CASE OF THE DAY: COURT DECISION IS INVALID AGAINST A DEAD PARTY

VICTOR DANIEL O. IRONBAR V. CONOIL PLC

In the Court of Appeal

Holden At Calabar

Fri Nov 25, 2022

Suit Number:?CA/C/07/2015

FULL JUDGEMENT

1. This appeal is against the Ruling of the High Court of Cross River State, sitting at Calabar (trial court) delivered on the 13th October 2014 by Hon. Justice Ofem I. Ofem in respect of an application NO: HC/MSC/153/2014 filed by the Respondent seeking to discharge the writ of execution of judgment obtained by the Appellant against the Respondent in SUIT NO: HC/293/97. The judgment was delivered on the 24th November, 2008 by which the Appellant was awarded N3million against the Respondent. The Respondent filed notice of appeal on 26th November, 2008 against the said judgment. On the premise that it filed an appeal against the said judgment, the Respondent applied to the trial Court for stay of execution and the application was conditionally granted on the 3rd April, 2009 when the trial Court ordered that the judgment sum be deposited into an interest yielding account with a bank while the Respondent pursued its appeal in this court. However, the Respondent failed to comply with the order of the lower court to deposit the money in bank and filed three applications for stay of execution in this court, two of which were struck out and only one was pending as at the date of the ruling.?
2. Then the Appellant applied to the trial Court for writ of execution of the judgment which was granted on the 8th May, 2014 and he commenced the execution by attaching the properties of the judgment debtor. This prompted the Respondent to file a motion on notice on the 27th May, 2014 and prayed the trial Court for:
3. 1.An order discharging the Writ of Attachment issued against the Applicant dated the 8th May, 2014 as there is a subsisting appeal in the Court of Appeal, Calabar Division that is yet to be determined.
4. 2.An order vacating and setting aside the said writ of attachment as there is a pending application in the Court of Appeal, Calabar Division staying the execution of the said judgment.
5. In its affidavit filed in support of the application, the Respondent averred that its motion for stay of execution filed in this Court was struck out, but he has filed an application “to restore” it. That the application to restore the motion for stay of execution was not set down for hearing by this court as at the time he filed this motion before the trial Court. The deponent of the affidavit in support of the application averred in paragraphs 28 to 30 that he is aware that the judgment creditor Daniel O. Ironbar has been deceased for some years before the application for writ of attachment was made and issued by the trial Court, and there was no substitution order made in the suit.?
6. In opposing the application of the Respondent, the Appellant filed a 22 paragraphed counter affidavit filed on the 16th June, 2014 copied in pages 123 to 137 of the record of appeal in which he stated in paragraphs 1 and 16 that he is the son of late Daniel Ironbar. He further stated that there was no pending appeal in this court because all that the Respondent was relying on before the trial court was its application to compile a record of appeal against a judgment obtained since 2008.
7. After considering the affidavits of the parties, the trial Court delivered its ruling on the 13th October, 2014, still in the name of the deceased Daniel O. Ironbar as the “Judgment Creditor/Respondent” on its record, wherein it held that there was “a pending appeal and an application for stay of execution at the Court of Appeal, Calabar” for the variation of the order of conditional stay of execution earlier made. The learned trial Judge on that basis discharged the order of execution of judgment granted the Appellant. The Appellant felt aggrieved with the ruling and he filed a notice of appeal against it vide his notice of appeal filed on the 12th December, 2014, but amended with the leave of this Court and filed on the 10th December, 2021 containing four grounds of appeal. He prayed this Court to set aside the ruling of the trial Court of 13/10/2014 and substitute it with an order to sell the attached properties of the Respondent to recover the judgment sum calculated with interest.
8. The Appellant’s amended brief of argument settled by Orok Orok Ironbar Esq. was filed on the 10th December, 2021, and he proposed two issues for the determination of the appeal thus:
9. 1.Whether the trial Court had the jurisdiction to entertain this matter, and
10. 2.Whether the trial court was justified to set aside the writ of execution based on the ruling/order of a court of same/coordinate jurisdiction.
11. The Respondent opposed this appeal and filed its Respondent’s brief, settled by Friday Oyibo Ameh Esq. on 9th May, 2022 wherein he raised three issues for determination as:
12. 1.Whether the Respondent did not merit the ruling to be entered in his favour by the court below.
13. 2.Whether the trial Court is not competent to entertain the Respondent’s application.
15. 3.Whether the setting aside of the writ of execution based on the ruling dated 13th October, 2014 by the trial court is proper.
16. The two sets of issues raised by the parties are the same in context. I therefore adopt the two issues proposed by the Appellant for the determination of this appeal.?
18. PARTIES SUBMISSIONS
19. In arguing his two issues together, the Appellant first referred to the ruling of the trial court delivered on the 3/4/2009 granting conditional stay of execution upon the Respondent’s claim that it had filed an appeal as at that date. But he pointed out that the Respondent failed to pursue its appeal diligently and also failed to obey the order of the trial Court to pay the judgment sum of N3million in a bank account pending the determination of the Appeal. This led to the Appellant taking out another writ of execution dated 8th May, 2014 which was enforced on the 16th May, 2014. But rather than returning to this Court where it had informed the trial Court that it had an appeal, the Respondent returned to the trial Court and applied that the order of execution be vacated on the ground that there was still pending an appeal in this Court. He submitted that if indeed there was an appeal pending, the application to vacate the order of execution, the Respondent ought to have made his application to this Court by the provisions of Order 4 Rules 9, 10 and 11 of the Court of Appeal Rules 2011 then in force. He relied on the case of OGUNDIPE VS. AKINLOYE (2002) 10 NWLR (PT. 775) 312 where this Court held that once an appeal has been entered in the Supreme Court, neither this Court nor the trial Court has power to make interlocutory orders in respect of that appeal. He therefore argued that the trial Court lacked jurisdiction to entertain the application of the Respondent to set aside the order of execution.
20. It was further argued that the original Appellant who was alive when the conditional stay of execution was granted in his favour died and this was averred by the Appellant in his counter affidavit to the Respondent’s application to set aside the writ of execution. He submitted that while the present Appellant could pursue the judgment debt that owed his late father, the Respondent could not file the application as it did without substituting the deceased having itself deposed of his demise.
21. Further that since the trial High Court had ordered conditional stay of execution upon the application of the Respondent as shown in pages 74-78 of the record, another court of coordinate/concurrent jurisdiction cannot add to, vary or cancel that Order. Therefore when the execution was effected based on the terms of the conditional stay of execution given on the premise that an appeal is pending, the trial Court lacked jurisdiction to vacate or vary that order. That the holding of the trial Court in page 160 of the record that the reasons given by the Respondent for inability to meet the conditions of the conditional stay of execution were cogent was an attempt to sit on appeal on the orders earlier issued by the same Court. He pointed out that the conditional stay of execution was granted pending a valid and prosecuted appeal not a stay of execution since 2009 for an appeal that is yet to be regularly before this Court in 2021.
22. It was further submitted that the application of the Respondent to set aside the writ of execution was an abuse of court’s process because of its deposition acknowledging that it filed an application for stay of execution in this Court but it was struck out for lack of diligent prosecution as shown in page 113 of the record of appeal, but that it has now filed another one. The Appellant wondered why the Respondent chose to abandon that application before this Court and filed another one before the trial court. That the filing of two separate and distinct applications in a court that was lower in hierarchy and without jurisdiction amounted to abuse of court’s process. He cited in aid the case of AFRICAN REINSURANCE CORP. VS. JDP CONST. NIG. LTD. (2003) 5 MJSC 104.
23. It was the further contention of the Appellant that by the provisions of Section 23 of the Sheriffs and Civil Process Act Cap. S5 Laws of the Federation of Nigeria 2004, judgment after execution can only be stayed after full surrender of respondent’s property or after stating reasons why it is unable to satisfy the judgment debt. There is no provision of the law for setting aside an already existing Order for stay of the writ of attachment as done by the trial Court. That it must be noted that the Respondent never complained of inability to pay the judgment debt. He relied on the cases of A.G. ANAMBRA STATE VS. A.G. FEDERATION (2005) 9 NWLR (PT. 931) 572, ABA SOUTH L.G. VS. NWAJIOBI (2008) 6 NWLR (PT. 1084) 504 and OGUNDIPE VS. AKINLOYE (2002) 10 NWLR (PT.775) 312 where it was held that orders of court must be obeyed regardless of the attitude of the litigant towards its validity. That by the lower court’s decision now on appeal, the Respondent which has flouted the valid order of the Court and has no intention of ever obeying it is now a beneficiary of that wrong. The Appellant urged us to allow this appeal and set aside the ruling of the trial Court of 13/10/2014 as there was no appeal pending as at that date and none is pending as at the date of filing this brief, i.e. 10th December, 2021.
24. In response to the argument of the Appellant, the learned Counsel for the Respondent submitted that the ruling appealed against was in accordance with law because the writ of attachment issued to the Appellant was in error in view of the fact that the matter was on appeal. That upon being affected by the order, the Respondent applied to the Court to have it discharged since there was a “subsisting appeal.” That the trial Court granted the application upon discovering that the Appellant refused to disclose that there was an appeal pending and a conditional stay of execution already granted by the trial Court. That in this circumstance, the trial Court was bound to set aside its null order, and he cited the case of DINGYADI VS. INEC (2010) 6-7 MJSC to the effect that a court has inherent jurisdiction to set aside any judgment or order which is a nullity for any reason ex debito justitiae on an application of a party affected or even suo motu. It was the Respondent’s contention that the issuance of writ of attachment and order of execution granted to the Appellant against it was wrongly carried out and it amounted to a nullity. Therefore the trial Court was right to have vacated it upon the Respondent’s Application.
25. On its issue two, the Respondent repeated his submissions under issue one supra that the trial Court is constitutionally empowered with the inherent power to entertain its application because of the urgency involved and the writ of attachment was issued in error on the refusal of the Appellant to disclose the pendency of the appeal and order of conditional stay of execution. In paragraph 09 of its brief, the Respondent submitted that the failure of the Appellant to seek for leave of this Court before filing this appeal rendered this appeal incompetent and this court has no option but to so declare. Learned Counsel cited the case of FIICHARLES ORGAN VS. N.L.N.G. LTD & ORS. (2013) VOL. 5-7 MJSC (PT. 1) was cited to argue that failure to obtain leave of court where required renders any appeal incompetent as no jurisdiction can conferred on the Appellate Court. He urged us to so hold in this appeal.
26. On its issue 3, the Respondent insisted that the setting aside of the order of attachment was correct because it was obtained by misrepresentation. That though the Respondent admits the provisions of Order 4 Rules 9, 10 and 11 of the Court of Appeal Rules 2011 cited by the Appellant, but it submitted that the trial Court had the inherent power to hear the application as it flowed from their (Appellant’s?) writ. Further submitted that the case of OGUNDIPE VS. AKINLOYE (supra) that the Appellant cited is not the same with the case in this appeal, because it was in respect of appeal to the Supreme Court.
27. On the contention that the Respondent’s application amounted to an abuse of court’s process, the Respondent submitted that the application of 20th October, 2014 does not constitute an abuse of court process because suit NO: HC/293/97 is not the same with Suit NO: HC/MISC/144/2014. They have different parties and different subject matter and contained an entirely different claim. Further that the Respondent’s application was brought before the trial court under Order 21 Rule 1(1) of its Rules and not under the wrong law as the Appellant argued. He urged us to dismiss this appeal with N500,000 cost against the Appellant. The Respondent made no response to the Appellant’s argument that its application in the name of a deceased judgment creditor/respondent was incompetent.
28. By way of reply on points of law, the Appellant submitted that the truth is that the Respondent who lost in a case decided by the High Court since 24/11/2008, till date 14 years after, has not filed or entered a proper appeal against the substantive judgment. It is trite that stay of execution pending appeal can only be granted against a valid and pending appeal.?
29. On the Respondent’s argument that the order of execution was a nullity and the trial Court has jurisdiction to set it aside, the Appellant repeated for the umpteenth time that even if the procedure for obtaining the Writ of attachment were wrong the proper venue to challenge that is the Court of Appeal where the Respondent claimed to have filed an appeal.?
30. On the argument of the Respondent that its application did not amount to an abuse of court process, the Appellant submitted that the attempt by the Respondent to try to distinguish this matter from the other matters affirming the modus to be adopted in matters such as this is, with respect, faulty. He submitted that it is laughable to argue that the matter is not the same as parties are different and subject matter different. That the truth is that this matter arose out of the substantive judgment delivered since 2008 i.e. Motion for Stay; how then can the parties be different.
31. RESOLUTION
32. Issue one is whether the trial Court had jurisdiction to determine the application of 27th May, 2014. Jurisdiction of a court to determine the case is the lifeline of adjudication, and where a court’s jurisdiction is fettered for whatever valid reason, it would have labored in vain because whatever decision comes out of such proceedings would be nullity. See KURMA VS. SAUWA (2018) LPELR-46317 (SC). The Appellant’s complaint under this issue from his argument can be categorized into three. Firstly; that the application of the Respondent filed before the trial Court was made in the name of the deceased judgment creditor and secondly, the order of attachment of the Respondent/judgment debtor’s property was issued by the same or court of coordinate jurisdiction and the trial Court had no jurisdiction to tamper with it. Thirdly, that since there is already an application for stay of execution in filed in this court as claimed by the Respondent, the trial court had no jurisdiction to entertain the application and the Respondent ought to have approached this Court with such motion.?
33. On the first leg of the issue of jurisdiction, i.e. filing the application in the name of deceased Judgment/creditor Respondent, I closely examined the affidavit in support of the Respondent’s application that gave rise to this appeal and I found that in paragraphs 28 to 30 thereof that the deponent stated thus:
34. 28.?That I am quite aware that the Respondent in this matter, Mr. Daniel O. Ironbar has been deceased for some years now (may his gentle soul rest in peace) and has not been substituted by another party.
36. 29.?That in order to cover this fact the order of Federal High Court Calabar (exhibit 7(g)) above dated 27th January 2011 was attached to the Writ of Attachment as an accompanying document to show substitution.
38. 30.?That the said order above has no link or relationship with our case and my company is not even a party to the said suit.
40. It is to be noted that the above averments contained in the affidavit of the Respondent stating the fact that the judgment creditor was dead “for some years now” was filed on the 27th May, 2014. The Appellant also confirmed and admitted the death of his father in paragraphs 1 and 16 of his Counter affidavit filed on the 16th June, 2014 wherein he averred that he is the son of “late Daniel Ironbar” whom he alleged has died out of harassment and frustration of his inability to execute the judgment. In effect, he admitted the death of the judgment creditor and also the fact that there was no substitution at the trial court in respect of this case.?
41. Now, the averments of the Respondent reproduced supra indicated that it knowingly filed the application in the name of “Daniel O. Ironbar” as the “Judgment Creditor/Respondent” with the full knowledge and being “quite aware” that the Respondent/judgment creditor “has been deceased for some years now” as it clearly stated. That is clearly evidence against interest. The Respondent nullifies his own application by stating that the party who is stated as Respondent in its motion was dead for some years.
42. Very strangely, with this uncontroverted fact and the evidence against self interest contained in the affidavit in support of the application, both parties and indeed the trial Court continued the proceedings in the name of the late Daniel O. Ironbar. This can be seen in the record when the Respondent filed a further affidavit of 24th June, 2014 (pages 138-141 of the record) still containing the name of the deceased as judgment creditor.
43. There was no order sought by either party from the trial Court for the substitution of the deceased Daniel O. Ironbar with the present Appellant or with any other person. The Respondent was correct that any order of substitution made elsewhere such as the Federal High Court as claimed by the Appellant is of no moment since it has no relation/relevance to this case and the Respondent was not a party to that proceeding.?
44. Stranger still, the learned trial judge delivered the court’s ruling on the 13th October, 2014 with the name of the deceased Daniel O. Ironbar stated as the judgment creditor/Respondent in the ruling. See pages 153 to 160 of the record containing the ruling appealed against. That ruling based on an application with the name of the deceased party on the process is a complete nullity as a deceased person cannot be sued or sue having ceased to exist. Consequently, the motion on notice that the Respondent filed on the 27th May, 2014 is incompetent and the trial Court lacked competence to entertain that application and I so hold. All the proceedings conducted upon the processes filed containing the name of the deceased and the ruling resulting therefrom amount to total nullity and a complete waste of time. I answer issue one in the negative and it is resolved in favour of the Appellant.
45. In issue two, the Appellant raised the question whether the trial Judge was justified to set aside the writ of attachment issued by another judge of co-ordinate jurisdiction and in view of the fact that the Respondent claimed to have an appeal and an application for stay of execution both pending in this Court. Now having answered issue one in the negative to the effect that the entire proceedings leading to the ruling appealed against, this issue has become otiose. The issue is resolved in favour of the Appellant.?
46. By way of an obiter, I must state, in the interest of justice that there is no pending appeal before this Court filed by the Respondent as claimed. This is because the claim of the Respondent got me worried that an appeal could be said to be pending since 2010 without a hearing and I made enquiries from the litigation department of this Court to verify this claim. Our record disclosed that no record of appeal was transmitted to this court in respect of its notice of appeal against judgment of the High Court of Cross River, delivered at Calabar Judicial division in respect of Suit NO: C/293/97, which notice of appeal the Respondent claimed it filed at the trial Court in November, 2008. Having not transmitted a record of appeal, the Respondent has no appeal pending before this Court in view of the provisions of Order 4 Rule 10 of the Court of Appeal Rules 2021, which states that:
47. An appeal is entered in the Court when the record has been received in the registry of the Court within the time prescribed by the Rules or within such other extended time as ordered by the Court.
49. ?Clearly, the Respondent only filed applications by motions on notice on the 10/08/2010 registered as NO: CA/C/132M/2010 for an order of “extension of time” to apply for the setting aside of the trial Court’s order of conditional stay of execution of its judgment. This motion is contained in pages 94-95 of the record of appeal and our record shows that it was withdrawn and struck out on the 20/09/2010. It also filed other motions which clearly have been abandoned by it and this is not surprising because having failed to enter its appeal before us, such applications clearly have no foundation to stand on.?
50. In the final analysis, this Appeal succeeds and it is allowed by me. The ruling of the trial Court delivered on the 13th October, 2014 is hereby set aside. Cost of N1,000,000 (One Million Naira) is awarded against the Respondent in favour of the Appellant.

COUNSEL

N. B. Ulaeto Esq. with Itam I. Nsa Esq. for the Appellant.

F. O. Ameh Esq. for the Respondent.