United Bank for Africa Plc V. Tsokwa Motors Nigeria Limited & Anor (1999)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is a ruling on a series of motions on Notice dated 19/7/99, 13/9/99 and 17/9/99 brought on behalf of Appellant/Applicant pursuant to Order 3 Rule 2(5) of the Court of Appeal Rules 1981 (as amended), Sections 16 and 18 of the Court of Appeal Act, 1976 and under the Inherent Jurisdiction of the Court for various orders of this court as follows:

(a) By the motion dated 19/7/99, the order sought was for:

“An order staying the execution of the judgment of the High Court of Taraba State delivered by Hon. Justice E.D. Audu on 27/10/97 in Suit No. G.GSW/11/88 pending the determination of this appeal:”

(b) By the motion dated 13th Sept. 1999, for the following orders:-

“1. An order setting aside the execution levied on the applicant on the 21/7/99.

2. An order releasing all the properties attached or taken in execution to wit:-

Vehicles Reg. BD 213 AA Bullion Van Tiger

Isuzu

E 27 HNG

AA 436 DKW

AZ 916 LSR Escort Van

CB 244 AA Peugeot Pick-Up

Van Police Escort.

Generator Per fex.

3. Return of N15,000.00 received by the 2nd respondent as cost of execution, and
4. An order setting aside the credit of N2.071.413.08 paid into the account of the 1st respondent.

(e) By the motion dated 17th Sept. 1999 for the following orders:

1. An order to restrain the 2nd respondent from paying out the sum of N2.071.413.80 to the 1st Respondent pending the hearing and determination of this application.
2. An order that the 2nd respondent remit forthwith the sum of N2,071,413.80 to the Deputy Chief Registrar, Court of Appeal Jos, to be kept in an interest yielding account pending the determination of Appeal No. CA/175/98.

It appears that for a reason that was not stated, all the above motions were fixed for hearing on the 30/11/99. It appears further that because of the fairly long interval between July/September, and November, 1999, the respondents ignored all the applications and proceeded to levy execution by seizing and detaining all the Applicant’s vehicles and generator mentioned above. They also retained Applicant’s Bank Draft for N2,071,413.80 mentioned above. Considering that the respondents could not keep custody of the attached properties and also retain the Applicants Draft for the judgment debt. i.e. N2.071.413.80, they again rushed to this Court, this time with an Ex- parte Motion containing five prayers as follows:

(1) An order suspending further execution on the properties of the Applicant pending the hearing and determination of three motions dated 19/7/99, 13/9/99 and 17/9/99 now pending before this Honourable Court.

(2) An order restraining the 2nd respondent from selling, by public auction or private contract, the properties of the applicant to wit:

(1) Peugeot Cars Reg. Nos. AA 181 SHG

AZ 916 LSR

Escort Van

(2) Peugeot Pickup Reg. No. CB 244 AAA

Police escort

(3) Tiger Isuzu Cars Reg. Nos

AA 436 DKW

bullion Van

BD 213 AAA

bullion Van

AN 27 HNG

bullion Van

and

(4) Perfex Generator

(3) An order releasing the above vehicles and generator to the applicant on Bond.

(4) An order restraining the 2nd Respondent from paying out the sum of N2,071,413.80 to the 1st Respondent pending the hearing and determination of the Motion on Notice dated 17/9/99.

(5) An order for accelerated hearing of the motions now pending before the court and the appeal.

And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

The said Ex-Parte Motion was fixed for hearing on 23/9/99 and duly heard on that day. Following the hearing, an Interim stay was granted ordering the Respondents to suspend all further actions taken in respect of the execution of the judgment, pending hearing of the applications on Notice. The hearing of the said application was then accelerated from 30/11/99 to 28/9/99. On receipt of the Interim Order, it appears that wiser counsel prevailed, whereupon all actions taken in purported execution of the judgment were suspended including the sale of the attached vehicles and generator and the payment of the Draft fro N2,071,413.80 by 2nd Respondent to 1st Respondent.

When all the parties ultimately appeared before this court on 6/10/99, Mr. P.A. Akubo, the learned counsel for the Respondents, after filing a counter-affidavit to present Respondents’ side of the story, then informed the court that all the properties or the applicant earlier attached have been released to the applicant. The Bank Draft for N2,071,413.80 intended to he paid over to the 1st Respondent had also now been stopped, following the Interim Order of this Court. Mr. Akubo then announced that they had no objection to the said Draft f6r N2.071.413.80 being paid into this Court to abide the outcome of the appeal, for whoever won on appeal to take away with the accrued interest. He then urged the Court to fix a date for the early hearing of the appeal.

When Okafor (SAN), the learned Senior Counsel for the for the Applicant was asked whether he was agreeable to the arrangement proposed by his learned friend, Akubo, we were rather taken aback when he got up and opposed vehemently, the proposal that he should now pay the sum of N2,071,.413.80 into court. He however admitted that al the vehicles and generator earlier taken on attachment have been returned to the applicant. He argued further that he was prepared to pay the judgment debt and costs into court, but submitted that there was no where in the judgment of the trial court where the judgment debt was stated to be N2,071,413.80k. He referred to para 3 of the affidavit in support of his application dated 19/7/99, which read as follows:

“3. That judgment was entered for the 1st respondent in the High Court of Taraba State, sitting at Wukari in suit No. GGSW/11/88 on 27/10/97 for the sum of N100,000.00 with an order that the 1st respondent’s account be re-credited with the sum of N617,659.98 and N28,253.00. That copy of the judgment is annexed hereto as Exhibit 1, that Exbt. 1 is at page 68 to 86 of the records.

Learned Senior Counsel conceded that the applicant had earlier conceded and in fact credited the account of 1st Respondent with the sum of N2,071,413.80, but argued that, that was in an endeavour to prevent further embarrassment to the Bank (The Applicant).

Learned Senior Counsel for the Applicant also asked the Court to set aside the Writ of Attachment which was levied on Applicant, even though the properties have already been released to them.

In reply to the above, Mr. Akubo, the learned counsel for the Respondents drew court’s attention to Exbt. 2 the WRIT OF ATTACHMENT AND SALE OF GOODS No 2739 dated 21st July, 1999, annexed to Applicants first application dated 19/7/99 which showed clearly how the sum of N2,071,413.08k sought to be levied s judgment debt was arrived at, namely

N

(1) Nominal damages 100,000.00

(2) Unauthorised Transfer 617,659.43

(3) Value of dishonoured cheques 28,253.00

(4) Unauthorized Debts 862,222.86

(5) Interest charged on loan 79,686.91

(6) Interest charged on overdraft 34,037.00

(7) 20% interest charged on all sums found due 346,454.00

(8) Cost awarded 3,000.00 _ N2,071,413,.

He then pointed to the fact that his learned friend, the Senior Advocate of Nigeria had even on his own issued to them a Certified Bank Cheque dated 16/08/99 which was later stopped by Court’s order, – Exbt C – annexed to their Counter-Affidavit. He did not therefore see why his learned friend was now opposing… the payment of the said sum into court. It was considered ruling on the matter.

We have carefully considered all the affidavit evidence field in this application as well as the legal arguments of learned counsel on both sides, and find that the bone of contention in this case, or the main question for determination is precisely what sum was the judgment debt and costs? This court has power to order a judgment Debtor to pay a judgment debt or part thereof into court, as a condition for staying execution, but not to pay amount higher than the judgment debt (See Ekpenyong v. Nyong (1975) 2 SC 71; Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630 SC Ilodibia v. N.C.C. Ltd. (1997) 7 NWLR (Pt. 512) 174 SC. In order to know precisely what was the judgment debt and cost at the trial court. I consider it necessary to reproduce at least the relevant portions of the plaintiff’s claim at the trial court as well as the operative part of the final judgment of the trial court.

A look at the claim of the plaintiff (now 1st Respondent) which was reproduced under the judgment at 68 and 69 of the records showed that the plaintiff’s claim consisted of eight items made up of 5 Declarations 1 Injunction one claim for damages and one Order of these. I consider items 1, 2, 6 and 7 to be pertinent or most important, and therefore reproduced them hereunder as follows:

(1) A declaration that the plaintiff is not indebted to the defendant in the sum of N773,386.45 or any sum at all.

(2) A declaration that the actual positions of the plaintiff’s accounts are as follows:

(a) Account No. 1025 as at 31/12/86 was N897,137.27k and not N352,066.64k.

(b) Account No. 1722 as at 4/2/86 was N1,095,732.20k credit and not N2,609,32k debit as per statement of account given to the plaintiff.

(6) N500,000.00 general damages to the plaintiff for the defendants’ negligence in handling the plaintiff’s said accounts No. 1722 and 1025.

(7) An order of the court that the defendant would correct and amend the plaintiff’s books of account by crediting the accounts with all unauthorized transfers uncredited lodgemetns, value of dishonored cheques not returned to the plaintiff, reversing all unauthorized fictitious debits and interest charges. The plaintiff also claims 30% monthly interest on all such sums found due and credited into its account (as herein claimed) from date due till paid.

At the end of the trial, the learned trial Judge Audu, J. came out with a 13 paged judgment (see pp 68 – 80 of the records) in which the operative parts read as follows:

Taking the entire body of this judgment into consideration particularly the issue of unauthorized transfer and unreturned cheques without proper records. I am of the view that the Defendant was negligent in handling plaintiff’s account.

This had caused some hardship to the plaintiff and is therefore entitled to nominal damages which I assess at N100,000.00

Defendant is by this judgment to put plaintiff’s account in correct position by crediting to the accounts all unauthorized transfers, interest charged and value of dishonoured cheques not returned to plaintiff; uncredited lodgment reverses all unauthorized debits and interest charges as adjudged. A fixed interest of 10% is charged on such sums found due and credited into plaintiff’s accounts.

From what has been reproduced above, it will be seen that the judgment is not as vague as it first appeared. E.g. the general damages of N100,000.00 is geared to the claim in item No. 6 of the claim where N500,000.00 was claimed as general damages for negligence, while all the other orders given in the last paragraph of the judgment are geared to item No.7 of the claim. The 1st respondent who was the plaintiff in the case took time to work out the Naira and kobo involved in item No. 7, and subsequently transferred it into his Writ of Attachment. The appellant, on the other hand has not yet worked out the Naira and kobo involved in item no. 7. Yet, he is disputing the figures. However, we cannot make any pronouncement here as to whether the sum of N2,071,413.08 computed by the Respondent is correct or not; as that is precisely what is to be decided on the main appeal to this Court.

It is our law that an Appeal Court should not make a pronouncement during the interlocutory stage of an application which could have the effect of disposing of the entire appeal. (See the cases of Ogbonnaya v. Adapalm (Nig.) Ltd. (1993) 5 NWLR (Pt. 292) 147 – 157 D – E, where the Supreme Court, per Kutigi, JSC, cautioned itself as follows:

This being an interlocutory appeal, I have to confine myself to those issues necessary for disposing of the appeal and make no pronouncement on anything that will tend to pre-judge the main issue at the trial.)

Finally, before closing, I must refer to the popular saying that has almost become a maxim that

Parties are bound by their pleadings, and matters not pleaded cannot be proved. (See National Investment & Property Co. Ltd., v. Thompson Organization Ltd. (1969) 1 All NLR 138, 142; and Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182. In the instant case, the applicant at prayer 2 of his motion paper dated 17th September, 1999, prayed the court for inter alia:

(2) An order that the 2nd Respondent remit forthwith the sum of N2,071,413.80 to the Deputy Chief Registrar Court of Appeal, Jos, to be kept in an interest yielding account pending the determination of Appeal No. CA/J/75/98.

Since a Writ of Summons or a Motion paper form part of a party’s pleadings, the applicant in this case cannot be allowed to blow hot and cold at the same time. He cannot be heard to say or contend that he no longer wants to pay the sum of N2,071,413.80 to the Deputy Chief Registrar of this court for onward payment into an interest-yielding account. He is estopped.

On the totality of the foregoing this application succeeds partially.

The writ of Attachment for sale dated 21st July, 1999 and filed after an application had already been made to this court for stay of execution pending determination of appeal is hereby set aside, as an abuse of process. (See Vaswani Trading co. v. Savalakh & Co. (1972) 12 SC 77). (2) Stay of Execution pending determination of appeal is hereby granted on condition that the sum of N2,071,413.08 computed by the Respondents to be the judgment debt and costs in this case is paid to the Deputy Chief Registrar of this Court for onward payment into an interest-yielding account in any of the Big Three Banks, in Jos other than the Applicant within 14 days from date thereof for whoever wins on appeal to take away with the accrued interest.

On failure of the above conditions, the conditional stay of execution hereby granted shall immediately be revoked and the execution proceeded with without further application to this court.

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Other Citations: (1999)LCN/0597(CA)