National Institute for Policy and Strategic Studies (Nipss) & Anor V. Fabian O. Osigwe & Anor. (2007)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

The respondents in this application obtained monetary judgments against one A. MICHELLETTI LTD in two separate actions; suit Nos. PLD/J/34/2003 and PLD/35/2003 respectively. The said A. Michelletti (the judgment debtor) did not appeal against the aforesaid judgments. Pursuant to the judgments aforesaid, the respondents took out writ of attachment against the properties of the said judgment debtor and attached some properties at the premises of the National Institute and Policy of Strategic studies (NIPSS). These attached properties were not allowed to be evacuated to the High court premises from the premises of NIPSS. Sequel to the refusal, the respondents on 6/5/2003 filed a motion on Notice, No. PLD/178M/2003 praying the High Court to order both the NIPSS and Major General M. Osahor C.O.N. to release the attached properties to the bailiffs or in the alternative to pay the sum adjudged. The High court on 5/2/2004, granted the application in favour of the respondents, for the release of the attached properties.

Being dissatisfied with the ruling, NIPSS and Gen. Osahor, C.O.N. filed on 12/5/2005, an application praying this court for extension of time within which to seek leave to appeal against the decision of the High Court Plateau State dated 5/2/2004 and leave to appeal against the said decision as well as an order staying the execution of the said decision pending appeal. The application was, on 16/5/2006 granted as prayed.

When NIPSS and the said Gen. Osahor, refused to release the attached properties as ordered by the court, the respondents brought an application dated 28/2/2005 for an order committing NIPSS and Gen. Osahor to prison, and the High court in its ruling ordered them to obey the earlier order of 5/2/2004 within 7 days failing which they would be arrested and prosecuted for contempt of court by the Plateau State Commissioner of Police.

Being dissatisfied with the ruling of 24/5/2004, they filed their notice of appeal in June, 2005. Then in the interim filed a motion for stay of the execution of the decision contained in the ruling dated 24/5/2004 before the same court but the motion was refused. Consequently, NIPSS and Gen. Osahor, (herein referred to as applicants) filed a similar application before this court.

In support of the application, the applicants filed, a supporting affidavit of 28 paragraphs and six annexures, including the ruling of the High court ordering for the immediate release of the attached properties, the copy of the motion seeking extension of time to seek leave to file appeal against the decision dated 5/2/2004, which motion was granted on 16/5/2006, the proposed notice of appeal, the court’s order dated 24/5/2005 sought to be stayed, and the notice and ground of appeal against the said order. The respondents in their reply filed on 12/10/2006 a counter-affidavit of 35 paragraphs and 5 annextures.

The applicants then filed on 17/10/2006 further and better affidavit of 18 paragraphs and two annexures namely the ruling of the High court dated 24/5/2005 and the notice and grounds of appeal against the ruling dated 5/2/2004. The applicants further filed on 23/11/2006, the 2nd further and better affidavit of 12 paragraphs and 2 annextures, namely, Notice of Liquidation of the judgment debtor and the list of plant/equipments handed to NIPSS.

For purposes of this application the issue of whether or not suit NO.PLD/J/178/2003 relates to the originating summons which was dismissed on 9/7/2004 and whether or not the said suit was before Justice Dakwang as raised in paragraphs 21, 24 and 25 of the counter affidavit should be laid to rest in view of the averments in paragraphs 6 and 5 of the further and better affidavit of 17/10/2003 and the annextures thereto which were not subsequently challenged. I am satisfied that suit No. PLD/J/ 178/2003 was related to an application to commit the applicants to prison for contempt of court, and also I am satisfied that the said suit was before Justice Oakwang and it was the said Justice Oakwang who delivered the ruling dated 24/5/2005 in suit No. PLD/J/178/2003.

I consider paragraphs, 3, 7, 9, – 11, 13, 19, 20 – 24 and 26 of the affidavit in support of the motion of 6/2/2006, paragraphs 6, 7, 9 11, 14 of the further and better affidavit of 17/10/2006 and paragraphs 5, 7, 9 and 10 of the 2nd further and better affidavit of 23/11/2006. As relevant. They are below for ease of reference:

3. That I know as a fact that on 5/2/2004, the lower court made an order directing the release of attached properties of A. Michelleti on the premises of the 1st appellant/applicant. The certified true copy of the said order is attached and marked as exhibit “A”.
4. That I know as a fact that notwithstanding paragraph 6 above, the firm of AKUBO & CO., has filed an application for extension of time before this Honourable court inter alia within which to file an appeal against the ruling of this lower court delivered on 5/2/2004.
5. That I know as a fact that one of the reliefs sought vide exhibit “B” before this Honourable court is an order for stay of Execution of the ruling delivered on 5/2/2004 this lower court.
6. That I know as a fact that the notice of appeal in support of exhibit “B” contains formidable grounds of appeal. The copy of same is attached and marked as exhibit “C”.
7. That I know as a fact that the judgment creditors/respondents sought to commit the appellants/applicants to Federal prison, Jos, vide a motion on notice dated 28th February, 2005 for alleged disobedience of order of the lower court made on 5/2/2004.
8. That I know as a fact that notwithstanding the said paragraph 13 above, the lower court proceeded to order the appellant/applicants to comply with its earlier order of 5/2/2004 within seven days of the service of the order made on 24/5/05 failing which they should be arrested and prosecuted by the Commissioner of Police, Plateau State Command before another court. The copy of the said order is attached and marked as exhibit “D”.
9. That I know as a fact that exhibit “E” raises substantial issues for determination bordering on jurisdiction, lack of fair hearing as well as a Constitution issue of correct interpretation and application of section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999.
10. That I know as a fact that the appellants/applicants are committed to the diligent prosecution of the appeal against the order made on 24th May, 2005 in this case.
11. That I know as a fact that the registry of the lower court is claiming that it has already sold TO A THIRD PARTY THE ATTACHED PROPERTY OF A. Michelletti Ltd. The copy of a letter in this regard from the said third party is attached and marked as exhibit “F”.

22 That I know as a fact that neither the 1st nor the 2nd appellant/applicant herein is indebted to the judgment creditors/respondents more so as the latter has not obtained any judgment against them.

23. That I know as a fact that the 1st and 2nd appellants/applicants are not agents of A. Michelletti Ltd., the named judgment debtor in this case.
24. That I know as a fact that our solicitors had earlier on filed a similar motion before the lower court on 1st June, 2005. A copy of the motion and the supporting affidavit only are attached and marked as exhibit “C”.
25. That I know as a fact that if the orders/rulings of the lower court respectively made/delivered on 5/2/2004 and 24/5/2005 are executed or enforced during the pendency of the motion and appeal to court of appeal, Jos, it will render nugatory the said pending motion and appeal thereby foisting on this Honourable court, a fait accompli.

Further and better affidavit of 17/10/2006:

6. That I know as a fact that 24th May, 2006 the lower court delivered the ruling being appealed against in this case. The certified true copy of the said ruling delivered by Hon. Justice Y.I. Dakwang is attached and marked as exhibit ‘I’.
7. That I know as a fact that the property which were wrongly attached in this case, was duly paid for and/or acquired by the 1st appellant/applicant through Michelletti plc by way of material purchase advance for the equipment for us in the library project contract awarded to the said Michelletti Plc by the 1st appellant/applicant.
8. That I know as a fact that by reason of paragraph 9 above, the 1st appellant/applicant had a lien in the property and indeed the was handed over to the said 1st appellant/applicant as part of account’s reconciliation and/or pan refund of overpayment to Michellatti Plc. on the library project contract.
9. That I know as a fact that the said equipment was handed over to the 1st appellant/applicant by the said Micheletti plc as far back as 1st March, 2003, that is to say before the respondents obtained Judgments in suit Nos. PLD/J/34/2003 and PLD/J/35/2003, whereof Judgments were respectively delivered on 11/3/2003 and 12/3/2003.
10. That I know as fact that the respondents know how and where to get Micheletti plc and recover their Judgments in Suit Nos: PLD/J34/2003 and PLD/J35/2003, yet prefer to harass the appellants/applicants in this case.

2nd further and better affidavit of 23/11/2006:-

5. That I know as a fact there was a petition for winding up of Micheletti Plc published on page 55 of the Friday, January 9, 2004 edition of the Guardian. The said Newspaper publication is hereby attached and marked as exhibit ‘K’.
6. That I know as a fact that the respondents are aware of this notice in the said newspaper.
7. That I know as a fact that the equipment are the 1st appellant/applicant’s not Micheletti’s and the respondent know how to get Micheletti but have chosen not to do so.
8. That I know as a fact that Micheletti handed over the said equipment to the appellants/applicants after executing a Memorandum of Transfer to that effect. The said Memorandum of Transfer is hereby attached and marked as exhibit ‘L’.

Similarly of relevance to this application are paragraphs 3, 9, 16, 18 – 20, 26-29, and 31-34 of the respondent’s counter affidavit of 12/10/2006 and are hereby re-produced below:-

3. That the respondent obtained judgment on the merit against A. Michelletti in two separate actions on the 11/3/2003 and 12/3/2003 in suit Nos: PLD/J34/2003 and PLD/J/2003 and PLD/35/2003 respectively. Copies of the enrolled order of the court are annexed hereto as exhibit 1 and 2 respectively.
4. That sequel to the above, the respondent on 6/5/2003 filed an application praying the court to order the applicants to release the attached properties to the bailiffs or in the alternative to pay the judgment sum.
5. That on the 5/2/2004, the lower court ruled on the respondent’s application as per paragraph 9 above and ordered the applicants to release immediately the attached properties.
6. That the properties of A. Michelleti were already attached on the strength of writ of attachment issued by the High court.
7. That the application is belated.
8. That no property of the applicants was attached.
9. That there is no application before the High court for stay of execution of ruling of 24/05/05.
10. That the Commissioner of Police is not a party to this appeal/application.
11. That on 16/02/06 when the applicants’ motion dated 5/05/05 was taken by this court; their relief for stay of execution of the ruling of the High court dated 5/02/2004 was not granted nor heard.
12. That while this application is pending, the applicants in reckless disobedience to this court has engaged another contractor who has started making use of the equipment already attached by an order of court.
13. That when the applicants refused to release the attached properties as ordered by the lower court on 8/2/2004, the respondents brought an application dated 28/2/2005 for an order committing the applicants to prison.
14. That on 24/5/2005, the lower court ordered the applicants to obey the order of the court made on 5/2/2004, within 7 days failing which would be arrested/prosecuted before another court for contempt of court by the Plateau State Commissioner of police.
15. That the applicants have no respect and regard for court of law and have deliberately refused to obey various orders of High court of Plateau State.
16. That it is in the interest of justice to refuse this application.

Addressing this court on the application, learned Senior Advocate for the applicants submitted that by their averments in the various affidavits before this court and the annextures in support they have satisfied the conditions for the grant of an application of this nature. He cited some authorities which he relied upon.

He further submitted that they have particularly raised the issue of jurisdiction, as well as the issue on the construction of the constitutional provision in their grounds of appeal before this court, pointing out that where such issues of jurisdiction and construction of the constitutional provision are raised there exist a special circumstances for which this court may grant a stay. They relied on paragraphs, 9, 10 and 11 and exhibits C and K attached to the affidavit.

It was also the contention of the applicants that paragraphs 17, 19, 29, 33, and 34 of the counter affidavit offended section 87 of the Evidence Act, being a bunch of legal opinion and conclusion. Opposing the application, G.O. Okafor, learned Senior Advocate, and submitted on behalf of the respondents that proper parties are not before this court since Commissioner of Police and Sheriff are not joined. They relied on A.-G., Lagos State v. A.-G, Federation (2003) 12 NWLR (Pt.833) 1. And section 12 Sheriffs Civil Procedure Law, VOL. 13 OF L.N.N. 1963 applicable in Plateau state. That the said paragraphs 17, 19, 29, 33 and 34 of their counter affidavit did not offend section 87 of the Evidence Act. That there is no any special circumstance that can warrant this court to exercise its discretion in favour of the applicants. That the applicants having refused to comply with the High court order of 5/2/2004 cannot now be asking for stay of execution. The case of Shugaba v. U.S.N. Plc (1999) 11 NWLR (Pt.627) 459 paragraphs C-E; Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 129; Mohammed v. Lawal (2006) 9 NWLR (Pt.985) 400, at 422 – 423.

I have read the application, the various affidavits and annextures in support, as well the averments contained in the counter affidavit with its annextures. I have also considered the submissions made by the learned Senior Advocates on behalf of their parties. I am of the view that all what the applicants are relying on are the issues of jurisdiction, construction of constitutional provision which have been raised in the grounds of appeal, and the applicant’s lien on the attached properties effective from 1/3/2003. There is however the averment of the respondent that the attached properties do not belong to the applicants but owned by the judgment debtor. This has been rebutted by the applicant as there is evidence to show that they were so transferred to the 1st applicant, as shown by exhibit ‘C’.

I would therefore rather take the deposition of the applicants that the applicants have a lien on the attached properties. This is in addition to the issues of jurisdiction and construction of the constitutional provision, raised in the grounds of appeal.

On issue of proper parties, from exhibit H, it is evidenced that both Commissioner of Police and Sheriff were not parties therein. On contravention of the Evidence Act, section 87, the provision provides:-

“An affidavit shall not contain extraneous matter, by way of objection, or prayer or legal argument or conclusion.”

Thus, any paragraph of affidavits which offends against the provisions of section 87 of the Evidence Act 1990 will be struck out, and if not struck out, then it will be discountenanced by the court when giving judgment. However, the contents of the affidavits should be carefully scrutinized to assure that they are not clearly contradictory to the said provision or any provision of section 86 to 88 of the evidence Act 1990. See Josien Holdings Ltd. and Anor. v. Lornamead Ltd. and Anor (1995) 1 NWLR (Pt.371) 254. There is however contention of the applicants that paragraphs 17, 19, 29, 33 and 34 contravened section 87 of the evidence Act, being a bunch of legal opinion or conclusion. The paragraphs complained against read:-

17. That the appellants/applicants motion for stay of execution is incompetent.
18. That the application is belated.
19. That while this application is pending, the applicants in reckless disobedience to this court’s order has engaged another contractor who has started making use of the equipments already attached by an order of court.
20. That the applicants have no respect and regard for court of law and have deliberately refused to obey various orders of High court of Plateau State.
21. That it is in the interest of justice to refuse this application.

The above paragraphs clearly, in my view, offend section 87 of the Evidence Act 1990 being either of legal opinion or a conclusion. They must be and are hereby struck out for being contrary to section 87 of the Evidence Act, 1990. The purpose of an affidavit however is to provide evidence, not legal argument, or opinion or conclusion.

In an application for stay, an applicant must show special, or exceptional circumstances to justify the court exercising its discretion in his favour. See Vaswani Trading Co. v. Savalakh & Co. (1972) All NLR (Pt.2) 483. The guiding principle is that a successful party must not be lightly deprived of the fruits of his victory. Unless and until a special circumstance is shown to justify the application, a successful party should be allowed, the execution of his judgment.

Will the issue of jurisdiction alone raised in this case constitutes special circumstance. It is not in every case where an issue of jurisdiction is raised that special circumstance must be presumed, each case has to be examined on its own merit. See Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539. It must be considered in conjunction with other factors. See Sirpi Alusteel Canst. (Nig.) Ltd. v. Snig (Nig.) Ltd. (2000) 2 NWLR (Pt.644) 229 at 239, para. G.

This court always has the discretion, either conditionally or no such condition as it thinks the justice of the matter demands, to grant a stay. Only paragraphs 19, 22 to 23 of the main affidavit filed to on 6/2/2006 in support of this motion, paragraphs 9, 13 and 11 of the further and Better affidavit filed on 17/10/2006, and paragraphs 9, 5, 7 of the 2nd further affidavit filed on 23/11/2006 contain the facts that support the grant of the prayers.

From the forgoing, I am of the view that the application is one which should receive my consideration, not only because of the nature of the subject matter in dispute but because I consider that to refuse it in the present circumstances would foist on this court, a fait accompli. I will therefore accede to the prayers of the application as prayed by the applicants.

Accordingly, the order made on 24/5/2005 in suit No. PLD/J/178/2003 by DAKWANG, J is hereby stayed pending the determination of the appeal of the appellants/applicants. Also the Commissioner of Police, Plateau State Command, his servants agents, or privies or anyone acting for him or on his instruction are restrained from enforcing, executing the order/ruling of the state High court made by Dakwang, J, on 24/5/2005 or in any way effecting the arrest of the applicants or prosecuting them by reason of the said order/ruling until the appellant’s/applicant’s appeal is determine by this court. I make no order as to costs.

Other Citations: (2007)LCN/2238(CA)