Manufacturers Merchant Bank Ltd. V. John Edge and Company (Nig.) Ltd. (1997)
LawGlobal-Hub Lead Judgment Report
AYOOLA, J.C.A.
The background facts relevant to the application with which this ruling is concerned can be shortly stated. Manufacturers Merchant Bank Ltd. (now referred to as “the applicant”) sued John Edge and Co. (Nig.) Ltd. (now referred to as “the respondent”) in the High Court of Lagos State claiming a sum of N3,277,466.85 being balance alleged to be outstanding on credit facilities it granted to the respondent. On June 5, 1995 the applicant obtained a default judgment against the respondent in the sum of N3,794,089.88 inclusive, it would appear, of interest. That sum was paid by the respondent to the applicant on execution being levied at the instance of the applicant. On an application by the respondent, Sotuminu, J. on 21stIune 1996 set aside the default judgment and the execution of the said judgment and ordered that the “sum of N3,794,089.88 which the plaintiff/respondent collected from the defendant/applicant in execution of the said judgment be refunded to the defendant/applicant forth with.” Dissatisfied with Sotuminu J’s ruling the applicant appealed to this court by its notice of appeal dated 27th June 1996.
On 28th June 1996 the applicant filed a motion for stay of execution of the order of 21st June 1996 in the High Court. Before that motion was heard it filed in this court on 2nd July 1996 yet another motion praying that execution of the order be stayed or suspended, that the sum it had paid pursuant to that order not be appropriated by the respondent and be returned to it or in the alternative be deposited in court pending the determination of the appeal. The applicant having on 28th October 1996 filed this motion withdrew the motion it filed on 2nd July 1996.
In the present application the applicant seeks the following orders:-
“1. An order setting aside the execution levied on the 28th day of June, 1996 against the applicant pursuant to the ruling of Mrs. Justice I.A. Sotuminu delivered on the 21st day of June, 1996 pending the determination of the applicant’s appeal.
- An order directing the respondent to refund the sum of N3,794,089.88 (Three Million, Seven hundred and ninety-Four Thousand and Eight Nine Naira, Eighty Eight kobo only) paid to the respondent under the compulsion on the 28th day of June, 1996 pursuant to the unlawful and irregular execution of the ruling of Mrs. Justice I. A. Sotuminu on the 21st day of June, 1996 pending the determination of the applicant’s appeal.
IN ALTERNATIVE TO PRAYER 2
- An order that the said sum of N3,794,098.88 (three million, seven hundred and Ninety-Four Thousand and Eight Nine Naira, Eight-Eight kobo only) be paid to the Registry of this Honourable Court and that the sum be paid into an interest yielding account by the Chief Registrar of this court till the determination of the applicant’s appeal.”
The grounds of the application as can be discerned from the prolix affidavit in support are:-
- That execution was levied pursuant to the order of Sotuminu, J notwithstanding that an application for stay of execution had been med on 28th June 1996 at the High Court and served prior to the said levy of execution.
- That pursuant to the levy of execution the applicant was “forced” to pay the sum ordered.
- That the respondent is not likely to be able to pay back the sum involved in this matter in the event of the appeal being successful.
- That the applicant’s chances of success in the appeal are “indeed very considerable.”
By a notice of preliminary objection the respondent contended that “prayer 1, 2 and 3 of the motion are incompetent as being in violation of order 3 rule 3(4) of the Court of Appeal Rules.” Order 3 rule 3(4) provides that:-
“Where 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 make it impossible or impracticable to apply to the court below.”
It is expedient to consider the preliminary objection first as the whole matter will be disposed of if it succeeds.
Where an application is made to this court in the first instances where it could have been made to the court below or this court, the affidavit in support of such application must disclose facts which show that it was “impossible” or “impracticable” for the application to have been made to the court below. Facts showing that it is merely more convenient to apply to this court would not suffice nor would a mere suspicion that the court below would not be disposed to grant the application. It will for instance, be impossible to make such application to the court below where the appeal has been entered in this court and in terms of Order 1 rule 22 of the Court of Appeal Rules this court becomes seized of the whole proceedings as between the parties thereto “and except as may be otherwise provided in these Rules, every application therein shall be filed to the court and not to the court below”. The circumstances in which it may be impracticable to apply to the court below must be legion and should be determined case by case on a commonsense view of the facts depending, I venture to think, on the nature of the application and on a robust consideration of what is best in the interest of justice.
In the present case, there was obviously neither impossibility nor impracticability in making an application to the court below. Indeed, the applicant had promptly and properly filed an application for a stay of execution before the court below and apparently that application is still pending in the court below. It has not been shown by affidavit or in argument that it has been disposed of. What is remarkable is that shortly after the motion for stay of execution was filed in the court below and before that court could deal with it, the applicant rushed to this court with the application filed in this court on 2nd July 1996. That application was evidently incompetent because of the provision of Order 3 rule 3(4) and because it was manifestly in abuse of process of the court in view of the pending application before the court below.
All the grounds of the present application are grounds which could and ought to have been before the court below. If, as contended, the levy of execution was wrongful because it was done in disregard of a pending application for stay of execution before the court below, it was for that court to protect the proceedings before it from being rendered nugatory or to obviate a situation in which by a contrivance of a party it would be faced with a fail accompli. The jurisdiction which a court exercises to order a party to undo what he has done or to set aside a step taken by a party in an attempt to steal a match on the opponent and present the court with a fait accompli is one exercised to preserve the integrity of the proceedings before it. As long as those proceedings are pending before the court where it was commenced, it is a jurisdiction more appropriate for that court to exercise. In this case, in so far as the ground of the alleged wrong fullness in the levy of execution is the pendency of an application for a stay of execution before the High Court, it is for the High Court to set aside execution so levied if it deems fit and proceed to hear the application for a stay of execution. In so far as the alleged wrong is said to have emanated from the fact of the existence of a motion filed in the court below on 28th June 1996, that motion being still pending before the High Court, it is for that court, if so moved and if it deems fit, to protect those proceedings by the type of orders the applicant now seeks in this court.
One point that bears repeating is this: the whole essence of such prayers as sought in the motion paper is to free the court before whom an application for stay of execution is pending from the obstruction that an ill motivated levy of execution would have constituted to the making of an order for stay of execution were such to be found just In so far as no such application is before this court prayers 1 and 2 are clearly misconceived. Prayer 3 would not stand on its own but must be predicated on an assumption that execution was improperly levied and that a stay of execution ought to be granted. All these are matters to be taken before the court below before which an application for stay of execution is pending.
In regard to the third prayer the applicant specifically relied on Order 1 rule 20(8) of the Rules which provided:-
“The court shall have power to make orders by way of injunction or the appointment of a receiver or manager and such other necessary orders for the protection of property or person pending the determination of an appeal to it even though no application for such an order was made in the court below:
That provision applies where the dispute is as to property or person and there was consequential need to preserve property or protect person. The appeal from the order of Sotuminu, J. does not per se involve any issue as to right of property. If the decision of Sotuminu J is set aside, the applicant would be free to levy execution on the default judgment In the same vein section 16 of the Court of Appeal Act which described the general powers of the court is of no avail. The conferment of general powers on the court does not sanction the exercise of that power when the court below is seized of the same matter, so that while an application for stay of execution is pending before such court, this court would be making orders which are rightly for the court below to make at its discretion in preservation of the integrity of the proceedings before it. Straining at finding authorities to cover his position, counsel for the applicant referred to a judgment of this court in Pavex Int. Co. Ltd. v. I.B.W A. (1994) 5 NWLR (Pt.347) 687 where the opinion was expressed that a wrongful or irregular execution of a writ of attachment is liable to be set aside by the court of trial. It is evident that that decision contains no principle that the applicant can usefully pray in aid.
It is difficult to understand why a matter which is most uncomplicated and which would easily have been dealt with by the court below, had the proper application been made to it, had led to the filing before this court of time wasting, incompetent and misconceived applications. Be that as it may, the preliminary objection by the respondent must be upheld.
In the result, this application is struck out with N2,000 costs to the respondent.
Other Citations: (1997)LCN/0250(CA)
