- CL|Expiration of judgment
1. BAUCHI STATE INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED
2. MALLAM MUSTAPHA MAHE?
1. ALHAJI AMINU YAKUBU WANKA
2. ATTORNEY-GENERAL OF BAUCHI STATE
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): On 19th September, 2013 Alhaji Aminu Yakubu Wanka being the judgment creditor brought an application pursuant to Order 40 Rule 7 and Order 47 Rule 1 of the High Court of Bauchi State Rules read together with Order 11 Rule 10 of the Judgment Enforcement Rules Cap.407, Laws of the Federation of Nigeria, 2004 against (1) Attorney-General of Bauchi State (2) Bauchi State Investment and Property Development Company Limited and (3) Mallam Mustapha Mahe, described in the motion as the " Respondents/Judgment Debtors."
The reliefs claimed were couched as follows:
"1. An order of revalidation of the judgment of this suit by this Honourable Court.
2. An order on the respondents/judgment debtors (particularly 1st and 2nd respondents) to comply with the orders of the judgment to pay all the salaries and allowances of the applicant access N53,971,237.02 as at date.
And for such further order(s) as this Court may deem fit to make in the circumstance."
Samuel Modi Dubagari swore to an affidavit in support of the application as follows:
" 1. That I am the Litigation Secretary in the Chambers of Irorakpor & Co. and that by virtue of my position aforesaid, I am conversant with the facts of this case.
2. That I have the authorities of my employer and the applicant to depose to this oath.
3. That I have been informed by the applicant and Counsel handling this matter, Irorakpor C. C., Esq. in our office, No.12 Ahmadu Bello, Bauchi, on 18th September, 2013, at 11:00am, information I verily believe them to be true thus:
(a) That the judgment in this suit was entered on 12th March, 2001 by Honourable Justice S.S. Darazo (OFR) of the then High Court 1. Annexed as Exhibit 1 is the judgment order.
(b) That the judgment was revalidated on 1st March, 2004 directing the respondents to comply with the judgment declaring the order of his compulsory leave and subsequent dismissal a nullity and to pay the applicant all his salaries and allowances. Annexed as Exhibit "2" is the revalidation order.
(c) That despite the
order, pleas and personal contacts by the applicant and well-wishers to the respondents the situation as at date is that the respondents have refused, failed and neglected to comply with orders of the Court.
(d) That numerous correspondences dated from 26th April, 2001 4th May, 2005 were written demanding for payment of the applicant salaries and allowances all to no avail.
(e) That the High Court on 9th May, 2005 endorsed a writ of execution (Fifa) against the 2nd respondent the employers of the applicant. Annexed Exhibit 3 is the writ of attachment.
(f) That the writ was not executed due to arm twisting methods exacted on the applicant and caution to explore other peaceful method that will lead to a peaceful resolution of the matter.
(g) That the applicant has explored all known peaceful means at resolving the matter to no avail. Exhibit 4 annexed is one of several letters of appeal by the applicant.
4. That the monetary sum as at date due to the applicant from the judgment is N53,971,237.02.
5. That the fruit of the judgment is the payment of all his salaries and allowances till the date of such payment which as at date is N53,971,237.02.
6. That the applicant has been denied this fruit of the judgment and it will only be proper and just to grant this motion.
7. That I make this oath bonafide and in accordance with the Oath Act, 1990.
Leave was granted the 2nd and 3rd respondents to rely on a counter-affidavit by Aisha Musa Zakari, Litigation Secretary in Doka Chambers on 11th December, 2013 as follows:
1. That I am a Litigation Secretary in Doka Chambers, Jos Solicitors to the 2nd and 3rd respondents by virtue of which position I am conversant with the facts deposed to herein.
2. That I have the consent and authority of the 2nd and 3rd respondents and my employers to depose to the facts herein.
3. That I have been informed by the Managing Director of the 2nd respondent and the 3rd respondent while briefing A.A. Sangei, Esq. in Doka Chambers, Jos on 5th December,
2013 at 9:30am and I verily believe the information to be true that:
(a) That the judgment which the applicant wants to be revalidated is not placed before this Honourable Court.
(b) The applicant did not himself comply with judgment of the High Court 1, Bauchi.
(c) That up till now the applicant did not satisfactorily account for shares worth over N65,000,000.00 (Sixty Five Million Naira only) as ordered by the High Court 1, Bauchi.
(d) The judgment of the High Court 1, Bauchi which the applicant is seeking for its revalidation and enforcement was delivered on 1st March, 2001 and this motion is filed on 25th September, 2013 over 12 years.
(e) The name of the present Company Respondents is Bauchi Investment Corporation Limited and not Bauchi State Investment and Property Development Company Limited.
4. That I know as facts that:
(a) The judgment being sought to be revalidated and enforced is now statute barred for being over 12 years.
(b) The processes attached to the applicants
Motion on Notice are Public documents and they are not Certified True Copies.
(c) The applicant did not account for the respondents missing shares worth N65,000,000.00 (Sixty Five Million Naira only).
5. That it is in the interest of justice to refuse this application.
6. That I, Aisha Musa Zakari, do solemnly and sincerely declare that I make this declaration in good faith conscientiously believing its contents to be true to the best of my knowledge, information and belief and in accordance with the Oaths Act.
Samuel Modi Dubagari deposed to a Further and Better Affidavit on 29th January, 2014 as follows:
1. That I am the Litigation Secretary in the Chambers of Irorakpor & Co. and that by virtue of my position aforesaid, I am conversant with the fact of this case.
2. That I have the authorities of my employer and the applicant to depose to this further and better affidavit.
3. That I have been informed by the applicant and Counsel handling this matter, Irorakpor C.C., Esq. in our office, No.12 Ahmadu Bello Way, Bauchi, on 22nd January, 2014, at 11:00am, information I verily believe them to be true thus:
(a) That the 3rd arm of the judgment in suit No.BA/30M/1999 delivered on 12th March, 2001 is to the effect that the respondents are hereby ordered to consider the applicant for reinstatement should he satisfactorily account for the alleged missing shares.
(b) That by the said 3rd arm of the judgment, the judgment could not be enforced until the applicant complies with the order.
(c) Pursuant the applicant on 27th July, 2001 in compliance with order accounted for the alleged missing shares. Annexed as Exhibit SMDF is the explanatory note by the applicant.
(d) Thereafter the judgment was revalidated on 1st March, 2004 by the Honourable Judge Justice S.S. Darazo (OFR) of the then High Court 1 Further annexed as SMDF2 and 3 are the C.T.C. of both judgments.
(e) That upon revalidation on 1st March, 2004 the 3rd arm order of the judgment of 12th March, 2001
that is the applicant be considered for reinstatement should he satisfactorily account for the alleged missing shares was excluded in the revalidated judgment of 1st March, 2004 thus making the judgment enforceable against the respondents.
(f) That the judgment of 1st March, 2004 is the relevant and subsisting judgment in suit No.BA/30M/1999 which the applicant now sought to enforce in this motion.
(g) That due to the refusal of the respondents to comply with the revalidated judgment of 1st March, 2004, the applicant pursuant to the 3rd order of the judgment on 9th May, 2005 applied for a writ of execution (Fifa) against the respondents/judgment debtors for the then calculated judgment sum of N10,761,896.00. Certify copy of the writ annexed as Exhibit SMDF4 .
4. That till date the writ has remained un-executed due to arm twisting method employed by the respondents.
5. That parties later restore to explore peaceful resolution of the matter which till date has proved unfruitful.
6. That it was in the spirit of the peaceful settlement that Exhibit 4 of the applicant s main motion of 19th September, 2013 was written.
7. The said letter Exhibit 4 was written and dated 9th August, 2010.
8. That from 1st March, 2004 (the date of the revalidated judgment) to 19th September, 2013 (the date of the applicant s present motion) is less than nine (9) years.
9. Further from 9th August, 2010 (when Exhibit 4 the last correspondence was written) to 19th September, 2013 (the date of the applicant s present motion) is about four (4) years.
10. That both dates in paragraphs 8 and 9 are less than ten (10) years.
11. That the interest of justice will be better served by the grant of the applicant s application for judgment in suit No.BA/30M/1999.
12. That I make this oath bonafide and in accordance with the Oath Act, 1990.
The learned Chief Judge heard the application and after considering the written addresses of Counsel, held on 21st May, 2014
at page 77 lines 4 to page 79 lines 1-13 of the printed record as follows:
"The judgment creditor has shown from paragraphs 3(a)-(g) stated above that the orders contained in Exhibit " SMDF2" were revalidated by the orders in Exhibit " JMDF3" following his accounting for the alleged missing shares as ordered by Hon. Justice S.S. Darazo. In Exhibit "SMDF1" , learned Counsel for the judgment creditor wrote a letter to the Attorney-General of Bauchi State attached to the letter, the judgment creditors explanation of unaccounted shares. The explanation has not been controverted by any other report showing the contrary. I therefore agree that the limitation date should start to rein from the 1st day of March, 2004 when the orders were revalidated, without any objection by the respondents.
The present application was filed on 19th September, 2013 and when calculated from 1st day of March, 2004 the period is still not up to 10 years limitation period. I therefore hold that the application is not statute-barred.
The second issue is whether the judgment
creditor has shown good grounds to warrant the Court granting this application. As I said earlier in this ruling, there is nowhere in the entire counter and other affidavits of the respondents where they have denied the fact that the orders in Exhibit " SMDF3" have been complied with by them.
The applicant deposed to the facts that he had started the process of applying for writ of attachment vide Exhibit " SMDF4" but was frustrated by harm twisting methods of the respondents.
I agree with the submissions of the learned Counsel for the applicant that judgment of Courts remain valid and subsisting until set aside by a Court of competent jurisdiction. Orders of Court are not made for fun; they must be obeyed and must not be made in vain. See the following cases: BOCO vs. Aluko (2010) 16 WRN 188 at 190 r.14; Kwara Poly vs. Ogunrinde (2009) 14 WRN 168 at 173.
I am satisfied from the affidavit and further affidavit of the applicant and Exhibits "1" , " 2", "3" , " 4" and " SMDF1" respectively that the applicant has
shown good grounds to enable this Court exercise its discretion in his favour. Accordingly, I hold that this motion has merit and is hereby allowed. I make the following orders:-
1. The judgment of this Court given on 12th March, 2001 remains valid and subsisting.
2. The respondents are hereby ordered to comply with the orders made therein failing which the applicant shall continue with his application to levy execution in settlement of the judgment sum.
3. No order as to costs.
Aggrieved with the decision the (1) Bauchi State Investment and Property Development Company Limited and (2) Mallam Mustapha Mahe filed a Joint Notice of Appeal on 23rd June, 2014 accompanied with two grounds of appeal to challenge the decision. The Honourable Attorney-General of Bauchi State filed a Cross-Notice of Appeal against the decision on 8th September, 2015 accompanied by two grounds. The Notice of Cross-appeal is incorporated in the supplementary record compiled and transmitted to this Court by the Registry of the Court below on 8th September, 2015.
The 1st and 2nd appellants '
brief was filed by Sangei, Esq. on 13th February, 2015. 1st respondent s brief was settled by Irorakpor, Esq. on 12th March, 2015 titled " 1st Respondent' s Reply Brief of Argument" . The 1st and 2nd appellants filed a Joint Reply Brief on 23rd March, 2015. The Cross-appellant s brief was filed on 6th October, 2015. All the briefs were adopted on 6th April, 2016 when the appeal came up for hearing.
The 1st and 2nd appellants formulated the following lone issue for determination:
"Whether or not the Lower Court has jurisdiction to grant the reliefs sought by the 1st respondent in this case on a judgment which has become statute barred for being over 10 years of its delivery (Distilled from Grounds 1 and 2)."
The 1st respondent distilled a lone issue for consideration as follows:
"Whether the judgment of 12th March, 2001 revalidated on 1st March, 2004 sought to be executed is statute barred by virtue of Section 16(1) and (2) of the Limitation Law of Bauchi State."
In the brief filed by the Cross-appellant two issues were formulated for determination as follows:
1. Whether the Lower Court has jurisdiction to entertain the action of the 1st respondent which was caught off by statute of limitation.
2. Whether the Lower Court was right in relying on Exhibit SMDF1 notwithstanding that it is not a complete document.
I have observed that neither the 1st and 2nd appellants nor the 1st respondent filed a brief of argument in respect of the Cross-appeal. The 1st respondent did not also file a cross-respondent s brief in respect to the cross-appellant s brief of argument. The Cross-appellant did not file any brief in answer to the 1st and 2nd appellants Notice of Appeal and their Joint brief of argument. However, having read the decision of the learned trial Judge and the arguments in the briefs filed by learned Counsel representing the parties, the only valid issue for determination in this Court is whether the decision of the learned Chief Judge I.M. Zango, rendered on 21st May, 2014 can be supported having regard to the affidavit/documentary exhibits placed before him.
The sum total of the argument is that the learned Chief Judge had no jurisdiction to have granted reliefs to the 1st respondent due to the fact that the substantive decision was rendered on 12th March, 2001 over ten years ago as at the time the relief to enforce it was made on 21st May, 2014. The application was caught by the provisions of Section 16(1) and (2) of the Bauchi State Limitation Law, citing Ibrahim & Ors. vs. Gaye & Ors. (2002) 13 NWLR (Pt.784) 267 at 303 paragraph D ; Purification Tecnhique Nig. Ltd. & Ors. vs. Rufai Jubril & Ors. (2012) 18 NWLR (Pt.1331) 109 at 114; Ogunlana vs. Bada (2010) 1 NWLR (Pt.1176) 534 at 559 paragraphs D - E , Sulgrave Holding Inc. & Ors. vs. F.G.N. (2012) 17 NWLR (Pt.1329) 309 at 343 and Abe vs. University of Ilorin (2013) 5 SCNJ (Pt.111) 766 at 783.
Learned Counsel further argued that the 1st respondent s motion on Notice, filed on 25th September, 2013 to revalidate the decision rendered since 2001 was statute-barred hence should not have been re-validated, citing Udoh Trading Co. Ltd. vs. Sunday Abere & Ors. (2001) 5 SCNJ 274; Lawan Sanda vs. Kukawa Local
Government (1991) 2 NWLR (Pt.174) 379; Victoria Ekeocha vs. Customs, Immigration & Prisons Board (2007) All FWLR (Pt.392) 1976 and Ibrahim vs. JSC Kaduna State & Anor. (1998) 12 SCNJ 255. The Court was urged to allow the appeal, set aside the decision of the Lower Court and dismiss the application.
Learned Counsel to the Cross-appellant argued that revalidation of a judgment is strange and unknown to the laws of our land and cannot be employed to extend the time prescribed under Section 16(1) and (2) of the Limitation Law (supra). Where the law provides time for bringing an action, proceedings cannot be brought thereafter, citing FBN Plc vs. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt.570) 480. That in Ogunlade vs. Adeleye (1992) 8 NWLR (Pt.260) 409 at 427 the Supreme Court held that a judgment creditor has to enforce the judgment within the time stipulated by law failing which he will be debarred from doing so. The 1st respondent lost the right to enforce the judgment after the time stipulated by the Law (supra) argued learned Counsel, citing JFS Investment Ltd. v. Brawal Line Ltd & Ors. (2010) 12 SCNJ 275; William O. Olagunju & Anor. vs. Power Holding Co. of Nigeria Plc (2011) 4 SCNJ 192; Ohakim vs. Agbaso (2010) 7 SCNJ 137 and Ali Wakili & Anor. vs. Mallam Buba & Anor. (Unreported) CA/J/160/2013 delivered on 10th July, 2015 per Hussaini, JCA.
The response of the 1st respondent in the brief is that the decision of 12th March, 2001 was revalidated on 1st March, 2004 hence could be enforced, citing Boco vs. Aluko (2010) 16 WRN 188. Learned Counsel showed the Court how the appellants and cross-appellant had frustrated all efforts to enforce the decision of Darazo, C.J., delivered since 12th March, 2001, arguing that the 1st respondent should not be deprived of the fruit of the decision, citing Unilorin Teaching Hospital vs. Abegunde (2012) 43 WRN 59 at 69. Learned Counsel urged the Court to dismiss the appeal.
A judgment or decision of a competent Court of record is valid from the date of delivery until set aside by the Court either ex debito justitiae on grounds of lack of jurisdiction or by a Court of Appeal. See Akinbobola vs. Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 299. An order of Court is needed to set aside a valid judgment even on grounds of being a nullity. See Akinfolarin vs.
Akinola (1995) 4 SCNJ (Pt.1) 30 at 48-49; Aladegbemi vs. Fasanmado (1983) 3 NWLR (Pt.81) 129. The decision rendered by Darazo, C.J., on 12th March, 2001 has not been set aside by an appellate Court hence remained valid and enforceable. Order 39 Rules 6 and 7 of the Bauchi State High Court (Civil Procedure) Rules, 1988 reads as follows:
"6. A person directed by a decree or order to pay money or do any other act is bound to obey the decree or order without any demand for payment or performance, and if no time is therein expressed he is bound to do so immediately, after the decree or order has been made (except as, to costs the amount whereof may require to be ascertained by taxation) unless the Court has enlarged the time by any subsequent order.
7. The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment order or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten Naira per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards as the case may be."
But I do not think the Court can enlarge the time under the above provisions by any subsequent order in conflict with the provisions of Section 16(1) and (2) of the Bauchi State Limitation Law which provides as follows:
16(1) Action shall not be brought upon any judgment or on the interest on any judgment debt after the expiration of ten years from the date on which the judgment becomes enforceable or the interest becomes due, as the case may be.
(2) For the purpose of Subsection (1) of this section the term judgment shall apply to any final judgment for payment of a specific or specified sum of money whether at law or in equity and shall include a judgment on a charge on land.
Ten years is limited by the legislature as to the period an action can be brought to enforce a valid judgment, namely, from the date on which the judgment becomes enforceable or the interest becomes due, as the case may be under Section 16(1) of the Law (supra). The decision of Darazo, C.J., was a " final judgment" within the contemplation of Section 16(1) and (2) of the Law (supra).
An " action" , according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of justice to enforce some right against, or to restrain the commission of some wrong by another party. More concisely, it may be said to be the legal demand of a right, or the mode of pursuing a right or judgment. The word further implies the existence of parties, of an alleged right, of an alleged infringement thereof (either actual or threatens), and of a Court having power to enforce such right. In its wider meaning the term includes both civil and criminal proceedings..." It is, however, generally used in a more restricted or popular sense as denoting a civil action commenced by writ or plaint. See Halsbury's Laws, 3rd edition cited in Words and Phrases Legally Defined, Vol.1 (A-C).
A " motion" is defined in Osborn' s Concise Law Dictionary, 9th edition, page 257 as, "An application to a Court or Judge for an order directing something to be done in the applicant' s favour" The motion
on notice filed by the 1st respondent on 19th September, 2013 was an " action" seeking to enforce the decision of Darazo, C.J., delivered on 12 March, 2001. Between 12th March, 2001 to 19th September, 2013 is more than the ten years prescribed under Section 16(1) and (2) of the Bauchi State Limitation Law for enforcement of judgment. At no time whatsoever has it been shown the invalidity of the said judgment which, according to the 1st respondent had to be revalidated as the case may be.
In Sammon vs. Byrne (1926) I.R. 411 Kennedy, C.J., explained at page 420 that, In my opinion we must give effect to the requirement of the statute (Section 3(2) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (repealed which enacted that where the rent of a dwelling house to which the Act applied was increased, no such increase was due or recoverable until the landlord had served upon the tenant a valid notice in writing of his intention to increase the rent) that the notice be a "valid" notice... "Valid" means more than correct in form; substance as well as in form."
To " validate" is to legally render or strengthen something valid or to render or declare legally valid; to confirm the validity of (an act, contract, deed, etc,) or legalize. See the Shorter Oxford English Dictionary of Historical Principles, Vol.2, page 2449. If at no time the decision of Darazo, C.J., was invalidated, how can it be revalidated by the orders of I.M. Zango, C.J., so as to become enforceable after the expiry of ten years of its delivery? Under what provision of the Law or Rules of Court did the learned Chief Judge act to entertain and grant the application after the period of ten years? I see none.
Order 11 Rule 10 of the Sheriffs and Civil Process Act Cap S.6, Laws of the Federation of Nigeria, 2004 provides as follows:
" 10. Subject to any provision to the contrary, any application by a party for an order or direction of a Court in relation to any judgment, execution, or process shall be made in the same manner as an application for an interlocutory order in that Court.?" Order 11 Rule 10 of the Rules (supra) is subject to any provision to the contrary" namely, Section
16(1) and (2) of the Bauchi State Limitation Law (supra). For the meaning of subject to any provision" usually employed in a statute or law see Idehen vs. Idehen (1991) 7 SCNJ (Pt.2) 196 at 215-216; Tukur vs. Government of Gongola State (1989) 9 SCNJ 15 at 40 and Aqua Ltd. vs. Ondo State Sports Council (1988) 10-11 SCNJ 26 at 51.
Order 40 Rule 7 and Order 47 Rule 1 of the Bauchi State High Court (Civil Procedure) Rules provides as follows:
" 40(7) The summons or notice of motion shall be served on the person against whom the order for the release of the person detained is sought and on such others persons as the Court or Judge may direct, and, unless the Court or Judge otherwise directs, there shall be at least five clear days therein for the hearing of the application.
47(1) Subject to the provisions of the High Court Law, the Court may at its discretion, appoint any day or days and any place or places from time to time for the hearing of actions as circumstances require."
I do not see the relevance of these provisions to the grant of the application to revalidate the judgment delivered by Gwarzo, C.J. on 12th March, 2001.
Rules of Practice and Procedure have not conferred jurisdiction on the learned Chief Judge to extend the time for enforcement of judgment beyond the 10 years stipulated by the legislature under Section 16(1) and (2) of the Bauchi State Limitation Law. See the State vs. Onagoruwa (1992) 2 SCNJ (Pt.1) at 19; Onuorah vs. Kaduna Refining Petrochemical Co. Ltd. (2005) 21 NSCQR 130 at 140 and Guaranty Trust Co. of New York vs. Hannay & Co. (1914-15) All E.R. Rep. 24 at 35. The legislature would have provided instances as to when the time for enforcing judgments after ten years from delivery if that was the case. Then learned Chief Judge, could on application, grant such a remedy.
In Maxwell On the Interpretation of Statutes, 12th edition, page 33 appears the following statement of the law: " A case not provided for in a statute is not to be dealt with merely because there seem, no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional." See Lloyds Bank vs. Elliot (1947) 1 All E.R. 79.
I.M. Zango, C.J., had no statutory authority to invoke his judicial powers to deliver a legislative decision by extending the time for the enforcement of the decision of a brother Chief Judge after the expiry of ten years. The decision of the Lower Court is set aside. The motion filed on 19th September, 2013 to enforce the decision of Darazo, C.J., delivered on 12th March, 2001 after ten years is hereby dismissed. The parties to bear their respective costs.
ADZIRA GANA MSHELIA, J.C.A.: I had the opportunity of reading in advance the leading judgment of my learned brother, Tur, JCA just delivered. I agree with his reasoning and conclusion. My learned brother has adequately treated the issues raised for determination in this appeal. I have nothing useful to add. I also allow the appeal and set aside the decision of the Lower Court. I abide by other consequential orders, inclusive of costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead decision delivered by my learned brother, JOSEPH TINE TUR, JCA. I am in full agreement with the reasoning and conclusions. I
have nothing useful to add. I, therefore abide by the resolution of issues as done by my learned brother in the lead decision. I also allowed the appeal, set aside the decision of the Lower Court and dismissed the motion filed on 19th September, 2013 by one Alhaji Aminu Yakubu Wanka, the 1st respondent in this appeal.
Parties to bear their individual costs.?
M.S. Usman, Esq. For Appellant
Miss. C.I. Nwogu, Esq. for 1st Respondent
A.H. Umar (CSC, MOJ, Bauchi State) for 2nd Respondent/Cross-Appellant For Respondent