The Judgment/Creditor/ Applicant, brought a Motion on Notice pursuant to Section 10 of the National Industrial Court Act 2006, Sections 66 (F) & 72 Of The Sheriff and Civil Process Act, seeking for the following orders, to wit 1. AN ORDER for the enforcement of the judgment of this Honorable Court in its entirety delivered on the 19th day of May, 2014 in respect of this case. 2. AND for such further order(s) as the honorable court may deem fit to make in the circumstances of this case. The Grounds upon which the application, was brought, are as follows; 1. That since the delivery of the Judgment of this Honourable Court in this suit, the Judgment Debtors only choose to obey part of this Judgment but refused to obey the Judgment in its entirety. 2. That since the delivery of the Judgment of this Honourable Court in this suit, the Judgment/Orders of this Court to wit; a. A perpetual Injunction restraining the 1st — 11th Judgment Debtors from parading themselves as executives or in whatever capacity of the 2nd Judgment Debtor. b. An Order directing the 1st Respondent to immediate constitute another screening committee to screen the membership of the 1st & 21 Respondents. c. To conduct a fresh election wherein the herein Applicants will be allowed to participate. 3. That this Honourable Court has the Constitutional powers and Statutory powers to enforce its judgment. The motion was also accompanied by a 6 paragraphed affidavit, and a written address, wherein counsel, raised a lone issue for this Court to determine, to wit; “Whether this court can grant the prayers as sought for herein by the applicants?” While arguing this poser, counsel stated that, it is settled law that a Judgment Creditor is entitled to the fruits of his judgment, that the applicants have obtained judgment as per the terms of judgment of this Court dated 19th day of May, 2014. However, all efforts made at enforcing the judgment or getting the judgment debtors to obey the judgment of this Honorable Court have proved abortive, hence this application. He further stated that it is trite law that judgment of a Court of Competent Jurisdiction must be obeyed, hence, parties cannot pick the part of judgment to be obeyed or handpick which part of judgment he needs to obey and which part he needs to discard. To this end, he relied on the case of OTU V. A.C.B (2008) VOL. 3 M.J.S.C 191 AT 208 PARAS. E-F. To counsel, this Honorable Court has the Constitutional powers and statutory powers to enforce its judgments in the instant circumstances. He referred this court to Section 6(6] of the 1999 Constitution (as amended), Sections 10 of the National Industrial Court Act, Sections 66(f) & 72 of the Sheriffs and Civil Process Act. He concluded by urging this Court to grant their prayers as per the motion paper. COUNTER AFFIDAVIT IN OPPOSITION TO THE MOTION DATED 22ND DECEMBER 2015 AND FILED ON THE 4TH JANUARY, 2016. It was deposed to by one Celine Amuzie A. (Mrs.), Litigation Secretary in Zenith Chambers, Solicitors to the 1st to 15th Judgment Debtors/Respondents in this Application. She made oath and stated that she was informed by P. O. Okolo, SAN. Counsel to the 1st to 15th Judgment Debtors/Respondents and the 1st to 15th Judgment Debtors/Respondents in their office at about 3.30pm on the 4th f February, 2016 of the following facts which she believed to be true; a. The case tried by the Court was in connection with a dispute that arose in the preparations of the 2nd Judgment Debtor/Respondent to organize an election in December 2013. b. The 3rd to 15th Judgment Debtors/Respondents were the Officers of the 2’ Judgment Debtor/Respondent whose 1st tenure had ended and they were seeking a 2nd term. c. The Judgment Creditor/Applicant had held office previously as an elected Chairman for two terms and was seeking a third term. d. The complaints of the 1st to 15th Judgment Debtors/Respondents were that the 1st Judgment Creditor stopped participating in the activities of the 1st and 2nd Judgment Debtors/Respondents and had also failed to pay his dues from April 2010. e. That arising from paragraph (d) above the 1st & 2nd Judgment Debtors/Respondents suspended the 1st Judgment Creditor/Applicant. f. That after trial, the Court in its considered Judgment dated 19th May, 2014, granted all the reliefs sought by the Judgment Creditors/Applicants amongst which are; The recall of the 1st Claimant from suspension. ii. Return of membership cards to the 1st to 15th Claimants iii. Dissolution of and re-constitution of a new screening Committee and election. Iv. That the term of an executive is four years. v. Restraint of the 3 to 11th Judgment Debtors/Respondents from parading themselves as members of that executive that ended on 31/12/2013. g. That the 1st to 15th Judgment Debtors/Respondents complied with all the orders of the Court as above stated. h. The 3d to 15th Judgment Debtors/Respondents immediately the judgment was delivered stopped parading themselves as executive members of the 2nd Judgment Debtor/Respondent. i. The 1st Judgment Creditor/Applicant was recalled from suspension and the membership cards of the 1st to 15th Judgment Creditor/Applicants were returned to them. j. That the 1st Judgment Debtor/Respondent in compliance with the Judgment of the Court disbanded the Electoral Committee that was existing at that time and reconstituted a new one. The new Electoral Committee conducted a new screening in December 2014 and all of the 1st to 15th Judgment Creditor/Applicants participated. k. That after screening, the Electoral Committee conducted an Election on the 20th of December, 2014, as ordered by the Court and the following were duly elected: a. Comrade GamboTuge Chairman b. Comrade Abdullahi Haruna 1st Deputy Chairman c. Comrade Musa Ibrahim Danazumi 2nd Deputy Chairman d. Comrade Yusuf Umar Vice Chairman e. Comrade Abdullahi Usman Treasurer f. Comrade Salisu Imam Trustee g. Comrade Bala Sabo Akate Auditor h. Comrade Maiwada Zaria Financial Sec. i. Comrade Inusa Usman Chief V.1.O j. Comrade IdrisTauheed PRO k. Comrade Ussaini Abdullahi Welfare Officer I. Comrade Abubakar Sarki Korau Chief Whip m. Comrade Mohammed Ibrahim Adviser I n. Comrade Sani Abdullahi Adviser II o. Comrade Hamisu Ibrahim Zico Secretary I. The certificates of return for each of them as duly elected are annexed as Exhibits “B1 to B12”. Also annexed as Exhibit “C” is a letter dated 23/12/2014 introducing the Elected Officers to the National President of NUPENG. m. That the Judgment Creditors/Applicants have not objected to or filed any suit against the Election till date. n. That in the order of Court dated 19/5/2014 restraining the erstwhile 3rd to 11th Officers from parading themselves as officers, Comrade Musa Ibrahim Danazumi was a Vice Chairman. In the new Election of 20/12/2014, he is the 2nd Deputy Chairman. o. That Hamisu Zico is a staff of the Judgment Debtor/Respondent as Secretary. The Office of the Secretary of the 2nd Judgment Debtor/Respondent is not elective. p. That Comrade Musa Ibrahim Danazuni, Hamisu Zico and all other Officers Elected on the said 20/1/22014 started performing in their new Offices from 21/12/2014 after their swearing in without hindrance. q. That the order of the Court contained in the Judgment of 1gth of May, 2014 restraining the 3rd to 11th Judgment Debtors/Respondents from parading themselves as officers of the 2nd Defendant was directed at their office as at when the suit was filed in 2013 and it lapsed with the successful conduct of a new Election and the swearing in of the Elected Officers on 20/12/2014. r. That the Judgment Debtors/Respondents in exercise of their constitutional rights of Appeal filed an Appeal in the Court of Appeal, Abuja Division. The record of proceedings for Appeal has been transmitted to the Court of Appeal, Abuja Division and the Appeal has been entered. s. That the Appeal Number is CA/A/433/2014 t. That the Judgment Debtors/Respondents in exercise of their constitutional rights of Appeal filed an Appeal in the Court of Appeal, Abuja Division. The records of proceedings for Appeal have been transmitted to the Court of Appeal and the Appeal has been entered. v. That this Honourable Court is ‘functus officio w. That the Appellant filed before the Court of Appeal an application for stay of execution of the judgment appealed against. The Judgement debtor, equally brought a notice of Preliminary Objection seeking for the following Orders; 1. That this Honourable Court has no jurisdiction to entertain this application. 2. That this motion is incompetent before this Honourable Court in view of the provision of section 72, section 94, Part II of the Sheriff and Civil Process Act CAP 551 Laws of L.F.N. 2004 and Order IX Rule 13 (1), (2) and (3) of the Judgment Enforcement Rules. 3. That the 5th and 10th Judgment Debtors/Respondents have not disobeyed any order of this Honourable Court made in its Judgment of 1gth May, 2014 in Suit No. NICN/ABJ/19/2013 The grounds of the application are; a. That the substantive suit of this matter was determined by this Honourable Court in its Judgment delivered on 19th day of May, 2014. b. That the Judgment Debtors/Respondents in exercise of their constitutional rights of Appeal, filed an Appeal in the Court of Appeal, Abuja Division. The records of proceedings for Appeal have been transmitted to the Court of Appeal, Abuja Division and the Appeal has been entered. c. That the Appeal which is currently pending at the Court of Appeal, Abuja Division is now ripe for hearing d. That the Appeal Number is CA/A/433/2014 The Judgement/Debtor however sought for An Order of this Honourable Curt striking out the application. In their written address, attached to the motion paper, counsel to the Judgement/Debtor distilled 2 issues for this Court to determine, which are: 1. Whether this Honourable Court has jurisdiction to entertain this application? 2 Whether this motion is competent before this Honourable Court in view of the provision of section 72 of the Sheriff and Civil Process Act? ON ISSUE ONE, Counsel submitted that Jurisdiction is a threshold matter in adjudication. He submitted that jurisdiction is the lifeline of an action. It is the fontet origo of the authority of the Court to hear and determine a suit. Consequently, where a Court lacks jurisdiction its proceedings is a nullity no matter how well conducted and decided because a lack of jurisdiction is extrinsic to the adjudication. He referred the Court to the following cases DR. J. U. ACHEBE & ANOR VS. CHIEF DONA NWOSU & ANOR (2003) 7 NWLR PART 818 PAGE 103 PARTICULARLY AT PAGE 131-132, FEDERAL MORTGAGE BANK OF NIGERIA VS LAGOS STATE GOVERNMENT & 4 ORS (2010) 5 NWLR PART 1188 PAGE 570 PARTICULARLY AT PAGE 602 PARAGRAPH C-D. Counsel argued that The Respondents averred in their Affidavit in support of the Preliminary Objection that there is an Appeal pending before the Court of Appeal, Abuja challenging the jurisdiction of this Court to have entertained the suit that was decided upon by this Court on the 19th day of May, 2014, That The said appeal was filed timeously and the appeal has been entered. The Respondents stated the Appeal Number; that this appeal having been entered and now proceeding to hearing robs this honourable Court of the jurisdiction to entertain this motion. In support of this submission, he recommended for consideration, the case of RE: ALHAJI RAMONI MOHAMMED OPEKUN & 1 OR VS ALHAJI ALIDU AFOLABI SADIQ & 3 ORS (2004) 6 NWLR PART 870 PAGE 576 PARTICULARLY AT PAGE 598 PARAGRAGH H. Counsel further submitted that, by virtue of Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011 once the Court of Appeal assumes jurisdiction over the decision of the Court below, the Court below becomes funtus officio in respect of all applications in the Judgment appealed against or application in the appeal. Sub rule 10 & 11 provide: 10. An appeal shall be deem to have been entered in the Court when the record of proceedings in the court below have been received in the Registry of the Court 11. After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not the court below, but any application may be filed in the court below, for transmission to the Court. They submitted further that committal proceeding is an application in the judgment. All such applications can only be entertained by the Appellate Court. He however, invited this court to see Exhibit F attached to their notice of Preliminary Objection. To him, This exhibit shows clearly that the appeal has been entered and this Honorable Court is denied jurisdiction as the Court of Appeal now assumes jurisdiction in respect of all matters concerning this appeal. From the above submission counsel prayed this Court to resolve this issue in favour of the Respondents that this Honourable Court has no jurisdiction to entertain this application. ON ISSUE 2. Counsel submitted that the Applicant had filed a motion on notice purporting to be relying on Section 72 of the Sheriff and Civil Process Act which provides as follows: “If any person refuses or neglects to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph (f) of section 66 of this Act, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.” To counsel, the purport of the provision of Section 72 of the Sheriffs and Civil Process Act as interpreted by our Superior Courts are as follows; a person in violation or disobedience of a Court Order must be notified of the Order and served with Form 48 of the Judgment Enforcement Rules. This is followed by the service of Form 49 for the party to appear and show cause why he should not be committed for contempt. 5.05 The motion filed was not accompanied by proof of service of Forms 48 & 49. Order IX Rule 13 (1) & (2) of the Judgment Enforcement Rules makes it mandatory for the service of these two Forms on a Judgment debtor. The said Order IX Rules 13 (2) used the word “shall” meaning that service of Forms 48 & 49 is a condition precedent for the commencement of Committal proceedings. Following from the above, counsel submitted that the prayers as contained in the motion paper of the Applicant is a complete violation the Judgment (Enforcement) Rules without which it will be doubtful whether or not the proceedings are properly before the Court or are otherwise incompetent, thus rendering the proceedings incurably defective of the Section 72, Section 94, Part II of the Sheriff and Civil Process Act CAP 551 Laws of L.F.N. 2004 and Order IX Rule 13 (1), (2) and (3) of the Judgment Enforcement Rules. Counsel stated that, the wording of prayer one of the applicants’ motion states as follows: “AN ORDER for the arrest and detention of the 5th & 10th Respondents pending their appearance and trial before this Hon. Court” That, the application is for the arrest and detention of the 5th and 10th Respondents pending their appearance and trial. This prayer is a direct opposite of the requirement of the law as explained by Section 72 of the Sheriff and Civil Process Act; and that the prayer is also against the letters and spirit of the 1999 Constitution (as amended) as is calling for incaseration before hearing; He therefore urged this Court to hold that the Motion is incompetent and a total violation of the fundamental rights of the Respondents. From the foregoing, Counsel urged this Honourable Court to strike out this motion for lack of jurisdiction and for being incompetent as it is an abuse of court process. JUDGMENT CREDITORS/APPLICANT COUNTER AFFIDAVIT TO THE 1ST 15 JUDGMENT DEBTORS PRELIMINARY OBJECTION DATED 8TH FEBRUARY, 2016 The counter affidavit, was deposed to by Muhammad Sani Katu, Esq. Counsel to the Judgement/Creditor/Respondent, wherein he made oath on some of the following facts; That judgment was delivered by this honourable Court in favour of the herein judgment creditors on the l9th May, 2014, wherein all the reliefs claim by the judgment creditors were granted and the counter claim of the 1st – 15th judgment debtors, including but not limited to the issue at disqualifying the 1st claimant/judgment creditors were dismissed. That soon after the judgment was delivered the herein 1st – 15th judgment debtors filed a notice of Appeal and annexed the said notice to an application for stay of execution pending their Appeal. The said application for stay filed before this Honourable Court was determined wherein same was struck out. That after the striking out of the judgment debtors Application for stay was dismissed, the herein judgment debtors made attempt to conduct election without allowing the herein 1st judgment creditors to participate, which he together with his supporters protested. That the judgment debtors having discovered that if the 1st judgment creditor is allowed to participate in the election he will overwhelmingly win same, decided to conduct an illegal election secretly. etc. In their written address, counsel to the judgement/creditor, submitted the following issues for determination in relation to this application: a. Whether the Preliminary Objection as presently constituted is competent. b. Whether the filling of an appeal against the judgment of this Honourable Court will rob it of its powers of enforcing its judgment. c. Whether this Honourable Court can grant a stay of execution considering the nature and circumstances surrounding the judgment. Counsel while arguing issues one and three together, submitted that the Rules of this Court specifically provides for the method to be adopted in preparing, arguing and filling of an application. He submitted that the preliminary objection as is presently constituted offends Order 11(1)2&3) of this Honourable Court’s Rules in that the application, its affidavit together with the written address is not as envisage by Order 11(1 (2 (3), he accordingly urged this Court to so hold and dismiss the Preliminary Objection on this ground. He submitted further; that the judgment debtors’ Notice of Preliminary Objection is incompetent as same amounts to an abuse of the processes/rules of this Honourable Court. Counsel argued that the facts being relied upon by the Applicants for the grant of their application are facts already decided and concluded by this Honourable Court. That the entire paragraph of the said affidavit in support is very bashful, containing facts which this Honourable Court has already decided upon. He submitted that such facts deposed to in the said affidavit in support cannot form special or exceptional circumstances to warrant the grant of any stay of execution in respect of this matter. Counsel further argued that the mere filling of an application for stay at the Court of Appeal will not constitute a ground for this Court to stay the execution of the judgment of this Honorable Court; this is so because the Reliefs in that judgment are declaratory in nature, which do not require any execution. In ACHOR &. ANOR V. IN ACHOR & ANOR. V. ADUKU & ANOR (2005) LPELR-5455, (P. 21, paras. F-C) Achor v. Aduku (2005) 17 NWLR (Pt. 954) Pg. 250, the Court held that: “It is trite that a declaratory judgment cannot be stayed”. ON ISSUE 2. Counsel submitted that a mere filing of an appeal will not rub this HonourabLe Court of its powers to enforce its own judgment. That the judgment debtors have placed so much reliance on the case of ALHAJI RAMANI MUHAMMED UPEKUN & 1 OR VS ALHAJI ALIDU AFOLAI3I SADIQ & 3 ORS (2004) 6 NWLR PART 870 PAGE 576 PARTICULARLY AT PAGE 598 PARAGRAPH H. which case did not stand to support their position. The position of the law as postulated in above case is that where an application is expected to be made either to the lower Court or the Court of appeal? it is expected that the application should be made first before lower Court, which therefore means that making an application directly at the appellate Court without filing first at the lower Court is not allowed. The Courts of Appeal in the above case have this to say on procedure by which an interested party can appeal to the court of appeal. “An interest party to a proceeding needs leave of court to appeal against a judgment in that proceeding. And by the provision of Order 3 rule 3(4) of the Court of Appeal Rules, such an interested party or person interested must apply either to the High Court or the Court of Appeal for leave to appeal. in effect, a person interested must first apply to the High Court for leave to appeal and if that court refuses him leave, then he can apply to the court of Appeal. Otherwise, an application made first to the Court of Appeal is incompetent except the applicant can show exceptional or special circumstances to the satisfaction of court. In the instant case, since the time for appealing has elapsed, and the original appeal against the judgment of the trial court had been entered in the Court of Appeal, it was proper for the applicants to have applied direct to the Court of Appeal for leave to appeal without first applying to the trial court”. Counsel concluded by raising a poser that “if really the judgments debtors have complied with the judgment of this Honourable Court, why then are they on appeal? The answer to the above poser, according to him, is that the judgment debtors have infact not complied with the judgment hence their appeal, and having not complied cannot debar the judgment creditors from the applying to enforce their judgment, he urged the Court to so hold by dismissing the Preliminary Objection. Court After consideration of the submission of both parties, I distilled 2 issues for the just determination of this case, to wit: Whether the motion dated 20th day of October 2015 is competent before this Court Whether this court has Jurisdiction to entertain this application. ON ISSUE I It is glaringly clear that the Judgement of this Court delivered on the 19th day of May 2015 was duly executed by the Judgment/Debtors Respondent in the manner to which the Judgment was delivered. There is an unchallenged averment (Oral Evidence) before this Court that; That the Judgment Creditor/Applicants who were initially on suspension were recalled and their membership cards returned to them That the Electoral committee which was existing at that time was disbanded and a new committee was reconstituted. That the Judgment (Debtors stopped parading themselves as executive members of the 2nd Judgment Debtors/Respondent. That fresh Elections were conducted by the newly reconstituted Electoral Committee. On the 20th December, 2014. However, the crux of the case of the Judgment/Applicants here is that the purported Elections were one sided, as the 1st Judgment creditor was not allowed to participate in the said election, as same was conducted illegally and secretly etc. To me, this is a fresh cause of Action. The Judgment creditors can approach the Court to determine the outcome of the fresh Election and not to apply for the Execution of an Already Executed Judgment, and I so hold. This Court cannot possibly grant the prayers of the Judgment/Creditor/Applicants brought pursuant to Section 66(F) and 72 of the Sheriff and Civil Processes Act, due to the fact that the Orders of this Court has not been proved to be disobeyed, and I so hold. Accordingly, this issue is resolved in the Negative. ON ISSUE 2 It is trite learning that after an Appeal has been entered, and until it is fully disposed off at the Appellate Court, the Appeal Court shall be seized of the whole proceedings, and except as otherwise provided in the Rules of the Court of Appeal, every application shall be made to the Court and not the Court below. See ORDER 11, COURT OF APPEAL RULES 2011 since the main appeal has been entered in the Court of Appeal and the records transmitted, which is also Evidenced by the Appeal Number of this suit, It is the Court of Appeal that can entertain the Applications, in the Judgment appealed against or Application in the Appeal. See the case of IN RE: OPEKUN VS SADIQ & 3 ORS (2004) 6 NWLR PART 870 PAGE 576. Based on the foregoing I resolve this issue in the Negative. Accordingly, the Preliminary Objection of the Judgement/Debtors succeeds and the Application of the Judgment Creditor dated the 22nd day of December, 2015 fails and same is hereby dismissed. I make no Order as to cost. Ruling is entered accordingly. ………………………………………… HON JUSTICE M. N. ESOWE.