UNION BANK OF NIGERIA PLC v. UWA PRINTERS NIGERIA LIMITED & ORS (2014)

UNION BANK OF NIGERIA PLC v. UWA PRINTERS NIGERIA LIMITED & ORS

(2014)LCN/7045(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of March, 2014

CA/C/233/2011

RATIO

PRIMARY PARTIES IN GARNISHEE PROCEEDINGS

It is settled that garnishee proceedings are separate and distinct proceedings. See: Nigeria Agip Oil Co. Ltd. vs. Ogini (2010) LPELR-9141(CA). The primary parties in the garnishee proceedings are the judgment creditor and the garnishee; though the judgment debtor is usually served in case he intends to challenge the amount on the order nisi. See: Cross River State Forestry Commission vs. Anwan (supra); Wema Bank vs. Brastem-Sterr Nigeria Ltd. (2010) LPELR-9166(CA). PER ONYEKACHI A. OTISI, J.C.A.

DISTINCTION BETWEEN THE STRIKING OUT OF A MATTER AN ADJOURNMENT SINE DIE

When a court adjourns a case, whether sine die or ad diem, the cause or matter is still pending before it and it can call it up on any day to be decided by it. But when a court stops the proceedings in a case, the case is no longer pending before that court and it can no longer take further proceedings in the case.

As rightly submitted for the Appellant, striking out of a matter and an adjournment sine die are two different scenarios. See: Tinubu vs. IMB securities (2001) 8 MJSC 1 (2001) 910; (2001) 9-10 S.C.49. When a matter is struck out, it is off the cause list, temporarily. But it can only be restored upon an application to relist. See: Panalpina World Transport (Nig.) Ltd. vs. J. B. Olandeen International (2010) LPELR-2902(SC), Alor v. Ngene (2007) All FWLR pt.362 pg.1836. PER ONYEKACHI A. OTISI, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

UNION BANK OF NIGERIA PLC – Appellant(s)

AND

1. UWA PRINTERS NIGERIA LTD

2. SUNDAY JOSEPH UDO

3. CENTRAL BANK OF NIGERIA – Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Akwa Ibom State, Eket Judicial Division delivered on 9th May, 2011.

The facts leading to this appeal are as follows: The 1st and 2nd Respondents were the Judgment Creditors in Suit No HEK/139/2002, in which judgment was delivered on 10th June, 2008. The judgment sum was N515,000,000.00 (five hundred and fifteen million Naira) and costs of N40, 000.00 (forty thousand Naira). The Judgment Creditors/1st and 2nd Respondents filed a motion ex parte, Suit No: HEK/Misc. 12/2009, pursuant to Section 83(1) of the Sheriff and Civil Process Act, seeking an order that a Garnishee Order Nisi be made against the Garnishee, who is the 3rd Respondent in this appeal, for recovery of the said judgment debt. The Garnishee Order Nisi was granted by the learned trial Judge Ita Mbaba, J. (as he then was) on 18th March, 2009.

The Garnishee, in compliance with the order, duly debited the account of the Appellant with them and filed an affidavit of compliance on 5th May, 2009.

Upon delivery of the judgment in Suit No HEK/139/2002 on 10th June, 2008, the Judgment Debtor, who is the Appellant herein, had filed a Notice of Appeal on 13/6/2008 and also filed a motion for stay of execution on 20/10/2008 at the Ikot Ekpene High Court. The appeal was entered as CA/C/174/2008. The Judgment Creditors/the 1st and 2nd Respondents herein, in response to the said motion for stay of execution before the Ikot Ekpene High Court filed a Counter Affidavit. It was while the said motion was pending before the Ikot Ekpene High Court that the Judgment Creditors/1st and 2nd Respondents instituted the Garnishee proceedings in Suit No: HEK/Misc. 12/2009. Upon being served with the Garnishee Order Nisi, the Judgment Debtor/Appellant herein filed Motion on Notice, praying for the dismissal of the Garnishee proceedings with affidavit in support disclosing the pendency of the proceedings for stay of execution before the Ikot Ekpene High Court, and the fact that the appeal over the said Judgment had been entered before the Court of Appeal. Also pending before the Court of Appeal was a motion for stay of execution of the said judgment in Suit No HEK/139/2002 sought to be recovered by the Judgment Creditors/1st and 2nd Respondents in the Garnishee proceedings in Suit No: HEK/Misc. 12/2009.

At the Court of Appeal, the pendency of the Garnishee proceedings before the Eket High Court was brought to the notice of the Court of Appeal, and the Court of Appeal, on 7th October, 2009, in the presence of learned Counsel for the respective parties ordered as follows:

“IT IS ORDERED:

The learned High Court Judge currently sitting at Eket High Court No. 1 is hereby ordered to Strike out any proceedings in Suit No: HEK/139/2002 as the appeal has been entered in this Court”

The said order brought to the notice of the lower court at Eket on 19th October, 2009. The reaction of the lower court to this Order from the Court of Appeal was as follows:

“In deference to the Order of the Appellate Court, I think it would be proper to adjourn this case, sine die, this case not being a proceeding in HEK/139/2002, but a Garnishee proceeding in Suit No: HEK/Misc. 12/2009, directly involving the Judgment Creditor and the Garnishee, this is to enable the matter at the Court of Appeal to be disposed of, in the interest of justice.”

The Court of Appeal in its judgment in CA/C/174/2008 filed in respect of Suit HEK/139/2002, upheld the appeal in part by disallowing the general damages of N300, 000,000.00 (Three hundred million Naira) awarded but affirmed the special damages of N215, 000,000.00 (two hundred and fifteen million Naira) less the sum of N4, 750,000.00 (four million, seven hundred and fifty thousand Naira) owed by the Judgment Creditors/1st and 2nd Respondents. The Appellant/Judgment Debtor filed a further appeal to the Supreme Court over that part of the judgment of the Court of Appeal which affirmed the Special damages awarded by the trial Court; and also filed a motion for stay of execution of the said judgment.

During the pendency of these processes, the 1st and 2nd Respondents filed a fresh motion before the Eket High Court now presided by Hon. Justice Charles Ikpe, praying for a variation of the Order Nisi earlier granted by that court on 18th March, 2009 and for an Order absolute over the sum of N210, 250,000.00 (two hundred and ten million, two hundred and fifty thousand Naira), now the judgment debt.

Upon being served these processes, the Appellant/Judgment Debtor filed a Counter Affidavit and also filed a motion on Notice on 16th July, 2010 praying the Court to strike out the Garnishee Proceedings in compliance with the order of the Court of Appeal made on 7th October, 2009.

On 9th May, 2011, the learned trial Judge heard Counsel for both parties, without their respective motions being moved, and struck out the two motions. Aggrieved by this decision, the Appellant filed the present appeal.

The Appellant filed Notice and Grounds of Appeal on 26th July, 2011, in which he raised six grounds of appeal and sought the following Reliefs:

1. Allow the Appeal.

2. Set aside the Ruling of the lower court delivered on 9th May, 2011 in Suit No: HEK/MISC. 12/2010 striking out the Applicant’s motion filed on 16/7/2010.

3. Invoke Section 16 of the Court of Appeal Act and grant the prayers on the said motion of the Judgment Debtor/Applicant filed on 16/7/2010 and consequently discharge/set aside the Garnishee order nisi made during the proceedings ordered to be struck out.

The Appellant’s Brief of Argument was settled by Imo Inyang, Esq. of Counsel, and filed on 31/10/2011. David Obande, Esq. of Counsel for the 1st and 2nd Respondents settled the 1st and 2nd Respondents’ Brief on 31/1/2013, but it was deemed properly filed and served on 4/2/2013. The 1st and 2nd Respondents also filed a Preliminary Objection on 31/1/2013.

The Appellant’s Reply Brief was filed on 19/2/2013.

On 13/2/2014, Mr. Inyang for the Appellant adopted the Appellant’s Brief as well as the Appellant’s Reply Brief. Learned Counsel for the 1st and 2nd Respondents who was served 16/1/2014 with a Hearing Notice for the proceedings of 13/2/2014 was absent. The 1st and 2nd Respondents’ Brief was therefore deemed adopted pursuant to the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules, 2011.

The 3rd Respondent filed no Brief of Argument and was not represented by Counsel.

I shall first consider the merits of the Preliminary Objection of the 1st and 2nd Respondents, which was based upon the following grounds:

This Appeal is not competent before this Court, an appeal over the res and between the same parties having been entered in the Supreme Court of Nigeria, Abuja.

The Appellant’s appeal to the Supreme Court over the Judgment of this Court in CA/C/174/2008 has been entered. Mr. Obande for the 1st and 2nd Respondents, relying on Coker vs. Adeyemo (1995) 4 NSCC 94 at 96, submitted that where the Record of Appeal has been received in the Court where the appeal is entered, that Court is now seized of the whole proceedings and any applications should be made to the Court in which the appeal is entered. He also relied on Section 16 of the Court of Appeal Act. That the implication is that no other Court has jurisdiction to entertain the matter and res in the matter except the Court where the Appeal has been entered. It is submitted that having entered the appeal at the Supreme Court and the Record of Appeal having been duly transmitted, with the other parties served, this Court now lacks jurisdiction to entertain this appeal or take further steps in the matter.

In the Appellant’s Reply Brief, it is submitted that the present appeal is in respect of the failure of the lower court to comply with the order of this Court concerning the proceedings in HEK/Misc. 12/2009.

The parties to the appeal before the Supreme Court are different in that the 3rd Respondent herein is not a party to the appeal before the Supreme Court. The Court is urged to overrule the objection.

It is not in issue that judgment in the Appeal, CA/C/174/2008 was delivered over the judgment of the lower court in HEK/139/2002. The parties in HEK/139/2002 are the Appellant and the 1st and 2nd Respondents. The Appellant, dissatisfied with judgment of this Court in CA/C/174/2008, filed a further appeal to the Supreme Court. The present Appeal is in respect of the decision of the lower court, in which it refused to strike out HEK/Misc. 12/2008. Although there is some relationship between HEK/139/2002 and HEK/Misc. 12/2008, both suits are distinct and the parties in both suits are not the same. The appeal to Supreme Court over CA/C/174/2008 is not affected by the present appeal. The Preliminary Objection is therefore overruled and hereby dismissed.

In the Appellant’s Brief of Argument, three Issues were distilled for determination from the six Grounds of Appeal as follows:

1. Whether the learned trial Judge was right in ruling that by adjourning the proceedings of the Court in HEK/MISC.12/2008 sine die on 19/10/2009 the lower Court obeyed the order of the Court of Appeal dated 7/10/2009.

2. Whether the learned trial Judge was right in ruling that it had no jurisdiction to deal with the proceedings in HEK/MISC.12/2008 the same having been adjourned sine die.

3. Whether the learned trial Judge was right when he struck out the Judgment Debtor/Applicant’s motion dated 14/7/2010 and filed on 16/7/2010 formally seeking the striking out of the Garnishee proceedings in compliance with the Court of Appeal’s order.

For the 1st and 2nd Respondents, the following issues were raised for determination in the 1st and 2nd Respondents’ Brief of Argument:

1. Whether the trial Court carried out the Order of this Court in the circumstance of this case.

2. Whether the interlocutory order of the Court survived the determination of the substantive Appeal as to warrant the Appellant in urging upon the lower Court to enforce same in the circumstances of this case.

I note that the same issues have been raised for determination by the parties, though differently worded. I shall consider Issue No 1 and 2 raised by the Appellant together with Issue No 1 raised by the 1st and 2nd Respondents. Issue No 3 of the Appellant and Issue No 2 raised by the 1st and 2nd Respondents shall be taken together.

ISSUE NO 1

Mr. Inyang for the Appellant submitted that the appeal over the judgment in HEK/139/2002 had been entered as CA/C/174/2008 and a motion for stay of execution pending at the High Court Ikot Ekpene when the garnishee proceedings commenced. It is submitted that once an appeal has been entered in the Court of Appeal, the res ceases to be in the possession of the trial court; relying on Agu vs. Anyalogu (2001) FWLR (PT 68) 1247; Olatunji vs. Owena Bank Plc. (2001) FWLR (PT 54) 342. It is submitted that this is to ensure the Appellant is not left to enjoy an empty victory, if the appeal were determined in his favour; relying on Kigo vs. Holman Bros. Nig. Ltd (1980) 5-7 SC 533. That this Court, upon being informed of the pendency of the garnishee proceedings before the Eket High Court, while considering the motion for stay of execution before it, proceeded to make an order on 7/10/2009 directing the trial court to strike out the garnishee proceedings. But, that the lower court failed to obey this order; rather it adjourned the matter sine die.

The appeal before the Court of Appeal in HEK/139/2002 was determined partly in favour of the Appellant, leading to a further appeal to the Supreme Court. The 1st and 2nd Respondents had returned to the trial court seeking a variation of the Order nisi, reflecting the judgment debt as now allowed on appeal; while the Appellant brought an application seeking the striking out of the garnishee proceedings, relying on the order of this Court made on 7/10/2009. The trial court struck out both applications. The trial court ruled, inter alia, that the trial court, presided over by Ita Mbaba. J. (as he then was) had complied with the order of this Court made on 7/10/2009. It is submitted that adjourning the matter sine die is not the same thing as striking out the matter, as ordered. That the lower court had failed to comply with the order of this Court.

In reply, Mr. Obande for the 1st and 2nd Respondents submitted that the lower court indeed complied with the unambiguous order of this Court to strike out proceedings in HEK/139/2002. That this order did not affect proceedings in HEK/Misc. 12/2008, which is a separate and distinct proceeding before the court; relying on Purification Techniques (Nig) Ltd vs. AG Lagos State (2004) 9 NWLR (PT 879) 655; Nigeria Agip oil Co. Ltd vs. Ogini (2011) 2 NWLR (PT 1230) 131 at 147. It is submitted that to adjourn the matter sine die and to strike it out may not have the same meaning ascribed to them, but that the consequences are the same in that the matter does not remain on the cause list. He relied on Tinubu vs. IMB Securities (supra). He submitted that a matter adjourned sine die is resuscitated by some procedure known to law which can be equated with an application to relist a suit struck out by the court. That the trial court had considered consequences of adjourning sine die and striking out the suit before deciding on adjourning it sine die, particularly because the order of this Court was directed at HEK/139/2002 and not at HEK/Misc. 12/2008, which was pending before it. That the application before the Court of Appeal was for stay of execution of the judgment in HEK/139/2002 and the Court cannot go beyond the application before it to make an order striking out HEK/Misc. 12/2008; relying on Commissioner for Works Benue State vs. Devcon Cons. Co. Ltd (1988) 3 NWLR (PT 83) 407 at 420; Gongola State vs. Tukur (1989) 4 NWLR 592 at 603.

Mr. Obande further submitted that the lower court obeyed the terms of the order of this Court in the light of the circumstances of this case as no further action has been taken in the garnishee proceedings till date so as to render the outcome of any appeal nugatory. The garnishee proceedings in issue ceased to become self-activated, which was the purpose of the Order.

In the Reply Brief, it has been strenuously argued that the garnishee proceedings in HEK/Misc. 12/2008 are proceedings in HEK/139/2002.

The genesis of this appeal and the journey to this stage has already, prolixly, been given above. Appeal No CA/C/174/2008 was entered in respect of HEK/139/2002, which judgment the garnishee proceedings in HEK/Misc. 12/2008 was seeking to enforce. Put simply, HEK/Misc. 12/2008 took its life from HEK/139/2002. HEK/139/2002 technically expired on 10th June, 2008 when judgment was delivered by the trial court. The garnishee proceedings in HEK/Misc.12/2008 was then commenced to enforce or realize the judgment debt in HEK/139/2002.

The order made by this Court on 7th October, 2009 was for the lower court to:

“…Strike out any proceedings in Suit No: HEK/139/2002 as the appeal has been entered in this Court”

Mr. Obande in paragraph 5.1 of the 1st and 2nd Respondents’ Brief had observed that:

“The Appellant’s application which predicated the Order of this Court under consideration did not make it to the Record of Appeal, but it was sought pending the determination of the Appeal.”

The contention of the 1st and 2nd Respondents that the application before the Court of Appeal on that date was for stay of execution of the judgment in HEK/139/2002 pending the determination of the appeal; and, that the Court cannot go beyond the application before it to make an order striking out HEK/Misc. 12/2008 is neither here nor there at this stage. The 1st and 2nd Respondents did not raise any complaint at the order or appeal against it. It was therefore; and, remained a valid order of this Court until set aside, or overtaken.

It is however important to note that as at the date, 7th October, 2009, when the order of this Court under consideration was made, HEK/139/2002 had been off the cause list of the lower court for more than 28 months, having been determined on 10th June, 2008. What was on the cause list of the trial court was HEK/MISC.12/2008, which sought to enforce the judgment in HEK/139/2002.

The Appellant’s Counsel has forcefully contended that the order of this Court under consideration, relates to the garnishee proceedings of HEK/MISC.12/2008 and that the said HEK/MISC.12/2008 ought to have been struck out, pursuant to the order of this Court.

But, this contention calls into question the nature of garnishee proceedings. Akintan, JSC in Union Bank of Nig. Plc. v Boney Marcus Ind. Ltd (2005) CLR 7(L) (SC), (2005) 7 SC (PT 11) 70 explained thus:

“Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing due to the judgment debtor which form part of his properly 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. ”

In Denton-West vs. Muoma (2007) LPELR-817(CA) this Court per Kekere-Ekun, JCA (as she then was) said:

“There is no doubt that garnishee proceedings are separate 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.”

See: In re Diamond Bank Ltd. (2002) 17 NWLR (PT 795) 120; Purification Techniques (Nig.) Ltd vs. AG, Lagos State (2004) 9 NWLR (PT 879) 665; Cross River State Forestry Commission vs. Anwan (2012) LPELR-9479(CA). Garnishee proceedings, being distinct, remain competent notwithstanding the pendency of a motion for stay of execution. See: Denton-West vs. Muoma (supra); purification Techniques (Nig) Ltd vs. AG, Lagos State (supra); Nigeria Agip Oil Co. Ltd. vs. Ogini (2010) LPELR-9141(CA).

Suit No HEK/MISC.12/2008 was the garnishee proceedings with the garnishee being the 3rd Respondent herein. The 3rd Respondent was not a party to the proceedings in HEK/139/2002. The order of this Court, which was to strike out any proceedings in Suit No: HEK/139/2002 was made in the presence of both learned Counsel representing the Appellant and the 1st and 2nd Respondents. There were, strictly speaking, no proceedings in HEK/138/2002 as at the date the order was made. But, neither Counsel pointed this anomaly out to the Court. The proceedings pending were the garnishee proceedings in HEK/Misc. 12/2008, which are separate and distinct proceedings, though flowing from HEK/139/2002. Thus, the order of this Court was made at a time when its named objective had already been extinguished.

I believe this explains the reaction of the learned trial Judge on 19/10/2009 who said:

“In deference to the Order of the Appellate Court, I think it would be proper to adjourn this case, sine die, this case not being a proceeding in HEK/139/2002, but a Garnishee proceeding in suit No: HEK/Misc. 12/2009, directly involving the Judgment creditor and the Garnishee, this is to enable the matter at the court of Appeal to be disposed of,…”

In Amaefule vs. State (1988) 2NWLR (pt. 75) 156 S.C, [1988] 1 NSCC 669, Agbaje, JSC explained:

On the other hand, a case adjourned sine die is still pending before the court that adjourned it. The matter is merely adjourned indefinitely.

The learned trial Judge obviously recognized the independence of garnishee proceedings. Striking out the garnishee proceedings would mean striking out an independent action which had a different existence from HEK/139/2002 to which the order of this Court expressly related.

Therefore when the Court of Appeal ordered the lower court to strike out the proceedings relating to or flowing from HEK/139/2002; the garnishee proceedings, HEK/Misc. 12/2008, an independent action, remained alive; albeit now comatose, having regard to the order of the trial court on 19/10/2009.

But, in deference to the fact that there was a pending appeal over the judgment in HEK/139/2002, which HEK/Misc. 12/2008 sought to enforce, the lower court adjourned the said garnishee proceedings, HEK/Misc.12/2008, sine die. Thereby, the trial Judge satisfied the driving spirit behind the order, which was to preserve the integrity of the proceedings before the Court of Appeal; and also to preserve the res.

I therefore hold that in the circumstance of this case, the learned trial Judge, Ita Mbaba, J. (as he then was), by his order made on 19/10/2009, complied with the order of this Court made on 7/10/2009.

Issue No1 is thus resolved against the Appellant.

Issue No 2

The motion filed on 16/7/2010 by the Appellant sought to have HEK/Misc. 12/2008 struck out by the trial court, now presided over by Ikpe, J., and relying on the order of this Court made on 7/10/2009.The 1st and 2nd Respondents also filed a motion seeking variation of the Order Nisi. These applications were struck out, without being heard, by Ikpe, J. This is the subject matter of this appeal.

It is submitted for the Appellant that a matter adjourned sine die is still pending in cause list of the court but kept in abeyance; relying on Tinubu vs. IMB Securities (supra). A matter that is struck out is restored by an application to re-list; but, a matter adjourned sine die is merely in abeyance and can be reactivated by the court, suo motu, or by the parties. It is submitted that the matter earlier adjourned sine die, pending the outcome of the appeal, was properly reactivated on the cause list by the motions filed by both the Appellant and the 1st and 2nd Respondents. The respective parties were duly served with the pending applications. They were therefore entitled to be heard.

I find must agree with Mr. Inyang for the Appellant in his submissions that the trial court had jurisdiction to entertain a resuscitated matter, which had earlier been adjourned sine die. As already noted above, a matter adjourned sine die is merely in abeyance, without a firm date for its continuance. It can be resuscitated or resurrected either by the court itself, upon due service a hearing notice to the parties; or by the parties, upon the filing of an application. This is unlike a matter that has been struck out, which is restored on the cause list only upon an application to re-list same; filed by the party seeking to have the suit relisted and which is duly served on all the parties concerned.

There is no requirement for an application seeking an order to set aside an earlier order made by the court adjourning a matter sine die to first be filed and determined, before proceedings in the said matter earlier adjourned sine die can proceed. The point has already been made that a matter adjourned sine die may be resuscitated or resurrected either by the court itself, upon sue service of a hearing notice to the parties; or by the parties, upon the filing of an application in the matter, The trial court therefore had jurisdiction to entertain the applications filed before it by the parties in the matter adjourned sine die without any other application to set aside the earlier order being first taken. Issue No 2 is resolved in favour of the Appellant.

ISSUE NO 3

It is submitted for the Appellant that its motion filed on 16/7/2010 to have the garnishee proceedings HEK/Misc. 12/2008 struck out was to move the trial court to comply with the subsisting order of this Court made on 7/10/2009. That in adjourning the matter sine die, this order had not been complied with. Rather that the garnishee proceedings was allowed to subsist, together with the Order Nisi, which had attached the entire sum of N515, 500.00 awarded by the High Court, though this sum no longer represented the judgment sum, in view of the judgment of this Court in the appeal CA/C/174/2008, and, in spite of the fact that the res was no longer with the trial court. It is submitted that a motion filed by a party ought to be heard by the court. That to strike out a motion without hearing it is in breach of the fundamental right of fair hearing; relying on Dantata and Sawoe Co. Ltd. vs. Ibrahim (2004) ALL FWLR (PT 208) 930 at 938. It is submitted that a Judge has no right to refuse to hear an application even if it is stupid, irregular, unmeritorious or an abuse of the judicial process; relying inter alia, on Okoro vs. Okoro (1998) 3 NWLR (PT 540) 65 at 74; Alico (Nig.) Ltd vs. A.C.C. M.U. Ltd (2004) ALL FWLR (PT 210) 1336; Ilobi vs. Uzoegwu (2005) ALL FWLR (PT 285) 595. It is submitted the trial court had acted in breach of the Appellant’s right to fair hearing by refusing to hear the application.

Mr. Inyang for the Appellant has urged the Court to invoke its powers under Section 16 of the Court of Appeal Act to determine the motion and make the order striking out the garnishee proceedings.

For the 1st and 2nd Respondents, it is submitted that the order made by the Court of Appeal was an interlocutory order made in the course of CA/C/174/2008, pending the determination of the appeal, pursuant to the application of the Appellant. That the order was made to protect the integrity of the proceedings before the Court. It is submitted that the Court is bound by the terms or prayers of the motion before it and cannot go beyond such terms or prayers to make an order directed at HEK/Misc. 12/2008; relying on Commissioner for Works Benue State vs. Devcon Cons. Co. Ltd (supra); Gongola State vs. Tukur (supra).

It is submitted that having delivered judgment in CA/C/174/2008, every interlocutory order terminated.

Mr. Obande further emphasized that there was no order of Court to strike out HEK/Misc. 12/2008. But that if the Appellant desired the order to be made, it should properly invoke the jurisdiction of the court by filing an application to set aside the earlier order adjourning the matter sine die. He urged the Court to resolve this issue against the Appellant.

In his Reply Brief, Mr. Inyang has argued that the order of this Court made on 7/10/2009 was a final order, to subsist for all time; and, to the effect that the proceedings be struck out. It is submitted that this order is binding and is consistent with the powers of this Court to take full control of the whole proceedings as enabled by Order 4 rule 11, Court of Appeal Rules, 2011. That the settled position and implication of the appeal being entered was the passage of the res to the custody of the Court of Appeal, which becomes seised of the whole proceedings and the lower court is prohibited from making any order affecting the res.

In defining what a final or interlocutory order will be in the con of this appeal, I will simply rely on the position of the law on this issue as pronounced by the Supreme Court, per Karibi-Whyte, JSC, in Igunbor v. Afolabi [2001] 5 S.C. (Pt. 1) 105; [2001] 11 NWLR (pt.723) (2001) 6 SCM,77, 148 at 165 as follows:-

‘The determination of the question whether an order is interlocutory or final has never been one of mean difficulty.The test has been to look at the nature of the order made rather than the nature of the proceedings resulting in the order. What has to be considered is whether the order has finally determined the rights of the parties in the proceedings in issue appealed against, and not whether the rights of the parties in the substantive action have been finally disposed of -See Omonuwa v. Oshodin (1985) 2 NWLR (pt. 10) 924, U.B.A. Plc v. Akinsanya (1986) 7 SC. 233, Ude v. Agu (1961)1 SCNLR. 98; Ojora v. Odunsi (1964) NMLR. 12; Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (pt.30)617.

A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On the other hand an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order which determines some preliminary or subordinate issue or settles one step or question but does not adjudicate the ultimate rights of the parties, in the action. However, where the order made finally determines the rights of the parties, as to the particular issue, disputed it is a final order even if arising from an interlocutory application.’

HEK/Misc. 12/2008 was a separate and distinct proceeding from HEK/139/2002. An order made in respect of an appeal in HEK/139/2002 cannot be regarded as a final order in another distinct suit with different parties. It is correct to submit that when an appeal has been entered the lower court no longer has jurisdiction over the res. The appellate court takes over the res. The nature of the order under consideration, made by this Court on 7/10/2009, was to preserve the res. It was a final order as far as concerned the preservation of the res in HEK/139/2002. But I do not consider it to be a final order in respect of a distinct and separate suit: HEK/Misc.12/2008.

I also consider the order made by the lower court adjourning the garnishee proceedings, HEK/Misc. 12/2008, sine die to have been made to preserve the res now before the Court of Appeal. Having adjourned the garnishee proceedings in HEK/Misc. 12/2008 sine die, the said garnishee proceedings, HEK/Misc. 12/2008, were no longer active proceedings before the lower court, pending the appeal. But after the appeal was determined, the judgment creditors/1st and 2nd Respondents could resuscitate the garnishee proceedings, HEK/Misc. 12/2008, in order to proceed with it and to seek to vary its terms. Similarly, if the judgment had not gone in their favour, the said garnishee proceedings, HEK/Misc.12/2008 would automatically abate. The order of this Court was therefore not a final order as concerns HEK/Misc.12/2008.

The trial court struck out the Appellant’s application without hearing it. I agree with Mr. Inyang for the Appellant that this was in breach of the fundamental right of the Appellant to be heard. A court should always give opportunity and consideration to every party to be heard on all applications. In Nalsa & Team Associates vs. N.N.P.C (1991) 8 NWLR (PT 212) 652, (1991) 1-12 SC 83, Karibi Whyte said:

“It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly where an application is properly brought before the court, the principle of fair hearing demands that it should be heard on its merits.”

See also: Baba vs. Nigerian Civil Aviation (1991) 7 SCNJ 1. It is pertinent to note that hearing an application is not the same thing as granting the application. The application can therefore be heard and still be refused. In this way, the party is not denied an opportunity to be heard.

In the circumstance of this appeal, and, having regard to the provisions of Section 15 of the Court of Appeal Act, 2004, it is in order for this Court to look into the application filed on 16/7/2010 by the Appellant.

The Appellant sought the following order:

An Order striking out this proceeding HEK/MISC. 12/2009 as directed and/or ordered by the Court of Appeal on or about 7/10/2009.

In striking out the said application without hearing it, Ikpe J. said that the motion had:

“…no legal superstructure on which to rest”.

As already noted above, HEK/Misc.12/2008 was not the suit expressly ordered to be struck out in the order made by this Court in view of the pending appeal. HEK/Misc.12/2008 was however adjourned sine die and, as also already noted above, could be resurrected with no requirement for an initiating application for an order to set aside the earlier order adjourning the matter sine die.

The appeal, CA/C/174/2008 in respect of HEK/139/2002, which was expressly stated in the order of this Court, had been heard and determined on 8th June, 2010, leading to a further appeal to the Supreme Court. In other words, the order of this Court was to strike out proceedings in HEK/139/2002 in view of the appeal, CA/C/174/2008.

The said appeal was determined on 8th June 2010. The said appeal CA/C/174/2008 having been determined, and, final orders consequently made by this Court in respect of HEK/139/2002, what then was the lower court by the application of 16/7/2010 being asked to strike out?

The order of this Court made on 7/10/2009 was overtaken by the final orders made in the judgment on appeal, CA/C/174/2008. The said order automatically terminated with the determination of the appeal on 8th June, 2010. There was therefore nothing left to be struck out. The application of 16/7/2010 is therefore dismissed.

Issue No 3 is thus resolved against the Appellant.

The Issues 1 and 3 having been resolved against the Appellant, this appeal therefore fails and is hereby dismissed.

The parties shall bear their own costs.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Onyekachi A. Otisi, JCA, had availed me of the draft of the lead judgment written by her in respect of this appeal.

The three (3) issues have been as usual, thoroughly and eruditely, considered and resolved in the lead judgment and I completely agree with it. With the resolution of Issues 1 and 3 raised by the Appellant against it, as a Garnishee, the appeal is left without merit and deserved to be dismissed. I join the lead judgment in dismissing the appeal for all the reasons set out therein which I adopt.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. I am in total agreement with her reasoning and final conclusion.

I have nothing else to add. I also abide by the orders contained therein including that as to costs.

Appearances

Imo Inyang, Esq.,For Appellant

AND

David Obande, Esq., for the 1st and 2nd RespondentsFor Respondent