APC v. ZENITH BANK & ORS (2021)

APC v. ZENITH BANK & ORS

(2021)LCN/15040(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, February 24, 2021

CA/C/331/2018

RATIO

WHETHER A JUDGMENT DEBTOR CAN BE HEARD IN A GARNISHEE PROCEEDING

I am not unmindful of the fact that garnishee proceeding is one of the ways of executing a judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within jurisdiction of the Court to satisfy the judgment debt – NGUGUISI v. JOPAN PUTRA INRE: DIAMOND BANK LTD (2002) 17 NWLR (prt. 795) 120, SOKOTO STATE GOVERNMENT V. KAMDEX NIG LTD (2004) 9 NWLR (prt. 878) 345, PIPELINE AND PRODUCTS MARKETING COMPANY V. MESSRS DELPHI PETROLEUM INCORPORATION (2005) 8 NWLR (prt 928) 458 and DENTON WEST V. MUOMA (2008) 6 NWLR (prt. 1083) 418. The purpose of enforcing a judgment by garnishee proceedings is to obtain the fruits of the judgment. A garnishee proceedings, as a separate action, cannot be divorced from the validity of the judgment. See BAUCHI STATE GOVERNOR & ANOR V. YUSGATE (NIG) LTD & ORS (2017) LPELR – 43306 (CA). By virtue of Order 8 Rule 8 (1) of the Judgment Enforcement Rules, if no amount is paid into Court, the Court, instead of making an order that execution shall issue, may after hearing the judgment creditor, the garnishee and the judgment debtor or such of them as appear determine the question of the liability of the garnishee. In FAWEHINMI V. NBA (No 1) (1989) 2 NWLR (prt.105) 494 at 550 – a person is defined as follows:- “A party to an action is a person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) by or against whom a legal suit is sought whether natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested and not parties.” There is no denying the fact that garnishee proceedings being a separate and distinct proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. To that extent, a judgment debtor cannot appeal against a garnishee order made by the lower Court as of right. This is the position decided in plethora of cases such as DOKUBO & ORS V. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR (2013) LPELR 21951 (CA), DENTONWEST V. MUOMA (supra) and PURIFICATION TECH. (NIG) LTD V. ATTORNEY GENERAL, LAGOS STATE (2004) 9 NWLR (prt. 879) 665. The foregoing still represent the correct position of the law in so long as the proceedings relates to garnishee order nisi which is initiated exparte as the decision at that initial stage does not affect the judgment debtor. However, where the proceedings are with respect to garnishee order absolute; tripartite party arrangement is put in place whereby the judgment debtor by law becomes an active participant by virtue of Section 83 (2) of the Sheriffs and Civil Process Act read in conjunction with Order 8 Rule 8 (1) of the Judgments (Enforcement) Rules. See NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (prt 1515) 536 and STANBIC IBTC BANK V. LONGTERM GLOBAL CAPITAL LTD (supra). In GWEDE V. DELTA STATE HOUSE OF ASSEMBLY (2019) 8 NWLR (prt 1673) 30 at 54 – 55, the apex Court held that it is not in all cases that a judgment debtor cannot be heard in garnishee proceedings. Thus, it is the Court that would determine whether he should be heard or not. If the application of the judgment debtor before the Court is to reopen issues settled in the judgment, he would not be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

IMPLICATION OF THE FAILURE TO SERVE COURT PROCESSES ON THE JURISDICTION OF COURT

It is also pertinent to observe for the umpteenth time that the issue of lack of service or failure to serve relates to denial of fair hearing and queries the jurisdictional competence of the adjudicating authority; Therefore, such issue can be raised at any time of the proceeding without leave. See ELUGBE V. OMOKHAFE (2004) 18 NWLR (prt. 905) 319, MOSES V. STATE (2006) 11 NWLR (prt 992) 458 and I.B.W.A. V. SASEGBON (2007) 16 NWLR (prt 1059) 195. In SUNNET SYSTEMS LTD V. NIGERIA ELECTRICITY REGULATORY AUTHORITY COMMISSION & ANOR (2014) LPELR – 223967 (CA) it was held that where a garnishee order nisi and absolute are made without jurisdiction of the lower Court, it within its jurisdiction to set these orders aside on the application of an aggrieved party. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ALL PROGRESSIVE CONGRESS APPELANT(S)

And

1. ZENITH BANK PLC 2. MR. LOUIS AKANIMO 3. MR. FIDEL ALBERT RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Garnishee Order absolute of the High Court of Akwa Ibom State sitting in Uyo, which order was made against Zenith Bank Plc. in favour of the 2nd and 3rd respondents on the 30th day of May, 2018 by Honourable Justice Charles Ikpe.

The 2nd and 3rd respondents through an undefended list procedure obtained a judgment in their favour against the appellant in the sum of N30,200,000.00 as well as the cost of N20,000.00. In their bid to enforce the said judgment, the 2nd and 3rd respondent instituted a garnishee proceedings to attach funds standing to the credit of the appellant wherein sixteen commercial Banks were sued on the 30th day of April, 2018, and an order nisi was made against all the sixteen banks and thus, ordered to come forward to show cause why the judgment sum should not be paid over to the 2nd and 3rd respondents. However, fifteen out of the sixteen banks were discharged while the 1st respondent (Zenith Bank Plc.) was mandated by order absolute to pay the judgment sum to the creditors.

Dissatisfied, appellant appealed to this Court through a notice of appeal filed on 5/7/2018. The said notice of appeal contains three grounds of appeal at pages 127-130 of the record of appeal. By leave of this Court granted on 28/1/2020, appellant amended its notice of appeal and same was deemed as properly filed on 24/1/2020. The appellant’s amended notice of appeal also contains three grounds of appeal. Two issues have been distilled by the appellant for the determination of this appeal. The said issues are contained on page 4 of the appellant’s brief of argument filed on 15/10/2020 but deemed as properly filed on 19/1/2021 which was adopted on 19/1/2021 at the hearing of this appeal by Ekemini Udim, Esq. These issues are:-
1. Whether a garnishee order absolute made less than 14 days from the service of the Order nisi on the judgment debtor and/or the garnishee is not incompetent and liable to be set aside?
2. If the answer to issue number one is in the affirmative, whether the order absolute made by the learned trial Judge on 30th day of May, 2018 (wherein money belonging to the appellant was ordered to the forfeited and paid over to the 2nd and 3rd respondents) is not liable to be set aside having been made without compliance with the mandatory provision of the law as to time?

In the 2nd and 3rd respondents’ brief of argument, settled by Nsikak Akai, Esq. and filed on 3/11/2020 but deemed on 19/1/2021, a sole issue was nominated for the determination of this appeal thus:-
Whether the learned trial Court erred when it made the order absolute on 30/5/2018.

Also incorporated in the 2nd and 3rd respondents’ brief is an argument in support of their preliminary objection challenging the competence of the appeal at pages 4-9 thereof. In response, the appellant filed a reply brief on 24/1/2020 but deemed on 01/1/2021.

Upon careful perusal of the record of appeal together with the respective submission of counsel on both sides, the two issues formulated by the appellant are quite apposite to the just determination of the appeal. I shall therefore determine this appeal based on the said two issues but before then, I will first and foremost consider the preliminary objection raised by the 2nd and 3rd respondents. The grounds upon which the preliminary objection is predicated are as follows:-

No issues have been formulated from grounds 2 and 3 of the notice of appeal.
(i) The law is trite that in an appeal proceeding, every appeal must be determined on the basis of the issues as formulated by the parties.
(ii) Upon the formulation of issues for determination which are tied to the grounds of appeal, the grounds diminish.
(iii) A ground(s) of appeal upon which no issue for determination is formulated, should be treated as having been abandoned and accordingly struck out.
(iv) The appellant formulated no issue(s) out of grounds 2 and 3 of the notice of appeal filed on 5/7/2018.
(v) This Court is thus enjoined to strike out those grounds as having been abandoned.
(vi Issue for determination which is not traceable to any ground of appeal, is also liable to be struck out.
(vii) Issue two as formulated in the appellant’s brief of argument filed on 18/6/2019 is liable to be struck out.
B:- The appellant’s ground of the notice of appeal and issue formulated thereunder does not flow from the decision of 30/05/2018 appealed against.
(i) Ground one (1) of the appellant’s notice of appeal does not flow from the decision of the lower Court.

(ii) The issue for determination formulated under the said ground one does not also flow from the said decision of 30/05/2018.
(iii) Grounds of appeal are not formulated in abstract.
(iv) It is settled law that for a ground of appeal to be competent, it must flow from the ratio of the judgment appealed against.
(v) Given the appellant’s failure to tie ground 1 of the notice of appeal to the decision of the lower Court complained of; same becomes incompetent alongside its issue and liable to be struck out.
C: Failure of the appellant to seek leave pursuant to Section 243 (a) of the Constitution (as amended).
(i) An appeal to this Court can only be initiated as of right by a party to the proceeding giving rise to the said appeal.
(ii) A party interested can only initiate an appeal and maintain same with leave of this honourable Court previously sought and obtained.
(iii) The appellant failed, refused, and/or neglected to seek leave pursuant to Section 243(a) of the 1999 Constitution (as amended).

Arguing the preliminary objection, learned counsel for the 2nd and 3rd respondents submitted that no issue was formulated from grounds 2 and 3 of the notice of appeal and that issue two of the appellant does not flow from any ground of appeal. Counsel referred to UNION BANK OF NIGERIA PLC. V. GAP CONSULTANTS LIMITED (2017)11 NWLR (prt.1577) 357 and BERNARD OKAFOR V. ENO EFFIONG (2017) 11 NWLR (prt. 1577) 519 to the effect that any ground of appeal which does not generate an issue and argument for determination is deemed abandoned and should be struck out.

Still in argument, counsel submitted that ground 1 of the ground of appeal does not relate to any matter that arose in the course of the proceedings as such, the just decision of this Court has not been properly invoked to sit and determine this appeal on its merit. And that where a ground of appeal does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against, same becomes incompetent and liable to be struck out. He referred to OKAFOR V. ABUMOFUANI (2016)12 NWLR (prt. 1525) 117.

In further argument, counsel submitted that in a garnishee proceedings, there are mainly two parties who are directly affected by any order or

decision of the Court namely, the judgment creditor and the garnishee. Thus, the judgment debtor cannot be said to be a party within the contemplation of Section 243(a) of the 1999 Constitution (as amended). The order absolute having not been given against the appellant but the 1st respondent, it is mandatory for it to seek and obtain leave before initiating this appeal. He referred to DANGOTE SUGAR REFINARY V. VIVAN PET. LTD & ANOR (2017) LPELR – 43189 (CA) and G.N. NWAOLISAH V. PASCAL NWABUFOH (2011) 14 NWLR (prt. 1268) 600 at 624.

Responding to the above, learned counsel for the appellant submitted that ground 1 and issue 1 borders directly on the jurisdiction of the trial Court to have made the order nisi absolute and being an issue relating to the jurisdiction of the Court, such issue can be raised and argued any time. He referred to I.J.A. ADERIGBIGBE V. TIAMIYU ABIDOYE (2009) LPELR – 140 (SC), OLUTOLA V. UNIVERSITY OF ILORIN (2004) LPELR – 2632 (SC) and OWIE V. IGHIWI (2005) LPELR 2846 (SC) to the effect that once an issue of jurisdiction is raised, it should be examined in all ramifications.

As to whether the appellant is a stranger to the Garnishee proceedings and thus incapable of appealing, learned counsel argued that the rule that garnishee proceeding is essentially a proceeding between the garnishee and the judgment debtor now permits some exceptions relying on the decision of this Court in NIGERIAN NAVY V. BARRISTER OROK OROK IRONBAR (2019) LPELR – 47006.

Counsel submitted further that in proceedings relating to garnishee order nisi which is usually exparte, it is safe to say that the proceeding involve only the judgment creditor and the garnishee and to that extent, the judgment debtor is not a party at that stage. But where as in this case, the proceedings are with respect to garnishee order absolute, a tripartite party arrangement is in place that is, the judgment creditor, the judgment debtor and the garnishee. Thus, in the latter case, the judgment debtor becomes an active participant by law. He cited Section 83 (2) of the Sheriffs and Civil Process Act, Order VIII Rule 8 (1) of the judgments (Enforcement) Rules and the cases of STANBIC IBTC BANK V. LONG TERM GLOBALCAPITAL LTD (2016) LPELR-

40517 (CA), and N.A.O.C V. OGINI (2011) 2 NWLR (prt. 1230) 131 at 152-153 in contending that the appellant is a party to the garnishee proceeding and being aggrieved by the order absolute, it can appeal against such decision which is a final decision.

I have earlier reproduced the grounds of the preliminary objection in the present case, the essence of which is to terminate the hearing of this appeal in limine. In order to determine whether the appellant’s grounds of appeal relates to the ratio decidendi of the decision under attack and or the issue(s) formulated flows directly from the judgment appealed against, one needs to examine critically the said grounds as well as the issue(s) distilled therefrom. Grounds one, two and three of the amended notice of appeal (shorn of particulars) in the instant case read thus:-
“Ground one:
The learned trial Judge erred in law when he made absolute its order nisi dated the 30th day of April, 2018 when the mandatory 14 days period between the date of hearing and the date the order nisi was served on the appellant was yet to elapse.
Ground two:
The learned Trial Judge erred in

law and breached the right of fair hearing of the appellant when he refused the application for adjournment of the hearing of the suit on May 30, 2018.
Ground three:
The learned Trial Judge erred in law when it made absolute its order nisi dated April 10, 2018 when appellant, through its counsel, disputed liability to the judgment sum.”

The provision of Order 7 Rule 3 of the Court of Appeal Rules 2016, is to the effect that vague and general grounds which disclose no reasonable grounds of appeal excepting the general ground that the judgment is against the weight of evidence is not permitted by the appellate Courts. Furthermore, the grounds of appeal must relate to and should also constitute a challenge to the ratio of the decision of the lower Court as well as constitute in aggregate the reason why the decision being appealed is considered wrong by the appellant and fulcrum upon which an appellate Court is called upon or urged to set it aside. See SARAKI V. KOTOYE (1992)7 NWLR (prt. 264) 156. Similarly, the issues for determination accentuated the issue in the grounds that are relevant to the determination of the appeal in the light of

the grounds of error alleged. Thus, there is a clear and direct relationship between the grounds of appeal and the issues for determination in an appeal. See OLOWOSAGO V. ADEBANJO (1988) 4 NWLR (prt 88) 274.

I have carefully and meticulous perused both grounds 1, 2 and 3 of the notice of appeal and it is my considered view that the complaint of the appellant emanate and sufficiently flow from the decision of the lower Court in this appeal. Both issues 1 and 2 could clearly be distilled from grounds 1, 2 and 3, same having clearly states what the appellant is complaining about that is, the lower Court make absolute its order nisi less than the mandatory 14 days period stipulated by law and that same was not served on the appellant.

On whether or not the appellant must obtain the leave of the Court before appealing in a garnishee proceedings, Section 243 (1) of the 1999 Constitution, as amended states that any right of appeal from decisions of the Federal High Court or a State High Court conferred by the Constitution shall be exercisable in civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter.

The question here, is the appellant who is a judgment debtor a party who does not require leave to appeal? I am not unmindful of the fact that garnishee proceeding is one of the ways of executing a judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within jurisdiction of the Court to satisfy the judgment debt – NGUGUISI v. JOPAN PUTRA INRE: DIAMOND BANK LTD (2002) 17 NWLR (prt. 795) 120, SOKOTO STATE GOVERNMENT V. KAMDEX NIG LTD (2004) 9 NWLR (prt. 878) 345, PIPELINE AND PRODUCTS MARKETING COMPANY V. MESSRS DELPHI PETROLEUM INCORPORATION (2005) 8 NWLR (prt 928) 458 and DENTON WEST V. MUOMA (2008) 6 NWLR (prt. 1083) 418. The purpose of enforcing a judgment by garnishee proceedings is to obtain the fruits of the judgment. A garnishee proceedings, as a separate action, cannot be divorced from the validity of the judgment. See BAUCHI STATE GOVERNOR & ANOR V. YUSGATE (NIG) LTD & ORS (2017) LPELR – 43306 (CA).

By virtue of Order 8 Rule 8 (1) of the Judgment Enforcement Rules, if no amount is paid into Court, the Court, instead of making an order that execution shall issue, may after hearing the judgment creditor, the garnishee and the judgment debtor or such of them as appear determine the question of the liability of the garnishee. In FAWEHINMI V. NBA (No 1) (1989) 2 NWLR (prt.105) 494 at 550 – a person is defined as follows:-
“A party to an action is a person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) by or against whom a legal suit is sought whether natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested and not parties.”
There is no denying the fact that garnishee proceedings being a separate and distinct proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. To that extent, a judgment debtor cannot appeal against a garnishee order made by the lower Court as of

right. This is the position decided in plethora of cases such as DOKUBO & ORS V. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR (2013) LPELR 21951 (CA), DENTONWEST V. MUOMA (supra) and PURIFICATION TECH. (NIG) LTD V. ATTORNEY GENERAL, LAGOS STATE (2004) 9 NWLR (prt. 879) 665. The foregoing still represent the correct position of the law in so long as the proceedings relates to garnishee order nisi which is initiated exparte as the decision at that initial stage does not affect the judgment debtor. However, where the proceedings are with respect to garnishee order absolute; tripartite party arrangement is put in place whereby the judgment debtor by law becomes an active participant by virtue of Section 83 (2) of the Sheriffs and Civil Process Act read in conjunction with Order 8 Rule 8 (1) of the Judgments (Enforcement) Rules. See NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (prt 1515) 536 and STANBIC IBTC BANK V. LONGTERM GLOBAL CAPITAL LTD (supra). In GWEDE V. DELTA STATE HOUSE OF ASSEMBLY (2019) 8 NWLR (prt 1673) 30 at 54 – 55, the apex Court held that it is not in all cases that a judgment debtor cannot be

heard in garnishee proceedings. Thus, it is the Court that would determine whether he should be heard or not. If the application of the judgment debtor before the Court is to reopen issues settled in the judgment, he would not be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard.
In the instant case, the appellant is alleging that the garnishee order absolute was granted in flagrant violation of its right to fair hearing and also been a party to the tripartite arrangement, does not require any leave of Court to appeal against a decision which is in the nature of a final decision. The respondent’s objection to the competence of this appeal is by and large lacking in merit and it is accordingly overruled.

Proffering argument on issue one of the main appeal, learned counsel for the appellant referred copiously to the provision of Section 83 (1) and (2) of the Sheriffs and Civil Process Act in submitting that before a garnishee order absolute can be validly made by the trial Court, the Court must satisfy itself that a period of at

least fourteen (14) days has elapsed between the time of the service of the order nisi on the garnishee and the judgment debtor and the time of the making of the order nisi absolute. Thus, an order nisi cannot ripen to an order absolute before the expiration of the period of 14 days from the day of service of the order nisi on the parties to garnishee proceedings.

Still in argument, counsel submitted that where there are more than one judgment debtor and more than one garnishee, each and every of them must be accorded the opportunity to take the benefit of the provision of Section 83 (2) of the Act before the order nisi can be made absolute. And that even where one of the parties may have served with the order nisi 14 days or more before the date set aside for hearing, the Court must inquire into the affidavit of service and be satisfied that every other party has been served with the same order at least 14 days before the hearing of the parties and making the order nisi absolute. He referred to the case of ZENITH BANK OF NIGERIA V. EMMANUEL OHAJA (2016) LPELR – 40618 to the effect that since the order absolute in the instant case was made

before the mandatory period of 14 days has not elapse, the said order is a nullity and the trial Court acted without jurisdiction.

Counsel further submitted that the fact that the garnishee proceedings, the subject matter of this appeal, was brought pursuant to the provision of Sheriffs and Process Act, the issue as to the computation of 14 days provided in Section 83 therein shall be in line with Section 15 (5) of the Interpretation Act where the period is reckoned from a particular event, as excluding the day on which the event occurs and likewise, where the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday. He thus concluded that, the order absolute was made by the lower Court nine (9) days from the service of the order nisi on the judgment debtor and the 1st Garnishee in contravention of Section 83 of the Sheriffs and Civil Process Act.

On issue two, learned counsel adopt his earlier argument in issue one and submitted further that if the condition precedent was not satisfied before making of the order nisi absolute, the consequence is that the order absolute is nullity.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Responding to the above, learned counsel for the respondent contended that construing Section 83 (1) and (2) at the Sheriffs and Civil Process Act together will reveal that judgment debtor has no particular role to play and therefore not a necessary party to the garnishee proceedings relying on DANGOTE SUGAR REFINARY V. VIVAN PETROLEUM LTD & ANOR (Supra).

From the above, the main grouse of the appellant is that by virtue of the provision of Section 83 (1) and (2) of the Sheriffs and Civil Process Act, it is by law entitled to be served with an order nisi at least 14 days before an order absolute be made. Thus, the order absolute made in the instance case clearly contravened the mandatory provision of Section 83 (1) and (2) of the Sheriffs and Civil Process Act. The said Section 83(1) and (2) of the Act read as follows:-
“83. (1) The Court may, upon the exparte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has

been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.
(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.
It is pertinent to state here in an unequivocal terms that the garnishee order nisi made pursuant to the provision of Section 83 (1) of the Sheriffs and Civil Process Act was an exparte order directed at the Garnishee and to which the judgment debtor is not a party who could invoke the right of appeal against same, as of right. Though as

judgment debtor whose funds may be the subject of the exparte, order; his interest in the funds was in no legal way affected or even interfered with by the order at that stage same being directed only to the holder of the funds, that is, the garnishee, who the law considers to be the debtor of the judgment creditor. Thus, the garnishee order nisi is directed to the Garnishee to appear before the Court to show reasons why the funds, if available should not be paid to the judgment creditor.
However, the situation changes after service of the order nisi on the judgment debtor pursuant to Section 83 (2) of the Act. I have stated earlier in this judgment that at this stage of the proceedings, a tripartite party arrangement is thereby created and the service of the order nisi on the judgment debtor at least fourteen (14) days before hearing whereas the order nisi will be made absolute. And since the Section makes it mandatory for service of the order nisi on the judgment debtor, the judgment debtor becomes a necessary party to be heard in this latter proceedings. Consequently, the right of appeal would inure to a judgment debtor from a decision by the Court at this latter or second stage of the proceedings.

In the instant case, the appellant was served on the 16th of June, 2010 while the order nisi was made on the 29th day of June, 2010. To compute fourteen (14) days from the 17th day of June, 2010 for the motion on notice for the order absolute to be set down for hearing means that the fourteen days stipulated by Section 83 (2) of the Sheriffs and Civil Process Act did not crystallizes. It is also pertinent to observe for the umpteenth time that the issue of lack of service or failure to serve relates to denial of fair hearing and queries the jurisdictional competence of the adjudicating authority; Therefore, such issue can be raised at any time of the proceeding without leave. See ELUGBE V. OMOKHAFE (2004) 18 NWLR (prt. 905) 319, MOSES V. STATE (2006) 11 NWLR (prt 992) 458 and I.B.W.A. V. SASEGBON (2007) 16 NWLR (prt 1059) 195. In SUNNET SYSTEMS LTD V. NIGERIA ELECTRICITY REGULATORY AUTHORITY COMMISSION & ANOR (2014) LPELR – 223967 (CA) it was held that where a garnishee order nisi and absolute are made without jurisdiction of the lower Court, it within its jurisdiction to

set these orders aside on the application of an aggrieved party. It is thus my respectful view that the failure to serve the appellant the garnishee order nisi at least fourteen days before an order nisi be made absolute robbed the trial Court of jurisdiction. I therefore resolve issue one in favour of the appellant.

For the same reason, issue two which stands on the same pedestal with issue one is invariably resolved also in favour of the appellant.
In the result, this appeal is meritorious and it is accordingly allowed. The order absolute made in Suit NO HU/MISC.23/2018 by Hon. Justice Charles Ikpe is hereby set aside.
Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA. I agree with the reasoning and conclusion reached in the judgment.

In particular, I also think that an appellant as in the instant case who alleges that the garnishee order absolute was granted in violation of its right to fair hearing does not require any leave of Court to appeal against such a decision in the nature of a final judgment.

Also, the failure to serve the appellant the garnishee order nisi at least fourteen days before the order nisi was made absolute robbed the trial Court of jurisdiction and rendered the proceedings a nullity.
In the result, I also allow the appeal.
I abide with the consequential order and the order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA.
I agree that the order nisi was without jurisdiction.
I allow the appeal. I abide by all the orders in the judgment including the order as to costs.

Appearances:

Ekemini Udim, Esq. For Appellant(s)

Nsikak Akan, Esq. – for 2nd & 3rd Respondents. For Respondent(s)