AMA REAL ESTATE LTD v. HERITAGE BANK PLC
(2022)LCN/16200(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, March 15, 2022
CA/ABJ/CV/967/2020
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
AMA REAL ESTATE LIMITED APPELANT(S)
And
HERITAGE BANK PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE ISSUANCE OF HEARING NOTICE ON PARTIES
The issue of the issuance and service of hearing notice occupies a prime place accorded to it by law in the adjudication process and it is to enable parties to be duly notified of the hearing of their cases to either be present personally and or represented by counsel in the Court. However, it is also the law that once a party to a proceeding pending in Court is aware of or already knows or is reasonably presumed to have known of the date on which a matter is slated for hearing, fresh hearing notices will not be required to be issued or served on such a party. See Simon Ezechukwu & Anor V. I. O. C. Onwuka (2006) 2 NWLR (Pt 963) 151.
Thus, in law, the service of hearing notice may or may not be necessary or essential depending on the peculiar facts and circumstances of any given case. Happily, there is no dearth of decided cases on this very important aspect of our law but rather there is a surfeit of authorities as are replete in our law reports on when service of hearing notice may or may not be necessary. PER GEORGEWILL, J.C.A.
THE ESSENCE OF SERVICE OF A HEARING NOTICE
The essence of service of a hearing notice, as I understand it in law, is that it is designed to put parties on notice of a future date in which the suit or appeal or matter will be called and or heard. The objective, in my view, is to give the parties equal opportunity of being fairly heard before any decision affecting their rights is taken. See Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended.
Now, while the service of hearing notice may be a duty on the part of the Court on the one hand and a right of the parties on the other hand, the duty of issuing it and ensuring that it is served on that parties, whenever it is necessary is exclusively that of the Court. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Folorunso V. Shaloub (1994) 3 NWLR (Pt. 333) 413 at p. 430; Mirchandani V. Pinheiro (2001)1 FWLR (Pt. 48) 1307 at p. 1320. Thus, at any time when it becomes clear to the Court that a party who is absent in Court was not aware of the date, it will be necessary for the Court, in the interest of justice and fair hearing, to order and issue hearing notice. However, where ignorance of a sitting date is self-induced, it is my view that such a party in default is not entitled to a hearing notice. See Baba V. Atunbi (2012) 3 NWLR (pt. 1287) 354. PER GEORGEWILL, J.C.A.
THE CONSEQUENCES ON THE FAILURE TO ISSUE AND SERVE HEARING NOTICE
So, why is hearing notice so important in the adjudication processes in the Courts? It is worth pointing out that the importance of service hearing notice is underscored by the grim consequences of failure to do so where it is deemed and or found to be necessary but was not served. The position of the law is that a failure to issue and serve hearing notice, in circumstances in which issuance and service of a hearing notice is necessary, would amount to a fundamental omission, which renders the entire proceedings so conducted and the judgment so entered null and void and liable to be set aside on appeal. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Baba V. Atunbi (supra) at Pp. 366 – 368, Sigbenu V. Imafidon (2009) 13 NWLR (Pt. 1158) 231 at P. 252, Ndukauba V. Kolomo (2005) 4 NWLR (Pt. 915) 411, Scott-Emuakpor V. Ukavbe (1975) 12 SC 41; SPDC Nig. Ltd V. Niger Optical Service Co Ltd (2004) 7 NWLR (Pt. 872) 420 and Somai Sonka Ltd V. Adzege (2001) FWLR (Pt. 68) 1104. PER GEORGEWILL, J.C.A.
WHETHER OR NOT A PARTY WHO FAILS TO TAKE OR MAKE USE OF THE OPPORTUNITY GIVEN TO HIM TO PRESENT HIS CASE CAN BE HEARD OR ALLOWED TO COMPLAIN OF A DENIAL OF FAIR HEARING
However, it must be pointed out at once that on the reverse side of the requirement of service of hearing notice is the ugly reality of it being subject to abuse by parties, particularly those who may cling to it as a right and become lackadaisical in the prosecution or defense of their cases. Thus, where a party or his counsel was in Court on the sitting of a Court and the case was adjourned to another further date, it will be incongruous for such a party to insist on service of hearing notice on him should he or his counsel fail to appear in Court on the next adjourned date. In law, a party who fails to take or make use of the opportunity given to him to present his case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe V. Parkes (2014) 3 NWLR (Pt. 1395) 475. See also Mirchandani V. Pinheiro (2001) FWLR (Pt. 48) 1307) at Pp. 1318 -1320; Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (Pt. 319) 143; Ajaokuta Steel Co Nig Ltd V. Biosah & Co Nig Ltd (1997) 11 NWLR (Pt. 527) 145; Eastern Breweries Plc V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488.
It follows therefore that since all parties ought to be informed of when a matter in which they are involved and pending before the Court is due to be called up and or be heard, all parties to a proceeding are entitled as of right to be served with all the Court processes, including hearing notices from day to day. This is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted. See Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 at p. 177. PER GEORGEWILL, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE COURT TO CONFIRM THAT THERE IS PROPER SERVICE OF COURT PROCESSES ON PARTIES TO A LEGAL DISPUTE
Thus, it is the duty of the Court, and certainly not that of either of the parties in a pending litigation, to confirm that there is proper service of the Court processes, including hearing notice whenever it is necessary to be served, on the other party who may be affected by the outcome of a proceeding before the Court. So, as it does often happen in the Courts, where a party was neither in Court nor was represented by a counsel, it is in the interest of justice that the Court should ensure that hearing notice is duly issued and properly served on such a party in relation to the next adjourned date for the cause or matter. See FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 at p. 309.
The above is so because in law non-service of hearing notice on a party, where service of hearing notice is required by law and necessary, would rob the Court of its jurisdiction to hear and determine a cause or matter. Thus, any order made by a Court against a party in the absence of service of hearing notice on a party, who is entitled to service of hearing notice, is null and void. The failure to serve hearing notice, where it ought to be served on a party to a pending proceedings, goes to the root of the jurisdiction of the Court. See Section 36 of the Constitution of Nigeria 1999 (as amended). See also Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 at pp. 126 – 127 and ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 at P. 326.
THE POSITION OF LAW ON THE FAILURE BY A COURT TO OBSEREVE THE RIGHT TO FAIR HEARING OS A PARTY IN THE LITIGATION PROCESS
My Lords, the law is and has always been that a failure by a Court to observe the right to fair hearing of a party in the litigation process vitiates both the proceedings and judgment of the Court whose proceedings is affected by the deadly incurable and highly contagious virus of lack of or denial of fair hearing, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were or even how sound the judgment was on the merit. Once, the right to fair hearing is breached, all the proceedings and or judgment or decisions are all a nullity. But, the issue of fair hearing must at all times, in any proceedings in which it is raised, be raised with all seriousness and bone fide and not mala fide or merely intended to raise a storm in a tea cup without any real factual basis. See Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 at p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (PT. 165) 33 at p. 40, Adebesin V. The State (2014) 9 NWLR (pt. 1413) 609 at Pp. 641 – 642. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja, Coram: A. B. Mohammed J., and A. I. Aina J., sitting in its Appellate jurisdiction in Appeal No. FCT/HC/CVA/86/2019: Ama Real Estate Limited V. Heritage Bank Plc., delivered on 31/10/2019, in which it affirmed the ruling of the District Court of FCT Abuja, Coram: His Worship Honorable Munirat I. Tanko, delivered on 6/3/2019 setting aside the Garnishee Order Absolute made against the Respondent in Suit No. CV/425/2016: Ama Real Estate Limited V. Heritage Bank Plc.
The Appellant was peeved by the said judgment and had promptly appealed against it vide its Notice of Appeal filed on 28/11/2019 on three grounds of appeal. See pages 154 – 157 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 12/11/2020 but was deemed as properly transmitted on 18/1/2022. The Appellant’s brief was filed on 25/11/2020 but was deemed as properly filed on 18/1/2022. The Respondent’s brief was filed on 15/12/2020 but was deemed as properly filed on 18/1/2022. The Appellants’ reply brief was filed on 4/3/2021 but was deemed as properly filed on 18/1/2022.
At the hearing of the appeal on 18/1/2022, Chuka Iloeje Esq., learned counsel for the Appellant, appearing with Enoima Burna Usoro Esq., adopted the Appellant’s brief as their arguments in support of the appeal and urged the Court to allow the appeal. On their part, Akinyemi Aremu Esq., learned counsel for the Respondent, appearing with Mrs. Yemisi Akinyemi – Aremu adopted the Respondent’s brief as their arguments against the appeal and urged the Court to dismiss the appeal.
By a Motion Ex – parte filed on 8/2/2018, the Appellant as Garnishor had commenced a garnishee proceeding praying the District Court of the FCT Abuja for the following orders:
1. An Order Nisi attaching the sum of N2,500,000.00 only being the outstanding judgment sum in Suit No: CV/425/16, between Ama Real Estate Limited V. Mr. Daniel Ikhazuagbe Alegeh (Per Justice Jude Okeke of the High Court of FCT Maitama Abuja) due to the Judgment Creditor/Applicant and standing to the credit of the Judgment Debtor in their account with any of the 1st – 17th Garnishee Banks.
2. An Order directing the 1st – 17th Garnishee Banks to appear before this Honorable Court to show cause why it should not pay over the Judgment Creditor the sum of N 2, 500, 000. 00.
3. An Order directing the Garnishee Banks to pay the cost of the Garnishee proceedings.
4. And for such further orders as this Honorable Court may deem fit to make in the circumstances of this application. See pages 1 – 10 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant as Garnishor before the Court below as can be gleaned from its affidavit evidence as in the Record of Appeal was that it had initially commenced an earlier garnishee proceeding before District Court of the FCT Abuja and all the Garnishees therein, including the Respondent, appeared and did show cause and were all consequently discharged. However, the judgment debt had remained unpaid and upon further investigation, it was discovered that the judgment debtor maintains accounts with some banks, including the Respondent and hence a fresh Garnishee proceeding was commenced before the District Court of the FCT Abuja, which granted the Garnishee Order Nisi, which Order Nisi was served on all the Garnishees, including the Respondent and they were ordered to appear and show cause.
On 16/5/2018, which was the return date, all the other Garnishees filed and served on the Appellant, as the judgment creditor their affidavit to show cause except the Respondent which deliberately absented itself, notwithstanding the fact that it was duly served with the Garnishee Order Nisi were served with the order nisi. At the hearing of the Garnishee proceedings, the District Court of the FCT Abuja, upon being satisfied that the Respondent was duly served with the Garnishee Order Nisi but had not filed any affidavit showing cause, proceeded to make the Garnishee Order Nisi Absolute against the Respondent, and then adjourned the Garnishee proceedings against the 4th Garnishee, Eco Bank Plc, to 25/6/2018 for hearing to enable it give further particulars. It was the case of the Appellant that the Garnishee Order Absolute having been made against the Respondent on 16/5/2018, and proceedings concluded and terminated against the Respondent, there was no longer any need to serve the Respondent with any further hearing notice in the pending Garnishee proceedings against the 4th Garnishee, Eco Bank Plc, which was to provide further particulars on the next adjourned date of 25/6/2018.
It was also the case of the Appellant that the subsequent setting aside of the Garnishee Order Absolute against the Respondent, on its application, by the District Court of FCT Abuja and the affirmation of the said decision of the District Court of the FCT Abuja by the Court below, the High Court of the Federal Capital Territory Abuja, sitting in its Appellate jurisdiction was wrongful and in grave error, and thus liable to be set aside in view of the Garnishee Order Absolute already made against the Respondent by the District Court of the FCT Abuja on 16/5/2018. See pages 1 – 10, 11 – 13 and 68 of the Record of Appeal.
On the other hand, the gist of the case of the Respondent as Garnishee before the Court below as can be gleaned from its affidavit evidence as in the Record of Appeal was that the Appellant had initially commenced a Garnishee proceeding against 17 Garnishee Banks, of which the Respondent was the 10th Garnishee, to enforce the judgment it obtained in Suit No. CV/425/16: Ama Real Estate V. Mr. Daniel Ikhazuagbe Alegeh delivered on 7/11/2017 by the High Court of Justice of the FCT, Coram: Jude Okeke J. Upon the said Motion Ex – parte, the District Court of the FCT, made a Garnishee Order Nisi directing the Respondent and the other Garnishee Banks to show cause. On 24/11/2011, the Respondent filed an affidavit to show cause stating that the judgment debtor does not maintain an account with it and on 22/1/2018 the Respondent was consequently discharged as a Garnishee.
However, but curiously, on 8/2/2018 the Appellant proceeded to commence a fresh Garnishee proceeding against the Respondent, which was less than two weeks after the District Court of the FCT Abuja had discharged the Respondent as a garnishee. On 26/3/2018, the District Court of the FCT made a Garnishee Order Nisi directing the Garnishee Banks, including the Respondent to show cause, and the hearing in the Garnishee proceedings was adjourned to 16/5/2018, and on which date 16 of the Garnishee Banks were represented in the District Court of the FCT Abuja and on the application by the counsel to the Appellant to discharge some of the Garnishees, the said Court granted the application and discharged all the other Garnishee Banks except the Respondent and Eco Bank Plc and adjourned the continuation of hearing in the Garnishee proceedings to 25/6/2018.
Surprisingly, on all the subsequent dates of adjournment for hearing in the Garnishee proceedings, namely; 25/6/2018, 4/7/2018, 11/7/2018, 8/82018 and 12/9/2018 no further hearing notice was served on the Respondent and the Garnishee proceedings on all those dates went on behind the Respondent and no attempt was ever made to even serve a hearing notice on the Respondent. On 12/9/2018, on the application of the learned counsel for the Appellant, the District Court of the FCT Abuja made the Garnishee Order Absolute against the Respondent and ordering the Respondent to pay the outstanding judgment sum of N2,500,000.00 to the Appellant.
Subsequently, when the Respondent became aware of the Garnishee Order Absolute made against it in its absence and without its knowledge, it filed a Motion on Notice on 21/9/2018 to set aside the said Garnishee Order Absolute. However, on 8/10/2018, it filed another Motion on Notice to set aside the said Garnishee Order Absolute for lack of fair hearing, which latter application was the one it moved before the District Court of FCT Abuja. Upon hearing the Respondent’s application, the District Court of the FCT Abuja set aside the Garnishee Order Absolute. See pages 1 – 10, 16, 33, 39 – 42, 51 – 52, 65 – 71 of the Record of Appeal.
The Appellant was thoroughly dissatisfied with the ruling of the District Court of the FCT Abuja and had promptly appealed against the same to the Court below, the High Court of the FCT Abuja. At the Court below, the parties filed and exchanged their appellate briefs and after the hearing the appeal, the Court below delivered its judgment on 31/10/2019, in which it affirmed the ruling of the District Court of FCT Abuja, Coram: His Worship Honorable Munirat I. Tanko, delivered on 6/3/2019 setting aside the Garnishee Order Absolute made against the Respondent in Suit No. CV/425/2016: Ama Real Estate Limited V. Heritage Bank Plc., hence the further appeal to this Court. See pages 127 – 153 and 154 – 157 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the three grounds of appeal, namely:
1. Whether the Respondent was accorded their right to fair hearing? (Distilled from Ground 1)
2. Whether the Order Absolute made against the Respondent on 16/5/2018 terminated the Garnishee proceeding against them? (Distilled from Ground 2 & 3 of the Notice of Appeal).
In the Respondent’s brief, a sole issue was distilled as arising for determination in this appeal, namely:
“Whether having regards to the peculiar facts of this case, the Court below was right when it affirmed the ruling of the trial District Court setting aside the Garnishee Order Absolute because the Respondent was not served with relevant hearing notices?”
I have taken time to consider the facts and circumstances of this case starting from the District Court to the Court below as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below and I am of the view that the apt issues arising for determination in this appeal are the two issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the sole issue as distilled in the Appellant’s brief. However, I shall consider both issues together and resolve them in one fell swoop.
ISSUES ONE AND TWO TAKEN TOGETHER
Whether the Respondent was accorded their right to fair hearing and whether the Order Absolute made against the Respondent on 16/5/2018 terminated the Garnishee proceeding against them?
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that in law, the parties are entitled to equal opportunity to be heard in that fair hearing is fundamental to all Court proceedings and contended that the absence of fair hearing would vitiates every such proceeding no matter how well conducted and urged the Court to hold that where the parties, as in the instant case by the due service of the Garnishee Order Nisi on the Respondent, which failed to file any affidavit to show cause on the return date, were given equal opportunity to be heard, and one of the party refuses and or fail to make use of the opportunity so given, it cannot be heard to complain of breach of fair hearing and to allow the appeal and set aside the judgment of the Court below as well as the ruling of the District Court of the FCT Abuja and restore the Garnishee Order Absolute. Counsel relied on Atano V AG. Bendel State (1988) 2 NWLR (Pt. 75) 132; Uma & Ors V. Effiom & Ors (2013) LPELR – 21407(CA); SCEN V. Nwosu (2008) All FWLR (Pt. 413) 1399 at P. 1421; Ejeka V. State (2003) LPELR – 1061(SC).
It was also submitted that the Garnishee Order Nisi was duly served on all Garnishees Banks, including the Respondent, which admitted receiving the said Garnishee Order Nisi with the hearing date of 16/5/2018 thereon but had refused to show cause and contended that it was only upon due satisfaction of due service on the Respondent with the Garnishee Order Nisi as endorsed with the hearing date of 16/5/2018 that the District Court of the FCT Abuja made the Garnishee Order Absolute against the Respondent and urged the Court to hold that the Respondent having been duly served with the hearing date as endorsed on the Garnishee Order Nisi was no longer entitled to any further hearing notice and to allow the appeal and set aside the decision of the Court below affirming the ruling of the District Court of FCT Abuja based on the alleged non-service of hearing notice in the Respondent’s Notice filed and argued by the Respondent and to restore the Garnishee Order Absolute. Counsel referred to Section 86 of the Sheriff & Civil Process Act.
It was further submitted that the Court below failed to avert its mind to the fact that the instant case was one of Garnishee proceedings in which what was required of the Appellant was to serve the Respondent with the Garnishee Order Nisi together with the endorsed return date for the Respondent to show cause and contended that the Respondent having been the equal opportunity to be heard in the Garnishee proceedings but had decided to sleep on this opportunity will have the provisions of Section 86 of the Sheriffs and Civil Process Act invoked against him since in law there is no further requirement to continuously chase the Respondent with hearing notices until it finally makes a decision to show cause an urged the Court to so hold and to allow the appeal, the aside the judgment of the Court below as well as the ruling of the District Court of the FCT Abuja and restore the Garnishee Order Absolute made against the Respondent on 16/5/2018. Counsel referred to Section 86 of the Sheriffs and Civil Process Act and relied on Simon Ezechukwu & Anor V. I. O. C. Onwuka (2006) 2 NWLR (Pt 963) 151.
It was also further submitted that the Respondent haven been accorded the opportunity to be heard but kept away cannot thereafter complain about a lack of fair hearing since the complaint of the Respondent was not that it was not served with the Garnishee Order Nisi containing the hearing date of 16/5/2018 but that it was not served with fresh hearing notice after it had deliberately absented itself from attending the Court and filing its affidavit to show cause and contended that in law though the service of hearing notice is a condition precedent to valid hearing of a case yet where a party is aware of the next adjourned date as in the instant case there would be no need to service him with a hearing notice and urged the Court to hold that since the Respondent was aware of the return date of 16/5/2018 for hearing in the Garnishee proceedings against it, there was no further need in law to serve the Respondent with hearing notice and to allow the appeal, set aside the judgment of the Court below as well as the ruling of the District Court of the FCT Abuja and retore the Garnishee Order Absolute made against the Respondent on 16/5/2018. Counsel relied on Olubukola & Anor V. AG of Lagos State & Ors (2016) LPELR – 41451(CA); Obu V Archibong (2010) 2 NWLR (Pt.1179) 460; Padawa V. Jatau (2002) 5 NWLR (PT. 813) 247; S & D Construction Company Limited V Chief Bayo Ayoku & Anor (2011) LPELR – 2965 (SC); SCOA (Nig) Plc & Anor V. Registered Trustees of Methodist Church of Nig (2016) LPELR – 40194(CA).
On issue two, learned counsel for the Appellant had submitted that on 16/5/2018 and upon the Respondent’s failure to appear and to show cause, learned counsel for the Appellant as the judgment creditor prayed the District Court of the FCT Abuja to make the Garnishee Order Nisi Absolute against the Respondent and which prayer was granted and the Garnishee proceedings was then adjourned to 25/6/2018 against the Eco Bank Plc, which was also of the Garnishee Banks to provide further particulars and contended that the Garnishee Order Nisi having been made Absolute on the date of 16/5/2018 already communicated to the Respondent along with the service of the Garnishee Order Nisi on the Respondent, it follows that the Garnishee proceeding as it affects the Respondent was finally determined and terminated on 16/5/2018 and urged the Court to hold that the District Court of FCT Abuja having made the Garnishee Order Absolute against the Respondent on 16/5/2018 as prescribed by law on the failure of the Respondent to file any affidavit to show cause, the Garnishee Order Absolute is a final judgment and there was therefore no need to serve the Respondent with any further hearing notices when the matter against the Respondent had been completely determined on 16/5/2018 and to allow the appeal, set aside the perverse judgment of the Court below as well as the perverse ruling of the District Court of the FCT Abuja and restore the Garnishee Order Absolute made against the Respondent on 16/5/2018. Counsel referred to Section 86 of the Sheriffs and Civil Process Act and relied on UBA Plc V. Ekanem & Anor (2009) LPELR-CA/C/74/2007; UBN V. Boney Marcus Ind. Ltd. & Ors (2005) LPELR – 3394(SC) and FBN V. Jacob Agidi (Nig) Ltd (2018) LPELR – 44997(CA).
It was also submitted that in the subsequent proceedings from 25/6/2018 to 12/9/2018, the presence of the Respondent, having become non – parties, was no longer legally required as proceedings against it had already been terminated on 16/5/2018 when the Garnishee Order Nisi was made Absolute and contended that the District Court of the FCT Abuja having become functus officio, only remedy available in law to the Respondent was by way of appeal against the said Garnishee Order Absolute made against it on 16/5/2018 and urged the Court to hold that the Court below was misled by the misconceived submissions of the learned counsel for the Respondent on the basis of the Respondent’s Notice to hold that the Garnishee Order Absolute was not made on 16/5/2018 but was rather made on 12/9/2018 without the service of further hearing notices on the Respondent and to allow the appeal, set aside the perverse findings of the Court below and restore the Garnishee Order Absolute made against the Respondent on 16/5/2018 by the District Court of the FCT Abuja. Counsel relied on Ohajunwa V. Obelle (2008) 3 NWLR (Pt. 1073) 52 at pp. 78 – 79. Mohammed V. Husseini (1998) 14 NWLR (Pt. 584) 108 at P. 163.
RESPONDENT’S COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the Respondent had submitted that the Court below was right when it found that that the Respondent’s right to fair hearing was breached in the Garnishee proceedings before the District Court of the FCT Abuja by reason of the failure to serve the Respondent with the requisite hearing notices from 25/6/2018 through 4/7/2018, 11/7/2018, 8/8/2018 and up to 12/9/2018 when the Garnishee Order Nisi was made absolute against it by the District Court of the FCT Abuja without the due service on it of any hearing notices as required by law and contended that in law a party is entitled to be notified of the date on which a matter against him will come up in Court, more so where such party was not present in Court at the last adjournment of the matter and urged the Court to hold that in law all such proceedings, including the Garnishee proceeding from 25/6/2018 till 12/9/2018 when the Garnishee Order Absolute was made against the Respondent, without the requisite hearing notices served on the Respondent were proceedings conducted without jurisdiction and in breach of the Respondent’s right to fair hearing and therefore, null and void and to dismiss the appeal for lacking in merit and affirm the correct and sound judgment of the Court below. Counsel relied on Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 at p. 177, FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 at p. 309, Mark V Eke (2004) 5 NWLR (Pt. 865) 54 at pp. 79 – 80, Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 at pp. 126 – 127 and ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 at p. 326.
It was also submitted that the Appellant which had alleged a breach of its right to fair hearing by the Court below failed woefully to show and or demonstrate how its right to fair hearing was breached in the appeal proceedings before the Court below and contended that in law it is not enough for a party alleging a breach of the right to fair hearing to merely wave the banner of fair hearing, and expect the Court to jump to such conclusion but must through the facts show that the said right was indeed violated and urged the Court to hold that there was nowhere the Appellant’s right to fair hearing was breached in the appeal proceedings by the Court below and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Gov. Imo State V. EF Network (Nig) Ltd (2019) 9 NWLR (Pt 1676) 95 at p. 114; Adebayo V. AG. Ogun State (2008) 7 NWLR (Pt. 1085) 201 at Pp. 221 – 222.
It was further submitted that although a Garnishee proceeding is a unique procedure, it still has to comply with the rules of practice, procedure and fair hearing and contended that the submission by learned counsel for the Appellant that because Garnishee proceedings are unique, there is no need to serve a hearing notice is not only misconceived but also not supported by law and urged the Court to hold that the Court below was right when it held that the failure to serve hearing notices on the Respondent, notwithstanding that the proceeding was one for Garnishee, robbed the District Court of the FCT Abuja the jurisdiction to make the Garnishee Order Nisi Absolute on 12/9/2018 and to dismiss the appeal, for lacking in merit and affirm the judgment of the Court below. Counsel relied on Osakue V FCE Asaba (2010) 10 NWLR (Pt.1201) 1 at p. 29.
It was also further submitted that it was on 12/9/2018 that the District Court of the FCT Abuja made the Garnishee Order Absolute and not on 16/5/2018 as erroneously contended by the learned counsel for the Appellant as can be seen in the Record of Appeal and contended that on 12/9/2018, it was the Appellant itself that had through its counsel applied to the District Court of the FCT Abuja for the granting of the Garnishee Order Absolute against the Respondent and which Garnishee Order Absolute was granted by the District Court of the FCT Abuja on same date of 12/9/2018 and urged the Court to hold that the Appellant, which throughout the hearing of the Respondent’s Motion of 8/10/2018 seeking to set aside the Garnishee Order Absolute had not disputed the date of 12/9/2018 as the date on which the Garnishee Order Absolute was made against the Respondent on 12/09/2018, cannot now turn round to argue that the Garnishee Order Absolute was not made on 12/9/2018 but on 16/5/2018 and to discountenance this summersault since in law parties can neither approbate and reprobate nor take the benefit of the nebulous and ambiguous Orders and or proceedings of a Court and to dismiss the appeal for lacking in merit and affirm the sound judgment of the Court below. Counsel relied on SPDC (Nig) Ltd V. Fibika (2015) All FWLR (Pt. 777) 775 at p. 804; Nuhu V. Ogele (2003) LPELR – 2077 (SC).
It was also submitted that notwithstanding the nebulous and vague Orders and proceedings of the District Court of the FCT Abuja on 16/5/2018, it was crystal clear that had the District Court made the Garnishee Order Absolute on 16/5/2018 as being erroneously contended by the Appellant, and the Appellant had indeed believed that the Garnishee Order Absolute was made on 16/5/2018, then naturally and truthfully the counsel for the Appellant, as the Judgment Creditor, would not have on 12/9/2018 applied again to the District Court of the FCT Abuja for the Garnishee Order Nisi to be made Absolute again against the Respondent and urged the Court to hold that the only rationale thing one can make out of the Record of Appeal of the proceedings and orders of the District Court of the FCT Abuja on 16/5/2018 and 12/9/2018 respectively is that it was on 12/9/2018 that the Garnishee Order Absolute was made against the Respondent and it was ordered to pay the outstanding judgment sum of N2,500,000.00 to the Appellant and to dismiss the appeal for lacking in merit and affirm the correct judgment of the Court below setting aside the Garnishee Order Absolute obtained against the Respondent in the brazen breach of its right to fair hearing having not been served with the pertinent hearing notice as required by law. Counsel relied on Kalu V. FRN (2014) 1 NWLR (Pt. 1389) 479 at pp. 554 – 555, Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182 at P. 210.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had virtually reiterated his earlier submissions but in law, the reply brief is not an avenue for reiteration. It is also not an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not be filed just as a matter of course, even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Olafisoye V. FRN 2004 1SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
I shall therefore only review albeit briefly, some of the relevant non-repetitive reply submissions in the Appellants’ reply brief. It was submitted that ignorance of the law is never a defense or an excuse and contended that the Respondent must swim or sink with its decision to deliberately absent itself from the Garnishee proceedings as it could not be mistaken that the fresh Garnishee Order Nisi served on it was for a different Garnishee proceeding from the earlier on in which it was discharged and urged the Court to hold that the parties, that is the judgment debtor in the earlier Garnishee proceedings and in the present one as well as the motion number are not the same and to discountenance not barred from proceeding against a Garnishee merely because the Garnishee had earlier been discharged in an earlier Garnishee proceedings and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Idris V. ANPP (2008) 8 NWLR (Pt.1088) 1 at P. 151, Omozeghian V. Adjarho (2006) 4 NWLR (Pt. 969) 33 at P. 59.
It was also submitted that on 16/5/218 the District Court granted the application of the Appellant for a Garnishee Order Absolute when it ordered as prayed and contended that in the circumstances, it would amount to superfluity for the District Court having already ordered as prayed to proceed to repeat the terms of the Garnishee Order Absolute as already ordered as prayed by the counsel for the Appellant as judgment creditor on 16/5/2018 and urged the Court to hold that the Garnishee Order Absolute was made against the Respondent on 16/5/2018, on which date the Garnishee proceedings against the Respondent was duly terminated and not on 12/9/2018 and it was therefore no longer necessary to serve the Respondent with fresh hearing notices for the continued Garnishee proceedings against Eco Bank Plc of which the Respondent was no longer a party thereto and to allow the appeal, set aside the judgment of the Court below and restore the Garnishee Order Absolute made against the Respondent by the District Court of the FCT Abuja on 16/5/2018. Counsel referred to Section 83(2) and 86(1) of the Sheriff and Civil Process Act and relied on Bankole & Anor V. Adeyeye & Anor (2010) LPELR – 8593(CA), Agboola V. State (2013) LPELR – 20652(SC) and Nwora & Ors V. Nwabueze & Ors (2019) LPELR – 46803(SC).
RESOLUTION OF THE ISSUES ONE AND TWO
On 26/3/2018, the learned counsel for the Appellant had moved the District Court of the FCT Abuja on its Motion Ex – parte seeking a Garnishee Order against 17 Garnishee Banks, including the Respondent as the 10th Garnishee Bank. The Motion Ex – parte was supported by an affidavit of 11 paragraphs deposed to by one Mrs. Nene Abubakar, annexed to which is Exhibit A – a Certificate of Judgment dated 9/10/2017. On 26/3/2019, the Motion Ex – parte application was granted and a Garnishee Order Nisi was issued against all the 17 Garnishee Banks and the Garnishee proceeding was adjourned to 16/5/2018 for the Garnishees to show cause. On these facts, the parties are ad idem. See pages 1 – 5 and 65 – 66 of the Record of Appeal.
However, the crux of the dispute and the real bone of contention or crux of the issue between the parties in this appeal are the Garnishee proceedings of the District Court of the FCT Abuja on 16/5/2018 and 12/9/2018 respectively. I shall therefore, from the onset reproduce the record of proceedings of the District Court of the FCT Abuja on these dates as can be found in the Record of Appeal.
On 16/5/2018, all the other 16 Garnishee Banks were represented before the District Court of the FCT Abuja, except the Respondent, which was the 10th Garnishee Bank was absent. The learned counsel for the Judgment Creditor, which is now the Appellant, had prayed the District Court as follows:
“The matter is slated for hearing. We have receipt of the affidavit for all the Garnishee served. For Heritage Bank Plc, they have been duly served, they have not entered appearance or filed affidavit to show cause to the Court Order. Therefore, by Section 18 of the Sheriff and Civil Process Act, we pray that the judgment be made absolute for the Bank. We also ask that all the other Banks be discharged left with Eco Bank Plc and Heritage Bank.”
Then, upon the above application made by the learned counsel for the Judgment Creditor, the District Court had ordered as follows:
“Court Ruling: 1. The application is hereby granted as prayed. 2. That all other Garnishees, exception of the Eco Bank Plc and Heritage Bank are hereby discharged. 3. The matter is adjourned to the 25/6/2018 for hearing.”
See pages 67 – 68 of the Record of Appeal.
On the adjourned date of 25/6/2018, one Ikenna Okeke Esq., appeared for the Judgment Creditor, whilst one Kingston Ezebunwa appeared for the 4th Garnishee, which is Eco Bank Plc.
The learned counsel for the 4th Garnishee, Eco Bank Plc then informed the District Court that on 16/5/2018, being the previous date of hearing of the Garnishee proceedings, the District Court had discharged all the Garnishee but Eco Bank Plc needed to file affidavit to show cause and that they had filed the affidavit to show cause.
The learned counsel for the Judgment Creditor, now the Appellant, then informed the District Court that they had received the counter-affidavit of the 4th Garnishee Bank, Eco Bank Plc dated 20/6/2018 and they intend to file a further and better affidavit and therefore, sought an adjournment to enable them do so.
District Court: “On the next date if you people are not here with tangible reasons, you will have to pay the money please. Matter is adjourned to 4/7/2018 for defendant hearing.” See page 68 – 69 of the Record of Appeal.
On 11/7/2018, the learned counsel for the Judgment Creditor, now Appellant, had informed the Court that the counter-affidavit by the 4th Garnishee Bank, Eco Bank Plc., was defective in that it only shows figures but not the complete transactions on the account and for which they had filed a further affidavit to challenge it, providing an account statement from the same bank in proof of what a proper account statement should look like. He then applied to the District Court to Order the 4th Garnishee Bank, Eco Bank Plc., to print a comprehensive account statement from 1/4/2018 to date to avoid documents being manipulated. Learned counsel for the 4th Garnishee, Eco Bank Plc., then sought an adjournment to enable him reply to the further and better affidavit of the Judgment Creditor.
District Court: “Matter is adjourned to the 8/8/2018 for reply to counter-affidavit.” See pages 69 – 70 of the Record of Appeal.
On 8/8/2018, one Odenigbo Francisco appeared for the Judgment Creditor, now the Appellant. The 4th Garnishee, Eco Bank Plc., was not represented by counsel but there was a letter from the learned counsel for the 4th Garnishee, Eco Bank Plc., praying for a stand down of the matter.
District Court: “I will give an adjournment not a stand down. Matter is adjourned to 21/8/2018 for reply to counter-affidavit and defense hearing.” See page 70 – 71 of the Record of Appeal.
On 12/9/2018, one F. U. Odenigbo appeared for the Judgment Creditor, now the Appellant. One Kinston Ezebunwa Esq., with Bailat Sheyin Esq., appeared for the 4th Garnishee, Eco Bank Plc.
Learned counsel for the Judgment Creditor, now the Appellant, then applied to the District Court to discharge the 4th Garnishee, Eco Bank Plc., but reminded the District Court that on 16/5/2018 they had invoked the provisions of Section 86 of the Sheriffs and Civil Process Act against the 10th Garnishee, Heritage Bank, now the Respondent and prayed that the District Court should grant their prayers and to make the Garnishee Order Absolute against the 10th Garnishee, Heritage Bank Plc., now the Respondent.
District Court: “The 4th Garnishee, Eco Bank Plc., is hereby discharged as prayed by the Applicant’s counsel. The 10th Garnishee, that is Heritage Bank is ordered to pay the judgment Creditor/Applicant the said sum, that is N2. 5Million as being outstanding judgment sum in Suit No. CV/425/16: Ama Real Estate Ltd. V. Mr. Daniel Alegeh.” See page 71 of the Record of Appeal.
My Lords, it was on the strength of the above proceedings that the District Court of the FCT Abuja heard the application filed on 8/10/2018 by the Respondent seeking to set aside the Garnishee Order Absolute on the grounds amongst others for lack of fair hearing and being an abuse of Court process. In its ruling, the District Court granted the Respondent’s application and thereby set aside the Garnishee Order Absolute made against the Respondent. The Appellant, which was thoroughly dissatisfied with the decision of the District Court setting aside the Garnishee Order Absolute, had promptly appealed against the said decision to the Court below, the High Court of the Federal Capital Territory Abuja.
The parties duly filed and exchanged their appellate brief and upon hearing the appeal, the Court below delivered its judgment on 31/10/2019, in which it dismissed the appeal of the Appellant and affirmed the ruling of the District Court on the strength of the Respondent’s Notice to the effect that the failure to serve hearing notices on the Respondent on the subsequent dates of 25/6/2018 and up to the final determination of the Garnishee proceedings against the Respondent on 12/9/2018 robbed the District Court of the jurisdiction to make the Garnishee Order Absolute against the Respondent. See pages 127 – 153 of the Record of Appeal.
My Lords, having set out the relevant proceedings of 16/5/2018 and 12/9/2018 respectively and having considered the submission of learned counsel for the parties, the crux of this appeal is simply on which date was the Garnishee Order Absolute made against the Respondent as the dates of 16/5/2018 and 12/9/2018, the vehemently diametrical dates relied upon by the respective parties. Thus, who as between the Appellant, which vehemently insists that the Garnishee Order Absolute was made on 16/5/2018 and the Respondent which equally vehemently insists that the Garnishee Order Absolute was made on 12/9/2018 is right? Was the Court below right when it held that the Garnishee Order Absolute was made against the Respondent on 12/9/2018 without service of requisite hearing notices and therefore, having been reached in breach of the Respondent’s right to fair hearing was null and void?
On 8/10/2018, the Respondent had filed an application seeking to set aside the Garnishee Order Absolute made against it by the District Court of the FCT Abuja at the instance of the Appellant. The application was supported with an affidavit, annexed to which are three documentary Exhibits. The Appellant filed a counter-affidavit in vehement opposition to the application by the Respondent. On 26/20/2018, the Respondent filed a Further Affidavit. The grounds of the application were amongst others that the alleged breach of the Respondent’s right to fair hearing occasioned by the non-service of hearing notices on the Respondent. In granting the application, the District Court had found that the Garnishee Order Nisi was not served on the Respondent and therefore, rendered the Garnishee Order Absolute a nullity and thus liable to be set aside. See pages 33 – 36 and 74 – 77 of the Record of Appeal.
However, on appeal by the Appellant to the Court below, in dismissing the appeal the Court below had upheld the Respondent’s Notice that there was failure to serve the Respondent with hearing notice as required by law in respect of all the proceedings subsequent to the return date of 16/5/2018 and which failure rendered the entire Garnishee proceedings against the Respondent between 25/6/2018 and 12/9/2018 when the Garnishee Order Absolute was made against the Respondent a nullity. It then proceeded to affirm the ruling of the District Court setting aside the Garnishee Order Absolute made against the Respondent. See pages 78 – 81, 116 – 117 and 127 – 153 of the Record of Appeal.
I had earlier reproduced in details the proceedings before the District Court of the FCT Abuja leading to the making of the Garnishee Order Absolute against the Respondent at the instance of the Appellant, particularly the proceedings of 16/5/2018 and 12/9/2018. See pages 67 – 68 and 71 of the Record of Appeal.
The issue of the issuance and service of hearing notice occupies a prime place accorded to it by law in the adjudication process and it is to enable parties to be duly notified of the hearing of their cases to either be present personally and or represented by counsel in the Court. However, it is also the law that once a party to a proceeding pending in Court is aware of or already knows or is reasonably presumed to have known of the date on which a matter is slated for hearing, fresh hearing notices will not be required to be issued or served on such a party. See Simon Ezechukwu & Anor V. I. O. C. Onwuka (2006) 2 NWLR (Pt 963) 151.
Thus, in law, the service of hearing notice may or may not be necessary or essential depending on the peculiar facts and circumstances of any given case. Happily, there is no dearth of decided cases on this very important aspect of our law but rather there is a surfeit of authorities as are replete in our law reports on when service of hearing notice may or may not be necessary.
The essence of service of a hearing notice, as I understand it in law, is that it is designed to put parties on notice of a future date in which the suit or appeal or matter will be called and or heard. The objective, in my view, is to give the parties equal opportunity of being fairly heard before any decision affecting their rights is taken. See Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended.
Now, while the service of hearing notice may be a duty on the part of the Court on the one hand and a right of the parties on the other hand, the duty of issuing it and ensuring that it is served on that parties, whenever it is necessary is exclusively that of the Court. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Folorunso V. Shaloub (1994) 3 NWLR (Pt. 333) 413 at p. 430; Mirchandani V. Pinheiro (2001)1 FWLR (Pt. 48) 1307 at p. 1320. Thus, at any time when it becomes clear to the Court that a party who is absent in Court was not aware of the date, it will be necessary for the Court, in the interest of justice and fair hearing, to order and issue hearing notice. However, where ignorance of a sitting date is self-induced, it is my view that such a party in default is not entitled to a hearing notice. See Baba V. Atunbi (2012) 3 NWLR (pt. 1287) 354.
So, why is hearing notice so important in the adjudication processes in the Courts? It is worth pointing out that the importance of service hearing notice is underscored by the grim consequences of failure to do so where it is deemed and or found to be necessary but was not served. The position of the law is that a failure to issue and serve hearing notice, in circumstances in which issuance and service of a hearing notice is necessary, would amount to a fundamental omission, which renders the entire proceedings so conducted and the judgment so entered null and void and liable to be set aside on appeal. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Baba V. Atunbi (supra) at Pp. 366 – 368, Sigbenu V. Imafidon (2009) 13 NWLR (Pt. 1158) 231 at P. 252, Ndukauba V. Kolomo (2005) 4 NWLR (Pt. 915) 411, Scott-Emuakpor V. Ukavbe (1975) 12 SC 41; SPDC Nig. Ltd V. Niger Optical Service Co Ltd (2004) 7 NWLR (Pt. 872) 420 and Somai Sonka Ltd V. Adzege (2001) FWLR (Pt. 68) 1104.
However, it must be pointed out at once that on the reverse side of the requirement of service of hearing notice is the ugly reality of it being subject to abuse by parties, particularly those who may cling to it as a right and become lackadaisical in the prosecution or defense of their cases. Thus, where a party or his counsel was in Court on the sitting of a Court and the case was adjourned to another further date, it will be incongruous for such a party to insist on service of hearing notice on him should he or his counsel fail to appear in Court on the next adjourned date. In law, a party who fails to take or make use of the opportunity given to him to present his case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe V. Parkes (2014) 3 NWLR (Pt. 1395) 475. See also Mirchandani V. Pinheiro (2001) FWLR (Pt. 48) 1307) at Pp. 1318 -1320; Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (Pt. 319) 143; Ajaokuta Steel Co Nig Ltd V. Biosah & Co Nig Ltd (1997) 11 NWLR (Pt. 527) 145; Eastern Breweries Plc V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488.
It follows therefore that since all parties ought to be informed of when a matter in which they are involved and pending before the Court is due to be called up and or be heard, all parties to a proceeding are entitled as of right to be served with all the Court processes, including hearing notices from day to day. This is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted. See Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 at p. 177.
Thus, it is the duty of the Court, and certainly not that of either of the parties in a pending litigation, to confirm that there is proper service of the Court processes, including hearing notice whenever it is necessary to be served, on the other party who may be affected by the outcome of a proceeding before the Court. So, as it does often happen in the Courts, where a party was neither in Court nor was represented by a counsel, it is in the interest of justice that the Court should ensure that hearing notice is duly issued and properly served on such a party in relation to the next adjourned date for the cause or matter. See FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 at p. 309.
The above is so because in law non-service of hearing notice on a party, where service of hearing notice is required by law and necessary, would rob the Court of its jurisdiction to hear and determine a cause or matter. Thus, any order made by a Court against a party in the absence of service of hearing notice on a party, who is entitled to service of hearing notice, is null and void. The failure to serve hearing notice, where it ought to be served on a party to a pending proceedings, goes to the root of the jurisdiction of the Court. See Section 36 of the Constitution of Nigeria 1999 (as amended). See also Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 at pp. 126 – 127 and ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 at P. 326.
My Lords, the law is and has always been that a failure by a Court to observe the right to fair hearing of a party in the litigation process vitiates both the proceedings and judgment of the Court whose proceedings is affected by the deadly incurable and highly contagious virus of lack of or denial of fair hearing, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were or even how sound the judgment was on the merit. Once, the right to fair hearing is breached, all the proceedings and or judgment or decisions are all a nullity. But, the issue of fair hearing must at all times, in any proceedings in which it is raised, be raised with all seriousness and bone fide and not mala fide or merely intended to raise a storm in a tea cup without any real factual basis. See Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 at p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (PT. 165) 33 at p. 40, Adebesin V. The State (2014) 9 NWLR (pt. 1413) 609 at Pp. 641 – 642.
Now, by Section 86 of the Sheriffs and Civil Process Act, it is provided as follows:
“If the Garnishee does not within the prescribed time pay into Court, the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the cost of the garnishee proceedings, and does not dispute the debt due or claimed to be due from such debtor, or if he does not appear upon summons, the Court upon proof of service may order execution to issue, and it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with the cost of the Garnishee proceedings.”
From the succinct provision above, it does appear to me that under Garnishee proceedings, the role or duty of the Court on the return date after the issuance of the Garnishee Order Nisi is clearly cut out for it by law. Where a Garnishee, who has been duly served with the Garnishee Order Nisi fails to file an affidavit to show cause why a Garnishee Oder Nisi should not be made absolute, the only option open to the Court, and if so asked for by the Judgment Creditor or his counsel, is to proceed and make the Garnishee Order Nisi Absolute. I have added the words, if so asked for, advisedly since a Judgment Creditor reserves, in my view, the right to exercise his right to ask for the Garnishee Order Nisi to be made Absolute and can even apply to withdraw the entire Garnishee proceedings on the return date. But, once the Garnishee Order Absolute is made, in law there would be nothing left before the Court in the matter to be adjourn. This is so because at that stage the Court, having completely determined the matter between the parties as far as the Garnishee proceeding is concerned, has become functus officio. See Central Bank of Nigeria V. Dantrans Nigeria Limited & Ors (2018) LPELR – 46678(CA) per Georgewill JCA. See also Unity Bank Plc V. Engr. Emmanuel Adeleke Benedick (2021) LPELR – 54549 (CA) per Georgewill JCA; UBA Plc V. Ekanem & Anor (2009) LPELR – CA/C/74/2007, UBN V. Boney Marcus Ind. Ltd & Ors (2005) LPELR – 3394 (SC), FBN V. Jacob Agidi (Nig) Ltd (2018) LPELR – 44997 (CA), Odutola V. Oderinde (2004) 12 NWLR (PT. 888) 574 and Sunnet Systems Ltd. V. NERC & Anor (2014) LPELR – 23967(CA).
I have taken considerable space in this judgment to advert my mind to and reiterate the relevant and applicable principles of law in relation to the two issues for determination in this appeal, let me now relate these settled principles of law to the highly contentious and disputed acts in this appeal. I have also taken time to set out in great details, the proceedings before the District Court of the FCT Abuja leading to the making of the Garnishee Order Absolute against the Respondent at the instance of the Appellant, particularly the proceedings of 16/52018 and 12/9/2018.
It is the law that both the parties as well as the Court are bound by the Record of Appeal. It is accepted unless it is successfully challenged as required by law, as this is the final reference or record of all that transpired and as record of the step by step events that took place in the Court. See Mr. Yemi Akinbisehin V. Mr. Ademola Bodunrin Olajide (2018) LPELR – 51172 (CA) per Georgewill JCA. See also Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655 at p. 665; Chief Sir Victor Umeh V. Ichie Okuli Jude Ejike (2013) LPELR – 23506(CA); Veepee Ind. Ltd. V. Cocoa Ind. Ltd. (2008) NWLR (Pt.1105) 486; Funduk Engr. Ltd. V. McArthur (1995) 4 NWLR (Pt. 392) 640.
Looking and considering the proceedings of the District Court on 16/5/2018, it does appear to me, and with due deference, that learned counsel for the Appellant is the real cause of the confusion and the resultant misfortune to his client, the Appellant. Now, on 16/5/2018, the Appellant’s counsel after applying that the Garnishee Order Nisi be made Absolute against the Respondent had also applied for the discharge of all the other 15 Garnishee Banks except the Heritage Bank, the Respondent and Eco Bank Plc. The District Court then proceeded to grant the application ‘as prayed’ and proceeded to set out in its ruling the three orders it made and adjourned the Garnishee proceedings to yet another date of 25/6/2018 without making any order directing and or compelling the Respondent to pay over to the Appellant the outstanding judgment sum of N2,500,000. 00 amongst the three orders it made, namely; 1. The application of the learned counsel for the Judgment Creditor is grated as prayed, 2. That all the Garnishees with the exception of Eco Bank Plc and Heritage Bank are discharged, and 3. The matter was adjourned to 25/6/2018 for hearing. See pages 67 – 68 of the Record of Appeal.
So, from the proceedings of 16/5/2018 did the District Court make the Garnishee Order Nisi Absolute against the Respondent as vehemently contended by the learned counsel for the Appellant? I think not! Then when was the Garnishee Order Nisi made Absolute by the District Court? Only a recourse to the proceedings of the District Court would reveal the answer to this all-important question in this appeal!
My Lords, I had earlier reproduced the proceedings of the District Court on 12/9/2018, on which date the learned counsel for the Appellant, who is vehemently contending in this appeal that the Garnishee Order Absolute was made on 16/5/2018, was recorded as applying that the District Court should proceed to make the Garnishee Order Absolute against the 10th Garnishee, Heritage Bank Plc., now the Respondent. Upon this application, the District Court had ordered the Respondent, as the 10th Garnishee, to pay to the Judgment Creditor/Applicant the sum of N2, 500, 000. 00 as being outstanding judgment sum in Suit No. CV/425/16: Ama Real Estate Ltd. V. Mr. Daniel Alegeh. See page 71 of the Record of Appeal.
Now, if on 16/5/2018, a Garnishee Order absolute had been made against the Respondent, then why did the learned counsel for the Appellant applied again for the District Court to make a Garnishee Order Absolute against the Respondent on 12/9/2018 for yet another Order Absolute to be made against the Respondent? I find this to be completely untenable. The Appellant was neither sincere nor truthful to contend as it did in this appeal that the Garnishee Order Absolute was made against the Respondent on 16/5/2018 by the District Court. This assertion is neither supported nor borne out by the Record of Appeal. There was indeed nowhere on 16/5/2018 that the District Court Ordered the Respondent to pay the judgment sum of N2,500,000.00 to the Appellant as it unequivocally did on 12/9/2018 as can be seen in the Record of Appeal, with which both the parties as well as this Court are bound. See pages 67 – 68 and 71 of the Record of Appeal.
I have no difficulty whatsoever therefore, finding as fact and I so firmly hold that the District Court made the Garnishee Order Absolute against the Respondent on 12/9/2018 as unassailably alleged and made out and or proved by the Respondent as in the Record of Appeal but certainly not on 16/5/2018 as falsely alleged but not made out and or not proved by the Appellant.
Now, when the Garnishee proceeding was adjourned from 16/5/208 to 25/6/2018 and from 25/6/2018 to 4/7/2018, to 11/7/2018, to 8/8/2018 and to 12/9/2018, if the Respondent was no longer a party entitled to hearing notices as vehemently contended by the learned counsel for the Appellants, then why did the counsel for the Appellant as Judgment Creditor/Garnishor applied for the Garnishee Order Nisi to be made Absolute, perhaps again, on 12/9/2018 both in the absence of the Respondent without any hearing notice of that date of hearing served on the Respondent? Why was the Appellant still applying for an Order of Garnishee Absolute on the Respondent, supposedly a non-party, as at the proceedings of 12/9/2018? It is my finding therefore, and I do firmly hold, that there was no Garnishee Order Absolute made on 16/5/2018 against the Respondent and no such order for payment of the judgment sum of N2,500,000. 00 was made against the Respondent on 16/5/2018.
It follows, therefore, and I so further hold that, the Respondent was by law duly entitled to be served with hearing notices on the subsequent dates of hearing, from 25/6/2018 and more particularly on 12/9/2018 when the District Court made the Garnishee Order Absolute by ordering the Respondent to pay the judgment sum of N2,500,000. 00 to the Appellant.
Thus, the issue of functus officio of the District Court on all subsequent dates after the date of 16/5/2018 in relation to the Garnishee proceeding in respect of the Respondent, as was so elaborately and vehemently submitted upon by the learned counsel for the Appellant did not therefore, arise at all. They all go to no issues at all in this appeal. The District Court was not functus officio as it was still seised of the Garnishee proceeding, which in respect of the Respondent as the 10th Garnishee and Eco Bank Plc as the 4th Garnishee was merely adjourned from 16/5/2018 to 25/6/2018 for hearing and subsequently, to 4/7/2018, to 11/7/2018, to 8/8/2018 and to 12/9/2018, when it made the Garnishee Order Nisi Absolute against the Respondent.
In law, since the Respondent was neither present nor represented by counsel on 16/5/2018 when the matter came up for the hearing of the Garnishee proceedings and since the proceeding was adjourned to 25/6/2018 for further hearing, it was incumbent on the District Court to issue and serve the Respondent with fresh hearing notice against the net adjourned date of 25/6/2018. The Respondent was, in my finding, entitled by law as of right to be served with a fresh hearing notice against the further hearing date of 25/6/2018. See Section 36(1) of the Constitution of Nigeria 1999 (as amended).
Thus, the failure to serve the Respondent with hearing notices on these subsequent dates, more particularly against the date of 12/9/2018 when the Garnishee Order Absolute was made against it in its absence and without its knowledge of that hearing date, in my finding amounted to a brazen breach of the Respondent’s right to fair hearing as guaranteed to it by Section 36(1) of the Constitution of Nigeria 1999 (as amended). It therefore, rendered the Garnishee Order Absolute as well as the entire proceedings on 12/9/2018 null and void and of no legal effect or consequences whatsoever against the Respondent.
The Court below was therefore right when it held that the failure to serve hearing notice of the further hearing of the Garnishee proceedings on the Respondent subsequent to the date of 16/5/2018 rendered the entire proceedings as well as the Garnishee Order Absolute null and void on the basis of the Respondent’s Notice and thereby affirmed the ruling of the District Court setting aside the Garnishee Order Absolute on grounds other than what was relied upon by the said District Court for its decision to set aside the Garnishee Order Absolute. In law, all the proceedings and all or any orders made against the Respondent by the District Court on 25/6/2018, 4/11/2018, 11/7/2018, 8/8/2018 and 12/9/2018, including the Garnishee Order Absolute made proceeding on 12/9/2018 without the requisite hearing notices served on the Respondent were done without jurisdiction. They were all in breach of the Respondent’s right to fair hearing and therefore, null and void and were all thus, liable to be set aside. See Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 at p. 177. See also FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 at P. 309; Mark V Eke (2004) 5 NWLR (Pt. 865) 54 at pp. 79 – 80; Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 at pp. 126 – 127; ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 at p. 326.
In the light of all I have found and stated as above, issues one and two for determination are hereby resolved against the Appellant in favour of the Respondent.
On the whole therefore, having resolved both issues one and two for determination against the Appellant in favour of the Respondent, I hold that the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is hereby dismissed in its entirety.
In the result, the judgment of the High Court of the Federal Capital Territory Abuja, Coram: A. B. Mohammed J., and A. I. Aina J., sitting in its Appellate jurisdiction in Appeal No. FCT/HC/CVA/86/2019: Heritage Bank Plc V. Ama Real Estate Limited, delivered on 31/10/2019, in which it affirmed the ruling of the District Court of FCT Abuja, Coram: His Worship Honorable Munirat I. Tanko, delivered on 6/3/2019 setting aside the Garnishee Order Absolute made against the Respondent in Suit No. CV/425/2016: Ama Real Estate Limited V. Heritage Bank Plc is hereby affirmed.
There shall be no order as to cost.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother, Biobele Abraham Georgewill, JCA.
It is settled law that the issuance and service of hearing notice to parties in litigation is an important and fundamental requirement of the constitutional right to fair hearing. In a situation where a party is absent on a date fixed for hearing, the law enjoins the Court to ensure that such party be served notice of any subsequent date fixed for the hearing. This is a fundamental and necessary ingredient of the right to fair hearing, and where there is a failure to serve such notice, any proceeding and judgment given will be a nullity and liable to be set aside on appeal. See Achuzia v. Ogbomah (2016) 5 NWLR (Pt.1346) 177. Thus in Compact Manifold & Energy Services Ltd v. Pazan Services Nigeria Limited (2019) LPELR – 49221 (SC), the Supreme Court per Galumje, JSC said:
“What then is the essence of hearing notice?
– The issue of service of hearing notice on a party notifying him of the hearing date of matters is very fundamental to the administration of justice. It is the service of hearing notice that confers on the Court the jurisdictional competence to entertain the matter before it. Thus, where a matter is adjourned to a date other than the date the parties had previous notice of hearing, the Court has a duty to notify them of the subsequent adjournment. The Court should not predicate its decision on mere assumption that a party must have been served with Court process at one stage and that he should be aware of the subsequent hearing dates…..”
In the instant case on the 16/5/2018 when the Respondent along with other banks were invited to showcase why the garnishee order nisi made on the 26/3/2018 should not be made absolute, the Respondent was not in Court nor was it represented by counsel. On the said 16/5/2018, the other Garnishees were discharged having shown good cause but the Respondent and one other bank were not. The matter was then further adjourned to the 25/6/2018. There were three other adjournments thereafter but in all those dates, the trial Court which had the duty to issue and serve the hearing notice failed to do so, till the 12/9/2018 when the order nisi was made absolute. It is obvious therefore that there was a breach of the Respondent’s fundamental right to be heard.
It is for the above reason and the other reasons comprehensively detailed in the lead judgment that I agreed that this appeal is devoid of any merit. It is hereby dismissed. I abide by the order made on cost.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment just delivered by my learned brother, Sir B.A. Georgewill, JCA.
I am in full agreement with the reasonings expressed therein and the conclusion reached thereby. I adopt those reasonings as mine, by which I too dismiss this appeal and affirm the judgment of the lower Court.
Appearances:
Chuka Iloeje, Esq., with him, Enoima Burna Usoro, Esq. For Appellant(s)
Akinyemi Aremu, Esq., with him, Mrs. Yemisi Akinyemi – Aremu For Respondent(s)
