show that civil cases are decided on preponderance of evidence in contrast with criminal cases which are determined on proof beyond reasonable doubt. That the burden of proof in this appeal is on the preponderance of evidence is adequately conceded by the appellant in its omnibus ground with the insertion of the word “preponderance” therefore in the absence of the word “weight”.

The next line of objection by the learned counsel as to the applicant seeking relief under Section 53 of Sheriffs and Civil Process Law (supra) first in this Court; is an oblique one. I mean, in my candid opinion, he intended it to be in alternative to his earlier objection that this court cannot give remedy under the Sheriffs and Civil Process Law (supra) except the matter comes on appeal before it. I think he has in mind the provisions of Order 3 rule 3(4) of the Court of Appeal Rules, 1981.

Order 3 rule 3(4) provides as follows:-
“4. Whenever under these rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances which makes it impossible or impracticable to apply to court below.”
Clearly the purport of the sub-rule is that where there is a concurrent jurisdiction the application should first be made to the court below. It is only when it fails either completely or partially can such an application be renewed in this Court. Seeking a remedy or relief under Section 53 of Sheriffs and Civil Process Law first in this court without showing special circumstance is not proper. See the case of Kalu v. Odili (supra) cited by learned counsel for respondents. It supports the view that an applicant who fails to approach the court below must show exceptional circumstances which made it impracticable or impossible for him to seek the relief being sought herein in the court below. There is therefore some merit in this objection. But it is, to my mind, a phyrric victory as there is a point in favour of the applicant herein.

The point favourable to applicant which I have in mind is that it had earlier applied to the court below for a stay of execution which had been refused. The relevant ruling exhibited to the further and better affidavit deposed to by one Mr. Sowunmi. Having been refused it renewed its application in this court wherein it raised for the first time the question of protecting the property seized under the provisions of Section 53 of the Sheriffs and Civil Process law (supra). To ask the applicant to return to the court below to seek the second relief in respect of which it had not apply to and be refused by the court below may lead to a mere vicious circle. The quagmine it will find itself is in the sense that it might be impelled to withdraw the motion before this court which contained a prayer for a stay of execution to avoid being accused of abuse of court process. If it does the time of fifteen days allowed it to file application for stay of execution after refusal by the court below must have expired before the other application is disposed of in the court below. The problem of seeking extension of time to file or renew the application for stay of execution would roar its ugly head. In the meantime, the respondents could have completed the execution of the judgment. In the peculiar circumstance of this case which I have analysed above, the applicant should not in the interest of doing substantial justice be pushed into what may turn out to be a mere circus show.

The last of the obstacles respondents intend to place on the path of hearing the application on its merit is one concerning competence of this court to hear the relief sought under the Sheriffs and Civil Process Law at all. I agree with the learned counsel for the respondents that Section 53 of the Sheriffs and Civil Process Law (supra) did not confer this Court with jurisdiction to entertain the relief sought thereunder and that the same cannot be conferred by the principle of interpretation of ejus dem generis. However, I disagree with his postulation that on the strength of the dictum of Tobi, J.C.A. in Onagoruwa’s cases (supra) this court’s jurisdiction to entertain mattes under that law is thereby ousted. I am not surprised and no one conversant with the constitutional structure in the country which is federal would be surprised either. The Oyo State Legislature in a federal system such as ours is incompetent to legislate on matters reserved for federal and vice versa. If the Oyo State Legislature had or pretends to cloak this court, a court that is created by a federal legislation with jurisdiction such an exercise would have been in futility. It would have been null and void ab initio. See the case of Adamolekun v. Council of University of Ibadan (1968) NMLR 253.
This is by no means the end of the road. I think, If I may say, the federal legislature took over from where that of the state stopped by virtue of Section 16 of the Court of Appeal Act Cap. 75 of the Laws of the Federation of Nigeria, 1990. The ample provisions of that section squarely meet the circumstance of this application. The section empowers this Court to exercise the powers of the court of first instance as if the action before the court were instituted in this Court as court of first instance. Section 16 of Cap. 75 reads inter alia thus-
“16 The Court of Appeal may from time to time … and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal the court of first instance ….
I am strengthened in this view by the dictum of the Supreme Court in the case of Oshoboja v. Amuda (1992) 6 NWLR (Pt. 250) 850 at page 708 where Uwais, J.S.C. said:-
“There is no doubt that Section 16 has given the Court of Appeal amplitude of power to deal with any case before it on appeal. The power includes the jurisdiction of a court of first instance and in the present case the jurisdiction of the High Court. This is not in doubt whatsoever.”
The power under Section 53 is exercisable by the court of first instance both before and after judgment had been delivered. Consequently this court can do same. It is not the contention of the learned counsel for respondents that the power is not exercisable by the court below after judgment. It is ipso facto no longer open to him to contest this Court’s jurisdiction, on the strength of the authorities I have placed reliance upon, to entertain the relief being sought pursuant to Section 53 of the Sheriffs and Civil Process Law (supra).