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Owerri – His Lordship, Hon. Justice I. S. Galadima of the National Industrial Court of Nigeria, sitting in Owerri on Monday 26th November 2018 in a bench ruling expressed that the mere filing of a notice of appeal shall not operate as a stay of proceedings or a stay of execution, dismissed Garnishee order application for lacking merit.
This post execution application was filed by Garnishee/Applicant on the 13th of November, 2018. It craves this Court indulgence among others; An order to set aside the execution levied on the 7th of November, 2018 ostensibly in pursuance of the Garnishee Order Absolute made by the Honorable Justice O.O. Arowosegbe on the 21st of March, 2018 in the instant suit no: NICN/OW/5M/2017 as same is untenable in law given the pendency of the motion on notice dated the 24th day of July, 2018 and filed on the 27th of July, 2018 in Appeal no. CA/OW/345M/2018 – SKYE BANK PLC AND NDUNAGU AND ORS at the Court of Appeal, Owerri Judicial Division which contains a stay of execution;
An order directing the Chief Registrar of the NICN to return to the Garnishee/Applicant forthwith, the aforesaid Polaris Bank Limited Manager’s Cheque No. 14427807 of 7/11/2018 for the sum of N12,826,997.92 (Twelve Million, Eight Hundred and Twenty-Six Thousand, Nine Hundred and Ninety-Seven Naira, Ninety-Two Kobo Only) delivered to the Registrar of the Owerri Judicial Division of this Court on 7/11/2018 in deference of the execution levied on the same date at its No. 1 Wetheral Road, Owerri Branch pending the appeal duly filed at the Court of Appeal. On the grounds that the purported motion on notice as Appeal no CA/OW/345M/2018 before the Appellate Court which was filed on the 27th of July, 2018,seeking inter alia a stay of execution of the Garnishee Order Absolute made against this applicant, was served on the Execution Creditors/Respondents through their Counsel, L.U.N. Nwakaeti on the same date above mentioned; that the motion is due for hearing before the Court of Appeal on the 29th of November, 2018;
Likewise, that the execution by the bailiffs on 7/11/2018 is accordingly wrongful in view of the pending application at the Court of Appeal for an order to stay execution of judgment.
Mr. Nwakaeti for the respondents HON. VICTOR NDUNAGU and 6 others argued that the Applicant’s prayers are unknown in law because an injunction cannot proceed against a completed act.
Counsel maintained that the Applicant/Garnishee had not filed a motion for stay of execution before the Appeal Court. What it accordingly filed, was for leave to appeal against the decision of this a Court, that it was only after the subsequent execution of 7/11/2018 did the Counsel become awoken to the possibilities that execution can indeed be levied against his client. Accordingly, this application deserves to be dismissed.
After careful analysis of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice I. S. Galadima expressed thus;
“In order for an applicant to succeed in vacating, setting aside and or varying an order of a Court, he must establish that there are special, exceptional and cogent circumstances necessitating such because usually, a Court would not generally resile from its previous orders.
“By Order 65 Rule 8(3) of the Rules of this court, the mere filing of a notice of appeal shall not operate as a stay of proceedings or a stay of execution.
“On page 11 of the said ruling of 21/3/2018, the reference to which is important to this ruling, an appeal before the Court of Appeal does not operate as a stay but the Court of Appeal may either impose conditionally or unconditionally, such directions that are in accordance with the rules of court.
“I agree with the Execution Creditors that the Garnishee/Applicant was under compulsion to abide by the decision of this Court ordered since the 21/3/2018. Where it is obviously now clear that they refused to so comply, the chances of being granted further judicial discretions are slim and unlikely.
“Therefore, question 2 above on whether it was wrongful to execute the order of 21/3/2018 is obviously in the negative. The answer remains unchanged whether or not a notice of appeal and a stay of execution was filed subsequent to the granting of the order Absolute.
“Ultimately, I find that the application along with the reliefs sought, are baseless and same are denied and accordingly dismissed without costs.
