ARCHIBONG BEACHES LIMITED v. ATTORNEY GENERAL, CROSS RIVER STATE & ANOR
(2019)LCN/13599(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of July, 2019
CA/C/249/2016
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
ARCHIBONG BEACHES LTD Appellant(s)
AND
1. ATTORNEY GENERAL, CROSS RIVER STATE
2. FIRST BANK OF NIGERIA Respondent(s)
RATIO
WHETHER OR NOT A JUDGMENT DEBTOR SHOULD BE HEARD IN A GARNISHEE PROCEEDINGS
A Garnishee has no business picking up the battle of the Judgment Debtor and consequently frustrating garnishee proceedings, the role of a garnishee and whether the judgment debtor should be heard in the garnishee proceedings was settled by the apex Court in GWEDE VS. DELTA STATE HOUSE OF ASSEMBLY & ANOR. (2019) LPELR- 4744 (SC) which held thus:
”Let me state briefly that in garnishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex – parte application in Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is made ex-parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor and the registrar must then fix a date not less than 14 days after the service of the order nisi on the three parties aforesaid. It has to be noted that at the stage of the ex – parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. PER NIMPAR, J.C.A.
WHETHER OR NOT A GARNISHEE PROCEEDINGS PERMITS THE RE-OPENING OF HEARING IN A MATTER WHICH HAS BEEN SETTLED IN THE JUDGEMENT SOUGHT TO BE ENFORCED
I say so advisedly bearing in mind that garnishee proceedings is in the nature of enforcement of the judgment of a Court of law and does not permit the re-opening of hearing in a matter which has been settled in the judgment sought to be enforced. I shall return to this anon. See GTB vs. Innoson Nigeria Ltd. (2017) LPELR – 42368 (SC); Union Bank of Nigeria Plc vs Boney Marcus Industries Ltd(2005) 13 NWLR (pt. 943) 654. The last stage of this proceeding is that where the Garnishee does not appear or appears but does not show cause why he should not be ordered to pay the judgment sum from the account of the Judgment Debtor in his possession to the judgment creditor, then an order absolute is made against him/her. The above procedure is backed up by Section 83(1) and(2) of the Sheriffs and Civil Process Act which states as follows:- “The Court may, upon the ex – parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state order that debts owing from such third person, herein after called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as many be sufficient to satisfy the judgment or order together with costs aforesaid. (2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.” PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Cross River State High Court delivered by Hon. Justice Michael Edem on the 20th April, 2016 wherein the Court below struck out the Garnishee proceedings because the Judgment Creditor?s Reply to a preliminary Objection was filed late and the garnishee proceedings incompetent. Dissatisfied with the decision, the Appellant/Judgment Creditor filed an Amended Notice of Appeal on the 26th August, 2016 setting out 3 grounds of Appeal.
?Facts leading to the appeal are straight forward and amenable to a simple summary. The Appellant, a Judgment Creditor/Applicant initiated Garnishee proceedings against The 2nd Respondent/First Bank of Nigeria. An order Nisi was made and the application adjourned for the Garnishee to showcase why the order Nisi shall not be made absolute. On the next hearing date the Garnishee did not file any process and was absent from the proceedings but the judgment debtor file a preliminary objection which was adjourned for hearing and to also allow the Appellant respond. The judgment debtor filed a preliminary
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objection to the garnishee proceedings contending it was incompetent and their objection and written address was served on the Judgment creditor which filed a reply outside the time allow by the rules. At the hearing of the preliminary objection, the reply of the Appellant/Judgment Creditor was discovered to have been filed out of time under the Civil Procedure Rules applicable in the state, she made an application for adjournment to regularize same but the Court declined and proceeded to close the hearing and struck out the reply in his ruling. In the meantime the Garnishee bank also filed an affidavit contending that the judgment debtor has no account with the bank. The decision to strike out the Reply of the judgment creditor thus left the Appellant/Judgment Creditor without a response to the preliminary objection which consequently led to the striking out of the garnishee proceedings thus this appeal on the ground that the balance in the account sought to be garnisheed was not stated.
The Appellant?s brief was settled by USUNGURUA BASSEY. ESQ., dated 18th August day of 2016 filed on the 26th August, 2016 and deemed on the 25th September, 2017
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and was adopted at the hearing of the appeal. It distilled 3 issues for determination as follows:
i. Whether the issue(s) facts used in determining the suit was not raised suo motu and without giving the parties opportunity to address the Court on such issue(s) facts and thus denying the Appellant right to fair hearing.
ii. Whether the trial Court did not ignore facts and evidence on record and based its Ruling on irrelevant matters and facts not before it to arrive at its Ruling thereby rendering the Ruling a perverse one.
iii. Whether the stating of the exact amount standing to the credit of the Judgment debtor with the garnishee is a requirement for the competence of a garnishee proceeding.
The 1st Respondent/Judgment debtor?s brief was settled by I. E IKONO, ESQ., dated 28th day of February 2017, filed on the 28th February, 2017 deemed 26th March, 2019 which was also adopted at the hearing of the appeal wherein it adopted the issues distilled by the Appellant.
The 2nd Respondent?s brief settled by LEONARD ANYOGO, ESQ., is dated 2nd day of May, 2017 filed on the 16th May, 2017 and deemed on the 26th March, 2019
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wherein it formulated a lone issue as follows:
Whether the learned Trial Judge was right in striking out the Garnishee proceedings?
The Court shall adopt the issues presented by the Appellant so as to ensure complete resolution and determination of all areas of complaint presented by the 3 grounds of appeal. In doing so, the lone issue distilled by the 2nd Respondent shall also be resolved. The resolution shall be seamlessly done.
ARGUMENTS ON THE THREE ISSUES
The Appellant on issue one submitted that the trial judge raised the issue of the Appellant failure to name the exact amount standing to the credit of the Respondent with the Garnishee and used same to defeat the Garnishee proceedings. He argued that this was not a point or issue raise by any of the parties as the Garnishee merely said the 1st Respondent as named does not have an account with them (pages 27-28 of the record of appeal) with a credit balance such that could satisfy the judgment sum. Learned counsel referred to the Preliminary objection and the written address in support (pages 36-41 of the record) to buttress his point that no party raise the issue of the amount
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standing to the credit of the Judgment Debtor to enable the Court below use it as basis for it to dismiss the Garnishee proceedings. The paragraphs relied upon by the trial judge have nothing in there to that effect. Appellant contended that the Court below made a case against it and for the Respondents or the parties contrary to the case before it and without calling on parties to address the Court on the new issue, relied on BLESSINGS TOYIN OMOKUWAJO VS. FEDERAL REPUBLIC OF NIGERIA (2013) 3 SCNJ 384; ENGR GOODNESS AGBI & ANOR. VS. CHIEF AUDU OGBE & ORS (2004) 2 SCNJ1 and LEADERS OF COMPANY LTD. & ANOR. VS. MAJOR GENERAL MUSA BAMAIYI (2014) 12 SCNJ 480 to urge the Court to resolve issue one in favour of the Appellant.
On issue two the Appellant submitted that the Court below ignored the thrust of the matter before it and took extraneous issues into account in resolving the Garnishee proceedings thereby leading to miscarriage of justice, relied on EDWIN CHUKWUDULUE UDENGWU VS. SIMON UZUEGBU & ORS (2003) 7SCNJ 145 on a perverse decision.
?
Instances of perversity were mentioned such that, it was not the Judgment Debtor that was called
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upon to show cause why the order nisi should not be made absolute and not the one requested to appear and the only interest to be reckoned with was a third party interest. Appellant relied on the case of UBA VS. EKANEM (2010) 6 NWLR (PT. 1190) 207 and WEMA BANK VS. BRASTEM- STERR NIGERIA LTD. (2010) LPELR-9166 (CA) to submit that the Judgment Debtor is usually served with the motion but for the purposes of letting the judgment debtor know the amount in the order nisi and in case he wants to challenge the judgment sum named in the said order Nisi. Appellant argued that the Court below was entitled to set aside its judgment under certain conditions but none of the conditions existed in this case, citing ASSOCIATED DISCOUNT HOUSE LTD. VS. AMALGAMATED TRUSTEES LIMTED (2007) ALL FWLR (Pt. 392) 1781.
Appellant submitted that the Garnishee proceedings were against the Garnishee and not the Judgment Debtor, relied on DENTON WEST VS. MUOMA (2008) 6 NWLR (PT. 1083) 418 and submitted that the non-mention of the second Judgment Debtor is a non-issue. On the deposition that the Judgment debtor has no account with the bank, the appellant submitted that the judgment was
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against the Government of Cross River State because the Attorney General is the representative of Cross River State Government, relied on PLATEAU STATE OF NIGERIA &ANOR. VS. A.G. OF THE FEDERATION & ANOR. (2008) 1 SCNJ 29 to support the submission that only the Attorney General of a State can sue and be sued on behalf of the State.
The Appellant alleged that the Court below shut its eyes to the order it made previously and it ignored facts established before it such that the account named was the account of the Cross River State Government. It urged the Court to find for the Appellant.
Arguing issue three the Appellant submitted that the Court below was wrong to strike out the Garnishee proceedings on the ground that the Judgment Creditor did not state the exact amount in the account of the Judgment Debtor which is not a requirement of the law because what the law requires is stated in Section 83(1) of the Sheriff and Civil Process Act which are:
i. State that judgment was given in its favour
ii. That the judgment sum is still unsatisfied
iii. The amount to be paid
iv. That the judgment debtor is within jurisdiction of
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the Court.
Appellant contended that all the factors were satisfied in the application and Section 86 of the Sheriff and Civil process Act only requires that the judgment creditor should state the fact that the judgment debtor had an account with the Garnishee and whether the amount will satisfy the judgment debt fully or not is left for the Garnishee to disclose. Furthermore, the Appellant argued that upon being served with the order nisi, the Garnishee is expected to take any of the 3 steps listed in Section 86 of the Act namely; Pay into Court any amount he is owing the Judgment debtor, pay into Court an amount equal to the judgment debt, together with cost of the garnishee proceedings or dispute that he is not indebted to the judgment debtor.
Appellant submitted that the amount in the account must not be stated as the Garnishee is duty bound to pay any amount the judgment debtor owes from the funds with him. It urged the Court to find for the appellant and allow the appeal.
The 1st Respondent/ Judgment debtor on issue one submitted that the Court below did not raise any issue suo motu, but it merely considered the grounds of the objection
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and discountenanced the Appellant?s reply leaving the objection without any opposition, and it sustained the objection. It submitted that issues raised and argued in the Objection cannot be new issues and referred to Paragraph 7 and 8 of the supporting affidavit to contend that it left out essential information. It admitted that raising an issue suo motu negates fair hearing and relied on OLURUNKE VS. ADISUN (2012) 6 NWLR (PT. 1297) 407. Learned counsel that an issue can only be so raised if the facts are not in litigation because a judge can draw inferences from what is before it. Also relied on the case of BRITISH AMERICAN TOBACCO NIGERIA LTD. VS. INTERNATIONAL TOBACCO COMPANY LTD.& ANOR. (2012) LPELR-9292 (CA). Arguing the issue further, the 1st Respondent submitted that stating the exact amount with the garnishee is a condition precedent and said it is only the amount standing to the credit to the judgment creditor that can be used to satisfy the judgment debt and at the time the order nisi was made. It urged the Court to find for the 1st Respondent/judgment debtor under issue one.
?
On issue two the 1st Respondent/Judgment Creditor argued that
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a Court is bound to determine all issues presented to it for determination by the parties as settled inCOOKEY VS. FOMBO (2005) 15 NWLR (PT. 947) 182 and OBI NWANZE OKONJI & 24 ORS. VS. NJOKANMA & ORS. (1991) 7 NWLR (PT. 202) 131 at 146. It restated what a perverse judgment stands for and relied on JOLAYEMI VS. OLAOYE (2004) 118 LRCN 3942 to submit that the garnishee did all that is expected of it and as disclosed in the affidavit filed. It emphasized the fact that the judgment debtor has no account standing to its credit with the Garnishee. It contended that the account number stated had no name of account or owner and did not show that the garnishee has more than the amount named in the judgment sum.
The 1st Respondent/Judgment Debtor submitted that it has a right to appear in the proceedings and taking its interest into account cannot be perverse, relied on NIGERIAN BREWERIES VS. DUMUJE & ANOR. (2015) LPELR-25583(CA) and Section 83(2) of the Sheriff and Civil Process Act requires that the judgment debtor be served with the order Nisi and therefore it is a necessary party and not just for his information, relied on OGUNTAYO VS. ADELAJA
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(2009)15 NWLR (PT. 1163) 150 and ONAGORUWA VS. THE STATE(1993) 7 NWLR (PT. 303) 49 to say shutting out the judgment debtor is injustice. It argued that the judgment was against the Attorneys General of Akwa Ibom and Cross River States jointly and therefore enforcement cannot be effected on the Judgment debtor herein alone and therefore it raises a jurisdictional issue, citing NONYE VS. ANYICHIE (2005) 2 NWLR (PT. 910) 623 and UMANAH VS. ATTAH (2006) 17 NWLR (PT. 1009) 503 on when a Court lacks jurisdiction.
On issue three, the Judgment Debtor quoted Section 83(1) of the Sheriff and Civil Process Act and submitted that it is a prerequisite that the Garnishee is indebted to the Judgment Debtor in the tune of the judgment sum and paragraph 8 of the affidavit of the Judgment Creditor did not say it was debt but that the Garnishee holds the Judgment Debtor a credit balance that would satisfy the judgment sum. It relied onCBN VS. AUTO EXPORT (2013) 2 NWLR (PT. 1337) 126 to say it is not every debt that is attachable and that only the debt accruable to the judgment debtor, therefore, the question is whether the sum is due and payable to the Judgment Debtor by
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the Garnishee. It argued that the Attorney General of Cross River State does not have such debt accruable to it. It relied on FIDELITY BANK PLC VS. OKWUOWULU (2013) 6 NWLR (PT. 1349) 218 relying onCITIZENS INTERNATIONAL BANK LTD. VS. SCOA (NIG.) LTD. (2006) 18 NWLR (PT. 1011) 332 on what the garnishee must establish and he who asserts must prove, therefore the onus is on the Appellant to prove the assertion that the Garnishee had a certain amount standing to the credit of the judgment debtor which was not proved. It finally urged the Court to find for the 1st Respondent/Judgment Debtor and dismiss the appeal.
The 2nd Respondent in reaction to the issues and arguments of the Appellant argued its sole issue and submitted that the trial judge was right to strike out the Garnishee proceedings as the appellant did not establish that there was any amount standing to the credit of the Judgment debtor as required by Section 83 of the Sheriff and Civil Process Act. It referred to the case of SOKOTO STATE GOVERNMENT VS. KAMDAX NIG. LTD. (2004) 9 NWLR (PT. 878) to the effect that only the money that is standing to the credit of the Judgment Debtor at the time the
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order nisi was served that can be attached. It urged the Court not to interfere with the decision of the trial Court and to find for the Respondents and dismiss the appeal.
The Appellant filed its Reply on 6th March, 2019 but was deemed on 26th March, 2019 wherein it submitted that it was the 1st Respondent who applied to have the Attorney General of AKwa Ibom State joined in the suit initially and his appeal against the judgment was dismissed. Moreover, the 1st Respondent was the judgment debtor within jurisdiction of the garnishee proceedings as required by the Sheriff and Civil Process Act. Appellant contended that the Attorney General of Akwa Ibom was not within the jurisdiction of the Court below. It further argued that the Garnishee did not appear upon being served with the order nisi but filed a counter affidavit. Curiously it was the 1st Respondent who filed a preliminary objection from which it was made clear that the account had a credit to the benefit of the Cross River State Government.
On the sole issue submitted by the 2nd Respondent, the Appellant argued that not having filed a cross appeal, the sole issue does not arise from any ground
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of appeal in the notice of Appeal and should be discountenanced, relying on PATIENCE OMAGBEMI VS. GUINESS NIG. LTD. (1995) 2 NWLR (PT. 377) 258.
In the alternative to striking the issue out, the Appellant argued that it is reprehensible to submit that the judgment sum was not stated on the application for order Nisi, relied on UBANI VS. THE STATE (2001) FWLR (PT.44) 483 and BOOTHIA VS. FAREAST (2001) 86 LRCN 1250 to condemn the attempt to mislead the Court and said the judgment sum was stated in the application and referred to pages 23 of the record of appeal. On the contention that there is no account relationship between the Garnishee and the Judgment creditor, the Appellant submitted that the Garnishee was not struck out for that reason and furthermore, where the Attorney General is sued it is the state Government that is sued, referred to A.G PLATEAU STATE VS. A.G. FEDERATION (supra) and that prayer one on the motion ex parte stated their relationship in clear terms and to now say the Attorney General of Cross River State has no account is being economical with the truth because the motion stated that the account belonged to the Cross River State
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Government. He further argued that the preliminary objection did not raise the issue of who owns the account.
On the non-stating of the exact amount in the account, the Appellant submitted that the issue was raised by the Court below suo motu and without hearing parties. It also refuted the argument of the 1st Respondent who contended that the Appellant submitted that their appearance was perverse. Appellant contended that it was refused an adjournment to regularize a process inadvertently filed out of time and that looking at the facts before the Court, the decision appealed against is perverse and should be set aside as nothing was placed by the Respondents to justify the decision and therefore, whether the reply was considered or not it should not affect the fact that the Court erred, the ruling should be set aside and the appeal be allowed.
RESOLUTION OF THE APPEAL
The Court below upon the application of the Appellant made an order nisi attaching the money in the account designated as belonging to the judgment debtor. The judgment being sought to be enforced was given against the Attorneys General of Akwa Ibom and Cross River States jointly
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and severally. The judgment creditor opted to enforce the judgment against the 1st Respondent who was within jurisdiction and got an order nisi served on the Garnishee bank attaching the account of the Cross River State Government with the 2nd Respondent. The order nisi was made against the 2nd Respondent to pay up or show cause why it should not pay the Appellant who has obtained such a judgment. As required by the Sheriff and Civil Process Act, the order nisi was also served on the Judgment Debtor who filed a Preliminary objection in the Court below challenging the Garnishee proceeding and urged the Court below to strike out the proceedings for being incompetent. The Appellant in reaction filed a Reply out of time which the Court below struck out and it determined the preliminary objection without a challenge and struck out the order nisi made earlier.
The judgment sought to be executed was given against the Attorneys General of Akwa Ibom and Cross River States jointly and severally which in law is a judgment that can be executed against them jointly or against any of the parties alone, see IFEANYI CHUKWU (OSUNDU) CO.LTD. VS. SOLEH BONEH (NIG.) LTD.
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(2000) LPELR-1432(SC) which held:
“Where a claim is brought jointly and severally against defendants it means that each party is responsible jointly with each other and also severally for the whole amount of damage caused by the tort irrespective of the extent of participation. See Dougherty vs. Chandler (1946) SR (N.S.W.) 370. Therefore a person injured may sue anyone of them separately for the full amount of the loss; or he may sue all of them jointly in the same action, and in this latter case the judgment so obtained against all of them may be executed in full against anyone of them.”
Therefore, the contention that the garnishee proceedings was incompetent because the Attorney General of Akwa Ibom State was not included in the Garnishee proceedings is untenable and not the law.
Furthermore, it is settled by the decision in Attorney General of Plateau State vs. Attorney General of Federation (supra) that it is only the Attorney General of a State that can sue and be sued on behalf of the State Government. That being the case, the motion ex parte for order nisi stated in clear terms that the account sought to be attached was Cross River State
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Government Account and gave the number of the account; it further stated that there is enough money to satisfy the judgment debt. The Court below then said:
?An order nisi that the money standing to the credit of the Judgment Debtor/Respondent (Cross River State Government) with the Garnishee (First bank of Nigeria Plc), be attached to satisfy the judgment debt and order of the High Court of Cross River State Honourable Justice F.U. Ilok made on the 8th of March, 2004 in suit No: HC/122/76 against the Judgment Debtor in favour of the Judgment Creditor/Applicant all amounting to N9,394,520.00 (Nine Million, Three Hundred and Ninety Four Thousand Five Hundred and Twenty Naira).?
Upon a cursory reading of the order made above, one is at a loss as to the issue raised by the trial Judge that necessary details were lacking and consequently struck out the order nisi. Where then did the Court below find all the details mentioned in the order nisi? The Appellant contended that the issue of the exact amount in the account was raised suo motu. Indeed, none of the parties or the relevant provisions of the law required that the exact amount standing
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to the credit of the Judgment debtor must be stated. The Court below was fishing for reasons to dismiss the application and gratuitously imported it merely to justify its decision. There is nowhere in the processes filed where the parties made the issue of the exact amount in the account a live issue so as to demand the attention of the trial judge. An account that was a running account cannot be static because the opening balance for the day could be different from the closing balance and furthermore, there could be other instruments waiting to be honoured. That is why the order nisi expects the garnishee to furnish the Court with the details and reasons why the order absolute should not be granted. As long as there are enough funds in the account to satisfy the judgment sum, the order absolute should be granted. Suo motu simply means on his own motion and the apex Court in a plethora of cases stated in clear terms the inappropriateness of a Court raising an issue suo motu without calling on parties to address it, see WAGBATSOMA VS. FRN (2018) LPLER-43722 which held thus:
“It has been held severally by this Court that no Court, no matter how
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well-meaning, may raise an issue suo motu and resolve it without affording the parties an opportunity to be heard. The Court must confine itself to the specific issues raised by the parties and has no business considering an issue not properly before it. Raising and resolving an issue suo motu has the effect of making out a case for the parties which they did not make for themselves. A judge who raises an issue suo motu without affording the parties an opportunity to be heard before resolving it, has in effect descended into the arena of conflict. See:A.D.H. Ltd.vs. Amalgamated Trustees Ltd. (2007) ALL FWLR (Pt. 392) 1781 @ 1807 E-F; Akinfolarin vs. Akinnola(1994) 3 NWLR (pt. 355) 659 @ 680-681 H -A; Okwejiminor vs. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 @ 223 C – D; F.R.N. vs. Yau Mohammed(2014) 19 WRN.”
The trial Court on his own motion raised the issue of the current balance in the account with the Garnishee and that was the basis of his decision to dismiss the garnishee proceedings. He breached a sacred rule and thereby took into account what he should not, consequently making the ruling perverse and liable to be set aside. The perversity alleged
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by the Appellant is well founded and manifest. I agree with the Appellant in that regard, see OSUJI VS. EKEOCHA (2009) LPELR-2816 (SC) on instances where the decision of Court could be regarded as perverse, it held:
“A decision will be held to be perverse where (a) it is speculative and not based on any evidence or (b) the Court took into account matters which it ought not to have taken into account or (c) the Court shut its eyes to the obviousAdimora vs. Ajufo (1988) 3 NWLR pt 80 pg 1; Makanjuola vs. Balogun (1989) 3 NWLR pt 108 pg 192; Atolagbe vs. Shorun (1985) 1 NWLR pt 2 pg 360; Duru vs. Nwosu (1989) 4 NWLR pt 113 pg 24;Ihewuezi vs. Ekeanya (1989) 1 NWLR pt 96 pg 239; Adeosun vs. Jibesin (2001) NWLR pt 744 pg 290.”
The Court below took irrelevant matters into account which substantially formed the basis of its decision and went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case, he also, in doing so, committed a grievous error that made his judgment beyond redemption. The effect of all the Court below did invariably, in all this, is a miscarriage of justice, and the decision must be set aside on
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appeal: see Atolagbe vs. Shorun (1985) 1 NWLR (Pt. 2) 360; Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80) 1; Agbomeji vs. Bakare (1998) 7 SC (Pt. I)10; (1998) 9 NWLR (Pt. 564) 1; Odiba vs. Azege (1998) 7 SC (Pt. I) 79; (1998) 9 NWLR (Pt. 566) 370.
On the afterthought submission of the Respondents to the effect that there was need to state the exact amount in the account of the Judgment Debtor, I say it is not a statutory requirement and it cannot be introduced merely to discredit the Garnishee proceedings.
The act of denying the Appellant an opportunity to regularize his reply though a discretionary matter was done in a manner that gives a bystander the impression that the Court was injudicious in the manner it exercised discretion. The reply was already before the Court and all that was needed was a simple application to regularize and pay the penalty for late filing. A few days adjournment would have ensured the Appellant was not shut out and thereby serving the interest of justice.
I think the fundamental question the Court below should have determined is whether the Garnishee showed cause why the order Nisi should not be made absolute. That indeed
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is the business of the Garnishee proceedings. Section 83 of the Sheriff and Civil Process Act requires that the order nisi be served on the Judgment Debtor. I am persuaded by the submission of the Appellant that at that stage, the reason is to alert the judgment debtor on the amount being sought from the Garnishee, it is not for the Judgment Debtor to take up a new frontier of challenging the judgment against it. The order nisi is not directed at the judgment debtor and therefore its involvement is limited and only in exceptional cases. The order is specific and options opened to the Garnishee were stated earlier in this judgment. The Garnishee?s fulcrum of showing cause was that the Judgment Debtor does not have an account with it. There was a deliberate loss of discernment by the 2nd Respondent because the account details were given in the order nisi served on the 2nd Respondent/Garnishee. It had no business digressing into other issues. The order nisi gave the account holder as the Cross River State Government and the account number was also provided. The counter affidavit (affidavit) to show case did not react to the account with the named details.
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The 2nd Respondent therefore did not show cause as to why the order nisi should not be made absolute. A Garnishee has no business picking up the battle of the Judgment Debtor and consequently frustrating garnishee proceedings, the role of a garnishee and whether the judgment debtor should be heard in the garnishee proceedings was settled by the apex Court in GWEDE VS. DELTA STATE HOUSE OF ASSEMBLY & ANOR. (2019) LPELR- 4744 (SC) which held thus:
”Let me state briefly that in garnishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex – parte application in Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is made ex-parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor and the registrar must then fix a date not less than 14 days after the service of the order nisi on
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the three parties aforesaid. It has to be noted that at the stage of the ex – parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would say in NADC Ltd. vs. Ogini (supra), the subsequent hearing envisage a tripartite proceedings in which the three parties are represented. I am persuaded to agree with the learned counsel for the 1st Respondent herein that at this stage of the proceedings, the three parties can be heard by the Court before an order absolute is made depending on the facts and circumstance of the case. I say so advisedly bearing in mind that garnishee proceedings is in the nature of enforcement of the judgment of a Court of law and does not permit the re-opening of hearing in a matter which has been settled in the judgment sought to be enforced. I shall return to this anon. See GTB vs. Innoson Nigeria Ltd. (2017) LPELR – 42368 (SC); Union Bank of Nigeria Plc vs Boney Marcus Industries Ltd(2005) 13 NWLR (pt. 943) 654. The last stage of this proceeding is that where the Garnishee does not appear
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or appears but does not show cause why he should not be ordered to pay the judgment sum from the account of the Judgment Debtor in his possession to the judgment creditor, then an order absolute is made against him/her. The above procedure is backed up by Section 83(1) and(2) of the Sheriffs and Civil Process Act which states as follows:- “The Court may, upon the ex – parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state order that debts owing from such third person, herein after called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such
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judgment or order the debt due from him to such debtor or so much thereof as many be sufficient to satisfy the judgment or order together with costs aforesaid. (2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.” Again, Order VIII Rule 8(1) of the Judgment (Enforcement) Rules provides:- “If no amount is paid into Court (following service of the garnishee order nisi), the Court, instead of making an order that execution shall issue, may after hearing from the judgment creditor, the garnishee and the judgment debtor or such of them as appear, determine the question of liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the Garnishee to the Judgment Debtor…” (underlining mine for emphasis) There appears to me that by a combination of Section 83(2) of the Sheriff and Civil Process Act and Order VIII Rule 8 of the Judgment Enforcement Rules, a judgment debtor, after being served with order nisi can be heard by the Court only if or where he observes irregularities in what is presented before the Court
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by the Judgment Creditor. Why I say so is that at that stage, it is not an opportunity to reopen the case which judgment has been entered. It is strictly for the enforcement of such judgment. Thus, where the judgment sought to be enforced is certain, in terms of the parties, the judgment sum and the party adjudged the debtor, then the judgment debtor has nothing to say in the proceedings. However, where, as in this case, the judgment sum is not certain and the party adjudged as the debtor is confused by the judgment creditor, I think that justice demands that the “Judgment Debtor” be heard in such circumstance. In other words, it is not cast on stone that a judgment debtor cannot be heard in Garnishee proceedings. It is the Court that will determine whether he should be heard or not. If the application of the Judgment Debtor before the Court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard. I am persuaded by some Court of Appeal authorities in this matter including but not limited to
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Barbedos Ventures Ltd.Vs. Zamfara State (2017) LPELR-42499, CA, Nigerian Breweries Plc vs, Dumuje (Supra).”
The lengthy quotation has now settled the fluid and unsettled issue on when the judgment debtor can be heard in the tripartite arrangement known as garnishee proceedings. The portion of the decision quoted above as it relates to the preliminary objection which led to this appeal clearly shows that there was no need to hear the judgment debtor in this particular case. Hear the apex Court again:
?After being served with order nisi can be heard by the Court only if or where he observes irregularities in what is presented before the Court by the judgment creditor. Why I say so is that at that stage, it is not an opportunity to reopen the case which judgment has been entered. It is strictly for the enforcement of such judgment. Thus, where the judgment sought to be enforced is certain, in terms of the parties, the judgment sum and the party adjudged the debtor, then the judgment debtor has nothing to say in the proceedings.? (underlining mine for emphasis).
?
The basis of the preliminary objection prayed for the following reliefs:<br< p=””
</br<
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i. An order setting aside or discharging the garnishee Order Nisi made by this Honourable Court on 18th November, 2015;
ii. An order dismissing the garnishee proceedings;
The summary of the grounds upon which the reliefs were sought were that the judgment was against the Attorneys General of Akwa Ibom and Cross River states, therefore the garnishee proceedings were mala fide; that the Attorney General of Cross River State does not maintain an account with the Garnishee and the proceedings are incompetent as the Court lacks jurisdiction. I had settled the question of whether judgment against the Attorney General is a judgment against the government of Cross River State and whether it can be executed against the Cross River State without the Attorney General of Akwa Ibom State. There was no legal basis for the trial Court to refuse to make the order nisi absolute. The 2nd Respondent Garnishee failed to do the needful in view of the express Order made nisi and served on it.
Consequently, the appeal is meritorious and succeeds. The ruling of the trial Court delivered on the 20th April, 2016 in suit No: HC/MISC/25/2015 is hereby set aside and
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the 2nd Respondent having failed to show cause why it should not pay over the judgment sum over to the Judgment Creditor along with cost of Garnishee proceedings, the order Nisi is hereby made absolute. Cost is assessed at N250,000.00 in favour of the Appellant and against the 1st Respondent.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my brother Yargata Byenchit Nimpar, JCA. I agree with the reasoning and conclusion reached in the judgment.
I also allow the appeal as meritorious. I abide with the consequential order as to costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother, Yargata Byenchit Nimpar, JCA I endorse, in toto, the reasoning and conclusion in the well-articulated judgment. I, too, allow the appeal in the terms chronicled in the leading judgment. I abide by the consequential orders decreed in it.
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Appearances:
Abasiofon UdoFor Appellant(s)
Eman Udo, Esq. with him, Ibi Mboto, Esq.For Respondent(s)
Appearances
Abasiofon UdoFor Appellant
AND
Eman Udo, Esq. with him, Ibi Mboto, Esq.For Respondent
