Union Bank of Nigeria Ltd V. Chief Edamkue & Anor (2003)
LawGlobal-Hub Lead Judgment Report
DAVID ADEDOYIN ADENIJI, J.C.A.
This is a hydra-headed motion with as many as 9 prayers all dealing with attachment in execution of an equipment and or a threatened attachment. It is sequel to the judgment of the Rivers State High Court sitting in Port Harcourt delivered by E. N. T. Karte J. on 2/5/2003. A motion for stay of execution of the said judgment was refused on 2/6/2003 by Ebete .J.
The applicants being dissatisfied with the said judgment had appealed to this court. The motion for stay, having been refused, the applicant resorted to this court filing the current motion on 3/6/2003. The previous motion for stay of execution of the judgment filed on 2/6/2003 was withdrawn on the date of hearing whereupon counsel relied on that filed on 3/6/2003. The reliefs sought in that application are as follows:
An order or declaration that the issuance of the writ of attachment in respect of the judgment of the lower court dated 2/5/03 by the Respondent and the Deputy Sheriff of the High Court of Rivers State and or their agents or servant on or about 2/6/03 before the expiration of 15 days after the refusal of the Appellant’s motion for stay of execution by the lower court on 2/6/03, contrary to Order 3 Rule 3(3) of the Court of Appeal Rules, is unlawful and amounts to an abuse of court process.
An order or declaration that the execution of the writ of attachment in respect of the judgment of the lower court dated 2/5/03 before the Respondent and the Deputy Sheriff of the High Court of River State and or their agents or servants on or about 2.6.03 before the expiration of 15 days after the refusal of the Appellant’s motion for stay of execution by the lower court on 2/6/03 is unlawful and amount to an abuse of court process.
iii. An order setting aside the issuance of the aforesaid writ execution of the aforesaid judgment for being irregular and unlawful.
An order setting aside the execution of the aforesaid judgment which was purportedly levied by the Respondents and Deputy Sheriff of the High Court of River and/or their servant agents at the Appellant’s Area Office at Trans Amadi Industrial Layout on 6/6/03.
An order for stay or suspension of further execution of the aforesaid judgment by the Respondent and the Deputy Sheriff of the High Court of Rivers State and/or their servants or agent pending the hearing and determination of the appeal filed by the Appellant against the aforesaid judgment.
An order restraining the respondents and the Deputy Sheriff of the High Court of Rivers State and their servants and agents from taking any further step or action for the purpose of executing the aforesaid judgment pending the hearing and determination of the appeal filed against the judgment by the Appellant.
vii. An order restraining the Respondent and the Deputy Sheriff of the High Court of River State from selling, auctioning or otherwise disposing of the Appellant’s properties, goods and chattel and from spending the monies which were unlawfully and irregularly attached and carried away from the Appellant’s premises at Trans Amadi Industrial Layout by the Respondents and the Deputy Sheriff of the High Court of Rivers State in flagrant and violent breach of the Appellant’s right under Order 3 Rule 3(3) of the Court of Appeal Rules.
viii. An order directing the Respondent and the Deputy Sheriff of the High Court of Rivers State to release forthwith to the Appellant all of its properties, goods and chattel which were attached during the aforesaid execution of judgment which was levied against the Appellant at its aforesaid premises on 2/6/03.
An order directing the Respondent and the Deputy Sheriff of the High Court of Rivers State to release forthwith to the Appellant all the sums of money, which were attached during the aforesaid execution of judgment which was levied irregularly and unlawful against the Appellant at its aforesaid premises on 2/6/03″.
The application was supported by an affidavit of 17 paragraph with the notice and grounds of appeal attached. The applicants deposed to a further affidavit filed on 5/6/2003, which they captioned 2nd Affidavit in support of the Notice of Motion dated 3/6/03. Apparently, the 2nd affidavit had not been served on Mr. Nwosu for the respondent but he chose to be served in court and continued with the case to ensure the matter was heard on time.
In moving the motion, Mr. Ayo Ajayi for the applicant relied on all averments in the affidavit and further affidavit. He decided to move prayers 1-4 together. In his argument on those arms, counsel said they were collectively for an order that the issuance and execution of the writ of attachment on 2/6/2003 were unlawful and an abuse of court process. The writ of attachment was annexed as Exhibit C. Counsel maintained that going by Section 18 of the Court of Appeal Rules, where an application for stay of execution is refused by the lower court; the applicant has a further opportunity of filing a similar application within 15 days from the date of dismissal of the former application. Counsel in that regard referred to the case of Union Bank of Nigeria v. Fajebe v Fajebe Poultry Farm and Ors (1994) 5 N.W.L.R. (Pt 344) page 325 at pages 345-346 paragraphs D-E.
The ruling dismissing the application delivered on 2/6/2003 and the 15 days grace would not expire till 17/3/2003 therefore the writ was taken before the expiration of the period of 15days. Counsel added that the applicant could not go back to the lower court for the relief now sought because of the attitude of court in ignoring the decided cases cited above, which he commended to the court. Counsel also referred to Order 4 Rules 4 & 5 of the Judgment Entertainment rules cap. 407 LFN, 1990 which required certain steps to be taken and papers filed before the Registrar. Counsel said the word used in the law is “shall” which made it mandatory for every applicant for a writ of execution to comply. The respondents he said never properly applied before the writ of execution was issued though the respondent said they did. They should have annexed a copy of it to their application. Mere averment that it was done he submitted was not enough.
Counsel in that connection referred to the case of Carter stationeries Ltd v. I. B. W. A. Ltd (2000) 15 N.W.L. R. (Pt 690) 338 at page 351 paragraph A. Counsel concluded that once the court agreed that the writ was irregularly issued, the execution must be nullified. Counsel referred to Halsbury’s Laws of England 3rd of Edition vol. 16 page 38 paragraphs 55 & 58. Counsel then referred to paragraph 3 of Applicant’s affidavit to show that an enrolled order was not shown to the Deputy Sheriff. He said he was there himself.
On prayers 5, 6 & 7, counsel submitted that the applicant has a valid pending appeal with arguable grounds. Counsel said it had been pointed out in their affidavit that a Motion was pending between Shell and this same community in which the Supreme Court was urged to restrain the Union Bank from paying the judgment sum initially guaranteed by the Bank to the respondents. The application he pointed out is still pending and if the Supreme Court gave judgment to the respondent, the sum would be paid to them at once. The exceptional circumstance in the case he said was that if the respondents lost the case, it would be difficult to get them to pay back the sum already paid to them.
Counsel in that connection referred to the case of Guinea Insurance PLC v Monarch Holdings Ltd (1996) 3 N. W. L. R. (Pt 436) page 365 at page 370 paragraphs F-H. The Supreme Court process was served on the respondents still they attacked the property. Wherever there is a genuine issue of jurisdiction raised counsel said, the court should look into it. He urged this court to allow the application
Mr. L. E. Nwosu for the respondents in his reply urged the court to dismiss the application with respect to prayers 1-4 which he described as incompetent as no special circumstances have been shown to warrant the court overriding the provisions of order 3 Rules 3 & 4 of this court’s rules. There was no handicap in filing the application in the court below on 3/6/03. The Fajabe case supra he said was irrelevant going by page 337 paragraph D-F showing that the prayers in the case were different that the prayers in that case were different from the prayers in this suit, e.g. it had no prayer for declaration, setting aside etc. This court he said could not be sure of jurisdiction in such a matter calling for evidence and examination of the Deputy Sheriff. Counsel concluded that prayers 1-4 were therefore not possible wherefore this court lacks jurisdiction to entertain them.
Mr. Nwosu said Order 3 Rule 3 of the Court of Appeal barely limited the time to bring the application to this court; this is, within 15 days. Beyond those 15 days, applicant would be out of time. It did not operate as a stay of execution of the judgment obtained. Execution he said was guided by the Sheriff and Civil Process Law Cap 407 LFN, 1990 by which execution can be stayed if the process has been served on the Judgment Creditor or the Deputy Sheriff. Out of courtesy or respect for the court execution may, for that reason, be stayed. Otherwise he said, the process is guided by order 4 Rule 1 (2) of the Sheriffs Law page 14436 Cap 407 which stipulates a time lapse of 3 days when execution can be levied. In this case the time stipulated was to run from the date of the judgment that is 2/5/2003.
Counsel also pointed to paragraph 5 of the applicant’s main affidavit where they stated that the lower court ordered the applicants to pay the sum involved within 3 days. He referred to Order 40 Rules 7 of the River State High Court Rules allowing the High Court to limit the time of payment.
Counsel pointed out that paragraph 13 of the respondent’s affidavit showed that the application for issuance of the writ of attachment was made in writing on 6/5/2003 and the writ was not issued till 2/6/2003 as per Exhibit 1B5. The Judge he said signed it on 2/6/2003. After refusing the application for stay, the judge in fact ordered the applicant to pay the judgment debt forthwith. The relevant time for the payment was therefore 72 hours.
Counsel later turned to prayer 5-9, which he said, was normal and grantable but then they constituted an abuse of the court’s process. He referred to paragraph 8 of their counter affidavit touching on the Bank guarantee executed by the applicant, that is, Exhibit 1B2. The guarantee he said, provided that the party did not need to exhaust these options before payment and the appeal has been dismissed. Counsel also referred to exhibit 1B3 of 27/3/2003.
Counsel denied the suggestion that the motion in the Supreme Court could stop execution in that way. He referred to Exhibit E paragraph 17. The truth he said was that the application in the Supreme Court had not been filed as at 28/3/2003. Exhibit E of the applicants 2nd affidavit he pointed out showed the time the applicant paid the respondents in Bank Draft. He referred to exhibit 1B4. He maintained that the Bank Draft for the judgment debt was issued out on 27/3/2003. Out of the sum so paid, the respondents withdraw N1.2 million in two cheques N600, 000.00 each after Draft had been paid into counsel (Mr. Nwosu’s) account. That is borne out by paragraph 22A of respondent counter affidavit, he added. Counsel was emphatic that the respondents had already been paid the judgment sum as at 28/3/2003.
Counsel submitted that the notice of Supreme Court Motion came to him on 2/4/2003 and the case in the Supreme Court is between Shell Petroleum Development Company and the respondents in this case. Even the applicant were themselves served with the Supreme Court motion on 2/4/2003. The Supreme Court matter was filed on 31/3/2003, that is 4 days after the applicants had given the respondent that Bank Draft, said counsel. He referred to Exhibit E of the applicants 2nd affidavit. The motion could therefore not have been served on him (Nwosu) before then, he maintained.
Mr. Nwosu said the respondent sued the applicants to the State High Court when they purported to stop the Bank Draft already paid in. Counsel said that neither himself, nor the Deputy Sheriff was served process of this court before execution. He referred to Exhibit 1B5 at the bottom of which was the date of approval of the process by the Deputy Sheriff at 10.45 a.m. on 2/6/2003. The writ of Execution he went on was signed by Mr. Onovo the Bank Manager. The payment in Bank Draft he insisted had been made to him before the Supreme Court case was filed. The Union Bank (applicant) he stressed signed the inventory made and added that even at the time the money was with the Bank, it was not its money but that of either party who succeeded in the case. He finally urged the court to dismiss the application.
In a rejoinder Mr. Ayo Ajayi pointed out that the cheque for N1.2m was drawn on Mr. Nwosu’s own account with the bank but into which the draft was paid. What he was given for the judgment sum he said was a Banker’s cheque not draft. He noted that the motion to stop payment was filed in the Supreme Court not through the Court of Appeal and the motion there has not been disposed of.
On going through the papers filed and having considered the points canvassed it is obvious that ruling on this type of application has to be strictly limited to the issue presently on the ground that is the interlocutory application filed. Care has therefore been taken to avoid straying into the arena proper at this interlocutory stage. See the case of “West Africa Automobile & Engineering Co. Ltd & Ors v. Mrs. Ebun Akinsete (1999) 13 N.W.L.R. (pt 636) page 600-609 in which the case of Friday Ukanwole v. Universal Insurance Co. Ltd (1999) 5 N. W. L. R. (Pt 395 page 364 at page 372 was cited.”
In this application certain issues call for examination and determination.
These include:
“1. Examination of the enabling law to wit section 18 Court of Appeal Act order 3 Rule 3(3) of the court of Appeal Rues, referred to and the impact of the Sheriffs and civil Process Law Cap 407 on the matter.
2.The effect if any, the case in the Supreme Court had or could have on the attachment exercise.
3. The status of the writ of attachment issued whether valid or invalid and if regularly effected.”
I believe it will be convenient to commence with the examination and consideration of the enabling laws cited in support of the application. Section 18 of the Court of Appeal Act Cap 75 LFN 1990 states:
“18. An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of court.”
Order 3 Rule 3(3) of the Court of Appeal Rules 2002 provides:
“(3) Where an application has refused by the court below, an application for a similar Purpose may be made to the court within 15 days after the date of the refusal.”
Counsel for the applicant had argued strenuously that the rule prescribed 15 days within which to make an application to the Court of Appeal in case of refusal of similar application by the lower court. He added that it was therefore improper and unlawful for the respondents to have issued and levied execution against the property of the Judgment/Debtor before the expiration of the 15 days prescribed. He cited the case of Union Bank of Nigeria v. Fajebe Poultry Farm supra in support.
Mr. Nwosu for the respondent was however of the view that time limit was prescribed for filing a similar application to the Court of Appeal on only and was not meant to operate as a stay of execution. I tend to agree with him in that score. The 15 days prescribed is the period allowed the applicant to bring a similar application in the Court of Appeal. That is the period applicants described as a period of grace, which may not be the correct classification of that time limit. It is a prescribed period requiring strict compliance.
A provision that could operate as a stopgap or stay of execution however is Order 4 Rule 2 of the Sheriff and Civil Process Act, that is, Judgment Enforcement Rules Cap 407 L.F.N 1990. It stipulates:
“Order 4
(1) …………………………………….
(2) No other process shall except by express leave the court, be issued until after the expiration of three days from the day on which judgment is given.”
That in effect means that no attachment could be effected before the expiration of 3 days to after judgment as stipulated. Beside that, I believe the proper step to take is to file an application for a stay of execution etc within the time prescribed by law.
One other way of observing a stay is as submitted by counsel. The law enjoins any litigant in receipt of a pending motion for stay of execution, to suspend action pending the time the application is disposed of. Though some have argued that it is till the order for stay is actually made. I hold the view that that could amount to a misadventure.
Same applies to such process from the court or any other court in fact. In this case, an application was said to have been filed in the Supreme Court to stay the payment of the judgment sum. This was said to have been served on both the applicant in this case and the respondents. If that is true it is not a mere disrespect but a suicidal adventure to ignore such process and go ahead with execution of the judgment.
Mr. Nwosu for the respondents however stoutly denied this. He explained that the writ of attachment was served after the 3 days had elapsed. The judgment he said was given on 2/5/2003 and the applicants admitted in their main affidavit paragraph 5 that the judge ordered payment of the judgment sum within 3 days and this the court has the power to do by virtue of Order 40 Rule 7 of the Rivers State High Court Rules. The writ itself he went on was not issued till 2/6/2003 and the judge signed it on that day – 2/6/2003. Order 40 Rule 7 of the Rivers State High Court Rules reads:
“The court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to some other point of time, as the court thinks fit, and may order interest at a rate not exceeding ten naira per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.”
Counsel then alluded to exhibit 1B5 and paragraph 8 of the respondents’ counter affidavit touching on the Bank guarantee exhibit 1B5 in which it was provided that the party did not need to exhaust his options before payment. The appeal he said was dismissed hence the guarantee had matured. He referred in that connection to exhibit 1B3.
Mr. Nwosu explained that the motion in the Supreme Court had not been served on the respondents before execution was levied and before the judgment sum was paid by the applicant. He pointed out that tire draft was given to the respondents on 27/3/2003 and was lodged in his (counsel’s) account on 28/3/2003 per exhibit 1B4. The sum of N1.2m of N600, 000.00 cheques each was withdrawn from the money paid into his own account.
Therefore the applicants had already paid the judgment sum as at 28/3/2003. He added the notice of the Supreme Court application got to him on 2/4/2003 and the applicants too were served on 2/4/2003. The process in the Supreme Court he said was filed on 31/3/2003, that is, 4 days after the draft had been paid to the respondents per exhibit E of their 2nd affidavit. He added that no process of the Court of Appeal was served on him before execution. He referred to exhibit 1B5 at the bottom of which was written 10.45 a.m. on 2/6/2003 by the Deputy Sheriff. The representative of the applicant Mr. Onovo he said also signed the writ of execution. The applicant signed the inventory. Counsel maintained that the money even when it was with the Bank still belonged to the parties, all depending on the outcome of the case.
In my view the explanation given by and Mr. Nwosu for the respondents is very lucid direct. With all the dates and hours supplied, the account of events given is credible. The sum total of the submission made for the respondent is that execution had already taken place and the sum duly paid before the process was served on him.
Counsel for the applicant had attacked the issuance of the writ of attachment from all angles. He said there was no application made for the writ of attachment as provided by law but counsel to the respondents stated categorically that application was duly made for the writ of attachment. He pointed to the averment to that effect but Mr. Ajayi was of the view if that were true, it should have been exhibited along with the other papers. I like to differ there.
A person who asserts has the burden of proving his assertion, not the other way round and the applicant has not filed any thing to contradict that averment that the writ was regularly issued in other words, the true position is that the writ of execution was regularly issued. It therefore remained valid.
One other point of interest could be the way the prayers were couched particularly prayers 1-4 of same which included reliefs for declaration. The normal mode of seeking such relief is by filing same in the court of first instance but counsel for the applicants explained this away when he said he decided to come straight to the Court of Appeal in view of the attitude of the lower court to the case of Fajebe supra, which he cited to the lower court. That explanation is acceptable particularly having regard to the alternative way each of the prayers 1-2 was couched.
Counsel relied heavily on the case of Union Bank of Nigeria Ltd v. Fajebe Foods and Poultry Farms & Anor supra. I hesitate to comment on same in detail at this stage but suffice it to say that that case is not on all fours with the present one and judgment is always based on evidence red in any particular case.
As matters now stand, execution has already been levied. Where is the possibility that an act already completed is can again be stayed? The trend of decided cases on that point is that a stay of execution cannot be granted for an act already completed. See the case of Alhaji A. Adelaja & ors v. chief s. Ogunyade (2000) 2 N.W.L.R. (Pt 645) page 376 at page 384 paragraphs E-F per Galadima JCA who said:
“I do not see any wisdom in making an order staying the execution of ruling of the lower court because there is no order existing in respect of which execution process may issue from court… Procedure in doing this is very clear. Where an act or event has been concluded an injunction or an order for stay of execution cannot be granted. See John Holt Nig Ltd v. Holts Workers Union of Nigeria and Cameroon (1961) 1 All N. L. R. 379 (1963) 2 S. C. N. L. R 383.”
The same principle was followed in the case of Dr. S. O. Ayangade v. O. A. U. Teaching Hospital complex Management Board (2001) 7 N. W. L. R (Pt 711) page 187 at page 204 paragraph F – where Adekeye JCA had this to say on the subject.
“The purpose of applying for stay of execution of a judgment must not be overlooked. Application for a stay of judgment at the High Court follows on appeal being lodged at the Court of Appeal with emphasis on the preservation of the Res and maintaining status quo pending the determination of an appeal. Akapo v. Akeen Habeeb (1992) 6 N.W.L.R. (pt 247) page 266. Ordinarily a winning party has the right to enjoy his victory. An application for stay made after an execution of judgment is akin to closing a stable after a horse had bolted out. Both the applicant and the court, which is considered and granted such an application, shall have acted in vain. It is trite that a stay or an interlocutory injunction cannot be granted where a judgment had been executed or an act has already been carried. Uwegbu v. A. G. Bendel State (1986) 4 N. W. L. R. ((Pt 16) page 309; S. G. B. Nig Ltd v. Awaye Motors Co. Ltd (1992) 4 N. W. L. R. (Pt 234) 231.”
See also the decision in Chief Olufemi sodeinde & Ors Regency Council of Olota & ors. v. I. D. T. Dada & Ors (1998) 6 N. W. L. R. (Pt 552) 72 at 76 where Mukhtar. J. C. A. had this to say:
“It is manifestly clear that having declared or adjudged the 1st applicant/appellant as not competent to appoint minor chiefs, the respondents seized that opportunity to make the appointments referred to in the deposition reproduced supra. It is not for me at this particular point in time or not, but they were definitely not made against any order or law. I particularly say this because at the time they were made, there was no application for stay of execution pending before any court. Besides, the respondents were not restrained from making the appointments. It is instructive to also note that an appeal simpliciter does not operate as a stay of execution. The law is very clear on this matter that the fact that a party has appealed against a judgment of a court does not mean that the execution. The law is very clear on this matter that the fact that a party appealed against a judgment of a court does not mean that the execution of the judgment automatically remains stayed pending the outcome of the appeal. The judgment remains valid and continues to subsist until it is set-aside on appeal. See Odiase v. Agho (1972) 1 ALL N. L. R. (pt 1) 170; Okulaja V. Adefulu (1992) 5 N.W. L.R. (pt 244) 732 and Ifeadi v. Atedze (1995) 5 N. W. L. R. (Pt. 394) page 196.”
The decided cases above say it all. In this case too the execution has been fully and validly levied before any court process for stay of execution was served on the respondents. The act had by then been completed. Clearly therefore the present application came too late. The proverbial horse had already bolted out before the attempt to case the stable. The issue of the ability of the respondents to refund the judgment sum is therefore not relevant at this stage. In short, the application is totally misconceived and devoid of merit. It deserves to be dismissed and is hereby dismissed. There shall be no order as to costs.
Other Citations: (2003)LCN/1453(CA)