WEST AFRICAN EXAMINATIONS COUNCIL & ORS V. MRS. NKOYO EDET IKANG & ORS CITATION: (2011) LPELR-5098(CA)

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2 1 WEST AFRICAN EXAMINATIONS COUNCIL & ORS V. MRS. NKOYO EDET IKANG & ORS CITATION: (2011) LPELR-5098(CA) In The Court of Appeal (Calabar Judicial Division) On Thursday, the 17th day of March, 2011 Suit No: CA/C/52/2011 Before Their Lordships KUMAI BAYANG AKAAHS MASSOUD ABDULRAHMAN OREDOLA ISAIAH OLUFEMI AKEJU Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal Between 1. WEST AFRICAN EXAMINATIONS COUNCIL 2. SNR. DEPUTY REGISTRAR/HEAD NATIONAL OFFICE, WAEC, LAGOS 3. BRANCH CONTROLLER Appellants

3 2 And 1. MRS. NKOYO EDET IKANG 2. FIRST BANK OF NIGERIA PLC 3. UNION BANK OF NIG. PLC Respondents RATIO DECIDENDI 1 PRACTICE AND PROCEDURE - GARNISHEE PROCEEDING: Application of the garnishee proceeding "It is true, as argued by learned counsel for the 1st Respondent, that garnishee proceedings is distinct since it is between the judgment creditor and the garnishee and a judgment debtor who has appealed against the decision which led to the ex parte garnishee application by the judgment creditor can appeal as an interested party against the order nisi. However I am still at a loss as to the reasonableness of a court ignoring to deal with a pending application for stay of execution of the judgment and proceed to grant the ex parte garnishee application."per AKAAHS, J.C.A. (Pp.6-7, Paras. E-A) - read in context

4 KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Lead Ruling): The applicants filed a Motion on Notice praying for the following relief: An order setting aside the garnishee order nisi made on the accounts of the 1st applicant against its accounts with First Bank of Nigeria Plc and Union Bank of Nigeria, Plc dated 25th January 2011 by the Federal High Court, Calabar. The grounds upon which the application is made are:- 1. That the applicants filed a motion for stay of execution on the 22nd November, 2010, and it is still pending without a date from the court. 2. That the 1st Respondent filed garnished (sic) order application on the 20th January, 2011 and was promptly given a date. 3. That the lower court ought to have disposed of the Applicant's motion for stay of execution before considering the garnishee order nisi application. 4. That the appeal has been entered in this court, thus robbing the lower court jurisdiction to continue hearing any application connected or pertaining to this appeal. The application is supported with a 10 paragraph affidavit which was deposed to by one Richard Ita, the Litigation Officer in the Law Firm of Joe Agi & Associates to which was annexed the judgment of the Federal High Court which was delivered on 8th October, 2010, the Motion for stay of Execution of the Judgment and the garnishee order nisi granted 3

5 on 25th day of January, The 1st Respondent deposed to a 16 paragraph affidavit in opposition to the Motion on Notice. Arguing the motion, Mr. Joe Agi, learned Senior counsel appearing for the applicants submitted that where there is a pending application for stay of execution, an ex parte garnishee order nisi granted while the motion for stay is still pending becomes a nuility and relied on the cases of STANDARD TRUST BANK LTD. v CONTRACT RESOURCES NIG. LTD. (2001) 6 NWLR (Pt. 708) 115 and FIRST INLAND BANK PLC v EFFIONG (2010) 16 NWLR (pt. 1218) 199 at He said the appeal was entered on 21/2/2011 and since it is an order nisi, the subsequent application to make the order nisi absolute has to be made to this court. He cited order 4 Rule 11 CAR 2007 in support and urged this court to strike out the order nisi. Mr. Inyang, learned counsel for 1st Respondent in opposing the motion relied on the counter-affidavit which was deposed to by 1st Respondent and submitted that it is the law that garnishee proceedings is distinct in the sense that it is between the judgment creditor and the garnishee and at best the applicant is a nominal interested party and therefore has no right to challenge same. He placed reliance on the case of PURIFICATION TECHNIQUES LTD. v ATTORNEY-GENERAL OF LAGOS STATE & ORS. (2004) ALL FWLR (Pt. 2II) He argued that the only way the applicant can challenge the order nisi is by way of an appeal as an interested party which is granted by leave of 4

6 court but no appeal has been filed against the order nisi before this court and since there is no appeal against the order nisi, this court lacks jurisdiction to set aside the order nisi. The case of DENTON WEST v MUOMA (2008) ALL FWLR (Pt. 433) 1423 was cited in support. It was further contended that if the applicant feels that the order nisi made by the lower court is a nullity, an application to set aside the null order should be made to that court. In reply Mr. Agi, SAN, sought to distinguish the facts in PURIFICATION TECHNIQUES and DENTON WEST supra from the present case. He said in the DENTON WEST's case the garnishee order nisi was made absolute before the applicant proceeded to the court of Appear whereas in this case the application for stay is still pending In paragraphs 2, 3, 4, 5, 6 and g of the affidavit in support of the motion, Richard Ita deposed to the following facts:- "2. That judgment was recovered against the Applicants on the 18th day of October, Annexed hereto as Exh. 'JA1' is a copy of the judgment. 3. That the Applicants filed a motion for stay of execution pending appeal on the 22nd November, That the lower court despite repeated demands failed to give a date for the hearing of the motion. 5. That the 1st Respondent inspite of the Applicants Motion for stay of execution filed a garnishee order application and the lower court granted the order attaching the accounts of the 1st Applicant in the 5

7 2nd and 3rd Respondents, Banks. Annexed hereto as Exh. 'JA3' is a copy of the garnishee order nisi. 6. That I went to court and inquired again if a date has been given for our motion for stay of execution but was informed by the Clerk of court that the Judge is yet to give a-date for the motion. Annexed hereto as Exhibit'JA2, is the motion for stay of execution with the Notice and Grounds of Appeal and motion to set aside garnishee. B. That I have been to the lower court over twenty eight times on different days appealing to the Registry to hand over the record of proceedings but until today 22nd February, 2011, the answer I get is that it is still being typed and it is over ninety days since the Secretary of the judge started typing the Proceedings'" Although the respondent deposed to a 16 paragraph counter affidavit, the facts contained in the said counter-affidavit have not contradicted the averment by the applicants that the Motion for stay of execution which was filed before the ex-parte garnishee application is still pending. It is true, as argued by learned counsel for the 1st Respondent, that garnishee proceedings is distinct since it is between the judgment creditor and the garnishee and a judgment debtor who has appealed against the decision which led to the ex parte garnishee application by the judgment creditor can appeal as an interested party against the order nisi. However I am still at a loss as to the reasonableness of a court ignoring to deal with a pending application for stay of execution of the 6

8 judgment and proceed to grant the ex parte garnishee application. I feel strongly that it is always better for the court to dispose of the application for stay of execution of the judgment before considering the ex-parte garnishee application. After all the granting or refusal of stay of execution is discretionary. In view of this I prefer the decision in STANDARD TRUST BANK LTD. v CONTRACT REOURCES NIG. PLC and FIRST INLAND BANK PLC v EFFIONG supra to PURIFICATIONS TECHNIQUES LTD. v A-G, LAGOS STATE & ORS. (2004) 9 NWLR (pt. 879) 665 and DENTON -WEST v MUOMA (2008) 6 NWLR (pt. 1083) 418. Mr. Agi, learned senior counsel for the Applicants sought to draw distinction between the DENTON WEST's case and the present application. The present application is being made when the appeal has been entered and before the order nisi becomes absolute and so any proceedings still pending before the lower court can no longer be entertained before the lower court. They either abate or must await the outcome of the appeal to this court. See Order 4 Rule 11 Court of Appeal Rules, 2007 which provides that - "After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the court below, but any application may be filed in the court 7

9 below for transmission to the Court." I do not intend to take the extreme position of nullifying the garnishee order nisi granted while the motion for stay of execution was pending but would direct that in future such application should be taken before considering the ex parte application. The position of the order nisi can only be made absolute in this court but since the appeal has been entered, the application to make the garnishee order nisi absolute should await the period provided for the filing of the appellants' brief and if the appellants fail to file their brief within time, the application to make the order nisi absolute can be heard immediately thereafter. I make no order as to costs. 8 MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the advantage of reading in advance the lead ruling by my learned brother, Kumai Bayang Akaahs, JCA. I am in agreement with the reasoning and conclusion. I abide by the consequential orders made therein. I also make no order as to costs. ISAIAH OLUFEMI AKEJU, J.C.A.: I had a preview of the Ruling of my learned brother, Akaahs, JCA just delivered. The Ruling has comprehensively covered the issues in this application and I adopt the reasoning and conclusion therein as mine. I make no order as to costs.

10 Appearances 9 Joe Agi, SAN with M. Shuaibu and Omaji Udenyi (Miss) For Appellants Imo Inyang for the 1st Respondent. 2nd & 3rd Respondents absent and unrepresented. For Respondents

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