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2019) Lpelr-47441(Sc

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2019) Lpelr-47441(Sc GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR CITATION: (2019) LPELR-47441(SC) In the Supreme Court of Nigeria ON FRIDAY, 15TH FEBRUARY, 2019 Suit No: SC.595/2018 Before Their Lordships: WALTER SAMUEL NKANU ONNOGHEN Justice of the Supreme Court MUSA DATTIJO MUHAMMAD Justice of the Supreme Court KUMAI BAYANG AKA'AHS Justice of the Supreme Court JOHN INYANG OKORO Justice of the Supreme Court SIDI DAUDA BAGE Justice of the Supreme Court Between JENKINS DUVIE GIANE GWEDE - Appellant(s) (2019) LPELR-47441(SC)And 1. DELTA STATE HOUSE OF ASSEMBLY - Respondent(s) 2. SKYE BANK PLC RATIO DECIDENDI 1. APPEAL - REPLY BRIEF: Purpose/function of a reply brief "Learned Senior Counsel filed reply brief on 21st November, 2018. A close perusal of the said reply brief shows that it is a re- address and emphasis on the issues already argued. This is not the purpose of a reply brief. It is to address new points of argument made by the Respondent which the Appellant did not address in his brief of argument. I shall therefore discountenance the said reply brief."Per OKORO, J.S.C. (P. 17, Paras. A-B) - read in context 2. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Principles governing formulation of issues for determination in an appeal "I agree with my learned brother, Okoro JSC that the issues formulated by learned counsel for the 1st respondent mirror the complaints of the appellant and the issues formulated by appellant's counsel for determination are completely off tangent. Issues for determination must relate to the grounds of appeal filed and the grounds of appeal should arise from the judgment appealed against. See: Orianzi v. A-G. Rivers State (2017) 6 NWLR (Pt. 1561) 224; Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290; Bagobiri v. State (2017) 18 NWLR (Pt. 1597) 247."Per AKA'AHS, J.S.C. (P. 48, Paras. A-C) - read in context 3. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: When a party will not be tagged as a judgment debtor "Let me quickly state that I have painstakingly perused both the judgment of this Court in Appeal No. SC. 255/2013 (the Pre - Election Appeal) and the Court's varied consequential order in the said matter but I am unable to find even in remotest semblance where this Court held that the 1st Respondent herein is a Judgment debtor. The learned senior counsel for the Appellant also failed to refer to any portion of the said judgment or varied order where it was so stated. The law is trite that a document, including a judgment of the Court, speaks for itself, and one cannot read into the text what is not contained therein. See Ahmed v Central Bank of Nigeria (2013) 11 NWLR (pt. 1365) 352 at 374 paragraphs A - C. However, on page 4, paragraph 4.4 of the appellant's brief, the learned Silk made the following submission:- "The 1st Respondent did not apply to this honourable Court to be made one of the Appellant's but rather to be made one of the Respondents. The Judgment having been entered against the Respondents of which the 1st Respondent is one of the Respondents by virtue of the decision of this Court above, can any of the Respondents now be heard to argue that it is wrong to label him/her as Judgment Debtor especially when the judgment remained unsatisfied." The above argument stems from the Ruling of this Court on an application by the 1st Respondent to be joined as respondent contained on pages 1138 of the record of appeal which states thus:- "Having regards to the provision of Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and hereinafter referred to as the 1999 Constitution and Section 94 of the Sheriffs and Civil Process Act as well as Order 2 Rule 16 of the Judgment (Enforcement) Rules made thereunder, the applicant seeking to be joined in the instant application does not need to be a party by joinder as he is presumed by law to be a party and can thereby enforce any order of the Court made for its benefit. The application is therefore superfluous and is consequently dismissed with costs of N250,000 to each respondent present in Court this morning. Application filed on 15/10/15 is dismissed." The above Ruling of this Court refers to Section 287(1) of the 1999 Constitution, Section 94 of the Sheriffs and Civil Process Act and Order 2 Rule 16 of the Judgment (Enforcement) Rules. Now Section 287 (1) of the Constitution states:- "The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Supreme Court." This provision of the Constitution does not, by any stretch of imagination make a person who was not adjudged a judgment debtor to be so addressed. Order 2 Rule 16 of the Judgment (Enforcement) Rules provides as follows:- "Where a person not being a party in a proceeding obtains an order or has an order made in his favour, he shall be entitled to enforce obedience to such order by the same process as if he were a party in the proceedings; and any person not being a party in a proceeding against whom obedience to any judgment may be enforced, shall be liable to the same process for enforcing obedience to such judgment as if he were a party to the proceeding." This provision contemplates a non - party's involvement to either enforce a judgment made in his favour or to have an order requiring his obedience enforced against him. In the instant case, what is the position of the 1st Respondent in Appeal No. SC.255/2013? Put differently, as was posited by the learned counsel for the 1st Respondent. What does the judgment of this Court in SC.255/2013 require of the 1st Respondent? The answer to this question is found in the judgment/orders of this Court in both the judgment in SC.255/2013 and the order varying the consequential order in the said judgment. The material order to this issue can be found on page 447 of Vol. 1 of the record of appeal which states:- "4. It is further ordered that the said 2nd Respondent EDOJA RUFUS AKPODIETE refunds to the coffers of the Delta State House of Assembly all monies/sums of money he collected by way of salary, allowances whatsoever and howsoever described since he took his seat in the said House of Assembly under the pretext of being the duly elected candidate of the 4th respondent representing Ugheli North Constituency II, within ninety (90) days of this order." The above order places liability to refund the monies he collected solely on Edoja Rufus Akpudiete, the removed member of the 1st Respondent and by the said order, the 1st Respondent herein was the beneficiary as all the salaries and allowances of the removed member were to be returned to its coffers. I agree with the learned counsel for the Respondent that the above initial order did not confer any obligation on the 1st Respondent requiring its obedience. As the facts of this case indicate, the above order of this Court was varied. The said varied order is shown at page 450 of vol. 1 of the record of appeal and is stated thus:- "...the sum of money so refunded by the 2nd Respondent EDOJA RUFUS AKPODIETE to the Delta State House of Assembly shall be paid to the Appellant/Applicant JENKINS GIANE GWEDE as salaries, allowances etc. from June, 2011 till October, 2014..." The question may be asked if the above order makes the 1st Respondent a Judgment Debtor. I do not think so. As was argued by the learned counsel for the 1st Respondent, the obligation placed on the 1st Respondent is to give payment(2019) to the Appellant of any sum LPELR-47441(SC)of money refunded by the removed member. I agree also that the 1st Respondent's obligation under the varied order does not fetter, diminish or eliminate the removed member's liability to refund all monies he collected by way of salaries and allowances while illegally sitting as a member of the first Respondent. In its judgment, the Court below made a far reaching finding on page 1131, Vol. 2 of the record of appeal, which I agree entirely as follows:- "The person who is clearly the judgment debtor and against whom the 1st Respondent (Appellant herein) was and is supposed to press Garnishee proceedings is Hon. (Barr) Edoja Rufus Akpodiete or his Banker or any third party having his funds or monies and NOT DELTA STATE HOUSE OF ASSEMBLY. The 1st Respondent did not prove or show to the lower Court that the said removed member refunded any monies or funds in forms of salaries or allowances received by the removed member to the Appellant (1st Respondent herein) and same has not been paid over to the 1st Respondent (Appellant herein)." I agree entirely with the above view of the Court below and the submission of learned counsel for the 1st Respondent on the matter. It is the sums of money refunded by Edoja Rufus Akpodiete to the Delta State House of Assembly that triggers a payment obligation from the 1st Respondent to the Appellant. In other words, the 1st Respondent can only be found to be indebted to the Appellant where it is shown that the removed member has refunded sums of money to the 1st Respondent and that the 1st Respondent refused and/or neglected to pay such refunded sums to the Appellant.
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