BARRISTER JIMOH IBRAHIM v. ECOBANK NIGERIA PLC
(2019)LCN/13377(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/L/750/2012
RATIO
PRELIMINARY OBJECTION: MUST BE CONSIDERED FIRST
In the resolution of the instant Preliminary Objection, it is important to re-emphasize that the Court is duty bound to resolve first any objection as a threshold issue to a suit or an appeal before venturing into the merit of same. It has been described as a special procedure whereby a Respondent is at liberty to challenge the competence of an appeal which, if upheld, has the effect of peremptorily terminating the life of the appeal. See GALADIMA V TAMBAI & ORS (2000) 11 NWLR (Pt 677)1. The Supreme Court in the case of RABIU V ADEBAJO (2012) 15 NWLR (Pt 1322) pg 125 stated that a preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal.The apex Court cautioned that a preliminary objection must be disposed of before any further step can be taken in the appeal, failure of which the apex court said, may amount to dissipating unnecessary energy in considering an unworthy or fruitless matter in a Courts proceedings. It is legitimate that a Court should not commit its scarce resources, time and energy by embarking on needless inquiry with regard to an incompetent appeal as whatever decision reached thereat, no matter how well conducted, will amount to nullity once the question raised in objection to the competence of such Courts process was left unresolved prior the hearing of the appeal or a suit. See APC V INEC & ORS (2014) LPELR-24036 (SC).PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
GARNISHEE PROCEEDINGS: NATURE
It is to be noted that a garnishee proceeding is a specie of proceeding held to be separate and a distinctive from the substantive suit, it is principally a proceeding between the judgment creditor as Garnishor and a third party ?the Garnishee? in whose custody is the funds or debt due or accruing to the Judgment Debtor. See: IBETO PETROCHEMICAL IND LTD V TOTAL NIG PLC (2016) LPELR-41457(CA) and STANBIC IBTC BANK V LONGTERM GLOBAL CAPITAL LTD & ORS: (2016) LPELR-40517(CA). In the con of our adjectival principles and practice, a garnishee proceeding is sui generis being in the class of its own. See: FIDELITY BANK PLC V OKWUOWULU & ANOR (2013) 6 NWLR (Pt 1349) p 197.PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
GARNISHEE PROCEEDINGS: RULES GUIDING
A garnishee proceeding is primarily provided for in the Sheriff and Civil Process Act, Cap S6, LFN 2004, (SCPA), and the Judgment (Enforcement) Rules to the Act.
From the combined construction of the foregoing statutes, it is obvious that the garnishee proceeding is a mode prescribed by the Act and the rules of enforcing by judicial process, the recovery of a money judgment by the seizure or attachment of the assets or judgment debts due or accruing to the judgment debtor in the lawful custody of the garnishee who most often is a bank or financial Institution and which forms part of his property in execution of the money judgment against the judgment debtor. Conversely, it could be said to be a process leading to the attachment of judgment debt owed to a judgment creditor by a third party who is indebted to the judgment debtor. See the case of GTB V INNOSON NIG LTD (2017) LPELR-42368(SC) and FIDELITY BANK V ONWUKA (2017) LPELR-42839(CA).PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
GARNISHEE PROCEEDINGS: DUTY OF THE GARNISHEE
The garnishee is duty bound only to satisfy the Court, vide Affidavit evidence on a return date, why the funds in its custody belonging to the judgment debtor should not be garnished to pay the judgment debt. See the case of UNION BANK OF NIGERIA PLC V BONEY MARCUS IND LTD.PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
GARNISHEE PROCEEDINGS: THE POSITION OF THE JUDGMENT DEBTOR
It is well settled that garnishee proceeding, at the first stage, which is the order nisi stage, is between the judgment creditor and the garnishee and no more. See: PPMC LTD V DELPHI PETROLEUM INC (supra). But my Lords, one needs to ask at this stage whether the judgment debtor like the instant Appellant is intended to be shut out of justice In my opinion, the intendment of the law in garnishee proceedings, is to enable the judgment creditor primarily to take the benefit of fruits of his victory by judgment delivered after inter-parte hearing of the suit. See: NAOC LTD V OGINI (supra)PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
GARNISHEE PROCEEDINGS: THE IMPORTANCE OF SERVICE OF THE ORDER NISI ON THE JUDGMENT DEBTOR
It is obvious that the service of the order nisi on the judgment debtor is indeed a condition precedent to the subsequent hearing and probably the granting of the order absolute, failure of which may be fatal to the case of the judgment creditor. See the case of CROSS RIVER STATE FORESTRY COMMISSION & ANOR V ANWAN & ORS (2014) All FWLR (Pt 712) 1823 @ 1830.PER GABRIEL OMONIYI KOLAWOLE, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
BARRISTER JIMOH IBRAHIM Appellant(s)
AND
ECOBANK NIGERIA PLC Respondent(s)
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): Consequent upon the judgment of the Lagos Division of the High Court of Lagos State delivered on 19/12/2011 in Suit No: LD/326/11 by Onyeabor, J., wherein the sum of N72 Million was entered in a summary judgment against the Appellant herein and one other person in favour of the Respondent. The Respondent initiated a garnishee proceeding against the Appellant and Spread Oil and Gas Ltd as Judgment Debtors in order to recover the judgment sum. The garnishee proceeding was commenced vide an Ex-parte application for attachment of the judgment debts. The said application dated and filed on 6/1/2012 was supported by a 12 paragraphed affidavit deposed to by one Steve Onyedinazu, and a written address all dated and filed the same day. The lower Court, per Onyeabor J., upon hearing the said motion ex-parte, granted the Garnishee Order Nisi in its Ruling of 9/7/2012. The Appellant, being displeased with the decision of the trial judge in granting the Order Nisi, initiated this appeal vide a Notice of Appeal dated and filed on 10/7/2012. The notice of appeal contained seven (7) grounds of
1
appeal, even though it was erroneously numbered as eight (8) grounds which I believe was due to the inadvertence of counsel who omitted figure 7 whilst listing the grounds. The grounds of appeal are as reproduced hereunder:
1. The Learned Trial Judge erred in law to have granted the Garnishee Order Nisi in favour of the Judgment Creditor in this case in spite of the pending motion for Stay of Execution of the Judgment of this Honourable Court filed in this suit.
2. The Learned Trial Judge erred in law to have considered and granted the application of the judgment Creditor/Garnishor dated 6th January, 2012 in this suit without considering the 2nd Defendant/Judgment Debtor?s application for Stay of Execution of the Judgment of the Court pending Appeal dated 28/12/2011.
3. The Learned Trial Judge erred in law to have considered and granted the application of the Judgment Creditor for a Garnishee Order Nisi on the 9th of July, 2012 when as at that time there was subsisting a Preliminary objection dated 24th January, 2012 challenging the jurisdiction of the lower Court to hear the Motion Ex-parte for Garnishee Order Nisi.
4. The Learned
2
Trial Judge erred in law to have considered and granted the application for Garnishee Order Nisi when from Court?s file and record there are several applications which take priority over the application Ex-parte for Garnishee Order Nisi.
5. The Learned Trial Judge erred in law when she held in the proceedings of 9th July, 2012 that the Garnishee application ex-parte dated 6th January, 2012 has nothing to do with the 2nd Defendant/Judgment Debtor.
6. The Learned Trial Judge erred in law to have held that a judgment debtor has nothing to do with the garnishee proceedings.
7. (8). The Learned Trial Judge erred in law to have granted the Garnishee Order Nisi in favour of the Judgment Creditor based on the application dated 6th January, 2012 when on the face of the application the Judgment Creditor is a non existing entity.
?
Counsel to the parties thereafter, filed and exchanged their respective Briefs of Arguments in accordance with the Rules of the Court. The Appellant?s Brief of Argument dated 6/1/2012 was filed on 9/1/12 was deemed properly filed on 9/3/2017. It was settled by Chief Bolaji Ayorinde, SAN; Adenrele Adegborioye Esq;
3
Femi Idowu Esq., and Faith Onuoha of B. Ayorinde & Co. Four (4) issues were distilled from the grounds of appeal thus:
1. Was is right for the lower Court to have heard, considered and granted the Respondent’s Garnishee application dated 6th January, 2012 whilst the Appellants motion of stay of execution dated 28th December, 2011 is still pending before the same Court.
2. Was it right for the lower Court to have considered and granted the Respondent’s Garnishee application dated 6th January, 2012 while there is a pending Preliminary Objection against the said garnishee application before the Court.
3. Whether the Court was right when it held that the Appellant who was the judgment Debtor at the lower Court has nothing to do with the Garnishee proceedings.
4. Whether the Court has right to have heard and granted the Garnishee application dated 6th January, 2012 when on the face of the said application the Judgment Creditor, the Respondent herein, is a non-existent entity.
The Appellant on 3/4/18, filed the Appellant?s Reply Brief of Argument dated the same date but deemed properly filed on 6/3/2019.
?
The
4
Respondent?s response was as contained in its Brief of Argument dated 28/2/2017, filed on 6/3/2017 and deemed properly filed on 9/3/2017. It was settled by Jude Ehiedu, Charles Afolabi and Izuchukwu Oboko of Legal Field Partners. Three (3) Issues for determination in the appeal were set down for determination by the Respondent thus:
I. Whether the pendency of application for stay of execution pending the determination of an appeal and a preliminary objection without more preclude the Court from hearing an application for garnishee proceedings pending before it?
II. Whether the Appellant not been a party to garnishee proceeding, the Court was not right to have proceeded to hear the Respondent application?
III. Whether the Respondent (judgment Creditor) application dated 24th May, 2012 is incompetent?
?
In the mean time, the Respondent raised a preliminary objection to the Appellant?s appeal. The Preliminary Objection was raised on the ground that the Court lacks requisite jurisdiction to adjudicate over the appeal as presently constituted. The objection was premised on the grounds reproduced hereunder:
A. The Appellant being
5
the judgment debtor in this suit is not a party in the garnishee proceedings.
B. By virtue of Section 243 of the 1999 Constitution, only a party to a proceeding before the Court has the right of appeal as of right but any other person interested can only appeal with the leave of Court.
C. The Appellant not being a party to garnishee proceedings need leave of either the Lower Court or Court of appeal to appeal against a decision in garnishee proceedings as an interested party.
D. The Appellant never sought and obtained either the leave of this Honourable Court or the Lower Court to appeal as an interested party before lodging this appeal.
E. The Sister Appeal in APPEAL NO: CA/L/463M/2012 having been decided (sic), hearing of this appeal would amount to the Court indulging in academic exercise.
F. Grounds 5 and 6 of the Appellant’s Notice of Appeal did not emanate from the Ruling of 9th day of July 2012. (See page 318 of the Record of Appeal)
G. Ground 8 of the Notice of Appeal was never canvassed at the Lower Court and neither did the Court decide on it. The Appellant raised it as ground of appeal without leave of Court.
6
Also, two issues were set down for determination of the Objection as nominated by the Respondent and they are hereunder reproduced:
– Whether the Honourable Court has jurisdiction to entertain this appeal
– Whether grounds 5, 6 and 8 of the Notice of Appeal is (sic) not competent
It was the Respondent?s argument on issue 1 of the preliminary objection, that the garnishee proceeding is a separate and distinct proceeding from the primary suit, because, the parties in a garnishee proceeding are the Judgment Creditor and the Garnishee. The cases of WEMA BANK V BRASTEM-STERR NIG LTD (2010) LPELR-9166(CA), p. 31, paras B-E and NIGERIA AGIP OIL CO., LTD V OGINI (2010) LPELR-9141(CA) amongst others, were cited in support of this proposition. The Respondent further relied on the decision in the case of DENTON-WEST V MUOMA [2008] 6 NWLR (Pt 1083) 418 at 442 D-E and submitted that the Appellant herein, not being a party to the garnishee proceedings before the lower Court, cannot appeal same. The provision of Section 243 of the Constitution of Federal Republic of Nigeria, 1999 as amended and the case of P.P.M.C LTD V DELPHI PETROLEUM INC [2005] 8 NWLR (Pt. 928)
7
458 at 484, C-G were also relied on to submit that the Appellant requires the leave of Court to bring the appeal. The Court was urged to dismiss the appeal for being incompetent. The Respondent contended further that the appeal will amount to an academic exercise, and this objection is premised on the view that the determination of the sister appeal in Appeal No: CA/L/463M/2012, will extinguish the live issue left in the instant appeal and the decisions in ODEDO V INEC (2007) LPELR CA/E/97/2007; STATE V AZEEZ & ORS (2008) 4 SCNJ 325 and EFET V INEC (2011) 1-2 SC (Pt 111) 61 were relied on in asserting that Courts are empowered to determine only live issues between the parties. The Court was then urged to dismiss the appeal for lack of requisite jurisdiction to adjudicate over same.
The issue 2 of the objection was argued by the Respondent that grounds 5 & 6 of the appeal did not emanate from the Ruling of the lower Court that birthed the instant appeal. The Respondent relied on the decisions in XTOUDOS SERVICES NIG LTD V TAISEI (W.A) LTD (2006) 6 SC 200 and ATOYEBI V GOVT OF OYO STATE (1994) 5 NWLR (Pt 344) 296 at 305 and submitted that the
8
offending grounds ought to be struck out for being incompetent. It was also argued that ground 8 of the appeal is equally incompetent, neither having been canvassed before nor considered by the lower Court. The Respondent, whilst further relying on the decisions in MAKANJUOLA V BALOGUN (1989) 3 NWLR (Pt 108) 192 and AKPAN V BOB (2010) 17 NWLR (Pt 1223) 421, submitted that the leave of Court is mandatory to raise such fresh issue, and that same be struck out for being so incompetent.
In his reply to the objection of the Respondent, the Appellant contended that the basis of the Respondent?s objection was faulty and defective. It was asserted that contrary to the Respondent?s contention, the garnishee proceedings leading to the Ruling of the lower Court was a post judgment proceedings and not a garnishee proceedings in strict sense. The Appellant maintained that a Motion for Stay of Execution of judgment pending appeal dated 28/12/2011 was filed on his behalf and same being the business of the lower Court on the following selected days, to wit; 20/2/2012, 21/3/2012 and 25/4/2012, and mention was never made of garnishee proceedings on the
9
aforesaid days. He further contended that the Appellant ought to have been heard on his motion for stay of execution pending appeal before proceeding to grant the garnishee order as the lower Court did in the instant case. The case of WAEC V IKANG (2011) LPELR-5098(CA), was referred to. It was then submitted that, flowing from the record before the Court, the Appellant was an active participant in the post judgment applications. Further on the argument of whether or not a judgment debtor in a garnishee proceedings is a necessary party, the Appellant, whilst relying on Court?s decisions in the following cases: ZENITH BANK PLC V OMENAKA & ANOR (2016) LPELR-40327(CA) pg 23 and NIGERIAN BREWERIES PLC V CHIEF DUMUJE (2016) 8 NWLR (Pt 1515) 536 @ pg 599-602, submitted that the judgment debtor is a necessary party to garnishee proceedings, hence leave of Court ought to be dispensed with. It was also asserted that the judicial authorities relied on by the Respondent in its preliminary objection were inapplicable in the circumstance having been overruled in the subsequent decisions of Court as cited in the Appellant?s Brief. The Appellant cited the case
10
of ALAO V UNIVERSITY OF ILORIN (2008) 1 NWLR (Pt 1069) 428 in support of the proposition. The Court was urged to dismiss the Preliminary Objection and hear the appeal on its merit.
In response to issue 2 of the objection, the Appellant maintained that Grounds 5 & 6 from the Notice of Appeal emanated from the Ruling of the lower Court dated 9/7/2012, wherein it held that the Appellant as a judgment Debtor was not a party in the process. In response to the submission of the Respondent that Ground 8 of the appeal was a fresh issue raised on appeal without the leave of Court, the Appellant cited decisions in AGBITI V NIGERIAN NAVY (2011) 4 NWLR (Pt 1236) pg 175 @ 190-191; F.C.D.A V EZINKWO (2007) 18 WRN 1-199, pg 163-164; AMADI V F.R.N (2008) 18 NWLR (Pt 1119) pg 259 @ 262-263 and C.B.N V S.A.P NIG LTD (2005) 3 NWLR (Pt 911) pg 152 @ 156-157, and submitted that the issue being a jurisdictional one, needs no leave of court to be raised.
RESOLUTION OF THE PRELIMINARY OBJECTION
In the resolution of the instant Preliminary Objection, it is important to re-emphasize that the Court is duty bound to resolve first any objection as a threshold issue
11
to a suit or an appeal before venturing into the merit of same. It has been described as a special procedure whereby a Respondent is at liberty to challenge the competence of an appeal which, if upheld, has the effect of peremptorily terminating the life of the appeal. See GALADIMA V TAMBAI & ORS (2000) 11 NWLR (Pt 677)1. The Supreme Court in the case of RABIU V ADEBAJO (2012) 15 NWLR (Pt 1322) pg 125 stated that a preliminary objection as a ?threshold issue is a pre-emptive strike to scuttle the hearing of the appeal.? The apex Court cautioned that a preliminary objection must be disposed of before any further step can be taken in the appeal, failure of which the apex court said, may amount to ?dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court?s proceedings?. It is legitimate that a Court should not commit its scarce resources, time and energy by embarking on needless inquiry with regard to an incompetent appeal as whatever decision reached thereat, no matter how well conducted, will amount to nullity once the question raised in objection to the competence of such Court?s process
12
was left unresolved prior the hearing of the appeal or a suit. See APC V INEC & ORS (2014) LPELR-24036 (SC).
To this end, my Lords, I will proceed to resolve the objection as raised by the Respondent in this appeal.
– Whether the Honourable Court has jurisdiction to entertain this appeal?
– Whether grounds 5, 6 and 8 of the Notice of Appeal is (sic) not competent?
The first issue in the preliminary objection was the propriety or otherwise of the Appellant?s Notice of Appeal wherein he was said not to be a party to the garnishee proceeding from which the appeal emanated from, and which thereby deny this Court of the requisite jurisdiction to hear the appeal as presently constituted. The Respondent relied heavily on several cited judicial authorities, to press home the assertion that the Appellant herein as a Judgment Debtor cannot appeal the Garnishee Order Nisi as made in the ruling of the lower Court dated 9/7/2012 in the garnishee proceedings instituted by the Respondent as a Judgment Creditor in an earlier judgment of the lower Court delivered on 19/12/2011 which is already a subject of a sister appeal before this Court. The
13
Respondent also argued that the instant appeal is bound to be consigned to the academic realm devoid of any live issue left in it with the institution of the sister appeal in Appeal No CA/L/463M/2012. I view it as incumbent on this Court to commence the resolution of this issue by an examination of how the law ?sees? garnishee proceedings, as this has generated lingering contention in legal discourse in recent time. It is to be noted that a garnishee proceeding is a specie of proceeding held to be separate and a distinctive from the substantive suit, it is principally a proceeding between the judgment creditor as ?Garnishor? and a third party ?the Garnishee? in whose custody is the funds or debt due or accruing to the Judgment Debtor. See: IBETO PETROCHEMICAL IND LTD V TOTAL NIG PLC (2016) LPELR-41457(CA) and STANBIC IBTC BANK V LONGTERM GLOBAL CAPITAL LTD & ORS: (2016) LPELR-40517(CA). In the con of our adjectival principles and practice, a garnishee proceeding is sui generis being in the class of its own. See: FIDELITY BANK PLC V OKWUOWULU & ANOR (2013) 6 NWLR (Pt 1349) p 197. A garnishee proceeding is
14
primarily provided for in the Sheriff and Civil Process Act, Cap S6, LFN 2004, (SCPA), and the Judgment (Enforcement) Rules to the Act.
From the combined construction of the foregoing statutes, it is obvious that the garnishee proceeding is a mode prescribed by the Act and the rules of enforcing by judicial process, the recovery of a money judgment by the seizure or attachment of the assets or judgment debts due or accruing to the judgment debtor in the lawful custody of the garnishee who most often is a bank or financial Institution and which forms part of his property in execution of the money judgment against the judgment debtor. Conversely, it could be said to be a process leading to the attachment of judgment debt owed to a judgment creditor by a third party who is indebted to the judgment debtor. See the case of GTB V INNOSON NIG LTD (2017) LPELR-42368(SC) and FIDELITY BANK V ONWUKA (2017) LPELR-42839(CA). The apex Court reiterated that, by the process in garnishee proceeding, the Court has power to order a third party to pay directly to the judgment creditor, the debt due or accruing due from him to the judgment debtor, or as may be
15
sufficient to satisfy the amount of the judgment. See: CITIZENS INTERNATIONAL BANK V SCOA NIG LTD (2006) 18 NWLR (Pt 1011) @ 334. In essence, the proceeding of this nature is to facilitate the judgment creditor?s right to take the benefit in order to enjoy the fruit of his judicial victory on the strength of the judgment in his favour. He is enjoined to take a swift step at achieving this by instituting a garnishee proceeding by way of an Ex parte application. See: Section 83(1) of the Sheriffs & Civil Process Act, (SCPA). As provided in the said Act, two major steps are involved in garnishee proceedings, to wit: the grant of garnishee order nisi; and the subsequent order absolute. Usually, the Order Nisi granted on an Ex-parte application is directed at the third party who is indebted to, or in custody of the judgment debtor?s funds, id est the Garnishee, and the order is to ensure that the said third party holds the sum covered by the application in the interim and usually within a stipulated time pending when the said order may be pronounced absolute upon which it becomes payable to the Judgment Creditor unless the Garnishee is able to show
16
cause why the funds cannot be so deployed into paying the Judgment Creditor, in event of which the Order Nisi is discharged. The garnishee is duty bound only to satisfy the Court, vide Affidavit evidence on a return date, why the funds in its custody belonging to the judgment debtor should not be garnished to pay the judgment debt. See the case of UNION BANK OF NIGERIA PLC V BONEY MARCUS IND LTD. The foregoing is, in my respectful view, the concise highlight of the garnishee proceedings under the Act and the Rules made thereto. I have endeavored to look closely into the records before the Court vis a vis the parties? arguments on this issue. I am equally not unaware of the raging controversy on this same subject to which series of pronouncements have been made by the appellate Courts and the likelihood of being interpreted diversely. I am of the respectful view that it is high time the issue is settled for certainty in the jurisprudence of judgment enforcement via garnishee proceedings.
?It is well settled that garnishee proceeding, at the first stage, which is the order nisi stage, is between the judgment creditor and the garnishee and no more. See:
17
PPMC LTD V DELPHI PETROLEUM INC (supra). But my Lords, one needs to ask at this stage ?whether the judgment debtor like the instant Appellant is intended to be shut out of justice In my opinion, the intendment of the law in garnishee proceedings, is to enable the judgment creditor primarily to take the benefit of fruits of his victory by judgment delivered after inter-parte hearing of the suit. See: NAOC LTD V OGINI (supra). It is thus far from being an arm twisting ploy to unjustly enrich the judgment creditor of undeserved proceeds from his adjudged money judgment. In the specific address to the parties? argument in the instant appeal, it is important to note again, the provision of Section 83 (2) of the Sheriff and Civil Process Act that, once a garnishee order nisi is granted, a copy of the order as issued, is required to be served on the judgment debtor at least fourteen (14) days before the date of hearing. It is obvious that the service of the order nisi on the judgment debtor is indeed a condition precedent to the subsequent hearing and probably the granting of the order absolute, failure of which may be fatal to the case of the
18
judgment creditor. See the case of CROSS RIVER STATE FORESTRY COMMISSION & ANOR V ANWAN & ORS (2014) All FWLR (Pt 712) 1823 @ 1830. The learned trial judge?s view in his ruling that the judgment debtor is a mere stranger to the garnishee proceeding appears to be acceptable, if only to the point at which the order nisi was to be granted being a statutory Ex parte application. The position however, may be different if the Judgment Debtor was not subsequently served with the order nisi, which should allow him to be heard, if he so desired. See GTB V INNOSON (supra). The service on him is not merely formalistic in order to ?fulfill all righteousness?, but an undoubted and a mandatory requirement of the law. See: Section 83(2) of the Sheriff and Civil Process Act, WEMA BANK PLC V BRASTEM-STERR NIG LTD (supra), UBA PLC V EKANEM (supra) and FBN PLC V FCMB PLC (supra). This proposition is also in tandem with the Constitutional provision to uphold the rights of any such litigants to be heard before any determination that will affect his interest is made. See Sections 6 (6) (b) & 36 (1) of the Constitution, 1999 (As Amended). It is to be
19
noted that this Court in its recent judicial decisions, has pronounced emphatically that a judgment debtor is indeed a necessary party in a garnishee proceeding and may take step to seek the protection of Court for his funds which is being attached for the satisfaction of the judgment debt. See: NIGERIAN BREWERIES V DUMUJE (2016) 8 NWLR (Pt 1515) 536 @ 599 and UNIVERSITY OF LAGOS V OLUWASANMI amongst others. For the reason of emphasis, it must be stated that, prior to the stage at which the judgment debtor is served with a copy of order nisi made at the hearing of the Ex parte application as demanded by law, a judgment debtor is not a party to the garnishee proceedings, at that stage as he is not required as a party to show cause. The order is directed at the garnishees in whose custodies are funds owing or accruing to the judgment debtor. Beyond this stage, the judgment debtor may take the opportunity to convince the Court to discharge the order nisi by filing affidavits to that effect. See:N.A.O.C LTD V OGINI (supra). It is instructive to note at this juncture, that the Appellant herein appealed against the order nisi in the garnishee application of the
20
Respondent, and as I have adverted your Lordships? attention earlier, the Appellant lacks locus to bring such an appeal as of right, being not a party to the garnishee proceeding at that stage when the order nisi was made. The Appellant could only bring this appeal by leave of either the trial Court or that of this Court. See: the provision of Section 243 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and decision in IBETO PETROCHEMICAL IND LTD V TOTAL NIG PLC (supra). I am inclined to resolve issue one of the Preliminary Objection in favour of the Respondent, in that, the required leave of Court was not obtained to institute the instant appeal, the appeal is not validly brought before the Court. I so hold.
The second issue of the Preliminary Objection is challenging the competence of grounds 5, 6 & 8 of the appeal. The Respondent argued that the grounds 5 and 6 did not emanate from the ruling of the lower Court and that ground 8 was raised on appeal for the first time without the leave of Court. My Lords, I am of the opinion that it will amount to an exercise in futility to venture into resolving issues that are devoid of
21
competence. The appeal seems incompetent, so also the grounds upon which it was premised.
In the light of the foregoing my Lords, and in my respectful opinion, the preliminary objection is meritorious and ought to succeed. I hold that the appeal is incompetent and is struck out.
Having so held as foregoing, the need to dabble into the merit of this appeal is obviated. It is no longer necessary as it will amount to a judicial voyage into nothingness.
To that effect, the ruling delivered by the lower Court Coram Onyeabor, J., on 9/7/2012 wherein garnishee order nisi was granted in favour of the Respondent, is sustained.
I make no order as to costs, parties are to bear their respective costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the draft of the lead judgement written by my learned brother Gabriel Omoniyi Kolawole, JCA in this appeal and agree completely that the appeal is incompetent for the succinct reasons set out therein.
?For emphasis, the garnishee order nisi, made pursuant to the provision of Section 83(1) of the Sheriff & Civil Process Act, (SCPA) was an ex parte order directed at
22
the Garnishees and to which the Appellant was not a party who could invoke the right of appeal against same, as of right. Though as judgment debtor whose funds may be the subject of the ex parte order, his interest in the funds was in no legal way affected or even interfered with by the order at that stage. as it only directed the holders of the funds; the Garnishees, who the law considers to be debtors to the Appellant, to appear before the Court to show reasons why the funds, if available, should not be paid to the judgement creditor.
It is only after service of the Order nisi on the judgment debtor, pursuant to Section 83(2) of the SCPA that he may become a necessary party to be heard in the later proceedings when the garnishees would appear to show cause why his funds should not be paid directly to the judgement creditor. At the stage, the decision by the Court on whether to make the order Nisi, absolute or not, is likely to affect the judgement debtor’s interest and the funds held to his credit by the Garnishees and so he is entitled to be heard in the proceedings. The right of appeal would inure to a judgement debtor from a decision by the Court at
23
this later or second stage of the garnishee proceedings, but not the earlier or first stage of the ex parte proceedings wherein the order Nisi, was made or issued. All the cases cited in the lead judgment on the point support this position.
I join in striking out the appeal for being incompetent.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the leading Judgment prepared and rendered in this appeal by my learned brother Kolawole JCA. I am in agreement with the reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.
24
Appearances:
Adenrele Adegborioye with him, Faith OnuohaFor Appellant(s)
Jude Ehiedu with him, Gift Ike and Emeka OkotieFor Respondent(s)
Appearances
Adenrele Adegborioye with him, Faith OnuohaFor Appellant
AND
Jude Ehiedu with him, Gift Ike and Emeka OkotieFor Respondent
