Nigerian Copyright Commission and Others v Musical Copyright Society of Nigeria LTD/GTE (CA/L/692/12)[2017] NGCA 1 (9 June 2017) (CA/L/692/12) [2017] NGCA 1 (08 June 2017);

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Headnote and Holding:

In this case, the respondent had filed an application for the enforcement of a judgment by means of garnishee proceedings. The court then granted an order of garnishee nisi, which the appellants then filed an affidavit to show cause. The matter was heard and the court made the garnishee order absolute. This case illustrates effect of a null judgment.

The court considered whether the High Court erred in granting the garnishee orders absolute. The court considered the direct effect of the judgment that had been made by the same court. The court had found that the judgment of the court below was incompetent and therefore a nullity.

The court held that the law was settled that, ‘out of nullity nothing worth anything or something can emerge or be predicated’.  The court held that a null judgment though it existed as a fact, was devoid of any legal consequences. It was as if the judgment did not exist.

Therefore, the court concluded that the garnishee orders absolute made by the court below had automatically become nullity as well and were liable to be set aside ex debito justitiae (as of right).

The court upheld the appeal and wholly set aside the garnishee orders absolute.
 

In the Court of Appeal

Holden at Lagos

 

Between

Appellant

1.  NIGERIAN COPYRIGHT COMMISSION
2.  DIRECTOR GENERAL, NIGERIAN COPYRIGHT COMMISSION
3. MR. AMODU ALEWU AUGUSTINE (ASSISTANT DIRECTOR NCC)
4. MR. HENRY NJOKU
5. INSPECTOR GENERAL OF POLICE

and

Respondent

1. MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE
2. MR. MAYO AYILARAN
3. MR. ORITS WILIKI
4. MR. LOUIS BASSEY UDOH
5. MR. HALIM MOHAMMED
AND
1. ECO BANK OF NIGERIA PLC

2. UBA PLC
3. ZENITH PLC
4. GTBANK PLC
5. ACCESS BANK PLC
6. KEYSTONE BANK PLC
7. EQUITORIAL TRUST BANK PLC
8. FIRST BANK OF NIGERIA PLC
9. UNION BANK OF NIGERIA PLC
10. SKYE BANK PLC
11. DIAMOND BANK
12. ENTERPRISE BANK PLC
13. FIDELITY BANK PLC
14. STERLING BANK PLC
15. FIRST CITY MONUMENT BANK PLC
16. MAIN STREET BANK PLC
17. STANDARD CHARTERED BANK LTI
18. WEMA BANK PLC
19. STANBIC IBTC PLC


JUDGMENT


BIOBELE ABRAHAM GEORGEWILL JCA: My lords, this appeal is predicated on the garnishee orders absolute made by the Federal High Court Lagos Division, Coram: Archibong J., on the application of the 1st - 5th Respondents for the enforcement of the judgment entered in their favor by the court below delivered on 25/7/2011 in Suit No. FHC/L/CS/35/2008: Musical Society of Nigeria Ltd/GTE & Ors V. Nigeria Copyright Commission & Ors. The Appellants had appealed both against the said judgment on which the garnishee orders absolute was made as well as garnishee orders absolute. It follows that the success or failure of the appeal against the said judgment would have a definitive effect on the outcome of this appeal in one way or the other.

The effect of the judgment in the appeal against the judgment of the court below if successful and allowed would have the effect of automatically rendering this appeal successful too since in law there can be no enforcement of non existing judgment. In other words, without a valid judgment there can be no enforcement or execution of such a judgment by whatever legal means possible to a judgment creditor, including by garnishee proceedings. On the other hand, if the appeal against the said judgment fails and is dismissed, then the effect would be to render this appeal competent to be determined on its merit in line with the issues so assiduously canvassed in their respective briefs of the parties.

Now, by the judgment of the court below delivered on 25/7/2011, the Appellants were found liable in damages to the 1st - 5th Respondents in the total sum of N40, 000,000. 00 as a result of the finding by the court below that the Appellants breached the fundamental rights of the 1st - 5th Respondents. The Appellants filed their Notice of Appeal on 8/9/2011. Subsequently, the Appellants applied for and obtained an order of the court below on 6/12/2011 staying the execution of the said judgment. However, on 15/12/2011, the 1st - 5th Respondents filed an application seeking to set aside the order of stay of execution on the ground that the court below lacked the jurisdiction to grant a stay of execution after the appeal has been entered in this court against its judgment in Appeal No. CA/L/925/2011. On 27/3/2012, the court below acceded to the request of the 1st - 5th Respondents and accordingly discharged its earlier order of stay of execution of its judgment granted in favor of the Appellants. See pages 1- 20, 28, 50 and 65 of the Record of Appeal.

On 27/3/2012, the Appellants proceeded to file before this court a motion seeking an order of stay of the said judgment pending the determination of the appeal against the said judgment. The motion was duly served on the 1st - 5th Respondents firstly on 27/3/2012 and again on 5/4/2012.

The Registrar of the court below was also served with the motion for stay of execution on 29/3/2012. On 12/6/2012, the 1st - 5th Respondents filed their counter affidavit to the said motion for stay before this court, which was served on the Appellants on 13/6/2012. The motion for stay was already fixed for hearing by this court on 13/6/2012. See pages 61, 160 - 161, 162 - 163, 164 - 165, 166, and 169 of the Record of Appeal.

In the meantime, while these processes were pending before this court, the 1st - 5 Respondents proceeded to the court below and on 11/4/212 filed an application for the enforcement of the said judgment by means of garnishee proceedings and on 21/5/2012, the court below granted an order of garnishee nisi. Subsequently, the various garnishee banks filed their affidavit to show cause on 21/6/2012 and on 25/6/2012, the court below heard the matter and made the garnishee order absolute in respect of some of the garnishee banks. It is this garnishee orders absolute that is thus the subject matter of this appeal filed on 28/6/2012, on which date the Appellants also filed a motion for the stay of execution of the garnishee orders absolute. See pages 67, 100, 105 - 144, 146 - 157, 170 - 185, 186 - 188, 230 - 239 and 242 of the Record of Appeal.

This is thus an appeal against the garnishee orders absolute made by the Federal High Court, Lagos Division, Coram: Archibong J in Suit No: FHC/L/CS/35/2008: Musical Society of Nigeria Ltd/GTE & Ors V. Nigeria Copyright Commission & Ors on 25/6/2012 at pages 200 - 224 of the Record of Appeal.

The Appellants were peeved with the said garnishee orders absolute and had filed their Notice of Appeal on 4 Grounds of Appeal on 28/6/2012 at pages 239A - 239D of the Record of Appeal. The Record of Appeal was duly transmitted to this court on 21/9/2012. The Appellants' brief was filed on 4/2/2014. The 1st - 5th Respondents' brief was filed on 6/4/2017.

At the hearing of the Appeal on 16/5/2017, Olumide Ekisola Esq., with Mrs. Vivian Ayo - Okhiria, learned counsel for the 1st - 5th Respondents adopted the Respondents' brief as their argument and urged the court to dismiss the appeal and to affirm the garnishee orders absolute. The Appellants, though duly served with hearing notice for the 16/5/2017 through their counsel on 4/5/2017 and with the Respondents' brief on 11/4/2017, were not represented by counsel and the Appellants' brief was deemed as argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2016

However, on the invitation of this court, on 19/5/2017 the parties through their respective counsel; Obi Ezeilo Esq., with Mrs. Lynda Alpheaus for the Appellants and Olumide Ekisola Esq., with Mrs. Vivian Ayo - Okhiria and Innocent Eboh Esq,, for the 1st - 5th Respondents, addressed the court on an issue raised suo motu by the court on the locus standi of the 1st Respondent.

ISSUES FOR DETERMINATION

In the Appellants' brief, the following four issues were distilled as arising for determination in this appeal, namely:

1. Whether the Court below could grant the garnishee order nisi and the garnishee order absolute when the Court is aware that there is a pending motion for stay of execution of its judgment at the Court of Appeal. (Distilled from Ground 1)

2. Whether the Court below could make the garnishee order absolute without first hearing and determining the affidavit and written address to show cause filed by the Appellants/Judgment debtors and reaching a finding therein. (Distilled from Ground 2)

3. Whether the Court below could, in making the garnishee order absolute, attach any other monies in the account of the 1st Appellant other than monies in the general funds account of the Is' Appellant. (Distilled from Ground 3)

4. Whether the consent of the Attorney General of the Federation is required before a judgment against the 1st Appellant could be executed since the 1st Appellant is a Federal Government Agency. (Distilled from Ground 4)

In the 1st - 5th Respondents' brief, the following four issues were distilled as arising for determination in this appeal, namely:

1. Whether the court below was right to have heard and determined the garnishee proceedings duly initiated before it despite the fact that there was a motion for stay of execution filed at the Appellate court, more so when the counsel for the Appellant did not call the lower's court attention to the existence of such Application? (Distilled from Ground I)

2. Whether there is any provision or procedure in a garnishee proceedings that avails the Appellants/Judgment Debtors to show cause why the attached monies should not be paid to the Judgment Creditors/Respondents in satisfaction of the judgment debt (Distilled from Ground 2)

3. Whether the provisions of S:49(2) of the Copyright Act Cap C28 Laws of the Federation are not subject to the judicial power of the court while exercising her jurisdiction and judicial power pursuant to S:6(6) (a)&(b) of the Constitution of the Federal Republic Of Nigeria 1999 (as amended) (Distilled from Ground 3)

4. Whether in the circumstances of this case the consent of the Attorney General is a sine qua non before the garnishee proceedings could be commenced and if the answer is in the positive whether in a constitutional democracy that provides for the doctrine of Separation of Powers it is constitutionally compliant to subject the enforcement of the judgment of a court of competent jurisdiction to a prior imprimatur of an Attorney General who is an integral part of the executive arm of government before such judgment can be enforced. (Distilled from Ground 4)

My lords, looking at the issues as formulated by the parties in their respective briefs in the light of the facts and circumstances of this case and the proceedings of 25/6/2012 when the garnishee

orders nisi were made absolute by the court below, I am of the view that the four issues as distilled in the Appellants' brief, which are devoid of the long narratives in the four issues distilled in the 1st - 5th Respondents' brief, are the apt issues arising for determination in this appeal.

However, I had earlier in this judgment alluded to the direct effect of the judgment of this court in Appeal No. CA/L/925/2011: Nigeria Copyright Commission & Ors V. Musical Society of Nigeria Ltd/ GTE & Ors, which is on the appeal against the judgment of the court below, which enforcement by garnishee proceedings by the 1st - 5th Respondents is the subject matter of this appeal.

In the judgment delivered in the said appeal, this court had found that the 1st - 5th Respondents' suit on which the judgment of the court below was based was both incompetent and thus a nullity and also lacking in merit and had allowed the appeal, set aside the said judgment of the court below and proceeded to strike out and or dismissed the 1st - 5th Respondents' suit.

The law is far too settled to be disturbed now that out of nullity nothing worth anything or something can emerge or be predicated thereon. The Latin Maxim goes thus: Nihil non exspectanl aedificare stare: One cannot put something on nothing and expect it to stand. No! it would simply collapse like a pack of cards. See Benjamin Leonard Macfoy V. VAC Limited (1962) AC 152.

It follows therefore, the judgment of the court being found to be a nullity and or lacking in merit and wholly set aside by this court and the 1st - 5th Respondents' suit struck out for being incompetent and or dismissed for lacking in merit, there can in law be no valid and lawful enforcement of such a judgment. The Garnishee orders absolute made by the court below on 25/6/2012 had thus automatically become a nullity also without much ado and is liable to be set aside exdibito justitae. In law, both the judgment of the court and all the resultant orders made pursuant to such a null judgment are all simply nothing but nullities upon nullities ending up in nullity. They confer neither any benefits nor liabilities on the parties. See Zenith Bank Pic. V. Archibong & Ors (2013) LPELR - 20204 (CA) @pp. 13 - 15. See also Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503; Awoyegbe &Anor V. Chief Ogbeide (1988) NWLR (Pt. 73) 695.

In Otu V. ACB International Bank Pic (2008) 3 NWLR (Pt. 1073) 179, the Supreme Court per Mohammad JSC, had emphatically pronounced on this issue of the effect of a null judgment inter alia thus:

"It is settled law that a judgment that is a nullity has no legal validity and can confer no rights nor impose any obligation on anybody"

And in Memudu Ajiboye V. Alhaji Oloyede Ishola (2006) 13 NWLR (Pt. 998) 628, the Supreme Court per Onnoghen JSC, (as he then was but now CJN) had put it so succinctly inter alia thus:

"That being the case, it then follows clearly that the order of non suit contained in the judgment of the Court of Appeal declared a nullity is of no moment that is why the court considered it a waste of time and energy to go into a consideration of the propriety of the said order"

In law therefore, a null judgment though it existed as a fact, is devoid of any legal consequences. It is as if the said judgment does not exist. That is why when a judgment or order is a nullity, in law it is as if it was never given or made by the Court. See Gbaniyi Osafile & Anor V. Paul Odi & Anor (1990) 2 NWLR (Pt. 137) 130. See also Okoye V. Nigerian Construction & Furniture Ltd. (1991) 6 NWLR (Pt. 199) 501 @ p. 503; UBA Plc. & Anor V. Mrs. Ugoenyi & Anor (2011) LPELR - 5065 (CA); .Bello V. INEC (2010) 8 NWLR (Pt. 1196) 342.

In the circumstances therefore, and in the light of all I have said and held above, I hold that the garnishee orders absolute predicated on the null and set aside judgment of the court below are by themselves also nullities. In law, it need be stressed, here and now, that a judgment or order which is a nullity need not even be appealed against. It is null for all purposes with no legal effect whatsoever. In FUTECH Yola V. Musa Sani Futuless (2005) 12 NWLR (Pt. 938) 175, this issue was put so poetically by the court inter alia thus:

"If an order is void, the party whom it purports to affect can ignore it and he who has obtained it will proceed thereon at his own peril"

See also Marsh V. Marsh (1945) AC 271; Macfoy V. VAC Ltd. (Supra)

I shall leave all the various recondite issues of law posed by this appeal for another day safe to say that the facts of this appeal presented a bizarre twist whereby a court would in one breadth set aside its order of stay of execution on the ground that it was made while an appeal has been duly entered in this court and then in another breath in the same proceedings proceed to, while the appeal had remained entered in this court and pending hearing and determination, to allow an application to enforce the same judgment by means of garnishee proceedings, which judgment enforcement it had earlier stayed but discharged at its discretion has having been made after the appeal has been entered.

So, is enforcement of judgment by garnishee proceeding, aptly referred to as attachment of debts, still not a means of enforcement of judgment? In law can a garnishee proceedings be proceeded with to conclusion after a stay of execution has been ordered by the court simply because it is a distinct procedure for enforcement of judgment from writ of execution under Section 19 - 54 of the Sheriffs and Civil Process Act? Would a court which had ordered a stay of execution still proceed with a garnishee proceeding and order a garnishee order absolute? To all these posers I answer, albeit briefly, in one phrase; I think not! See CBN V. Auto Imports Export Ltd (2013) 2 NWLR (Pt. 1337) 80 for the five conditions precedent for a valid garnishee proceedings in law, I say no more!

My lords, there can be no better juncture than here and now to end this judgment. I hereby so end it.

Consequently, the appeal has merit and it hereby allowed. In the result, the garnishee orders absolute made by the court below on 25/6/2012 in Suit No. FHC/L/CS/35/2008: Musical Society of Nigeria Ltd/GTE & Ors V. Nigeria Copyright Commission & Ors., pursuant to the application for garnishee orders by the 1st - 5th Respondents in enforcement of the judgment of the court below delivered on 25/7/2011 in the said suit, are hereby wholly set aside being nullities and of no legal effect whatsoever. The garnishee orders absolute are consequently hereby vacated and discharged and every step or actions taken there under are also hereby set aside and thus any monies garnisheed under and by virtue of the said null orders of garnishee order absolute shall forthwith be returned or paid back to the Appellants by the 1st - 5th Respondents.

There shall be no order as to cost.
 
JOSEPH SHAGBAOR IKYEGH J.C.A: I had a preview of the judgment prepared by my learned brother, Biobele Abraham Georgewill, J.C.A., in which I concur.

JAMILU YAMMAMA TUKUR JCA. I read before today the lead judgment just delivered by my
learned brother BIOBELE ABRAHAM GEORGEWILL JCA . I agree with the reasoning and conclusion contained therein. I also allow the Appeal and I abide by the consequential orders made therein.
 
COUNSEL:
Obi Ezeilo Esq., with Mrs. Lynda Alpheaus for the Appellants
Olumide Ekisola Esq., with Mrs. Vivian Ayo - Okhiria and Innocent Eboh Esq,, for the 1st - 5th Respondents
The Garnishees were not represented by counsel.

Counsel

Not available.