Remm Oil Services Limited V. Ephraim Amara (2006)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

In a motion dated the 29th day of August 2004 and filed on the 31st day of August 2004, the Applicant who is the Defendant/Judgment Debtor at the trial court seeks the following reliefs from this court:-

“1 …abandoned.

2. An Order that the writ of attachment/execution issued out of the River State High Court during the pendency of the Defendant/Appellant/Application’s

i. Notice of Appeal,

ii. Motion for stay of Execution file in the Court of Appeal on 28/6/2004 and

iii. Third party interpleader Summons (PHC/129/2004) AND motion for stay of Execution (in the Lower Court) be set aside.

3. An Order that the illegal and unlawful attachment/execution of the judgment on 14th of November, 2003 pursuant to the said writ of attachment execution and which was done during the pendency of the Defendant/Appellant/Applicant’s i. Notice of Appeal and ii Motion for Stay of Execute be set aside.
4. An Order that the illegal and unlawful auction sale of the Defendant/Appellant/Applicant’s and innocent third parties’ goods and chattels on 28th of June, 2004 which was done on the same day the Motion for stay of execution in the Lower court was dismissed by that Court i.e. 28/8/2004 and during the pendency of the Defendant/Appellant/Applicant’s i. Notice of Appeal, ii Motion for Stay of Execution filed in the court of Appeal on 28/6/2004 and iii. A third party Interpleader Summons (PHC/129/2004) in the Lower Court be set aside.
5. An order that the Defendant/Appellant/Applicant’s and other innocent third parties’ aforesaid goods and chattels be released to them or in the alternative deposited with the Deputy chief Registrar of this Court pending the hearing of the above appeal.
6. An order that further steps in execution of the judgment appealed against from be stayed pending the hearing of the above appeals.
7. An order that the Defendant/Appellant/Applicant enter into a Bank bond or guarantee from a reputable Bank guaranteeing payment/satisfaction of the judgment debt upon the determination of the Appeal already filed.

8… Abandons

9. Such other…

The application is supported by an affidavit of sixty paragraphs (60) to which are annexed 16 Exhibits marked, Exh. A, 1-16….

Also annexed in support is a 78 paragraphs affidavit in reply to the Respondent’s counter affidavit to the main affidavit in support of the motion. The reply is filed on the 15th October 2004 to which are annexed some documents marked Exh. 17, 17a, 17b, and 18. A further affidavit of 16 paragraphs was also filed on the 2nd November 2004, to which are annexed Exh. 19(1), 19(2), 20, 21, and 21 respectively.

For the Respondent/Judgment Creditor, a counter affidavit of 106 paragraphs (one hundred and six) was filed on the 25/09/04. Annexed to the counter affidavit are 19 Exhibits marked Exhs A – 711. Also filed by the Respondent on the 15th November 2004 is a Reply to the Reply of the Applicant’s reply to the Respondent’s counter affidavit. The said reply is of 64 paragraphs.

All the affidavits filed in support of the application are deposed to by Uko Ochihu, male, Nigeria citizen and legal practitioner of. No. 48, Forces Avenue Old GRA, Port Harcourt. The counter affidavit and reply filed for the Respondent were both deposed to by the Respondent. Ephraim Amara, male, Christian, Nigeria Citizen of No. 40 Aba Road Businessman.

I have painstakingly perused all the affidavits filed by both parties in support of their respective arguments.

By the depositions in the affidavits for the Applicant and particularly paragraphs 4, 5, 7, 39 and 39 of the counter-affidavit of the Respondent, the following facts stand uncontroverted between the two parties that:-

1. On the 9th April 2003, the Hon. justice Mary Odili of the Rivers state Judiciary (now of the court of Appeal) pronounced Judgment for the Respondent and against the Applicant in the sum of Ten Million Naira (10, 000.000 00) being damages for malicious and wrongful dismissal.
2. On the 14th April 2004, the Applicant filed an appeal against the said Judgment and also filed a motion for the stay of the execution of the Judgment.
3. On the 13th November 2003, the Applicant’s motion for stay was struck out for non-prosecution.
4. On the 14th November 2003, the Applicant filed another motion (refilled) for stay of Execution.
5. On the same 14th November 2003 and a day after the motion for stay was struck out, the Judgment of the court was executed at the premises of the Applicant at Trans-Amadi Industrial Layout Port Harcourt
6. On the 28th June 2004, the motion for the stay of Execution was dismissed by the trial Court.
7. On the same 28th June 2004, the Applicant filed a motion for stay of the Execution of the Judgment before the court of appeal.
8. The goods of the Applicant which had been attached and brought to the High Court premises upon a writ of fiera ficais were auctioned on the same 2th June 2004.

We shall refer to the contentious issues in the course of the Judgment.

Arguing the motion, the learned Senior Counsel O.C.J. Okocha SAN. submitted that the Applicant has come before this Court invoking the disciplinary powers of the Court.

The learned Senior Counsel urges us to set aside the illegal instruments upon which the execution and sale of the goods of the Applicant and other innocent parties was premised. The said processes, said the learned SAN, having been issued in contravention of the law and established judicial principles.

Several cases were cited by the learned SAN as a bastion of the reliefs sought. The cases cited are as follows: –

1. Aliu Bello & Ors. v. Attorney-General of Oyo state 1986 5 NWLR (Pt.45) 828.
2. Nigerite Limited v. Balami Nigeria Limited (1992) 7 NWLR (Pt. 253) 288.
3. First African Trust Bank Ltd. & Anor. V. Basil Ezegbu & Ors (1993) 6 NWLR (pt. 297)1.
4. Union Bank of Nigeria Limited v. Fajebe Foods and poultry Farms & Anor. (1994) 5 NWLR (pt. 344) 325.
5. Peter Cheshe & Anor v. Nicon Hotels Ltd. & Anor (1998) 12 NWLR (Pt. 576) 82.
6. Steyr Nigeria Limited v. De Luke Muonanu Enterprises Nigeria Limited (1999) 12 NWLR (pt. 931) 458.

The learned Counsel for the Respondent Uche G. Chilaka Esq, submits that the application is incompetent, the one duly filed in accordance with order 3 R 1 filed on the 28/6/05 having been withdrawn and struck out. The current application submits Counsel, was not filed in within 15 days of the refusal of the stay of the Execution.

Counsel submits further that the application before us is a fresh point, asking this Court to declare as illegal, the execution levied, which issue was not urged before the trial Court. By the provision of section 329 of the 1999 Constitution, the application is incompetent since no leave was sought to raise this fresh issue before this Court, not being a Court of 1st instance, maintains the learned Counsel.

Counsel cites the case of Commissioner for works Benue State & Anor v. Decon Development consultants Ltd & Anor (1998) 3 NWLR pt.82 p 407 in support.

Counsel contends further that there was only one execution levied on the 14/11/03.

On the auction sales, the learned Counsel submits that the applicant has not stated the facts, which take the auction sales outside the law. Counsel urged us to dismiss the application.

Responding on points of law, the learned Counsel for the Applicant, Mr. Simon-Hart, who held the brief of O.C.J. Okocha, SAN., submits that the application of 28/06/04 was not abandoned but merely substituted with that of the 31/06/04. The said application of the 31/06/04 seeks to consolidate the reliefs of the 28/06/04 and those sought as a result of subsequent development, which were totally not anticipated. The application of 31/06/04 seeks to consolidate the decision of Oriri J. of 17/08/04 and is predicated on an appeal already filed and pending before this Court against the Judgment. Thus, the application contends the learned Counsel is competent.

By the explanation of Mr. Simon-Hart on the status of the present application, it appears the submission of the learned Counsel to the Respondent was misconceived. As I understand it, the application filed on the 31/08/04 is predicated upon the ruling of Oriri Judgment delivered on the 17/08/04, and filed within time, but which incorporates the application of the 28/06/04 which was also timeously filed. The withdrawal of the application of the 28/06/04 was therefore an act of “sanitation” to remove surpluses from the Court.

On fresh issue, the application taken before the Hon, justice Oriri referred to supra, is an answer to that point, No fresh issue has been raised before us.

I find nothing incompetent about the application before us.

The grievance of the Applicant is the alleged unlawful sale of the goods attached in the execution of Judgment of 09/04/03- during the pendency of the Applicant’s motion before this Court filed on the 28/06/04 and dully served on the Respondent and the Deputy Sheriff of the High Court of the Rivers State Judiciary. Also pending before the High Court was an inter-pleader proceedings taken up by third parties whose goods had been wrongfully attached along those of the Applicant. That was suit No. PHC/129/2004 of one Siramex Nigeria Limited.

The auction of the goods contends the learned Senior Counsel was done within minutes of the dismissal of the Applicant’s motion for stay. The Applicant was not allowed the benefit of the window period of 15 days within which to appeal.

Same as he was denied the three days required for notice of the public auction to be published before the auction sales. The learned Senior Counsel submits that these facts clearly constitute a contravention of the provisions of section 29(4) & 30(1) of the Sheriff and Civil Process Act Cap 407 LFN (1990). Also undermined are the provisions of order 3R 3(3) of the Rules of this court of 2002.

In response to these complaints, the learned Counsel for the Respondent Uche G. Chilaka Esq. submits that no law or rule of Court had been breached.

On the sales of goods without notice, the Respondent deposed that notice had been given but was suspended due to the motion for stay filed by the Applicant.

To my understanding, the notice referred to is to inform the public of the occurrence of something at a future date, time and place. Where such a notice is issued and the appointed date and time lapses without the event taking place, the appropriate thing to do is to issue a fresh notice which will give a new date, time and place, what could be constant would be the venue, and time in that they could remain same but the date necessarily changes. Time lost is never regained. There is nothing like retrospective notice, a notice is always given for something, which must follow after the notice, once a notice has lapsed, it has lapsed, it cannot be acted upon. A fresh notice must be given in the interest of justice, which is ordinarily transparent.

The intendment of the law and the evil that is sought to be prevented by this requirement is not far fetched. The justice of the matter demands a public auction to prevent sham sales, where the goods could be woefully de-valued. Man is created as a good being but man’s mind is easily corrupted by the forces of greed, anger and vengeance.

In the circumstance, only a public auction in which numerous and varied prospective buyers/offerees freely participate will meet the requirement of the law.

In the instant case, valid notice could not have been issued before the date the ruling refusing the stay was pronounced on the 28/06/04. That being so the auction could only have validly been held three clear days after the ruling was delivered. Sales having taken place shortly after the ruling was pronounced, even if there were no notice of an appeal served, the auction sale was wrongfully executed.

Accordingly, the auction sale, which took place on the 28/06/04 was premature and carried out in contravention of the clear provisions of section 29 (1) of the Sheriff and Civil process Act (supra).

There having been no notice of the said auction sale published, what was done on the 28/06/04 cannot in law be described as a public auction.

The provisions of section 30(1) of the Sheriff and civil process Act were thereby equally contravened.

The Supreme Court and this court have always enjoined slow haste in the execution of judicial pronouncement, especially when such a decision is subject to scrutiny by a superior Court.

The High court, which pronounced the Judgment and issued the processes, is a court of first instance. Its decision could be overturned by two hierarchies of Courts, this Court and the Supreme Court. Why the rush?

There is a constitutional right of appeal reposed in every aggrieved party in a judicial process’ (Refer section 241 of the constitution of the Federal Republic of Nigeria 1999. This right, the Applicant had in fact exercised and indicated a willingness to pursue same by following up his appeal with an application for a stay of execution. In the case of Nigerite Limited v. Dalami Nigeria Limited (1992) 7 NWLR pt 252 p 288 (a) 298, this court, per salami JCA, held that when an appeal is filed along with an application for a stay of execution, it is most desirable that the court at that stage of the proceedings, would not make it possible for either party to present it with a fait accompli.

This court held that the issuance of a writ of attachment and the sale of goods after service of advance copy of a motion still pending in this court is improper, null and void and of no consequence.

In the case at hand, the fact that an appeal had been filed was well known to the Respondent. The Deputy Sheriff of the High court was served with a copy of the motion for stay filed before this Court.

In the case of steyr v. De Luke (1999) 12 NWLR pt 631 p 458 @ the Jos Division of this court held that the Registrar of court (also Deputy sheriff) is a servant of the court. Therefore, once served with a motion for stay, his knowledge is imputed to the learned trial judge who is then obligated and has a duty to withhold the signing of the writ of attachment into law pending the out come of the application in the interest of preserving the RES in the suit, This position is re-enforced by the supreme court in the case of International Bank v. Pavex (2000) 7 NWLR pt 663 p 132. Therein, the apex Court declared that the fact that the Deputy Sheriff is the statutory agent of the parties in respect of the service of all court processes is incontestable.

I am of the humble opinion that this responsibility of the Registrar/Deputy sheriff as agent of the parties is a duty deliberately imposed for good reason. Being the executing official of Judgment debts, the Deputy Sheriff has easier access to both parties who could consciously be avoiding each other. He is also the eyes, ears and hands of the trial judge. Completeness of purpose is the hallmark of a good law.

It follows therefore that once the Deputy Sheriff of he High court is served good notice of the pendency of the motion for stay before this court is given.

In the case of union Bank of Nigeria v Fajebe Foods and poultry Farms & 1 Ors (1994) 5 NWLR pt 344 p 325, this court at its Ibadan Division, held that a writ of attachment/execution issued after the dismissal of the application for stay of Execution at the trial court but before the expiration of fifteen (15) days within which the Judgment debtor may renew the application for stay at the court of Appeal would amount to an abuse of court process and such a writ is liable to be set aside {Refer Vaswani v Savalakh (1972) 12 SC 27.}

A writ of attachment issued before the expiration of the prescribed 15 days is done in clear contravention of the provisions of order 3 Rule 3 (3) of the court of Appeal Rules 2002. The Rules of court are not made to adorn the bookshelves. The whole purpose of the rules of court is to ensure that the affairs of the court are carried out in an orderly fashion with a reasonable degree of certainty that prescribed acts are dully complied with by the parties in the interest of justice {Refer, Sunday Adebayo v. Augustine Moore Okonkwo (2002) 8 NWLR pt 768 p1 @ 24.}

The rights of other parties are alleged to have been adversely affected execution by the levied at the premises of the Applicant. Judicial processes had been pending; some caution and circumspection should have in informed a more judicious exercise of the powers conferred by the law in these situations.

In the case of Peter Cheshe and Anor v. Nicon Hotels Ltd & Anor (1998) 12 NWLR pt 576 p 82 at 92, 94-97, which case is almost on all fours with the instant case, a person who gets judgment is not allowed to execute the judgment while an appeal is pending against the said judgment. It is conceded that the fact of filing an appeal simpliciter does not operate as a stay. However, once the filing of the appeal is followed by an application for a stay of the execution, then the trial Court must saunter. In the circumstance, the High Court has a duty not to jeopardize an application before the Court of appeal, and thereby render the appellate exercise nugatory. To pre-empt the decision of the Court of appeal is in fact to contravene the provisions of the Constitution, which gives a right of appeal to the aggrieved party. An appeal filed and prosecuted is done with some anticipation of success the expected outcome of which must not be dismissed with a wave of the hand. In the case of Commissioner for Works, Benue State & Anor v. Dercon Development Consultants Ltd & Anor (1988) 3 NWLR pt 82 p 407, (cited by the learned Counsel for the Respondent) the Supreme Court held that where there is a legal right to do a thing, the motive with which it is done is generally immaterial. The Applicant must not be denied the preservation of the RES required for the exercise of his Constitutional right.

There is a legal remedy to every injury in law. Once it is established that due process has not be followed and so, to the detriment of some persons who also have a legal right to relief, the court must apply the full force of the law.

The Supreme Court has prescribed the remedy in the situation of the instant case. It is the case of Alh. Balarebe M. Abubakar v. Unipetrol Nigeria Plc. etc. (2002) 8 NWLR pt 769 p 242 at 251.

The apex Court held as follows:

“Where a party to an application before an appeal court satisfies the Court that:

(a) An act complained of by the party was performed while his application was pending before the appeal Court and the other party had notice of it;

(b) The act is capable of obstructing whatever order the appellate Court might wish to make in the application, the appellate Court can make an order of mandatory injunction to reverse the act complained of,”

In the instant case, the Deputy Sheriff of the High Court having been served with the notice of the motion for stay filed before this Court, the alleged non-service of the motion on the Respondent is a hard nut to crack. In the circumstance, service on the Deputy Sheriff, coupled with the non-observance of the statutory window period required by law provided good and sufficient grounds for the exercise of the disciplinary powers of this Court.

It is said that “…in justice anywhere is a threat to justice everywhere…” (Refer: Martin-Luther King, 1963).

Lord Gordon Hewart gave an apt advice to all lawyers and judges when he said “…it is not merely of some importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done…”.

Thus, ” justice without strength” declared Blaise Pascal, “… is helpless, strength without justice is tyrannical..,.” (Refer Penesees.)

The principal laws, rules and practice which govern the conduct of affairs in the circumstances of the instant case have been blatantly breached. The end result is that what was done without the strength of the law comes to nothing; our legal system being based on the Rule of law.

Consequentially, the processes so hurriedly executed are hereby set aside. All the actions taken upon the purported authority of, the said processes are accordingly hereby declared null and void.

This application therefore succeeds and it is hereby ordered as follows:

1. That the writ of attachment/execution issued out of the Rivers State High Court during the pendency of the Defendant/Appellant/Applicant’s i. Notice of Appeal, ii. Motion for Stay of Execution filed in the Court of Appeal on 28/6/04 and iii third party interpleader Summons (PHC/129/2004) and Motion for Stay of Execution (in the Lower Court) is hereby aside.
2. That the attachment/execution of the Judgment on 14th of November, 2003 pursuant to the said writ of attachment/execution and which was done during the pendency of the Defendant/Appellant/Applicant’s i. Notice of Appeal and ii. Motion for Stay of Execution is hereby set aside.
3. That the Auction sale of the Defendant/Appellant/Applicant’s and third parties’ goods, and chattels on 28th of June, 2004 which was done on the same day the Motion for stay of execution in the Lower Court was dismissed by that Court i.e. 28/8/04 and during the pendency of the Defendant/Appellant/Applicant’s i. Notice of Appeal, ii. Motion for stay of Execution filed in the Court of Appeal on 28/6/04 and iii. a third party interpleader summons (PHC/129/2004) in the Lower Court is hereby set aside.
4. That the Defendant/Appellant/Applicant’s and other innocent third parties’ aforesaid goods and chattels shall be deposited with the Deputy chief Registrar of this court pending the determination of the above appeal.
5. That further steps in execution of the judgment appealed is hereby stayed pending the determination of the appeal.
6. That further steps in execution of the judgment appealed is hereby stayed pending the determination of the appeal.
7. That the Defendant/Appellant/Applicant shall enter into a Bank guarantee from a reputable Bank guaranteeing payment/satisfaction of the judgment debt upon the determination of the Appeal already filed. The 1st Bank Port Harcourt Branch shall be the bank for this transaction.

It is hereby so ordered.

Order As to cost

A cost of N5, 000.00 is hereby awarded to the Applicant against the Respondent.

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Other Citations: (2006)LCN/1906(CA)