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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: June 22, 2015 SUIT NO. NICN/LA/1M/2015 BETWEEN MR. OLALEKAN DOLAPO OREHIN JUDGMENT CREDITOR/RESPONDENT AND CENTAGE SAVINGS & LOANS LIMITED JUDGMENT DEBTOR/APPLICANT (MORTGAGE BANKERS) IN RE: MR. OLALEKAN DOLAPO OREHIN JUDGMENT CREDITOR/RESPONDENT AND 1. MR. GABRIEL UNDUKWE JOHNSON 2. MRS. MARY GABRIEL CHINEZE JOHNSON 3. CSL PROPERTIES LIMITED 4. ACCESS BANK PLC 5. CITY BANK NIGERIA LIMITED 6. DIAMOND BANK PLC 7. ECOBANK NIGERIA PLC 8. ENTERPRISE BANK LTD (Former Spring Bank Plc) 9. FIDELITY BANK PLC 10. FIRST BANK PLC 11. FIRST CITY MONUMENT BANK PLC 12. GUARNTY TRUST BANK PLC 13. HERITAGE BANK PLC 14. KEYSTONE BANK LTD (Former Bank PHB) 15. MAINSTREET BANK LTD (Former Afribank Plc) GARNISHEES/RESPONDENTS 16. SKYE BANK PLC 17. STANBIC IBTC BANK PLC 18. STANDARD CHARTERED BANK OF NIG. LTD 19. STERLING BANK PLC 20. UNION BANK PLC 21. UNITED BANK FOR AFRICA PLC 22. UNITY BANK PLC 23. WEMA BANK PLC 24. ZENITH BANK PLC 25. NIGERIA DEPOSIT INSURANCE COMMISSION 26. FEDERAL MORTGAGE BANK OF NIGERIA 27. CENTRAL BANK OF NIGERIA REPRESENTATION Ademola Olowoyeye, with N.O.Oyewale for Judgment Creditor/Respondent. Roy Bassey Ukoh with Joy Duke, C. Amaghiro for Judgment Debtor/Applicant. RULING By a motion on notice dated 26th of March, 2015 brought pursuant to Section 243(A) of the 1999 Constitution as amended the judgment debtor/applicant is seeking the following orders: 1. An order setting aside the Garnishee Order Nisi for want of jurisdiction made on 16th day of March, 2015 on the account of the judgment debtors being an interested party, with all the garnishees as set out in the order nisi of the 16th day of March, 2015 pending the hearing and determination of the appellant/applicant motion on notice dated 17th June, 2014 for Stay of Execution, Garnishee and any other form of execution, Notice of Appeal dated 4th June, 2013 and the appellant/applicant application dated 26th March, 2015 pending before the Court of Appeal. 2. An order setting aside the service of the Order Nisi in the Garnishee proceeding made on the 16th day of March, 2015 by this Honourable Court for want of jurisdiction of the trial Court. 3. An order setting aside the service of the Garnishee proceeding documents and processes of the judgment debtor/applicant. 4. An Order of Injunction restraining all the Garnishees listed to wit all the Garnishees as set out in the Order Nisi of 16th day of March, 2015 their agents and or any official acting for and on their instruction for releasing any sum of money at all from the account of the Judgment Debtors being an Interested Party with the Garnishees pending the hearing and determination of appellant/applicant motion on notice dated 17th June, 2014 for stay of execution, garnishee and any other form of execution, Notice of Appeal dated 4th June, 2013 and the appellant/applicant application dated 26th March, 2015 pending before the Court of Appeal, the Court of Appeal being ceased of all proceeding connected to this case. 5. An order that this Court lacks the jurisdiction to entertain the Garnishee proceeding in this suit ab initio. OR 6. An order staying/suspending the compliance by the Garnishees with the Order Nisi made by this court without jurisdiction on the 16th March, 2014 attaching the sum of money from accounts standing to the credit of the judgment debtors being an interested party or so much of it that is enough to pay the judgment debt amounting to N17,760,241.21 in judgment debtors account with the Garnishees/Respondents pending the determination of the appellant/applicant’s motion on notice dated 17th June, 2014 for Stay of Execution, garnishee and any other form of execution, Notice of Appeal dated 4th June, 2013 and the appellant/applicant application dated 26th March, 2015 pending before the Court of Appeal, the Court of Appeal being ceased of all proceeding and jurisdiction connected and related to it. 7. And for such further other orders as this court may deem fit to make in the interest of justice. The grounds for the application are as follows: a. The applicant/judgment debtors are qualified and clothed with constitutional privileges by the 1990 (sic) Constitution as interested party to challenge any decision prejudice (sic) to them in any court of law. b. The applicant/judgment debtor filed a motion for Stay of Execution, Garnishee and any other form of Execution dated 4th June, 2013 and same is still pending before the Court of Appeal and a Notice of Appeal on the 4th June, 2013. c. The motion for Stay of Execution, Garnishee and any other form of Execution is still pending and same has not been heard or disposed of and the other applications before the Court of Appeal was without fair hearing struck out offending the rule in Lawrence Scott-Emuakpo V. Ukavbe (1975) 2 CS 41. d. That the adjourned date to hear the applicant/judgment motion at the Court of Appeal was the 14th January, 2015 and on that date the judicial strike was on and subsequently no hearing notice was served on the applicant/judgment debtor. e. That the applicant Motion for Stay of Execution, Garnishee and any other form of execution has been denied fair hearing. f. The applicant is interested party who is aggrieved and injured by the denial fair hearing as enshrined in our Constitution. g. The compliance of the Order Nisi may foist upon the Honourable Court and the Court of Appeal a situation of complete helplessness in the event that the judgment debtor succeeds both at the Court of Appeal. h. The Judgment debtor Notice of Appeal raises substantial and recondite issues of law. i. That the Court of Appeal is ceased of all the matters connected there to and incidental to this case. The lower court is without jurisdiction to entertain the Garnishee proceedings as the act violates Order 4(1) of the Court of Appeal Rules, 2011. j. That this court was lacking in jurisdiction to entertain any matter connected or arising from this matter, particularly the Garnishee proceedings. The motion is supported by a 23 paragraph affidavit sworn to by Chukwuemeka Amaghiro a legal practitioner to which is annexed five exhibits and a written address. In opposing the motion, the judgement/creditor filed a 19 paragraph counter affidavit on the 17th April 2015 to which is annexed 2 exhibits and a written address. The judgment debtor filed two further and better affidavits and a reply on point of law the 27th April 2015. The judgement/creditor on 18th May 2015 filed a reply on point of law to new issues raised by the judgement/debtor. Learned Counsel to the judgment debtor raised three issues for determination by the court as follows: 1. Whether the Honourable Court can exercise its discretion to set aside the Order Nisi made on the 16th March, 2015, the applicant being an interested party having being prejudiced in the circumstances of this case. 2. Whether the Honourable Court can grant in the circumstances stay or suspension of the Order Nisi pending hearing and determination of the applicants Motion for Stay of Execution, Garnishee and any other form of execution dated 17th June, 2014 pending at the Court of Appeal and a Notice of Appeal filed on the 17th June, 2014. 3. Whether the Honourable Court had the jurisdiction to entertain the Garnishee proceedings ab initio resulting in the Order Nisi where the Court of Appeal is ceased of all the issues concerning this case? He stated that this being a garnishee proceeding, the applicant is a nominal but interested party and he submitted that an interested party means a person who has suffered a legal grievance and that the applicant’s interest is genuine and legally recognizable in respect of Order Nisi which prejudicially affects its interest. He cited Busari v Oseni (1992) 4 NWLR (Pt. 237) 557, Ojukwu v Governor Lagos State (1985) 2 NWLR (Pt.10) 806. He submitted that every court has an inherent jurisdiction to set aside its own judgment or that of another court of coordinate jurisdiction in an appropriate case citing Inyang v Chukwuogo (2007) All FWLR (Pt. 344) 165. He submitted that the applicant has application pending before the Court of Appeal placed for stay of execution, garnishee and other forms of execution and a Notice of Appeal and the commencement of the garnishee proceedings by this court is a procedural irregularity rendering the Order Nisi a nullity. Counsel submitted that the grant of an application for stay/suspension of an order is discretionary and an applicant who seeks to stay/suspend the execution of a decision or order must show special or exceptional circumstances showing that the balance of justice is in his favour citing Vaswani Trading Co. v Savalakh & Co (1972) 12 SC 77, Summonu v Oladokun (1991) 4 NWLR (Pt. 186) 500, Shodeinde v The Registered Trustees of Ahmadiya Movement in Islam (1980) 1-2 SC 163, Kigo Nig. Ltd v Holman Bros Nig. Ltd (1980) 5-6 SC 60. He submitted that the supporting affidavit shows that there are enough materials to warrant the grant of stay or suspending of the order. He submitted that where an appeal has been entered the Court of Appeal becomes ceased of the matter and every application therein shall be made to the Court of Appeal and not the court below and any step taken by the Court below will be declared a nullity citing Vab Petroleum Inc v. Momah (2013) LPELR – 19770(SC), Adeniyi V. Onagoruwa (1994) 4 NWLR (Pt. 349) 225 and Shell V Amadi (2011) LPELR – 3204 (SC). He submitted that the respondent’s garnishee proceedings is incompetent, null and void and abuse of court process as the Court of Appeal is ceased of the matter. In response, learned counsel to the judgment/creditor referred the court to exhibit AA1 and stated that the judgement/debtors application for stay of execution, garnishee and any other form of execution dated 17th June, 2014 is no longer extant before the Court of Appeal, the application having been struck out by the Court of Appeal on 30th June, 2014. He submitted that garnishee proceeding is between the judgment/creditor and the garnishees, and that the judgment/debtor is just a nominal party and not a necessary party to the garnishee proceedings citing UBA Plc V. Ekanem (2010) 6 NWLR (Pt. 1190) 207. He submitted that this application is an abuse of the court process and he urged the court to so hold. He argued that an application for stay of execution presupposes that there is a valid Notice of Appeal before the Court of Appeal and that a Notice of Appeal is what gives birth to a valid appeal citing Aderibigbe v Abidoye (2009) 10 NWLR (Pt. 1150) 592. Learned counsel submitted that there is no Notice of Appeal before the Court of Appeal. That the applicant by its three motions filed on 26th July 2013, 17th June 2014 and 10th November 2014 for extension of time within which to seek leave to appeal and the applicant’s undertaking to file Notice of Appeal dated 15th August, 2013 has conceded that there is no valid Notice of Appeal up to date; and that all these applications have been struck out by the Court of Appeal. Counsel submitted that for an application for stay of proceeding to be granted one of the preconditions is that there must be a valid Notice of Appeal citing APKG Ltd v BSWC (2009) 17 NWLR (Pt. 1171) 429 and that on the authority of Coca-Cola Nigeria Ltd & Ors v Akinsanya (2013) 18 NWLR (Pt. 1386) 225 appeal does lie by way of leave to the Court of Appeal from the National Industrial Court by virtue of Section 243 of the Constitution 1999 as amended. He argued that the inference of applicant’s Notice of Appeal is that there is no appeal known to law not having arisen from breach of fundamental rights upon which appeal lies as of right. Replying on point of law, learned counsel that it is only the Court of Appeal that has jurisdiction on all issues relating to this case by virtue of Section 16 of Court of Appeal Act and Order 4 Rule 11 of the Court of Appeal Rules, 2011. He submitted that on the authority of Local Government Service Commission Ekiti State v Bamisaye Suit No. CA/EK/71/2012, LPELR-20407 (CA) delivered on 15th of February, 2013 that there is no provision of the Constitution or Act which forecloses a right of appeal by leave on other decisions of the National Industrial Court, not only on fundamental human rights. He submitted that the right of appeal of the applicant exists in law. Having considered the processes, submissions and authorities, I will begin by discountenancing the address with the heading “reply on point of law to new issues raised” filed by counsel to the judgement/creditor because the judgement/debtor’s reply on point of law has not raised any new issues that require a reply. The decision of the full Panel of the Court of Appeal in Coca-Cola Nigeria Ltd & Ors v Akinsanya (2013) 18 NWLR (Pt. 1386) 225 represents the position of the law today on the issue of appeals from the National Industrial Court. From the affidavit evidence before me, the application filed by the applicant at the Court of Appeal for stay of execution, garnishee and any other form of execution dated 17th June, 2014 has been struck out. In addition, the applicant’s two applications dated 26th July 2013 and 10th November 2014 for extension of time to file appeal were struck out by the Court of Appeal on 30th June, 2014 and 9th February, 2015 respectively. The applicant has again on the 26th March 2015 filed another Motion praying for an “order enlarging the time within which the Appellant/Applicant will seek leave to appeal against the judgement of the National Industrial Court”. I find that there is no Appeal against the judgement of this Court by the applicant and I so hold on the authority of Coca-Cola Nigeria Ltd & Ors v Akinsanya supra. The judgement of this Court delivered on 7th May 2013 against the judgement debtor/applicant herein is already in the process of being enforced. Garnishee proceedings are sui generis and principally between the judgement creditor and the garnishee. The judgment debtor/applicant is a nominal party and not a necessary party to the garnishee proceedings. It is not expected or required to respond to garnishee Order Nisi or Absolute. The Order Nisi was granted on 16th March 2015 and on the return date for the garnishees to show cause why the order should not be made absolute, the judgement/debtor applicant filed this motion to set aside the Order Nisi or stay/suspend compliance. The judgement/debtor applicant having no role to play in these proceedings has simply filed this motion to further delay the judgement/creditor from reaping the fruits of his victory, thwart the garnishee proceedings and waste the time of the court. The judgement debtor/applicant is a meddlesome interloper; a busy body meddling in affairs that do not concern it. See Fidelity Bank Plc v Okwuowulu [2013] 6 NWLR (Pt 1349) 197, UBA Plc V. Ekanem (2010) 6 NWLR (Pt. 1190) 207 at 213-214. This application is devoid of any merit and is hereby dismissed in its entirety. Costs of N50,000.00 (Fifty Thousand Naira) to be paid by the judgment debtor/applicant to the judgment creditor/respondent. Ruling is entered accordingly. ______________________________ Hon. Justice O.A Obaseki-Osaghae