Chief Christian I. Okonkwo V. Mr. Ifeanyi Adrian Obi (1999)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A

The present applicant was the judgment creditor in suit No. LD/161/97 before the lower court and the respondent the judgment debtor. The applicant seeks from this court:

“An order granting a more favourable condition for a stay of further proceeding in suit No. LD/161/97 holden at court No. 9 of the High Court of Lagos State, Lagos Division pending the final determination of the applicant’s appeal notice whereof is filed and dated the 11th day of November, 1997.”

In the affidavit in support of the application, the applicant in paragraphs 2 to 16 deposed thus:

“2. On Monday the 1st day of September, 1997 I was served with a copy of Motion on notice dated same day emanating from the chambers of Messrs Tunde Olagbaiye & Co. and signed by one Nonyem C. Ndibe Esq. on behalf of the respondent herein.

3. The motion referred to in paragraph 2 above was praying the High Court of Lagos to set aside the judgment and execution thereof obtained by the applicant herein on the 24th of day of March, 1997 which said execution was levied against the respondent on the 29th day of August, 1997.
4. On the 11th of September, 1997 caused to be filed a 40 paragraphs counter affidavit opposing the said motion.
5. On Tuesday the 7th of October, 1997 I was again served with a Motion on notice dated the 6th day of October, 1997 praying the said High Court for the selfsame order setting aside same judgment obtained against the said respondent on the 24th day of March, 1997 and the execution levied thereon on the 29th day or August, 1997.
6. The motion mentioned in paragraph 5 above was signed and filed by J. Ade Mosanya Esq of Yinka Mosanya & Co. of No. 100. Herbert Macaulay Street Yaba, Lagos.
7. Both motions mentioned in paragraphs 2 and 5 above contained similar prayers urging the said Honourable Court to set aside judgment and execution levied against the said respondent.
8. On Friday the 10th day of October, 1997 I did file a Notice of Preliminary Objection objecting to the filing of the motion dated the 6th of October. 1997 on the ground that it constituted an abuse of the court’s process.
9. On Monday the 13th day of October, 1997 the said Notice of Preliminary objection was argued by both counsel and ruling reserved for Friday the 7th of November, 1997.
10. On Friday the 7th day of November, 1997 the said learned trial judge delivered his ruling on the said preliminary objection which was against me and adjourned further hearing to Tuesday the 11th of November, 1997.
11. On Tuesday the 11th day of November 1997 I did file a Notice of Appeal against the said ruling a copy of which is herewith annexed as Exhibit “A”.
12. On Wednesday the 12th of November, 1997 I did file a motion on notice for stay of further proceedings in the said suit especially the hearing or the said motion dated 6th day of October, 1997 pending the final determination of the appeal.
13. On Friday the 12th day of December, 1997 my application for stay of further proceedings was granted on the condition that the respondent’s car attached as a result of the said execution be released to him on his production of an Afibank of Nigeria Plc bank guarantee.
14. The release of the peugeot 505 saloon car to the respondent will be tantamount to granting one of the reliefs sought in the said motion the hearing of which has been objected to and may dispose of the res in this appeal.
15. I make this application in order to preserve the res or the subject matter of the suit.
16. I know as facts that if this application is refused and the motion dated the 6th of October, 1997 proceeded with the final determination will render the rights which I seek to protect nugatory.”

The respondent deposed to a counter-affidavit and paragraphs 3 to 15 thereof read:

“3. That between the 10th day of February, 1997 and August 17, 1997, not less than N201.500.00 had been paid by me to the Applicant partly for jobs he had been doing for me and partly as solicited financial assistance to him besides others in kind.

4. That without the service on me of the Writ of Summons in Suit No. LD/161/97 nor any Notice of intention by the Applicant (the Plaintiff in that Suit) to obtain judgment in the Suit the Applicant obtained judgment in default of appearance against me on the 24th March, 1997.
5. That the confused state of mind into which I was thrown by the unexpected execution levied on my Peugeot 505 Saloon Car with Registration No. AZ 697 EKY on the 29th August, 1997 led me to my lawyer sister-in-law. Miss Nonyem C. Ndibe, a junior counsel in the Chambers of Tunde Olagbaiye & Co. (Solicitors).
6. That my said sister-in-law hurriedly filed the Motion dated 1st September, 1997 on my behalf gratis out of sympathy for my predicament.
7. That I know as a fact that since I was never served any Writ of Summons in that Suit, my said Sister-in-law never filed any Appearance thereto.
8. That for personal reasons, I later instructed J. Ade. Mosanya Esq. of Yinka Mosanya & Co. (Solicitors) to handle my defence in that Suit.
9. That I know as a fact that in paragraph 9 of the supporting Affidavit to my Motion dated 6th October, 1997, and served on the Applicant herein before the 10th October, 1997 (referred to in paragraph 5 of the Affidavit in support of the Applicant’s Motion), a clear advance indication was given that my said sister in laws Motion dated 1st September, 1997, would be discontinued whenever mentioned in the lower court.
10. That I was informed by my Cousin named Charles Muoto, who, on my instruction was in the lower court when the said case was mentioned and I verily believed him that my Counsel. J. Ade. Mosanya Esq. drew the attention of the Court to the said earlier motion dated 15th September, 1997 and sought leave of the Court to withdraw the same.
11. That I was further informed by my said cousin and I also verily believed him that the Applicant herein did not object to my Counsel’s said application when asked by the Court and the Court subsequently struck out the said Motion dated 1st September, 1997.
12. That I was also informed by my said cousin and I also verily believed him that it was when the Court asked the Applicant herein whether or not he would be opposing my Motion dated 6th October, 1997, that he informed the Court that he had filed a Notice of Preliminary Objection dated 10th October, 1997 against the Motion.
13. That during his argument for stay or proceedings pending determination of his appeal against the ruling of the lower court on his said objection, he unequivocally conceded to my desire as deposed to in paragraph 14 of my Counter Affidavit to his application to procure a Bank guarantee in order to secure the release of the attached vehicle to me and the Court so correctly recorded him, Copy of the relevant ruling of the Court is hereto attached as Exhibit “JAM. 1″.
14. That unfortunately, up till now, I have not succeeded to obtain the said Bank guarantee nor able to pay into Court the sum of N250.000.00 as ordered by the Court.
15. That I know as a fact that most attached vehicles which to remain on the premises of the High Court, Lagos, for long and are thus exposed to all weathers soon rust away and are usually so vandalised until left as scraps.”

The applicant filed a reply to the counter-affidavit by the respondent denying most of the depositions therein.

The applicant, a legal practitioner argued the application. He prayed us to grant be same. He relied on N.N.S. C. Ltd v. Alhaja H. Sabana (1988) 2 N.W.L.R. (Pt. 74) 23 and Oyeti v. Soremekun (1963) N.S.C.C. Vol.3, page 282.

Mr. J. A. Mosanya opposing the application observed that the applicant had before the lower court agreed on the condition attached to the order for stay of proceedings. He said that the applicant was estopped from denying that he so agreed.

From the affidavit evidence before this court, the following matters are undisputed.

“1. That the applicant had in suit No. LD/161/97 obtained judgment against the respondent and that the applicant levied execution on the properties of the respondent on 29-8-97 for the sum of N250.355.00.

2. That a Peugeot 505 Saloon Car No. AZ 697 EKY belonging to the respondent was attached and possessed by Deputy Sheriff of the Lagos High Court.
3. That in reaction, the respondent consulted two legal practitioners each of whom filed an application before the court below asking that the judgment in applicant’s favour he set aside on the ground that the respondent was not served the process leading to the said judgment.

That on 10-10-97, the applicant filed a Notice of preliminary objection contending that the latter of the two motions to set aside the judgment of the lower court was an abuse of the process of court and the said Notice of preliminary Objection was argued on 13-10-97.

5. That on 7-10-97, the lower court overruled the Notice of Preliminary Objection.
6. That the applicant appealed against the ruling delivered by the lower court on 11-11-97; and on 12-11-97 brought a motion for stay of proceedings before the lower court.
7. That on 12-11-97, the motion for stay of proceedings was granted on the condition that the car of the respondent which was attached be released to him if he provided a bank guarantee from Afribank of Nigeria Plc.”

Whilst I am willing to concede that a litigant against whom a court has made an order may exercise his right of appeal as provided by the Constitution of Nigeria, it must be said that a right of appeal must not be exercised in a manner calculated to oppress another or to impose an unnecessary suffering or hardship on another.

This is the more so when the same vindication which the applicant wishes to get by his appeal may be obtained in a manner that is not likely to create hardship for his adversary and which may be quicker and less expensive, when a litigant who has the right to choose between two methods to pursue his right- one cheaper to him, faster and at the same time less burdensome on his opponent elects the more expensive approach which also imposes a hardship on his opponent, his intention becomes suspect such that one may be left to believe that he is pursuing his right of appeal out of malice or viciousness.

Admittedly, the respondent in this case had filed two applications in the same court for the same relief. The applicant correctly asked that the latter of the applications be struck out. The lower court decline to do so. It seems to me that the issues at stake were not substantial to necessitate an appeal. Obviously, the respondent could not obtain an order setting aside the judgment against him two times from the same court. That being the position, the applicant should have allowed one of the motions by the respondent to be taken and the other struck out later. It would have been a serious matter if the respondent was attempting to bring another application after a similar one had been granted or dismissed.

As it was, the applicant elected to appeal. He sought a stay of proceedings.

He must have known that a grant of an order of stay of proceeding would lock up or suspend the hearing of the respondent’s application to set aside the judgment against him. That situation would also mean that respondent’s car would remain in the custody of the deputy sheriff until the appeal was disposed of.

It ought to be borne in mind that the respondent also has a Constitutional right to have the lower court decide expeditiously his application to set aside the judgment against him on the ground that he was not served the writ of summons.

If he was able to establish that he was not served the writ or summons, this could mean that the lower court had decided the case without jurisdiction. There was therefore the need to balance the competing rights of both the applicant and the respondent.

I think that the lower court rightly appreciated that it would be unjust to grant a stay of proceedings without devising a temporary relief for the respondent who had brought an application to set aside the judgment against him on the ground that he was not served the writ of Summons. In the ruling being appealed against by the applicant, the applicant was recorded as having said that he was prepared to accept a bank guarantee for the release of the respondent’s car. The lower court said:

“He argued further that the Res was the vehicle, but if the respondent was able to furnish the court with a bank guarantee for the judgment sum from a reputable bank. e.g. Afribank Plc, he was prepared to concede…”

Prima, facie, the notes taken by the court are presumed correct until proved or shown to be incorrect.

As at now the respondent has not been able to secure even the bank guarantee as required of him for the release of his car which has been attached since 29-8-99.

Speaking frankly, I have the impression that the applicant is being needlessly difficult as if pursuing a personal vendetta. I say this because he must have known as a lawyer that given the well-known fact that it takes quite a while to dispose of cases on appeal as a result of the congestion in courts particularly the Lagos Division of the Court of Appeal, it is much quicker and cheaper to allow the lower court handle this matter. I ask myself again and again, what is the big issue involved here? I can see none.

I do not think I should vary the order as made by the lower court. The applicant may pursue his appeal. But he ought not be allowed to prevent the respondent from repossessing his car if he could meet the condition set. Application is refused. No order as to costs.

Other Citations: (1999)LCN/0530(CA)