CROSS RIVER STATE FORESTRY COMMISSION & ANOR v. MURI EFFIONG ARCHIBONG ANWAN & ORS
(2012)LCN/5550(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of July, 2012
CA/C/14/2009
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
Jurisdiction is very fundamental, as it should be determined first by the Courts before starting any proceedings. If the Court proceeds without jurisdiction, all proceedings amount to a nullity. Ukwu vs. Bunge (1997) 8 NWLR Pt. 518 page 527, UBN Plc (2000) 12 SC Pt.II page 113; A.G. Lagos State vs. Dosunmu (1989) 3 NWLR Pt. 111 page 552; Nnonye vs. Anyichie (2005) 2 NWLR Pt.910 page 623. PER UZO I. NDUKWE-ANYANWU, J.C.A
PROCEEDINGS: NATURE OF A GARNISHEE PROCEEDING
Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. Thus a successful party, in his quest to move fast against the assets of the judgment debtor, usually makes an application ex parte for a garnishee order nisi attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called a garnishee. In Re Diamond Bank Ltd (2002) 17 NWLR pt 795 page 120.
In a garnishee proceedings, the garnishee must be served with the garnishee order nisi. Upon service of the order nisi, on the garnishee he may file an affidavit to show cause and attend court on the return date. Where the garnishee fails to appear in court on the return date, the court may make the order nisi absolute.
Likewise the judgment debtor is to be served the order nisi, in case he intends to challenge the amount
on the order. See In Re: Diamond Bank (supra). In the instant case, the judgment debtors filed a motion stating that they were not served. Neither the court nor the judgment creditor verified this assertion of the judgment debtors. The judgment creditor and the court glossed over the issue, even though it was vital to the jurisdiction of the court. PER UZO I. NDUKWE-ANYANWU, J.C.A
PROCEDURE: IMPORTANCE OF SERVICE OF PROCESS
Service of process is vital under due process of law Guda vs. Kitta (1999) 12 NWLR pt 629 page 21. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the court has no jurisdiction to entertain it. Tubonemi vs. Dikibo (2006) 5 NWLR pt 974 page 565, Mark Vs. Eke (2004) 5 NWLR pt 865 page 54, Wema Bank Nig Ltd vs. Odulafa (2000) 5 SC page 83.
It is the function of the court bailiffs or other officers of the court to serve processes and swear to affidavit of service. Where as in this case, service of the order nisi has been made an issue, the normal thing is for the bailiff to produce an affidavit of service as the best evidence of service. Ajibola vs. Sogeke (2005) 9 NWLR pt 826 page 494. PER UZO I. NDUKWE-ANYANWU, J.C.A
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. CROSS RIVER STATE FORESTRY COMMISSION
2. COMMISSIONER OF POLICE, CROSS RIVER STATE – Appellant(s)
AND
1. MURI EFFIONG ARCHIBONG ANWAN
2. AKAN UWEM BASSEY
3. MONDAY UKO
4. IDORENYIN B. HARRY
5. ZENITH BANK OF (NIG.) PLC – GARNISHEE/RESPONDENT – Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A (Delivering the Leading Judgment): This is an appeal against the garnishee order absolute made by the Federal High Court sitting in Calabar.
When the judgment debtor/Appellant realized that a garnishee nisi had been ordered, the judgment debtor/Appellant filed a notice of preliminary objection on 24th day of September, 2008 that the Court lacked jurisdiction on the following grounds:
“1. The garnishee proceedings was commenced in contravention of Section 6(2) of the State Proceeding Laws of Cross River State, 2004 Cap.S16, in that the Applicants commenced the garnishee proceedings less than 90 days from the date this Honourable Court delivered its ruling.
2. The proceedings was initiated in violation of Section 84(1) of the Sheriffs and Civil Process Act, 2004 Cap. In that the Applicants did not seek and obtained the consent of the Attorney-General of Cross River state before applying to attach public funds.
3. The proceedings was commenced in defiance to Section 120(3) of the constitution of the Federal Republic of Nigeria, 1999.
4. The entire proceedings constituted a gross abuse of the process of this Honourable Court.”
The judgment debtor also filed a motion on notice on 24th September, 2008 for a stay of execution against the Ruling of the Federal High Court dated 5th October, 2007 but delivered on 8th October, 2007. Written arguments were, therefore, ordered by the court.
The learned State counsel abandons ground one.
On ground two, the learned State Counsel submitted that Section 83(2) of the Sheriff and Civil Process Act provides:
“At least fourteen days before this day of hearing a copy of the order nisi shall be served upon the garnishee and the judgment debtor.”
The judgment debtors became aware of the garnishee proceedings when the garnishee – Zenith Bank wrote them a letter intimating the judgment debtors of the proceedings. Counsel submitted that failure to serve the judgment debtors with the garnishee order nisi is a fundamental error that robs the Court of jurisdiction. STB Ltd. vs. Contract Resources (Nig.) (2005) 6 NWLR Pt.708 page 115; NDIC vs. Ifediegwu (2003) 1 NWLR Pt.800 page 218; Onyewu vs. KSMGI (2003) 10 NWLR Pt.827 page 40.
Learned Counsel urged the Court to hold that the order nisi was not served on the judgment debtors and as such robs the Court of jurisdiction to continue.
The learned counsel to the judgment creditors didn’t have any answer to this. This is just his submission on this issue:
“Furthermore, the service of the order nisi was done in compliance with all the relevant, laws regarding the required statutory service period which is evident in Court Records.”
This issue is one on jurisdiction of the Court to hear this garnishee proceeding. The judgment debtors filed their preliminary objection challenging the jurisdiction of the Court in that amongst every other issue, the garnishee order nisi was not served on the judgment debtor.
Jurisdiction is very fundamental, as it should be determined first by the Courts before starting any proceedings. If the Court proceeds without jurisdiction, all proceedings amount to a nullity. Ukwu vs. Bunge (1997) 8 NWLR Pt. 518 page 527, UBN Plc (2000) 12 SC Pt.II page 113; A.G. Lagos State vs. Dosunmu (1989) 3 NWLR Pt. 111 page 552; Nnonye vs. Anyichie (2005) 2 NWLR Pt.910 page 623.
The learned trial Judge dismissed both the preliminary objection and the motion on notice for stay in this summary way:
“Rulings are given on the 2 motions on Notice filed by J/D/Applicant dismissing with N6,000.00. Costs respectively in favour of the J/C/Applicant.”
He thereafter went ahead to make the order nisi absolute.
Ordinarily, a judgment debtor is not a necessary party in a garnishee proceeding before the Court.
However, the Court cannot close its eyes to processes filed in court and the law includes the judgment debtor as one of the parties to he served the order nisi.
Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. Thus a successful party, in his quest to move fast against the assets of the judgment debtor, usually makes an application ex parte for a garnishee order nisi attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called a garnishee. In Re Diamond Bank Ltd (2002) 17 NWLR pt 795 page 120.
In a garnishee proceedings, the garnishee must be served with the garnishee order nisi. Upon service of the order nisi, on the garnishee he may file an affidavit to show cause and attend court on the return date. Where the garnishee fails to appear in court on the return date, the court may make the order nisi absolute.
Likewise the judgment debtor is to be served the order nisi, in case he intends to challenge the amount
on the order. See In Re: Diamond Bank (supra). In the instant case, the judgment debtors filed a motion stating that they were not served. Neither the court nor the judgment creditor verified this assertion of the judgment debtors. The judgment creditor and the court glossed over the issue, even though it was vital to the jurisdiction of the court.
Service of process is vital under due process of law Guda vs. Kitta (1999) 12 NWLR pt 629 page 21. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the court has no jurisdiction to entertain it. Tubonemi vs. Dikibo (2006) 5 NWLR pt 974 page 565, Mark Vs. Eke (2004) 5 NWLR pt 865 page 54, Wema Bank Nig Ltd vs. Odulafa (2000) 5 SC page 83.
It is the function of the court bailiffs or other officers of the court to serve processes and swear to affidavit of service. Where as in this case, service of the order nisi has been made an issue, the normal thing is for the bailiff to produce an affidavit of service as the best evidence of service. Ajibola vs. Sogeke (2005) 9 NWLR pt 826 page 494. The trial Judge failed to investigate this issue neither did the judgment creditor make any investigations. As it is, it would be taken that for sure the judgment debtor was not served with the order nisi.
S. 83 (2) sheriff and Civil Procedure Act provides that the judgment debtor must be served the order nisi. This is a condition precedent to the granting of the order absolute. Failure to serve the judgment debtors the order nisi is a fundamental error that robs the court of the necessary vires to continue with this proceeding.The Federal High Court sitting at Calabar was robbed of jurisdiction when it failed to serve the judgment debtor, the order nisi and went ahead to declare the order absolute. The order absolute made by the court is a nullity.
All the other issues raised by the judgment debtor in his brief have become a mere academic exercise as the whole proceeding in the Federal High Court is a nullity.
This appeal is meritorious and allowed. The order absolute is set aside.
I make no orders as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: The decision in appeal No.CA/C/13/2009 against the judgment of the Federal High Court in respect of which the garnishee proceedings from which this appeal emanated has practically and effectively taken the wind out of its sail. With an order allowing the appeal No. CA/C/13/2009 and setting aside the judgment giving rise to the garnishee proceedings from which the present appeal arose, its foundation has been removed and so it is rendered academic as no benefit would enure from it to the parties.
Apart from the above, speaking the law strictly, the Appellants who were the judgment debtors in the garnishee proceeding leading to this appeal, were not parties in the proceedings against whom the Order Nisi was made absolute in the decision appealed against. The record of the appeal do not show any indicated that the appellants were parties in the garnishee proceedings at any stage thereof although a Notice of Preliminary Objection and motion was filed for them in the proceedings. As is well known now, garnishee proceedings are between a judgement creditor and a garnishee, i.e. a person who owes the judgment debtor some amount at the time of the proceedings which the judgment creditor applies to the court to order it to be used to settle the judgment debt. Even though the rules of procedure may require that the judgment be notified of the proceedings, they do not thereby make him a party to the proceedings with the right to take part therein. In garnishee proceedings, no dispute exists in respect of the judgment debt between the judgment creditor, the judgment debtor or the garnishee. All that the judgment creditor does by the proceedings is to bring the garnishee to court to explain why the amount owed to the judgment debtor should not be ordered by the court to be used to settle the judgment debt. In such circumstances, the judgment debtor’s presence or participation in the proceedings is unnecessary and even undesirable because the proceedings can be fully and completely disposed of finally between the judgment creditor and the garnishee who holds, has in custody, or owes the amount to be used to settle the judgment debt..
For not being a party to the proceedings in which the Federal High Court delivered, the ruling making an earlier Order Nisi absolute, the Appellants lack the competence to appeal against that decision as of right. See P.P.M.C. Ltd. v. DELPHI PETROLEUM INC. (2005) 8 NWLR (928) 458 at 488.
For that reason, the appeal is incompetent since the Appellants lack the requisite right to file same and is liable to be dismissed because it has been argued.
In the result, for the aforementioned reason, I dismiss this appeal.
Parties to bear their respective costs in prosecuting the appeal.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading before now the judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA just delivered. I agree with the reasoning and conclusion reached by my learned brother.
A court that has been robbed of its jurisdiction cannot validly proceed to adjudicate in the matter. This is because jurisdiction is a radical and fundamental factor of competence, and where the court lacks the jurisdiction to entertain a matter before it, any proceedings conducted thereon, as well as the decision reached will be a nullity ob ignitio not withstanding that it was well conducted and brilliantly decided. A court that lacks jurisdiction does not possess the power of adjudication. See: Onyenucheya vs. Military Administrator Imo State (1997) 1 NWLR (Pt. 482) 429; Barsoum vs. Clemenssy International & Anor. (1999) 12 NWLR (Pt. 632) 515.
I allow the appeal and abide by the consequential order in the lead judgment. I also make no order as to costs.
Appearances
O.E. Asuquo, Esq., State counsel 1 for the Appellant For Appellant
AND
Eno T. Offiong Esq. for 1st – 4th Respondents
Jerry Akpan Esq. for the 5th Respondent For Respondent
