LINDA v. SARAHA HOMES (NIG) LTD & ANOR (2021)

LINDA v. SARAHA HOMES (NIG) LTD & ANOR

(2021)LCN/15084(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/A/1143/2018

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

UKHAGBE NGOZI LINDA APPELANT(S)

And

1. SARAHA HOMES NIGERIA LIMITED 2. ARGUITETURA ENGENHARIA COMMERCIAL LIMITED RESPONDENT(S)

RATIO

WHETHER A PARTY IN LITIGATION CAN BE MADE TO SUFFER FOR THE ‘SINS’ OF THE COURT REGISTRY

A party in litigation cannot be made to suffer for dereliction of duties by its official. See: 1. CHUKWUMA OGWE & ANOR VS. IGP & ORS (2015) 1 SCM 226 at 238 per M. D. MUHAMMAD, J.S.C., who said: “Firstly, a document or process is deemed duly filed when it is taken to the Court registry, assessed by the officer assigned the responsibility and paid for. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person’s lapses. In CC.B (Nig) Plc V. A.G. Anambra State and Anor (1992) 81 NWLR (Pt 261) 528, this Court per Olatawura J.S.C. held at page as follows: – “… The Court will not visit the ‘sins’ of the Court Registry on a litigant or his counsel unless it was shown that the litigant and/or his counsel was a party therefore or had full knowledge of the sin or mistake and encouraged or condoned the act. Therefore, on the authorities, justice, equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it in fact does.” At page 240, B-D, his Lordship also said: “In any event, once it is shown that the appellant has paid the filing fees as assessed by the officer whose responsibility it is to do so, whether at the trial Court or the Court of Appeal as the case may be, the appeal is on the authorities, duly filed and same cannot be legally struck out. Otherwise, the appellants would be made to suffer for the fault, negligence or inadvertence of another. Where the fault of the payment of inadequate filing fees in respect of the appeal is traceable to the officer who assessed the fees it would be unfair not to place the blame where it truly is.” 2. MISS O. J. ANYANWOKO VS. CHIEF (MRS) C. O. N. OKOYE (2010) 5 NWLR (PART 1188) 497 at 573 C – D. PER PETER OLABISI IGE, J.C.A.

WHETHER A GARNISHEE ORDER MADE ABSOLUTE BY A COURT IS AN INTERLOCUTORY OR FINAL ORDER

A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication. Clearly, by the order of the Court above, the trial Court had determined the rights of the parties before it. I must state again that the appellant promptly complied with the order of the Court.” At pages 666 E – H, to 667 A – D, AKINTAN, JSC said: “The main issue raised in this appeal is whether a garnishee order made absolute by a Court is an interlocutory or final order. Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is therefore a specie of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings. See Words & Phrases Legally Defined 3rd edition Vol. 2, pages 313- 314. Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor. The Court thereafter becomes functus officio as far as that matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Choice Investments Ltd. v. Jeromnimon (Midland Bank Ltd., Garnishee) (1981) 1 All ER 225 At 328, and Words & Phrases Legally Defined, Vol. 2, page 301. During the period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings at the stage, being interlocutory would therefore not arise.” (Underlined mine) PER PETER OLABISI IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Justice Federal Capital Territory delivered on 25th day of May, 2016 by Hon. Justice A. M. TALBA setting aside judgment delivered in Suit No. FCT/CV/2044/2014 delivered by the said learned trial Judge on 20th April, 2015 in favour of Appellant who was the Plaintiff in the said case.

The Appellant had on 14th July, 2014 instituted this action (FCT/HC/CV/2044/2014) against the Respondents claiming the following reliefs viz:
“The Plaintiff’s claims are for:
a. A Declaration that whatever dispute that exists or existed between the 2nd Defendant and her agent, the 1st Defendant does not operate to deprive the Plaintiff of her proprietary or ownership rights over B115, Copa Cabana Estate, Plot 5 Cadastral Zone C10, Wumba District, Phase II, Abuja.
b. A Declaration that any purported transfer of Block B115, Copa Cabana Estate, Plot 5 Cadastral Zone C10, Wumba District, Phase II Abuja to any third party by the Defendants after the sale of Block B115, Copa Cabana Estate, Plot 5 Cadastral Zone C10, Wumba District, Phase II Abuja to

the Plaintiff is void and of no legal effect.
c. A perpetual injunction against the Defendants prohibiting them from trespassing upon Block B115, Copa Cabana Estate, Plot 5 Cadastral Zone C10 Wumba District, Phase II, Abuja which belongs to the Plaintiff.
d. An Order compelling the Defendants to pay, severally and jointly, the sum of N5m being rent paid by the Plaintiff from 2009 to 2014 at N1m per annum for every year that the seizure of Block B115, Copa Cabana Estate, Plot 5 Cadastral Zone C10, Wumba District, Phase II Abuja forced the Plaintiff to pay rent for her accommodation.
e. An Order compelling the Defendants to pay severally and jointly, the sum of N2m being financial losses suffered by the plaintiff as costs of abating the trespass perpetrated by the Defendants from 2009 till date.
f. An Order compelling the Defendants to pay N2m as general damages for the trespass, trauma and emotional distress caused by the Defendant’s illegal and forceful trespassing upon and seizure of the Plaintiff’s B115, Cope Cabana Esther, Plot 5 Cadastral Zone C10, Wumba District, Phase II, Abuja.”

The Defendants were served processes issued in the action but they did not file any process in the matter and the learned trial Judge allowed the Appellant to prove his case by calling for evidence to sustain his claims against the Respondents. At the end of the trial and conclusion of evidence, the learned trial Judge gave considered judgment on 20th April, 2015.
“The plaintiff took possession of the said plot of land and commenced building of her house. Exhibits C1, C2, and C3 are the photographs of the building under construction.
Consequent to the above findings, I am satisfied that the plaintiff has established her claims against the defendant.
Accordingly therefore, judgment is entered in favour of the plaintiff against the defendants in the following terms. It is hereby declared that:
(1) Whatever dispute that exists or existed between the 2nd defendant and her agent, the 1st defendant does not operate to deprive the plaintiff of her proprietary or ownership rights over B115 Copa Cabana Estate, Plot 5 Cadastral Zone C10 Wumba District Phase II Abuja.
(2) That any purported transfer of Block B115 Copa Cabana Estate, Plot 5 Cadastral Zone C10 Wumba District Phase II

Abuja to any third party by the defendants, after the sale of same to the plaintiff is void and of no legal effect.
The grant of the relief of perpetual injunction is a consequential order which should naturally flow from the declaratory order sought and granted by the Court.
In consequence thereof, I hereby granted a perpetual injunction against the defendants prohibiting them from trespassing upon Block B115 Copa Cabana Estate, Plot 5 Cadastral Zone C10 Wumba District Phase II Abuja.
The plaintiff’s claim for N5m being rent paid from 2009 to 2014 at N1m per annum is in the nature of special damages. And in this case, the evidence of the plaintiff in proof of special damages must be comprehensive and creditable. It must incorporate all the relevant conditions required in proof of special damages.
The plaintiff has failed to establish this claim and same is dismissed.
In the same view, the plaintiff’s claim in the sum of N2m being financial losses suffered by the plaintiff as cost of abating the trespass perpetrated by the defendants from 2009 till date. It is settled law that cost follows events. A successful party is entitled to

cost so as to compensate him for the loss incurred in litigation. But cost cannot cure all the financial loss incurred in litigation. I therefore award a cost of N1m against the defendants.
And lastly, the plaintiff is claiming the sum of N2m as general damages for the trespass, trauma and emotional distress caused by the defendants’ illegal and forceful trespassing upon and seizure of the plaintiff’s B115 Copa Cabana Estate, Plot 5 Cadastral Zone CIO Wumba District Phase II Abuja.
In considering the award of damages, the Court has a discretion as to the question of damages it would award in a claim of damages for trespass. The assessment does not depend on any legal rules, but the discretion of the Court is however limited by used caution or prudence and remittances of damages when considering the award of damages. See Ero Vs Tinubu (2012) 8 NWLR (Pt. 1301).
Consequently, I award the sum of N1m as general damages against the defendants.
Judgment is entered for the plaintiff and orders made accordingly
Signed: HON. JUSTICE A.M. TALBA – PRESIDING JUDGE
20/4/2015.”

Thereafter, the Appellant commenced garnishee proceedings

against the First Bank Plc in order to enforce the judgment given in favour of the Appellant on 20/5/15.

The lower Court made Garnishee Order Nisi on 10th June, 2015 against the funds of the 2nd Debtor/2nd Respondent. The Order NISI was made absolute on 8th July, 2015.

By her Motion on Notice dated and filed on 2nd July, 2015, the 2nd judgment Debtor/Respondent prayed the lower Court for the following orders:
“(i) An Order extending the time within which the 2nd judgment Debtor/Applicant may apply to set aside the default judgment of this Honourable Court delivered against the Applicant on the 20th April, 2015.
(ii) An Order setting aside the default judgment of this Honourable Court delivered on the 20th April, 2015 for being a nullity.
(iii) An Order setting aside the Garnishee Order Nisi made on the 10th June, 2015 attaching the funds of the 2nd judgment Debtor with the above-named Garnishee.
(iv) An Order dismissing Suit No. FCT/HC/CV/2044/14 for being a gross abuse of Court process.
(v) An Order awarding cost of N250,000 against Counsel to the Plaintiff Barrister Valentine Offia pursuant to his undertaking in the Pre-Action

Counselling Certificate filed on the 14th July, 2014 before this Honourable Court and Breach of Rules of Professional Conduct for legal practitioners for a frivolous suit and deliberate abuse of Court process.
(vi) AND FOR SUCH FURTHER order or other orders as this Honorable Court may deem fit to make in the circumstances.
The Grounds of the application are as follows:
1. The 2nd judgment Debtor became aware of this suit and judgment for the 1st time on the 19th June, 2015 (60 days after the judgment was delivered) by a letter dated 18th June 2015 from the Garnishee informing the Applicant of the Order Nisi of this Honourable Court.
2. There is pending before Court 22 Apo, Federal Capital Territory, Abuja suit No FCT/CV/5636/11 on the same subject matter between the same parties been handled by the same counsel for the Plaintiff and the Applicant’s Counsel.
3. The reliefs and claims in this suit and the pending suit FCT/CV/5636/11 before Court 22 Apo, Federal Capital Territory, Abuja are the same in content and context.
4. That the judgment creditor without discontinuing suit FCT/CV/5636/11 secretly filed this action

simultaneously and deliberately failed to serve same on the Applicant corporate office of the applicant at Flat 3, Block 64, PTF Quarters, Cairo Street, Wuse 11, Abuja as endorsed on the originating summons obtained from the registry of this Court on the 23/06/2015.
5. The subsequent suit FCT/CV/2044/14 in which judgment was granted in default against the 2nd judgment Debtor/Applicant is a gross abuse of Court process which renders the judgment of 20th April, 2015 a nullity in law.
6. Abuse of Court process is a jurisdictional issue which renders all subsequent processes, proceedings, judgment and orders a nullity.
7. Abuse of process attracts a dismissal of the suit constituting the abuse.”

The application was duly heard. The learned trial Judge acceded to application and hearken to the prayers of the 2nd Respondent in his considered ruling delivered on 25th May, 2016 wherein the lower Court held as follows:
“In this instant case, the notice of discontinuance was filed at the Process Unit of the High Court, Maitama on the 24/6/2014. While the suit was pending at High Court 22 Apo.
It was on the 10/07/2015 when the

plaintiff/judgment creditor’s counsel delivered the notice of discontinuance at High Court 22 Apo. And when it was delivered and received at High Court 22 Apo, same was not served on the defendants.
Order 27 Rule 2(1) provides for service of notice of discontinuance on the defendants concerned.
In Dairo Vs UBN Plc (2004) 4 NWLR (Pt. 862) 123 at 132, the Court held thus:
“Rules of Court are the sources of procedural law which guide the Courts in orderly and just dispensation of justice. They must be followed and correctly applied in order to meet the purpose for which they are enacted. They exemplify the discipline of the law and its administration.”
Therefore, the plaintiff/judgment creditor having failed or refused to file the notice of discontinuance at High Court 22, Apo and having failed of refused to serve the notice of discontinuance on the defendants, it constitutes a fundamental breach of the rules of this Court. Meaning the Suit No. CV/5636/11 was still pending when the plaintiff/judgment creditor instituted this instant suit. And it is clearly an abuse of Court process.
Authorities are abound that once the Court comes to the

conclusion there that is an abuse of Court process then it has a duty to dismiss it. In Arubo Vs Aiyeleru (1993) 2 SCNJ 90 at 162, the Supreme Court held that once a Court is satisfied that any proceedings before it is an abuse of process, it has the power indeed, the duty to dismiss it.
Consequently, the judgment delivered in this Suit No. FCT/CV/2044/2014 dated the 20th day of April, 2015 is hereby set aside.
In the same vein, the garnishee order absolute made on 8th day of July, 2015 is hereby set aside.
In consequence thereof, Suit No. FCT/HC/CV/2044/2014 is hereby dismissed for being an abuse of Court process. Having dismissed the Suit No. FCT/HC/CV/2044/2014, it would be superfluous to proceed to consider whether the 2nd defendant judgment debtor/applicant was indeed/served with the originating processes of this Court as required by law.
Same is therefore discontinued.
All reliefs granted except relief No. 5. Orders made accordingly.”

The Appellant was dissatisfied with aforesaid ruling and has appealed to this Court vide her NOTICE OF APPEAL dated 4th October, 201… and filed on 15th October, 2018 on three grounds

which with their particulars are as follows:
“2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The whole decision.
GROUNDS OF APPEAL
GROUND 1:
The High Court of the Federal Capital Territory lacked jurisdiction to set aside her own final judgment since she was functus officio.
Particulars of error:
1. The High Court of the Federal Capital Territory delivered final judgment in Suit No. FCT/CV/2044/2014 on 20th April 2015.
2. The High Court of the Federal Capital Territory enforced the said final judgment by ordering an Order Absolute in garnishee proceedings concluded on July 8, 2015 to enforce the said final judgment.
3. The High Court of the Federal Capital Territory set aside the already enforced final judgment without an appeal being filed by the Respondents.
GROUND 2:
4. The Appellant was denied fair hearing when the High Court of the Federal Capital Territory declined to pronounce on the objections of the Appellant in the ruling of the High Court of the Federal Capital Territory delivered on 25th May, 2016.
Particulars of error:
1. The High Court of the Federal Capital

Territory did not pronounce on the objection of the Appellant that the High Court of the Federal Capital Territory was functus officio.
2. The High Court of the Federal Capital Territory did not pronounce on the objection of the Appellant that the application of the 2nd Respondent filed on 02/07/2015 was filed in respect of a non-existent suit.
3. The High Court of the Federal Capital Territory did not pronounce on the objection of the Appellant that the application of the 2nd Respondent filed on 02/07/2015 was incompetent, same having been filed without the requisite leave stipulated by the Rules of Court.
4. The High Court of the Federal Capital Territory did not pronounce on the objection of the Appellant that the application of the 2nd Respondent filed on 02/07/2015 was incompetent, same having been filed without any statement of defence exhibited.
5. The High Court of the Federal Capital Territory did not pronounce on the objection of the Appellant that the application of the 2nd Respondent filed on 02/07/2015 was incompetent as it sought the setting aside of an Order Nisi when an Order Absolute had been granted by the Court.

GROUND 3:
The High Court of the Federal Capital Territory erred in law and caused miscarriage of justice when it held that Suit No. FCT/CV/2044/14 was an abuse of Court process.
Particulars of error:
1. Suit No. FCT/HC/CV/5636/2011 was filed in 2011.
2. The Respondents did not file any statement of defence for three years until the Appellant discontinued Suit No. FCT/HC/CV/5636/2011 by filing a notice of discontinuance in 2014.
3. The Appellant filed a new Suit No. FCT/HC/CV/2044/2014 after filing the notice of discontinuance.
4. The Respondents did not attend Court proceedings in respect of Suit No. FCT/HC/CV/2044/2014 despite several hearing notices served on them but attended Court to seek the setting aside of the final judgment after the Order Absolute was granted.
5. No other suit existed or was pending at the time suit No. FCT/HC/CV/2044/2014 was heard and determined.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
1. An Order setting aside the Ruling of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/2044/2014 delivered on the 25th day of May, 2016.

An Order restoring and upholding the final judgment of the High Court of the Federal Capital Territory in suit No. FCT/HC/CV/2044/2014 delivered on the 20th April, 2015.”The Appellant’s Brief of Argument was dated and filed on the 24th January, 2019. The two Respondents did not file Briefs of Argument and upon the application of the Appellant filed on 21st August, 2020, this Court granted the Appellant’s motion that the appeal herein (CA/A/1143/2018) shall be heard on the Appellant’s Brief alone. The motion was granted on 15th October, 2020.The appeal was heard on 19th January, 2021 when the learned Counsel to the Appellant adopted Appellant’s Brief of Argument. The learned Counsel to the Appellant VALENTINE OFFIA Esq., distilled three issues for determination as follows:
“1. Whether the High Court of the Federal Capital Territory had jurisdiction to set aside her final judgment delivered on April 20, 2015? – Ground One.
2. Whether the failure of the High Court of the Federal Capital Territory to pronounce on the objections raised by the Appellant against the application of the 2nd Respondent denied the Appellant her right to fair hearing? – Ground two.

Whether Suit No. FCT/CV/2044/14 which was filed after the Appellant discontinued Suit No. FCT/HC/CV/5636/11 at the High Court of the Federal Capital Territory was an abuse of Court process? – Ground Three.”The appeal can be determined on the three issues formulated by the Appellant’s Learned Counsel but will take them together.On issue one, as to whether the lower Court had jurisdiction to set aside her final judgment delivered on 20th April, 2015, the learned Counsel to the Appellant stated that the learned trial Judge heard the Appellant’s case and that the Appellant testified and tendered exhibits and judgment was given on the merit. He stated that the lower Court granted Garnishee Order absolute in favour of Appellant to enable her enforce the lower Court’s judgment.
That the lower Court upon the application of 2nd Respondent seeking to set aside lower Court’s judgment, the trial Court sat on appeal over the same trial judgment and Garnishee orders without an appeal to this Court. He submitted that the judgment of lower Court was not a default judgment as claimed by the 2nd Respondent in her application.

That since the trial Court had enforced the said judgment by Garnishee Order absolute in respect of the monetary damages awarded the Appellant, the lower Court became functus officio and could not re-open the case to set aside already enforced judgment and that any grievance by the Respondents ought to have been an appeal to this Court and not vide application to set aside the judgment made to the lower Court. He relied on the cases of:
1. AKAHALL SONS LTD V. NDIC (2017) 69 NSCQR vol. 2, 589 at 604.
2. A. G. KWARA STATE V. LAWAL (2017) 70 NSCQR 444 at 469 – 470.

He drew attention to the fact that the Respondents were duly served hearing notices but choose to ignore them and the proceedings only to turn up vide application after the enforcement of the final judgment. He also referred to page 74 – 75 of the record where the lower Court confirmed that all processes and hearing notice were duly served on the Respondents. That the lower Court had no jurisdiction to set aside the judgment already delivered and executed.

On issue 2, as to whether the failure of the lower Court to pronounce on the objections raised by the Appellant against the

application of 2nd Respondent denied the Appellant her right to fair hearing, the Appellant’s learned Counsel stated that 2nd Respondent filed an application (pertaining to unknown suit FCT/HC/CV/2011/14) to set aside the final judgment of the trial Court on the grounds that she was not aware of the suit before judgment and that there was a prior suit between same parties on the same subject matter which was not discontinued. That the Appellant objected to the said application on the grounds set out in the said objection.

That the trial Court failed to pronounce on the said objection or on any or all of the issues raised by the Appellant on the competence of the application and the jurisdiction of the lower Court thereby denying the Appellant fair hearing. He relied on the cases of:
1. AFRO CONTINENTAL LTD V. COOPERATIVE ASSOCIATION OF PROFESSIONALS INC. (2003) 13 NSCQR 186 at 196.
2. AMOO V. ALABI (2003) 15 NSCQR 132 at 148.

Learned Counsel to the Appellant contended that the Appellant was denied her right to fair hearing by the refusal of the lower Court to consider her objections to the application filed by the 2nd Respondent

especially when the said objections were on whether the lower Court had jurisdiction to entertain the said application.

On issue 3, as to whether Suit No. FCT/CV/2044/14 filed at the High Court of Federal Capital Territory was an abuse of Court process, the learned Counsel to the Appellant drew attention to the 2nd Respondent’s application where in it was contended that the Appellant had earlier filed a suit No. FCT/CA/5636/11 but failed to discontinue same before the institution of Suit No. FCT/HC/CV/2044/14 which the 2nd Respondent strongly submitted constituted abuse of Court process and as such the judgment of lower Court was entered without jurisdiction in Appellant’s favour.

The Appellant’s learned Counsel submitted that abuse of Court process will only arise where two similar suits are pending between the same parties. He stated there was no such issue in this case where one suit has determined all the issues between the parties. That whichever suit is still pending would be liable to be struck out.

The second point made on allegation of abuse of Court process is that the very existence of a Notice of Discontinuance that was filed in

FCT/HC/CV/5636/11 was sufficient proof of the termination of that suit before suit No. FCT/CV/2044/2014 was commenced. He stated that the 2nd Respondent had no right to complain about the termination of the earlier suit because 2nd Respondent did not file any statement of defence for a period of three years and no trial took place in FCT/HC/CV/5636/11 before the Appellant discontinued the suit. That the Respondents cannot claim that they have been unduly harassed by the Appellant via the existence of several suits on same subject matter. He relied on the cases of IKINE V. EDEJERODE (2001) 18 NWLR (PT 745) 446 and EMEGARA V. HEALTH MANAGEMENT BOARD, IMO STATE (1987) 2 NWLR (PART 50) 339. At 340, where according to him, this Court held that a Notice of Discontinuance is not a motion to be formally argued and that once it is filed, the whole suit is deemed to have come to an end. He submitted that the lower Court erred when he held that suit FCT/HC/CV/2044/2014 was an abuse of Court process and same has occasioned a miscarriage of justice.

That the lower Court was wrong in stating that the Notice of Discontinuance should have been filed at High Court 22 at

Apo. That processes meant for the Court are filed at Central filing Registry of FCT High Court Maitama.

In conclusion, learned Counsel urged this Court to allow the appeal and set aside the lower Court’s ruling delivered on 25th May, 2016.

The major complaint under issue 1 is whether the lower Court had the jurisdiction to set aside its judgment same having been duly executed vide Garnishee proceedings in which the learned trial Judge made garnishee order absolute.

In the judgment given in favour of Appellant on 20th April, 2015, the learned trial Judge explicitly found concerning the Defendants now Respondents on page 74 as follows:
“Despite series of hearing notices served on the defendants, the defendants failed or neglected to enter appearance or file any process in response to the writ of summons and statement of claim served on them. At every adjournment, the defendants were duly served with a hearing notice. This, I confirmed from the proof of service in the Court’s record. Opportunities can be given to a party to be heard but it never last forever. No party can hold others or the Court to ransom. The business of the Court cannot

be dictated by the whims and caprices of any party. Justice is not a one way traffic but a two-way traffic. Justice to the defendant as well as to the plaintiff. And justice delayed is justice denied. On this note, the plaintiff was allowed to proceed with her case bearing in mind that the defendants can come in to defend the suit if they so desire at any time before judgment.”

The learned trial Judge also found on pages 77 – 78 as follows:
“From the evidence adduced by the plaintiff, both oral and documentary, I am satisfied that the plaintiff had proved her claims against the defendants, Exhibits A and B the receipt for payment of N2.5m and the allocation dully established an equitable interest in Block B115 Copa Cabana Estate, Plot 5 Cadastral Zone CIO Wumba District Phase II Abuja. It is settled law that a document proposing the intervention of parties to convey land is a registrable instrument which can be tendered to prove the terms of the oral agreement between the parties or a receipt to prove payment and equitable interest. See Dantata Jnr. Vs Mohammed (2012) 14 NWLR (Pt. 1319) 122.”
It is also trite that the receipt of purchase price

coupled with the delivery of possession confers and equitable interest in landed property. See Mohammed Vs Mohammed (2012) 11 NWLR (Pt. 1310) 1 and Thompson V Arowolo (2003) 7 NWLR (Pt. 818) 163.
The plaintiff took possession of the said plot of land and commenced building of her house. Exhibits C1, C2 and C3 are the photographs of the building under construction. Consequent to the above findings, I am satisfied that the plaintiff has established her claims against the defendant.”

And finally on page 80 of the record, the learned trial Judge found:
“Consequently, I award the sum of N1m as general damages against the Defendant, judgment is entered for the Plaintiff and Orders made accordingly.”

There was no appeal against the above findings of the lower Court by any of the Respondents not even on the Garnishee Order absolute made in the case subsequent to lower Court’s judgment and in enforcement of the said judgment of lower Court.

The only thing the 2nd Respondent did was the application it brought on 2nd July, 2015 to have the judgment set aside as well as garnishee order absolute set aside and dismissed for abuse of

Court process. One of the ground upon which the application was argued was that an earlier action No. FCT/CV/5636/2011 earlier filed by the Appellant against Defendants and that the action was still pending when the instant suit FCT/HC/CV/2044/14 was instituted thereby making the latter suit an abuse of Court process.

The Appellant argued that position of the Respondent was not correct in that the said suit was discontinued on 24/6/2014 which was filed at the High Court of the FCT Process Unit and duly paid for when the Defendants have not yet filed any statement of defence in the said Suit CV/5636/11.

I agree with the Appellant that the current suit FCT/HC/CV/2044/2014 was initiated or commenced against the Defendants now Respondents after the earlier Suit CV/5636/11 has been discontinued and withdrawn against the Respondents.

One of the ground for the 2nd Respondent’s application (on pages 95 – 96 of record) was:
“4. That the judgment creditor without discontinuing suit FCT/CV/5636/11 secretly filed this action simultaneously and deliberately failed to serve same on the Applicant at the corporate office of the applicant at Flat 3, Block

64 PTF Quarters, Cairo Street Wuse 11 Abuja as endorsed on the originating summons obtained from the registry of this Court on the 23/06/2015.”

The initiating process in this action was writ of summons issued out of the said Court on 14/7/2014, contained on page 14 of the record. There is nothing to show that the judgment was set aside for lack of service on the Corporate Office of the 2nd Respondent.

The trial Court saw no reason for considering it because according to the learned trial Judge, the Notice of Discontinuance was not served on the Respondents and it thus meant there were two suits pending at the same time and it constituted abuse of Court process.

With profound respect to the learned trial Judge, the findings contained in his Ruling of 25/5/2016 setting aside his judgment of 20th April, 2015 are grossly inconsistent with his conclusion. Everything point conspicuously in the said ruling (at pages 81 – 90 wrongly paged as 89 – 90) to the fact that the Registry of the trial Court and the Registrars had notice and were well aware of the Notice of Discontinuance and the Respondents applied for certified true copy of same and they

were given. There is no evidence to show that the Notice of Discontinuance was not filed as required by law. The Registry at which the Notice of Discontinuance was filed was/is the Registry for trial Court – High Court of FCT Process unit at Maitama. It was the duty of the Registrars or officers of that Court to take the process to the appropriate Court seised of hearing of the case or to the Court of the Judge to which the case is assigned. The Registry Staff cannot by their own negligence cause miscarriage of justice to a party in litigation and the trial Court was wrong in relying on the negligence of its staff to deflect the course of justice. There was a finding of fact by him that the Registrar agreed that the Notice of Discontinuance was actually filed. There was no evidence to show it was not filed before this suit commenced. I am of the firm view that there was and there is no abuse of the Court process by the Appellant, notwithstanding the unproved allegation that the Notice of Discontinuance was not served. There was no proceedings in Suit No. CV/5636/11 since the filing of Suit No. FCT/HC/CV/2044/2014 by any Court including the trial Court in

this matter. All the Hearing Notices issued and served on the Defendants/Respondents as rightly found by lower Court were issued out of FCT/HC/CV/2044/2014 and not in any other suit. The failure, if any, to serve Notice of Discontinuance in FCT/CV/5636/11 on the Defendants in that Suit (FCT/CV/5636/11) cannot at all vitiate proceedings legally and legitimately conducted in this Suit which went up to the enforcement of the judgment. The Respondents were not made to face trial in two suits simultaneously. The Respondents never stated that they filed a single process in the earlier Suit FCT/CV/5636/2011 nor did they contend that another judgment emanated therefrom.

As said earlier, the Registry of the lower Court was aware of the filing of the Notice of Discontinuance. It was the Registry Staff that failed to bring it to the lower Court’s attention and in any event there was no abuse of Court process emanating therefrom. A party in litigation cannot be made to suffer for dereliction of duties by its official. See:
1. CHUKWUMA OGWE & ANOR VS. IGP & ORS (2015) 1 SCM 226 at 238 per M. D. MUHAMMAD, J.S.C., who said:
“Firstly, a document or

process is deemed duly filed when it is taken to the Court registry, assessed by the officer assigned the responsibility and paid for. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person’s lapses. In CC.B (Nig) Plc V. A.G. Anambra State and Anor (1992) 81 NWLR (Pt 261) 528, this Court per Olatawura J.S.C. held at page as follows: –
“… The Court will not visit the ‘sins’ of the Court Registry on a litigant or his counsel unless it was shown that the litigant and/or his counsel was a party therefore or had full knowledge of the sin or mistake and encouraged or condoned the act. Therefore, on the authorities, justice, equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it in fact does.”
At page 240, B-D, his Lordship also said:
“In any event, once it is shown that the appellant has paid the filing fees as assessed by the officer whose responsibility it is to do so, whether at the trial Court or the Court of Appeal as the case may be, the appeal is on the authorities, duly filed and same cannot be legally struck out.

Otherwise, the appellants would be made to suffer for the fault, negligence or inadvertence of another. Where the fault of the payment of inadequate filing fees in respect of the appeal is traceable to the officer who assessed the fees it would be unfair not to place the blame where it truly is.”
2. MISS O. J. ANYANWOKO VS. CHIEF (MRS) C. O. N. OKOYE (2010) 5 NWLR (PART 1188) 497 at 573 C – D.

The 2nd Respondent did not appeal against the failure of lower Court to consider issue 2 as to whether the Court processes were served at their registered or corporate office and having regard to the earlier finding of the lower Court in its judgment of 20th April, 2015 that Defendants were duly served Writ of Summons and statement of claim in FCT/HC/CV/2044/2014, the suit herein, the trial against the Respondents was duly conducted and the lower Court ceased to have jurisdiction in the matter upon pronouncement of judgment in favour of Appellant and upon the Garnishee Order absolute made by the trial Court to enforce its judgment. See:
1. CHIEF EMMANUEL BELLO V. INEC. & ORS (2010) 3 SCM 1 at 28H TO 29 A – B per MAHMOUD

MOHAMMED, J.S.C. later CJN (RTD) who said:
“I may observe at this stage that the misconceived course taken by the Respondent in this case is similar to the course adopted “by the Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 2 N.S.C.C Vol. 22 Part 1 page 422 also reported in (1991) 6 N.W.L.R. (Pt. 199) 501 at 532 where this Court held that failure to join as a party, a person who ought to have been joined will not render the proceedings a nullity on ground of lack of jurisdiction or competence of the Court. Akpata J.S.C. specifically stated the position as follows: –
“In my view, failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance that will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial Court itself is incompetent to review the

judgment; more so another Court of co-ordinate jurisdiction.”
On page 54, H – I to 55, ADEKEYE, JSC also said:
“A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus, liable to be set aside. See Okafor v. Okafor (2000) 11 NWLR pt. 677 pg. 21, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC pg. 6, Obimonure v. Erinosho (1966) 1 ALL NLR pg. 250. The power of a Court to set aside its judgment is statutory. The Court does not have power to set aside its judgment without a statutory provision enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstances where:
(a) The writ or application was not served on the other party or
(b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. Lawal v. Dawodu (1972) 8 – 9 SC pg. 83.”
That is not the case in this appeal.
Another major reason for the wrong decision of the lower Court in setting

aside its own judgment is that having found that the Respondents were duly served all processes and they chose to stay away and having embarked on full trial of the case and given valid judgment, he became functus officio in the matter. Not only that, having made Order NISI of 10/6/2015 absolute on 8/7/2015, the only option opened to the 2nd Respondent was to have appealed the lower Court’s judgment of 20/4/2015 and the Garnishee Order absolute and not application to the lower Court which has since upon entering of the judgment and the making of Garnishee Order absolute lost jurisdiction to act in the matter or to exercise any discretion in it. See:
1. ALHAJI M. M. DINGYADI & ANOR vs. INEC & ORS (2011) 4 SCM 87 at 116 E – H per ADEKEYE, JSC who said:
“The Latin phrase “functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and therefore lack the potency to review, re-open or revisit

the matter. Thus once a Court delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of Court process. See Ukachukwu v. Uba (2005) 18 NWLR (pt. 956) pg. 532, Anyaegbunam v. A-G Anambra State (2001) 6 NWLR (pt. 710) pg. 32, Mohammed v. Husseini (1998) 14 NWLR (pt. 584) K pg. 108.”
2. ZENITH BANK PLC V. CHIEF ARTHUS JOHN & ORS (2015) 7 NWLR (PART 1458) 393 at 423 D – H to 424 B – C per PETER ODILI, JSC who said:
“As if the strangeness of the guarantee, counter guarantee being touted are not enough, then is thrown up a fundamental matter of this Court being called upon to make an order affecting a Garnishee Order Absolute against which there is no appeal. It is stating the obvious that a Garnishee Order Absolute means an executed judgment and being a completed act. one wonders how an order of stay can either be ordered or carried out. In this regard, I refer to A.-G. Anambra State v. Okafor (1992) 2

NWLR (Pt. 224) 396 at 430; Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt. 464) 15.
Also, to be placed on record, is the fact that the Garnishee Order Absolute against the Central Bank of Nigeria was made by the Federal High Court and it was not appealed against to the Court of Appeal, therefore, what is being asked of the Supreme Court of the present application is for this Court to sit on appeal over a matter directly from the High Court. The power to do so has yet to be revealed as I cannot see the vires for such a procedure. See Section 233 of the 1999 Constitution (as amended) which has provided for appeal to this Court from the Court of Appeal and not the High Court. I rely also on Ogoyi v. Umagba (1995) 9 NWLR (Pt. 419) 283; Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244.
Indeed, from the various processes thrown in at will by the applicants, some of such processes clearly unconnected with the respondents and even from different jurisdiction as Port Harcourt High Court and Owerri, its being sought to utilise those Court processes to give teeth to the application when what would add up to a suit as known to law, with known parties

and subject matter producing a cause of action not really being easily identifiable. I do not see how not to go along with the position of learned counsel for the respondents that the Garnishee Order Absolute having been made by the High Court against the Central Bank of Nigeria over the applicants’ deposit, execution and attachment have been effectively made within the stipulations of Sections 83 – 86 Sheriffs and Civil Process Act in a way as to be said that the stay of execution being sought has been overtaken by events of the completed act of execution. The situation is all the more solidified with the fact that the appeal by the Central Bank to the Court of Appeal over the Garnishee was struck out for incompetence and no new appeal was initiated and so what was left as extant being the Garnishee Order absolute of the High Court, an appeal therefrom not available to the applicant at this stage.”
(Underlined mine)
3. UNION BANK OF NIGERIA PLC VS. BONEY MARCUS IND. LTD & ORS (2005) 13 NWLR (PART 943) 654 at 664 D – H to 665 A – C per KATSINA ALIU JSC later CJN (Rtd) of blessed memory who said:
In the instant case, the plaintiff

Boney Marcus Ind. Ltd, obtained judgment against the defendant, Nichimen Co. (Nigeria) Ltd. This was on 19th May, 1997.
Thereafter, the plaintiff filed garnishee proceedings against Metcome (Nig.) Ltd and Union Bank of Nigeria Plc., to realise the judgment debt and costs. On 17th February, 1998, the trial Judge granted the application and accordingly made an order absolute, the terms of which I have earlier on in this judgment reproduced.
The 2nd garnishee – Union Bank of Nigeria Plc., filed a notice of appeal on 27th March, 1998 against that ruling. The plaintiff raised a preliminary objection to the competence of that notice on the ground that the appeal was filed out of time. It was the plaintiff’s contention that the garnishee order absolute was an interlocutory decision and that being so, an appeal against it should and must be filed within 14 days. The Court below ruled that the garnishee order absolute was an interlocutory decision.
The question to be resolved in this appeal is really whether the decision of the trial Court was interlocutory or final. I think the resolution of this question would depend on whether the garnishee order as

made disposed of the rights of the parties before the Court.
The order of the trial Court was:
“… that the money belonging to the judgment debtor in possession of the 1st garnishee which money is in the 1st garnishee’s account with the 2nd garnishee be attached to satisfy the judgment debt, together with the costs of the garnishee proceedings.”
The above was the final garnishee order. In other words, it was an order absolute. It was a final decision of the Court. A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication. Clearly, by the order of the Court above, the trial Court had determined the rights of the parties before it. I must state again that the appellant promptly complied with the order of the Court.”
At pages 666 E – H, to 667 A – D, AKINTAN, JSC said:
“The main issue raised in this appeal is whether a garnishee order made absolute by a Court is an interlocutory or final order.

Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is therefore a specie of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings. See Words & Phrases Legally Defined 3rd edition Vol. 2, pages 313- 314.
Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why payment ordered should not be

made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor. The Court thereafter becomes functus officio as far as that matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Choice Investments Ltd. v. Jeromnimon (Midland Bank Ltd., Garnishee) (1981) 1 All ER 225 At 328, and Words & Phrases Legally Defined, Vol. 2, page 301. During the period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the

proceedings at the stage, being interlocutory would therefore not arise.”
(Underlined mine)

The lower Court ought to have declined jurisdiction to adjudicate on the 2nd judgment Debtor/Applicant now 2nd Respondent’s application filed on 2nd July, 2015 seeking to set aside the judgment delivered on 20/4/2015 by the trial Court.

Issues 1 and 3 are hereby resolved in Appellant’s favour.

On issue 2, as to whether the failure of the lower Court to pronounce on the objections raised by the Appellant against the application of the 2nd Respondent denied the Appellant right to fair hearing, I have perused the motion papers of the 2nd Respondent filed on 2nd July, 2015 and page 94 of the record to which attention of this Court was directed. It is true the suit no. is FCT/HC/CV/2011/14 while the motion no. is FCT/HC/9/M/08/2015 and another number is M/8/92/15. I am of the opinion that Appellant was not misled as the Appellant filed Counter-Affidavit and Further Counter-Affidavit against the 2nd Respondent’s application.

Both parties argued on whether this suit FCT/HC/CV/2044/14 was filed before Notice of Discontinuance was filed in suit

FCT/CV/5636/11. The attention of the Court was not directed to any motion or issues raised for determination of the trial Court. As a matter of fact, Appellant in her Counter-Affidavit contained on page 362 of the record referred to the said suit as FCT/CV/2011/14 in paragraph 3 thereof. I am of the view that issue 2 ought to be resolved against the Appellant and I hereby resolve issue 2 against the Appellant.

Having resolved issues 1 and 3 in Appellant’s favour, I adjudge the Appellant’s appeal as meritorious and the Appellant’s appeal is HEREBY ALLOWED.

The ruling of the High Court of the Federal Capital Territory delivered by Hon. Justice A. M. TALBA on 25th May, 2016 is HEREBY SET ASIDE.

The motion on notice filed by the 2nd judgment Debtor/Applicant on 2nd July, 2015 seeking the following orders:
“(i) An order extending the time within which the 2nd judgment Debtor/Applicant may apply to set aside the default judgment of this Honourable Court delivered against the Applicant on the 20th April, 2015.
(ii) An order setting aside the default judgment of this Honourable Court delivered on the 20th April, 2015 for being a nullity.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

(iii) An order setting aside the Garnishee Order Nisi made on the 10th June, 2015 attaching the funds of the 2nd judgment debtor with the above-named Garnishee.
(iv) An order dismissing suit no. FCT/HC/CV/2044/14 for being a gross abuse of Court process.
(v) An order awarding cost of N250,000 against Counsel to the Plaintiff Barrister Valentine Offia pursuant to his undertaking in the Pre-Action Counselling Certificate filed on the 14th July, 2014 before this Honourable Court and Breach of Rules of Professional Conduct for Legal Practitioners for a frivolous suit and deliberate abuse of Court process.
(vi) AND FOR SUCH FURTHER order or other orders as this Honorable Court may deem fit to make in the circumstances.”
is HEREBY DISMISSED.

The Appellant shall be paid costs of N50,000.00 (Fifty thousand naira) by the 2nd Respondent.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment of my learned brother, Peter Olabisi lge, JCA, just delivered.

I agree that the appeal has merit and I also allow it.

I abide by all the orders in the leading judgment, including the order as to costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the advantage of a preview of the lead judgment delivered by my learned brother, Peter Olabisi lge, J.C.A.

I agree entirely with the reasoning and conclusion reached and abide by the orders made therein.

Appearances:

VALENTINE OFFIA, ESQ. For Appellant(s)

…For Respondent(s)