African Continental Bank Plc Vs Obmiami Brick And Stone (1993)
LawGlobal-Hub Lead Judgment Report
OGUNDARE, J.S.C.
This case has a long and chequered history. This is the second time the parties will be before this Court. The applicant was at one time banker to the respondent. A dispute arose between the parties which led to the respondent suing the applicant in Suit No. E/280/87 in the Enugu Judicial Division of the High Court of the former Anambra State claiming N13 million as “special and general damages” The applicant counter-claimed for the sum of N2.276, 620.61 being overdraft granted the respondent and the compound interest at the rate of 15% per annum until judgment is given. At the conclusion of trial in the High Court, judgment was on 24/4/89 entered in favour of the respondent in the sum of N10, 827,305.25; the counter-claim was dismissed. The applicant appealed to the Court of Appeal (Enugu Division) and applied for a stay of execution of the judgment of the High Court. Stay was granted by Ononiba J. on 29/6/89 on the following terms:
“(i) The costs of N4,000.00 awarded against the applicant are to be paid to the respondent within 7 days from (29/6/89).
(ii) The judgment debt of N10,827,305.25 to be paid into a fixed deposit account in the applicant’s bank i.e. 3, Ogui Road Main Branch of A.C. B Ltd., Enugu in the name of the, respondent/judgment creditor within 30 days from (29/6/89) and at the prevailing interest rate.
(iii) The money so placed in fixed deposit is not to be withdrawn either by the plaintiff/judgment creditor or the defendant/judgment debtor until determination of the appeal now pending in this cause.
(iv) …..that the said deposit with the accrued interest shall remain with the said bank and shall abide the decision of the Court of Appeal
(v) Subject to Orders (1) – (4) above, the execution of judgment in this suit is hereby stayed.”
The applicant’s appeal to the Court of Appeal was allowed on 13/5/90 and the judgment of the trial High Court was set aside; the counter claim was put back on the cause list for trial. – see: (1990) 5NWLR (Pt. 149) 230. Respondent’s appeal to this Court was allowed in part and the judgment of the trial High Court was restored but the damages awarded by that court were reduced to N1,697,800.00; applicant’s counter claim struck out – See: (1992) 3 NWLR (Pt.229) 260.
Following the above mentioned judgment of this Court, the applicant in April 1992 instituted a fresh action against the respondent – suit No. E/125/92, in the sum of N5,642,892.07 being “the outstanding debit balance on the defendant’s current account and compound interest at the rate of 25% per annum with monthly interests from 2/4/92 until judgment and thereafter at the rate of 5% per annum until liquidation of the judgment debt and costs.” The claim was dated 21st April, 1992.
Meanwhile, however, the respondent had caused a Notice of Attachment dated 10th April, 1992 to be issued in the sum of N3,001,835.70 attaching the goods and chattels of the respondent in satisfaction of the judgment-debt in the action leading to this Court’s judgment in the earlier suit. Attachment was carried out by the High Court bailiff on 13/4/92 and an inventory of the applicant’s goods and chattels attached was taken. The applicant’s officials disputed the amount on the Notice of Attachment On 16/4/92, the Deputy Sheriff for Enugu State published a public notice (and served a copy on the applicant) of the sale, by public auction of the applicant’s attached movables. The applicant promptly filed an application in the High Court seeking the following orders:
“(1) To set aside the writ of fieri facia and or execution issued herein on the…. day of …. 1992 and directed to the Sheriff of Enugu High Court and all actions taken there under as being irregular, malicious and without reasonable cause on the ground that the sum which is by the endorsement of the said writ directed to be levied was not at the time of the issue, of the writ due and owing on the said judgment;
(2) To stay the judgment herein and or suspend execution thereof levied on 13/4/92 on the movable property of the applicant until the determination of the applicant’s claim for N5,642,892.07 against the respondent which claim is now pending in the Enugu High Court;
(3) To release from attachment the movable property of the applicant attached by the Sheriff on 13/4/92”
This latter application was, however, in a ruling dismissed by Achi-Kanu. J on 18/6/92.
The applicant being dissatisfied with the dismissal of the application, applied to the High Court for leave to appeal against the ruling and for continued suspension of the execution earlier levied on its movables, pending the hearing of the new application. This new application was again refused by the High Court.
The applicant thereupon applied to the Court of Appeal for the following orders:
“(a) Extension of time within which to apply for leave to appeal.
(b) Granting the applicant leave of this court to appeal to this Honourable Court against the Ruling of the High Court delivered on the 18/6/92,
(c) Extension of time within which to appeal.
(d) Stay of the judgment herein and or suspend execution of the said judgment until the determination of the applicant’s prayer for leave to appeal against the Ruling is granted and if leave is granted until the appeal is determined.”
On 24/11/92, that Court, by a majority decision (Awogu and Akintan JJ.C.A, Uwaifo J.C.A. dissenting) dismissed the application. The applicant being dissatisfied with the Court of Appeal’s decision appealed to this Court. While this appeal is still pending, the applicant has now applied to us for an order-
“(i) For stay of execution of the judgment delivered in this court on 27/3/92 in Appeal No. SC/186/1990 between the parties pending the determination of the appeal filed against the ruling of the Enugu Division of the Court of Appeal on 24/11/92 or
(2) In the alternative for an order directing that the judgment debt of N1,697,800.00 or any other sum found adjudged against the appellant in favour of the respondent be paid into an interest yielding account pending the determination of the said appeal”
This ruling is in respect of that application.
The application is supported by an affidavit and a reply to counter affidavit both of which were sworn to by one Obiozo Ikechukwu Victor, a senior staff of the applicant bank. Both affidavits have exhibited to them a number of documents.
There is a counter-affidavit sworn to by Victor Kanayo Obiekwe, the managing director of the respondent’s company and has annexed thereto a number of documents. At the hearing of the application learned counsel for the parties argued strenuously in support of their respective positions. Needless to say, of course, that the respondent’s counsel resisted the application.
Moving the Court, Mr Ibe for the applicant argues that there is an appeal to this Court pending in the matter of the ruling of the Court of Appeal. He refers to Exhibits A4 and A5 to the affidavit in support of his motion and submits that the grounds of appeal raised issues of law and there is therefore no need to seek leave either of the Court of Appeal or of this Court to appeal. He relies on Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 in support of his submission. Learned counsel further submits that where the grounds of appeal are substantial, this Court should grant a stay. He observes that the relief sought in the appeal to this Court is an order granting leave to appeal to the Court of Appeal against the ruling of the High Court Enugu refusing stay of execution. Referring to page 5 of the ruling of the High Court (Exhibit A2), learned counsel argues that it is unnecessary to show that the appeal would succeed; what should be shown is the reason why the appeal should be heard. He relied on Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt.96) 157, 178 per Obaseki, J.S.C. Mr. Ibe contends that the motion was brought under Order 2 rule 14 of the judgments (Enforcement) Rules of Eastern Nigeria applicable to Enugu State. He urges the Court to grant the application as prayed.
Mr Anyamene, S.A.N for the respondent, draws the attention of the Court to the relief sought in the Notice of Appeal to this Court and submits that there is no appeal pending upon which an order for stay could be predicated. Learned Senior Advocate observes that the applicant’s appeal to this Court is against the exercise of discretion by the Court of Appeal and submits, relying on lfediorah v. Ume (1988) 2 NWLR (Pt.74)5 at 19, that an appeal against an exercise of discretion involves questions of mixed law and fact. He submits that alternative prayer (2) on the motion paper presupposes that the judgment debt remains unpaid but that this stance contradicts the affidavit in support of the motion to the effect that the judgment debt has been paid to the judgment creditor, that is, the respondent company. Learned Senior Advocate, relying on the counter-affidavit and paragraph 28 of Exhibit A2, contends that the judgment debt has not been paid to the respondent. He contends that applicant’s new action in the High Court is based on an alleged debt secured by a mortgage deed and observes that the security is available to the applicant if it wins its new action; he adds that the mortgaged property is worth N20 million. Learned Senior Advocate also refers to page 14 of Exhibit A2 and observes that there was no appeal against the finding of the High Court on that page. He finally urges the Court to dismiss the application.
I will consider first the question whether there is an appeal before this Court on which the prayer for stay of execution can be predicated. Following the refusal of the High Court to grant leave to the applicant to appeal to the Court of Appeal against the High Court’s refusal of the applicant’s prayer for stay, the applicant applied to the Court of Appeal for a similar order. The Court of Appeal, by majority decision, refused it leave to appeal. It is against the Court of Appeal’s refusal of leave to appeal that the applicant has appealed to this Court upon the following grounds of appeal:
“(1) Error in Law
The learned Justices of the Court of Appeal misconceived the application before the Court which misconception led to a gross error in law when they held at pages 5 and 6 of the lead ruling of Awogu J.C.A. as follows:-
‘The question that arises however is what judgment is being appealed against The judgment of the Supreme Court is final and there can be no further appeal against it. It also dismissed the counter-claim. There is therefore nothing to stay. If the stay is in respect of the new suit filed thereafter and yet be heard, it is impossible to stay the final judgment which became effective as from the date it was delivered in March 1992 and it is difficult to understand how such a stay can relate to a new suit filed a month later.
PARTICULARS OF ERROR
(a) The application before the court of first instance is not one for a stay of the judgment of the Supreme Court pending an appeal against that judgment but a stay of that judgment ‘until the determination of the applicant’s claim for N5,642,892.07 against the respondent which is pending in the Enugu High Court’ and which was struck out by the Supreme Court and not dismissed by that court as wrongly stated by the Court of Appeal. See the Supreme Court judgment reported in (1992) 3 NWLR (pt.229) 260.
(b) Following the refusal of the Court of first instance to stay that judgment on that ground, the applicant then brought an application to the Court of Appeal for leave of (that) court to appeal to the Court of Appeal against that refusal.
(c) The learned Justices of the Court of Appeal did not confine themselves to the merits and or demerits of the application to wit granting or refusing leave to appeal against the ruling of Achi Kanu J. but instead careered into the substantive judgment of Ozobu C.J. which judgment was not in any way an issue before them.
(d) It is settled in Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157 that the duty of the court in an application of such a nature is to confine itself within respectable limits of the scope of the enquiry before the court. It is a duty to be exercised both judicially and judiciously since it is a very important constitutional right and its exercise ought not to be unduly fettered.’
It is the duty of the Court to examine the grounds of appeal for which leave is sought in order to determine the materiality of those grounds. This learned Justices of the Court of Appeal failed to do.
(2) Error in Law
The learned Justices of the Court of Appeal erred in law and misconceived the application before them when at page 7 of the lead judgment they held as follows and so dismissed the application:-
‘Accordingly, the leave to appeal sought here cannot be granted as no question of law or fact has arisen from the final judgment of the Supreme Court. The application is refused.’
PARTICULARS OF ERROR
(a) The ruling for which leave to appeal is sought is the ruling of Achi Kanu J. dated 18/6/92 and not the final judgment of the Supreme Court.
(b) Before the learned Justices of the Court of Appeal would refuse to grant leave, they must advert to the ruling of Achi Kanu J. dated 18/6/92 and 21/7/91 refusing applicant leave, and scrutinizing meticulously the proposed grounds of appeal. This the learned Justices of the Court of Appeal failed to do but instead adverted to the Supreme Court judgment which has little or no relevance to the application before them.
(3) Error in Law
The learned Justices of the Court of Appeal erred in law when they held as follows which error led to their dismissal of the application:
‘Coming to the question of stay of execution, in law a judgment may be stayed if another suit pending between the parties is yet to be disposed of This is usually so in counter-claim and set offs in which the claim may have been disposed of before the other. It does not apply where the suit has been finally concluded and the debtor refused to pay because he wants to hold on to the fruit of that judgment until the suit which he filed thereafter was determined.
Of course, where a new suit is commenced, the applicants may come by way of Mareva Order but would have to fulfill the conditions for obtaining same. Accordingly, the application for stay of execution is also hereby refused.”
PARTICULARS OF ERROR
(a) Order 2 Rule 10 & 14 of the Judgment (Enforcement) Rules of Eastern Nigeria 1963 applicable to Enugu State states:
’10. Subject to any provision to the contrary, any application by a party for an order or direction of a court in relation to any judgment, execution, or process shall be made in the same manner as an application for an interlocutory order in that court.
- Whenever any proceeding shall be pending in the court against the holder of previous judgment of the court by the persons against whom the judgment was given the court may, if it appears just and reasonable to do so, stay execution of the judgment either absolutely or on such terms as it may think just until a judgment shall be given in the pending proceeding.’
(b) It is respectfully submitted that this is not the true legal position in view of the combined effect of Rules 10 & 14 of Order 2 of the Judgments (Enforcement) Rules of Eastern Nigeria, 1963 applicable to Enugu State above cited.”
The Court of Appeal had discretion whether or not to grant applicant leave to appeal. It exercised that discretion against the applicant. It would therefore appear that the appeal to this Court relates to the exercise by the court below of its undoubted discretionary power to grant or refuse leave to appeal. Since the exercise of the discretion involves a consideration of the competing facts relied on by each party, it follows that an examination of the manner in which discretion is exercised must necessarily involve at least questions of mixed law and fact. But is the applicant questioning the manner of the exercise of the discretion of the court below Or what is the applicant really questioning in his appeal The answers to these questions are to be found in the grounds of appeal. It is not disputed that the applicant would only have a right of appeal to this Court as of right only if his grounds of appeal raise questions of law alone. See section 213 (2) (e) of the 1979 Constitution.
What constitutes a ground of law or of mixed law and fact or of facts only has been the subject of judicial decisions by this Court in a number of cases, notably, in recent times, Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484; (1986) 3 S.C. 54; Nwadike v. Ibekwe (supra) and Ifediorah v Ume (supra). Bearing in mind the principles laid down in these cases and other similar cases, I now proceed to consider the nature of the grounds of appeal filed by the applicant in its notice of appeal to this Court against the decision of the Court of Appeal. The grounds are already set out. I need to point out that it is not how a ground is christened that matters but what it complains about. I have examined carefully the three grounds of appeal and in my respectful view, they all raise issues of law. They do not relate to an examination of the manner in which the court below exercised its discretion to grant or refuse leave to appeal, but rather complain of a misconception of the application before it. This, in my respectful view, would amount to an error of law. The appeal of the applicant to this Court is therefore, competent under section 213(2) (a) of the Constitution of the Federal Republic of Nigeria, 1979.
This conclusion disposes of the submissions of learned Senior Advocate for the respondent on the competence of the appeal.
I will now proceed to deal with the merits of the application before us. In doing so, however, I shall refrain from making pronouncements that may prejudice the appeal now pending in this Court and, should that appeal succeed and leave to appeal to the Court of Appeal granted, the issues that may subsequently arise in the appeal to the Court of Appeal. Care will, therefore, be taken to avoid resolving in this application some to the issues raised in arguments by learned counsel for the parties before us except in so far as they are relevant to deciding the application before us.
I agree with Mr. Anyamene, S.A.N. that on the applicant’s showing, the alternative prayer (2) must be refused. First, in paragraphs 9 of the affidavit of Obiozo Okechukwu Victor in support of the application, the deponent deposed as follows:
“We further paid the exact amount i.e. N1,697,800.00 adjudged against us by the Supreme Court into the applicant’s live current account in their Ogui Enugu Main Branch with a copy of the credit advice remitted to the Sheriff and the respondent.”
If this averment is true, what sum is this Court then to order to be paid into an interest yielding account I am not unaware of the denial by the respondent of this averment. But one is here concerned with applicant’s case. If the applicant said it had paid the judgment-debt then there is nothing left which this Court could order that it be paid into an interest yielding account. Secondly, be the phrase “or any other sum found adjudged against the appellant in favour of the respondent,” the applicant gives the impression it does not know the actual amount of the judgment debt to be paid by it to the respondent. It is not for this Court to find out what amount the applicant is to pay to the respondent; it is for the applicant to state what amount it would require this Court to order to be paid into an interest yielding account. For these reasons, prayer (2) is refused.
Prayer (1) prays, in effect, that the judgment of this Court in Appeal No. SC. 186/1990 between the parties be stayed until the applicant’s action (Suit No. E/125/92) filed in the Enugu High Court after the conclusion of the said appeal, is disposed of. I say this because, although the stay prayed for is to last until the determination of the appeal lodged by the applicant to this Court, the relief sought from this Court as disclosed in the Notice of Appeal is to grant leave to appeal from the High Court to the Court of Appeal. If that appeal succeeds and the relief is granted the applicant will still have to move the Court of Appeal in terms similar to its original application in the High Court. The applicant is thus seeking by its present application to bye pass the Court of Appeal in obtaining that which has been refused it by the High Court but which the Court of Appeal has not yet had an opportunity to express an opinion on. This Court has no jurisdiction to entertain an appeal direct from the High Court. The applicant would, therefore, not have a right to apply direct to the Supreme Court for a prayer for stay that has been refused by the High Court. As this is, in effect, the purport of the prayer (1) now before us, it will be refused.
It is in evidence before us that the applicant’s new action is in respect of a debt secured by a deed of mortgage over the immovable property of the respondent company. It has not been shown to my satisfaction that this security would be inadequate to meet whatever judgment may be entered in favour of the applicant in the action. If the respondent has claimed in the writ of fieri facias more money than it is entitled to, the applicant has remedies which it can pursue.
It will not be justice to have the respondent deprived of the fruits of the judgment entered in its favour by the highest court in the land merely because the applicant is claiming in an action filed after the judgment of this Court a sum far in excess of its counter claim that was struck-out by this Court in that judgment. To grant the prayer (1) sought is to allow the applicant to use the judicial process to frustrate the respondent, a successful party, in the enjoyment of its victory achieved after climbing the judicial ladder to the highest court. This Court will not allow that to happen.
For these reasons, therefore, I will refuse prayer (1). In the net result, the application fails and it is dismissed with N100.00 to the respondent company.
Other Citation: (1993) LCN/2561(SC)
