DANGOTE CEMENT PLC v. ALEX & ORS (2020)

DANGOTE CEMENT PLC v. ALEX & ORS

(2020)LCN/14874(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/B/285/2017

RATIO

PRELIMINARY OBJECTION: NATURE OF A PRELIMINARY OBJECTION

Now, going by the Rules of this Court, a Preliminary Objection is one which contends that an appeal should not be heard and determined on the merit for whatever reason is incompetent. This is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other before if need be before the merit of the appeal is considered since without competence there is really no basis for adjudication for a decision on the merit by a Court. Thus, it is only issues bordering on the competence or incompetence of the notice of appeal that can validly be raised by means of a notice of preliminary objection and not issues merely challenging the competence of one or more of the grounds of appeal, which can properly be challenged by means of a motion on notice. See Odunukwe V. Ofomata (2010) 18 NWLR (P. 1225) 404.

See also Lafia Local Government V. Nasarawa State Government (2012) 17 NWLR (Pt. 1328) 124.
In Inspector Isa Sarki V. John Lamela (2016) LPELR – 40338 (CA), I had reiterated the above position of the law inter alia thus:
“It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal and not the competence of the entire appeal, the best procedure is by way of a motion on notice since its success would not in an way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of preliminary objection challenging the competence of the entire appeal.” PER GEORGEWILL, J.C.A.

APPEAL: PRINCIPAL PURPOSE OF A GROUND OF APPEAL

I should observe from the onset that the principal purpose of a ground of appeal is to give notice to the other party and the Court of the nature of the grouse or complaint which the Appellant has against the decision of the Court below. See Adegbuyi V. A.P.C (2015) 2 NWLR (Pt. 1442) 1. See also Silencer & Exhaust Pipes Co v. Farah (1998) 12 NWLR (Pt. 579); Babba V. Tafashiya (1999) 5 NWLR (Pt. 603) 468. PER GEORGEWILL, J.C.A.

APPEAL: WHERE SHOULD A VALID ISSUE FOR DETERMINATION BE DISTILLED

It is also the law, when it comes to formulation of issues for determination in an appeal, that it is only from a competent ground or grounds of appeal that a valid issue for determination could be distilled. Thus, an issue for determination distilled from an incompetent ground of appeal is incompetent and liable to be struck out or simply discountenanced by the Court. See Olufeagba V. Abdur-Raheem (2010) All FWLR (Pt. 512) 1034; Tahir & Anor. V. BON Ltd (2006) LPELR – 11654 (CA). PER GEORGEWILL, J.C.A.

APPEAL: GUIDE IN THE DETERMINATION OF WHAT QUESTION WOULD AMOUNT TO A QUESTION OF LAW

In law what would constitute a question of law is as varied as there are varieties of peculiar circumstances in each case and the categories of what would constitute question of law are never and cannot be closed. However, over the years the Courts have set down some helpful guide in the determination of what question would amount to a question of law for the purposes of an appeal. Thus, it has been reiterated that a question of law is capable of three different meanings.
Firstly, it could mean a question the Court is bound to answer in accordance with a rule of law and in this sense a question of law is one predetermined and authoritatively answered by the laws. Secondly, is as to what the law is and in this sense, an appeal on a question of law means an appeal in which the argument and determination is what the true rule of law is on a certain manner. A question of the construction of statutory provision falls within this meaning. Thirdly, is in respect of those questions which normally answer questions on law only and therefore, any question which is within the province of the judge instead of the jury is called a question of law, even though in actual sense it is a question of fact, including the interpretation of documents, which is often a question of fact but within the province of the judge. See Ogbechie V. Onochie (1986) 2 NWLR (Pt.23) 484 @ p. 493 per Karibi – Whyte JSC. See also Calabar Central Co-operative Thrift Society V. Ekpo (2008) 6 NWLR (Pt. 1083) 408 @ p. 410. PER GEORGEWILL, J.C.A.
JURISDICTION: FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION

Now, the issue of jurisdiction is very fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, jurisdiction is radical and sine qua non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272.

In law it is the claim of a Claimant or an Applicant, as the case maybe, that denotes the jurisdiction of the Court and therefore, whenever the issue of whether or not a claim or initiating process is competent as being within the jurisdiction of a Court is raised, it is the claim of the Claimant or Applicant, as the case may be, that must be looked at and critically scrutinized in the light of the extant law to see whether or not it is competently within the jurisdiction of the Court. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Orthopaedic Hospital Management Board V. Garba (2002) 14 NWLR (Pt. 788) 538 @ p. 563.

Now, in law when a Court would be said to be competent to hear and determine a cause or matter is no longer an issue for arguments as it has been well settled. Thus, for a Court to be competent the following conditions must be fulfilled, namely: a) it is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another; b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. SeeMadukolu V. Nkemdilim (1962) 2 SCNLR 341. See also Benin Rubber Producers Ltd V. Ojo (1997) 9 NWLR (Pt. 521) 388 @ p. 403. PER GEORGEWILL, J.C.A.

Before Our Lordships

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

DANGOTE CEMENT PLC APPELANT(S)

And

1. EGUAGIE ALEX 2. CHINEDU UZOMA 3. ZENITH BANK PLC RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Edo State, Coram; M. N. Asemota J., in Suit No. B/21/M/2017: Euagie Alex & Anor V. Dangote Cement Plc., & Anor., delivered on 17/5/2017, in which the Garnishee Order Nisi was made Garnishee Order Absolute against the Appellant’s monies in the custody of the 3rd Respondent in favor of the 1st and 2nd Respondents.

The Appellant was dissatisfied with the said ruling of the Court below and had appealed against it vide a Notice of Appeal filed on 22/5/2017 on Two grounds at pages 63 -66 of the Record of Appeal. Subsequently, an Amended Notice of Appeal was filed on 6/3/2019 on three grounds of appeal with the leave of the Court but was deemed properly filed on 19/9/2019. The Record of Appeal was duly transmitted to this Court on 23/6/2017. The Appellants’ Amended brief was filed on 13/9/2019. The 1st & 2nd Respondents’ Amended brief, containing a Notice of Preliminary Objection, was filed on 27/9/2019. The Appellant’s Reply brief was filed on 8/10/2019.

At the hearing of the Appeal on 18/11/2020, Gbenga Ige Esq., learned counsel for the Appellant adopted the Appellant’s brief and Reply brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the ruling of the Court below. On their part, President Aigbokhan Esq., learned counsel for the 1st & 2nd Respondents adopted the 1st & 2nd Respondents’ brief as their arguments in support of their preliminary objection and in opposition of the appeal and urged the Court to strike out ground 2 of the grounds of appeal for being incompetent and dismiss the appeal for lacking in merit and to affirm the ruling of the Court below. The 3rd Respondent did not file any brief but was served with hearing notice on 12/11/2020.

By a Motion Exparte filed on 13/2/2017, the 1st and 2nd Respondents instituted Garnishee proceedings against the 3rd Respondent and the Appellant, praying for the following reliefs:
1. An Order for the issuance of Garnishee Order Nisi for the attachment of the funds of the judgment debtor in Account Number 1013665970 with the Garnishee compelling it to pay to the judgment creditor/applicant the sum

owed totalling N15,435,400 as at February 2017 being the judgment sum owed the Applicant by the Judgment Debtor.
2. An Order directing that the Garnishee Order Nisi be served on the Branch of the Garnishee Bank situate at Sapele Road, Benin City, for the attachment of the funds of the judgment debtor with the said Garnishee Bank and such service be deemed as proper service for the purpose of satisfying the judgment debt.
3. An Order of Cost of Garnishee proceedings to the sum ofN1,000,000 as assessed by the Applicant.
4. Any Further Order that this Honourable Court may deem fit to make in circumstance of this application.

The grounds of the application were as follows:
A. Judgment was obtained by the Judgment Creditor/Applicant against the judgment Debtor.
B. The judgment sum has not been paid by the judgment Debtor.
C. The Garnishee is in custody of the judgment debtor’s fund and indebted to it. See pages 1-14 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The facts relevant to this appeal according to the 1st & 2nd Respondents are that they sued the Appellant and obtained judgment at the Magistrate Court,

which judgment was not appealed against but the interest on the judgment exceeded the enforcement jurisdiction of the Magistrate Court. The 1st and 2nd Respondents filed an application at the Court below seeking to garnishee the account of the Appellant with the 3rd Respondent located at Sapele Road, Benin City within the jurisdiction of the Court below. The application was heard and a Garnishee Order Nisi made, which was served on both the Appellant and the 3rd Respondent. On 6/3/2017, the Appellant filed an application seeking to set aside the Garnishee Order Nisi and the entire Garnishee proceedings on the ground of lack of proper service on the Appellant. On 16/5/2017, the Appellant filed a Motion on Notice in an attempt to arrest the ruling of the Court below fixed for 17/5/2017 but failed to draw the attention of the Court below on 17/5/2017 when the matter came up for the delivery of the ruling by the Court below. Consequently, the Court below did not rule on the said application filed on 16/5/2017. Subsequently, the Garnishee Order Nisi was made absolute on 17/5/2017 by the Court below against the Appellant and the 3rd Respondent in favor of the 1st and 2nd

Respondents with cost of N200, 000. 00. See pages 1 – 14, 20-21,53 – 60 of the Records of Appeal.

On the other hand, the facts relevant to this appeal according to the Appellant are that on 6/3/2017, the Appellant had filed an application praying the Court below for setting aside of the Garnishee Order Nisi granted on 28/2/2017 on the ground that the Appellant was not served with the Garnishee Order Nisi as required by Section 83(2) of the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012 in that the Appellant only became aware of the pendency of the Garnishee proceedings when an Official of the 3rd Respondent informed it of the Garnishee Order Nisi. The Appellant was also not aware of any Suit filed against it by the 1st and 2nd Respondents at the Magistrate Court and was therefore, not aware of any judgment sought to be enforced against it by the 1st and 2nd Respondents before the Court below.

Consequent upon the above facts, the Appellant had on 16/5/2017 filed an application praying the Court below to strike out the Garnishee proceedings on the ground that the proceedings contravened the provision of Order II Rule 25 of the Judgment Enforcement Rules

made pursuant to the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012 as the judgment sought to be enforced at the Court below, which is an High Court, was delivered by a Magistrate Court and that any such enforcement ought to done be at the Magistrate Court and all the Respondents were duly served with the application on 16/5/2017. However, on 17/5/2017, though the Appellant had through its counsel informed the Court below of the pendency of the application challenging the competence of the Garnishee proceedings of the 1st and 2nd Respondents, the Court below had, without hearing and or determining the Appellant’s Motion on Notice filed on 16/5/2017, proceeded to grant the relief of Garnishee Order Absolute against the 3rd Respondent and the Appellant in favor of the 1st and 2nd Respondents, hence the appeal to this Court by the Appellant. See pages 17-19, 24 -30, 40 – 52, 53 – 60, 61- 62 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s Amended brief, three issues were distilled as arising for determination from the three grounds of appeal, namely:

Whether the Court below has jurisdiction to enforce a monetary judgment of a Magistrate Court?
2. Whether the Court below was right to have closed its eyes to the application of the Appellant which was properly filed at the Court Registry and served on the Respondents?
3. Whether the Appellant was duly served with the Garnishee Order Nisi as erroneously held by the Court below?

In the 1st & 2nd Respondents’ Amended brief, three issues were also distilled as arising for determination in this appeal, namely:
1. Whether the Court below has jurisdiction to enforce a monetary judgment made by a Magistrate Court?
2. Whether in the circumstance of this case the Appellant was denied fair hearing?
3. Whether the Appellant was duly served with the Garnishee Order Nisi?

I have given due considerations to the entirety of the proceedings before the Court below leading to the ruling, the subject matter of this appeal. I have also considered the submissions of learned counsel for the parties in their respective briefs in the light of the Appellant’s application filed on 16/5/2017 and the ruling of the Court below appealed against by the

Appellant. It does appear to me that the apt issues arising for determination in this appeal are the three issues as distilled in the 1st and 2nd Respondents’ Amended brief, a consideration of which would, in my view, involve the consideration of the three issues as distilled in the Appellant’s Amended brief. I shall therefore proceed anon to consider and determine these three issues ad seriatim but first there is a preliminary objection challenging the competence of ground two of the grounds of appeal, which being an issue touching on competence must be considered and resolved one way or the other first before the merit or otherwise of the appeal shall be considered.

NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection, incorporated into the 1st and 2nd Respondents’ Amended brief, the 1st and 2nd Respondents are challenging the competence of ground two of the grounds of appeal on the following grounds, to wit:
1. That the Judgment debtor/Appellant filed a Motion on 16/5/2017 which was not considered by the Court below.
2. That an Appeal arising from Motion that was not argued before the Court below is a

fresh issue deserving of leave of Court on Appeal

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
Learned counsel for the 1st and 2nd Respondents had submitted that on 6/3/2017 the Appellant filed a motion, in position of which the Respondents filed a reply and the matter was heard and adjourned to 17/5/2017 for judgment by the Court below and while the judgment was pending the Appellant filed on 16/5/2017 a motion of stay of proceedings but failed to bring same to the attention of the Court on 16/5/2017, which proceeded to deliver its earlier reserved judgment and contended that since there was no decision of the Court below on the Appellant’s motion of 16/5/2017, there cannot be any valid ground of appeal challenging a non – existent decision of the Court below and urged the Court to hold that in the circumstances ground two of the Appellant’s grounds of appeal was incompetent and should be struck out. Counsel referred to Atoyebi V. Governor of Oyo State (1994) 5 NWLR (Pt. 344) SC 290 @ p. 305.

It was also submitted that if the Appellant was aggrieved by the action of the Court below in not hearing and determining its

motion of 16/5/2017, the appropriate thing to do was to seek leave of the Court to argue the fresh issue on appeal and contended that the failure of the Appellant to so do rendered the said ground two of the grounds of appeal incompetent and liable to be struck out and urged the Court to so hold and to strike out ground two of the Appellant’s grounds of appeal for being incompetent. Counsel relied on Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) SC 282 @ p. 306; Alubankudi V. Attorney General of Federation (2002) 17 NWLR (PT. 796) 338 @ p. 357; Jatau V Ahmed (2003) 4 NWLR (PT. 811) SC 498 @ 509; Ewugba V. State (2018)7 NWLR (Pt.1618) 262 @ p. 282.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellants had submitted that ground 2 of the Appellant’s amended notice of appeal bothers on fair hearing and jurisdiction which is purely issue of law and contended that in law an appeal on ground of law alone does not require the leave of Court to be competent and urged the Court to so hold and to overrule the Respondents’ preliminary objection and determine the appeal on the merit. Counsel referred to

Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Atlas Petroleum International V. PM Communications (2017) LPELR- 41957 (CA).

It was also submitted in law since ground two raises the issue of fair hearing, which is fundamental to all Court proceedings, it is a substantial point of law which can be raised even on appeal for the first time and without leave of Court and contended that in law a breach of constitutional right to fair hearing affects the jurisdiction of the Court below and urged the Court to hold that such a ground of appeal can be validly raised on appeal without leave first sought and obtained and to dismiss the preliminary objection. Counsel relied on Okali & Anor V. Okali & Anor (2017) LPELR-42838 (CA); Atlas Petroleum International V. PM Communications (2017) LPELR- 41957 (CA).

RESOLUTION OF PRELIMINARY OBJECTION
My lords, the crux of the 1st and 2nd Respondents’ Preliminary Objection is whether ground two of the Appellant’s grounds of appeal is competent in that it amounted to fresh issue not arising from the decision of the Court

below and therefore, requiring leave of the Court and thus incompetent no leave of Court having been sought and obtained by the Appellant. It follows that grounds 1 and 3 of the Appellant’s grounds of appeal are left unaffected and therefore, taken as competent.
Now, going by the Rules of this Court, a Preliminary Objection is one which contends that an appeal should not be heard and determined on the merit for whatever reason is incompetent. This is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other before if need be before the merit of the appeal is considered since without competence there is really no basis for adjudication for a decision on the merit by a Court. Thus, it is only issues bordering on the competence or incompetence of the notice of appeal that can validly be raised by means of a notice of preliminary objection and not issues merely challenging the competence of one or more of the grounds of appeal, which can properly be challenged by means of a motion on notice. See Odunukwe V. Ofomata (2010) 18 NWLR (P. 1225) 404.

In the instant appeal, the challenge to ground two of the Appellant’s ground of appeal is that it raises a fresh issue not determined by the Court and therefore, requires the leave of Court to be competent. To resolve this contention therefore, the first port of call should ordinarily be the ground two of the grounds of appeal being challenged as incompetent, which is hereunder reproduced for a proper

appreciation and focused analysis in this Preliminary Objection thus:
Ground Two: “The learned trial judge erred in law when he denied the fundamental human right of the Appellant to fair hearing by closing his eyes to the pendency of the Appellant’s Motion on Notice dated 16th May 2017, challenging the jurisdiction of the lower Court to entertain the garnishee proceedings, subject of this appeal.”
In considering the Preliminary Objection of the 1st and 2nd Respondents challenging the competence of ground two as reproduced above, I have taken a calm look at the said ground of appeal in the light of the decision of the Court below appealed against together with the grounds for the Preliminary Objection, and I thought I should observe from the onset that the principal purpose of a ground of appeal is to give notice to the other party and the Court of the nature of the grouse or complaint which the Appellant has against the decision of the Court below. See Adegbuyi V. A.P.C (2015) 2 NWLR (Pt. 1442) 1. See also Silencer & Exhaust Pipes Co v. Farah (1998) 12 NWLR (Pt. 579); Babba V. Tafashiya (1999) 5 NWLR (Pt. 603) 468.

I have taken a second hard and critical look at ground two of the grounds of appeal being objected to by the 1st and 2nd Respondents in the light of the grounds for the preliminary objection, and the question is whether it raises any fresh issue and thus requiring the prior leave of Court as contended by the 1st and 2nd Respondents or are grounds of pure law and thus requiring no prior leave of Court as contended by the Appellant?
Now, what is a question of law and what is not? In law what would constitute a question of law is as varied as there are varieties of peculiar circumstances in each case and the categories of what would constitute question of law are never and cannot

be closed. However, over the years the Courts have set down some helpful guide in the determination of what question would amount to a question of law for the purposes of an appeal. Thus, it has been reiterated that a question of law is capable of three different meanings.
Firstly, it could mean a question the Court is bound to answer in accordance with a rule of law and in this sense a question of law is one predetermined and authoritatively answered by the laws. Secondly, is as to what the law is and in this sense, an appeal on a question of law means an appeal in which the argument and determination is what the true rule of law is on a certain manner. A question of the construction of statutory provision falls within this meaning. Thirdly, is in respect of those questions which normally answer questions on law only and therefore, any question which is within the province of the judge instead of the jury is called a question of law, even though in actual sense it is a question of fact, including the interpretation of documents, which is often a question of fact but within the province of the judge. See Ogbechie V. Onochie (1986) 2 NWLR (Pt.23) 484 @ p.

493 per Karibi – Whyte JSC. See also Calabar Central Co-operative Thrift Society V. Ekpo (2008) 6 NWLR (Pt. 1083) 408 @ p. 410.
I have looked calmly at ground two of the Appellant’s grounds of appeal and considered the submissions of counsel to the parties, and I am aware that in law a ground of appeal which complains of a failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it or borders on lack of fair hearing or interpretation of provisions of the Constitution or lack of jurisdiction and or abuse of Court process, would constitute a ground of pure law, and no prior leave of Court would be required. See Isah V. INEC (2016) 18 NWLR (Pt.1544) 175 @ pp. 220 – 221; Okorocha V. PDP (2014) 7 NWLR (Pt.1406) 213 @ pp. 249 – 250.
My lords, having calmly considered the submissions of counsel for the parties on the face of ground two of the grounds of appeal being challenged by the 1st and 2nd Respondents, I cannot but agree completely with the apt and unassailable submissions of the learned counsel for the Appellant that ground 2 merely complains of the alleged breach of the Appellant’s

rights to fair hearing and that in law such a ground is one founded on pure law. Once, a ground of appeal is on pure law, then no matter even the nature of appeal whether interlocutory or final, it is competent and therefore does not need or require any prior leave of either the Court below or this Court to be competent as vehemently but erroneously contended by the 1st and 2nd Respondents. See Section 241 (1) of the Constitution of Nigeria 1999 (as amended) See also Calabar Central Co-Operative Thrift Society V. Ekpo (2008) 6 NWLR (Pt. 1083) 408 @ p. 410; Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484 @ p. 493; Obi V. Etiaba (2015) 6 NWLR (Pt. 1455) 377 @ p. 390.
Indeed, the issue here is really one dealing with a well settled position of law that ground two of the Appellant’s grounds of appeal being one raising question of pure law, as aptly and unassailably contended by the Appellant’s counsel, no prior leave of Court was required and not one dealing with a ground of appeal raising a fresh issue, as erroneously contended by the 1st and 2nd Respondents’ counsel, for which prior leave of the Court was required for its competence. In

Atlas Petroleum International V. P.M Communications (2017) LPELR – 41957 (CA), I had reiterated on this position of law inter alia thus:
“However, it must be pointed out at once that a ground of appeal which touches on the issue of jurisdiction, which is clearly an issue of law, can be filed without the leave of Court and thus valid and so also is the issue of whether the ground of jurisdiction arises from the decision in the judgment appealed against or not is of no moment once it touches on the competence of the matter or the jurisdiction of the Court to hear and determine the matter as it did in the judgment being appealed against. In law therefore, no leave of Court is required to file a ground of appeal raising an issue of jurisdiction or pure law. See Section 241(1) (b) of the Constitution of Nigeria 1999 (as amended).”
See also Ene V. Asikpo (2011) FWLR (Pt. 553) 1907@p. 1933; Anachebe V. Ijeoma & Ors. (2015) 240 LRCN 69 @ p. 96; Nwadike & Ors. V. Ibekwe & Ors. (1987) 2 NSCC 1218; Coker V. UBA Plc. (1997) 2 NWLR (Pt. 490) 641.
In the circumstances therefore, and in the light of my finding that ground two of

the Appellant’s grounds of appeal, being one of pure law, is competent and does not require any prior leave of Court, I hold that the 1st and 2nd Respondents’ Notice of Preliminary Objection lacks merit and is liable to be dismissed. Consequently, I hereby so dismiss it.

ISSUE ONE
Whether the Court below has jurisdiction to enforce a monetary judgment made by a Magistrate Court?

APPELLANT’S COUNSEL SUBMISIONS
On his issue one, learned counsel for the Appellant had submitted that the Court below lacked the jurisdiction of enforcing a monetary judgment of a Magistrate Court and contended that in law jurisdiction is the foundation and fulcrum of any valid adjudication and is the authority which a Court, tribunal or judicial body has to adjudicate over a matter and must necessarily flow from the Constitution, enabling statute or charter and urged the Court to hold that the Court below lacked in law the jurisdiction to enforce a monetary judgment of the Magistrate Court and thereby rendered the Garnishee proceedings of the 1st and 2nd Respondent incompetent and liable to be struck out. Counsel referred to Black’s Law Dictionary, Eight Edition@ p. 867.

and relied on Saraki V FRN (2016) LPELR- 40013 (SC); National Bank V. Shoyoye (1977) 2 SC 181; Kalio V. Daniel Kalio (1975) 2 SC 15; Obasanjo & Ors V. Yusuf & Anor (2004) LPELR- 2151 (SC); Attorney General, Bendel State V. Attorney General, Federation (1981) All NLR 1; Sken Consult Nig Ltd V Ukey (1981) 1 SC 26; NDLEA V. Okorodudu (1997) 3 NWLR (Pt. 492) 221 @ 242.

It was also submitted that the issue of jurisdiction can be raised at any stage of a proceeding and even for the first time on appeal or even suo motu by the Court and contended that in law no proceeding in a Magistrate’s Court shall be transferred, for the purpose of enforcing any judgment therein, to the High Court except as otherwise permitted in law and urged the Court to hold that the Garnishee proceedings initiated by the 1st and 2nd Respondents before the Court below solely for the enforcement of the monetary judgment of the trial Magistrate Court was incompetent and therefore, robs the Court below of its jurisdiction to hear and determine it and to allow the appeal and set aside the ruling of the Court below and strike out the entire

Garnishee proceedings as initiated by the 1st and 2nd Respondents against the Appellant. Counsel referred to Order II Rule 25, Order IV Rule 13 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012; Section 44 of the Sheriff and Civil Process Act and relied on C.G.G. (Nig) Ltd V Ogu (2005) 8 NWLR (Pt. 927) 366; Ansa V. R.T.P.C.N. (2008) 7 NWLR (Pt. 1086) 421 @ pp. 438-439; Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266; State V. Onagoruwa (1992) 2 NWLR (Pt. 221) 33.

It was further submitted that once the word ‘shall’ is used in a Statute or Rules of Court it connotes mandatory and must be complied and contended that failure to do so will render such proceeding incompetent and liable to be struck out and urged the Court to hold that the Court below cannot enforce a judgment made by a magistrate Court except when it touches on immovable property of a judgment debtor and thus the ruling of the Court below enforcing the judgment of the trial Magistrate Court without the requisite jurisdiction amounted to a nullity and to allow the appeal and discharge the Garnishee Order Absolute

made against the funds of the Appellant in custody of the 3rd Respondent. Counsel referred to Order II Rule 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012 and relied on Animashaun & Anor V. Ogundimu & Ors (2015) LPELR- 25979 (CA); Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209) 513 @ p. 589; John V Igbo-Etiti Local Government Area (2013) 7 NWLR (PT.1352) 1; Wema Bank V Brastem-Sterr Nig. Ltd (2011) 6 NWLR (1242) 58.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On issue one, learned counsel for the 1st and 2nd Respondents had submitted that the judgment sought to be enforced was that of the trial Magistrate Court in which the interest on the judgment made it impracticable to enforce same in the Magistrate Court and contended that a Garnishee proceedings is distinct from writ of execution under the Judgment Enforcement Rules 2004 and urged the Court to hold that Garnishee proceedings is special and is enforced wherever the Garnishee’s account is found within the jurisdiction of the Court and that it is the location of the account with the Garnishee that determines the

jurisdiction of the Court and to dismiss the appeal for being misconceived and also lacking in merit. Counsel relied on NAOC Ltd V. Ogini (2011) 2 NWLR (Pt. 1250) @ p. 147; CBN V. Interstella Comm. Ltd (2015) 8 NWLR (Pt. 1462) 456 @ p. 489; Uba Plc V. Ekanem (2010) 6 NWLR (Pt. 1190) 207 @ P. 224.

It was also submitted that the judgment debtor is not a necessary party to garnishee proceedings and the Rules of the Court below are very clear on the amount of judgment debt and the available venue for the application and contended that the use of the expression ‘subject to’ evinces an intention to subordinate the provisions to one Section to another Section referred to and urged the Court to hold that it is Order VIII of the judgment Enforcement Rules that governs Garnishee proceedings, it being specific provisions on garnishee proceedings and overrides general provisions on judgment enforcement. Counsel referred to Order VIII Rules 1, 2 (A) & (B) of the Judgment Enforcement Rules and relied Ebhota V PI & PD Company Limited (2005) 15 NWLR (Pt. 948) 266 @ p. 283; Oke V. Oke (1974) 1 All NLR (Pt. 1)1; Inakoju V. Adeleke (2007) 4 NWLR (PT. 1025) 423 @ 629.

It was further submitted that Section 44 of the Sheriffs and Civil Process Act 2012 as well as Order II Rules 25 and Order IV Rule 13 of the Judgment Enforcement Procedure Rules must be interpreted with necessary insight in order to determine the intention of the legislature and not unnecessarily to oust the jurisdiction of the Court and contended that in law in interpreting the provision of a subsection of a Statute which ousts the jurisdiction of a Court, the whole Section must be taken into account so as to identify the circumstances in which the ouster comes into play and urged the Court to hold that the Court below has the jurisdiction to hear and determine, as it did, the Garnishee proceedings of the 1st and 2nd Respondents and to dismiss the appeal for lacking in merit. Counsel referred to Order VIII Rules 1, 2 (A) & (B) of the Judgment Enforcement Rules and relied on Jimoh V. Olawoye (2003) 10 NWLR (Pt. 828) 307 @ p. 337.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the judgment sought to be enforced was in excess of the monetary jurisdiction of the trial

Magistrate Court that gave the judgment at the time the judgment was delivered and was therefore, without jurisdiction and contended that in law the contention that it was the interest on the judgment that made it impracticable to be enforced at the Magistrate Court is fallacious and untenable and urged the Court to hold that in law enforcement of judgment is a judicial process which is regulated by the Sheriff and Civil Process Act and the Judgment Enforcement Rule made pursuant to the said Act and to allow the appeal and set aside the null judgment of the Court below. Counsel relied on Nigerian Breweries Plc. V. Dumuje & Anor (2015) LPELR-25583(CA).

It was also submitted that a judgment debtor in a garnishee proceeding is not a nominal party but rather a necessary party in that he is entitled by law to be served with the Garnishee Order Nisi and to participate on the return date for the Garnishee to show cause why the Garnishee Order Nisi should not be made Absolute and urged the Court to hold that the purpose of the service of the Garnishee Order Nisi on the Judgment debtor is so that on the return date, all the parties must be given an opportunity

to dispute liability or pray that the order nisi be discharged for one cause or the other. Counsel relied on Fidelity Bank Plc V. Okwuowulu (2012) LPELR – 8497 (CA); CBN V. Auto Import Export (2013)2 NWLR (Pt. 1337) 80 @ p. 127.

It was further submitted that by Order VIII Rule 1, 2(A) and (B) of the Judgment Enforcement Rules the law is that a judgment of a High Court can be enforced by the High Court itself and a Magistrate Court but a Magistrate Court judgment can be enforced by the Magistrate Court itself and not vice versa except where it bothers on enforcement on an immovable property of a Judgment Debtor only and contended that this is so because by the clear express provisions of Order II Rules 25 the enforcement of judgment of a Magistrate Court by a High Court was prohibited and thus mandatory and urged the Court to hold that the Court below lacked the jurisdiction as it did to enforce the monetary judgment of the trial Magistrate Court and to allow the appeal and set aside the Garnishee Order Absolute mad against the Appellant for want of jurisdiction. Counsel referred to Order II Rules 25 Judgment Enforcement Rules and relied on Tamti D.U. V. Nigeria Customs Service Board & Anor

(2008) LPELR – 8490(CA); Babatope & V. Sadiku & Anor (2017) LPELR – 41966 (CA).

RESOLUTION OF ISSUE ONE
My lords, in considering issue one challenging the competence of the entire Garnishee proceedings initiated by the 1st and 2nd Respondents against the Appellant, I bear in mind that the issue of incompetence has over the years dovetailed into issue of jurisdiction and once raised must first be considered and resolved one way or the other before if need be the merit of the matter is considered if it survives the onslaught of the issue of incompetence. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. See also Orthopaedic Hospital Management Board V. Garba (2002) 14 NWLR (pt 788) 538 @ p. 563.

adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. In such situation, it has been said, and quite admirably too in my view, that the laborers, that is the Litigants and their counsel on the one side and the Court on the other side would have labored in vain. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272.

looked at and critically scrutinized in the light of the extant law to see whether or not it is competently within the jurisdiction of the Court. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Orthopaedic Hospital Management Board V. Garba (2002) 14 NWLR (Pt. 788) 538 @ p. 563.

Now, in the instant appeal, what indeed is a Garnishee proceeding in law? In CBN V. Interstella Comm. Ltd (2015) 8 NWLR (Pt. 1462) 456 @ p. 489, Abba Aji JCA., (as he then was but now JSC), had opined inter alia thus:
“Garnishee proceedings as a proceeding is a distinct and separate action between the Judgment Creditor and the person or body holding in the 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 the garnishee.”
See also NAOC Ltd V. Ogini (2011) 2 NWLR (Pt. 1250) @ p. 147; UBA Plc. V. Ekanem (2010) 6 NWLR (Pt. 1190) 207 @ p. 224.
My lords, I have taken time to read through the initiating processes filed by the 1st and 2nd Respondents by way of Garnishee proceedings to enforce the monetary judgment of the trial Magistrate Court at the Court below solely on the basis that the interest on the judgment sum

when calculated and added to the judgment sum is far in excess of the monetary jurisdiction enforceable by the trial Magistrate Court, hence the application to the Court below to enforce the said judgment against the Appellant by Garnishee against the 3rd Respondent, its Banker.
The question here is whether under the extant laws, the Court below, being the High Court of Edo State, has the jurisdictional competence to enforce the monetary judgment of the trial Magistrate Court by means of a Garnishee proceedings as initiated against the 3rd Respondent and the Appellant by the 1st and 2nd Respondents? The extant laws and Rules to be considered and interpreted for the due resolution of this pertinent question, and ultimately the resolution issue one under now under consideration are as follows, namely:
Order II Rule 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012, which provides thus:
“Except for the purpose of Section 44 of the Act and Rule 13 of Order IV, no proceeding in a Magistrate’s Court shall be transferred, for the purpose of enforcing any judgment therein, to the

High Court”.
Section 44 of the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012, which provides thus:
“If sufficient movable property of the judgment debtor can be found in the Federal Territory, Abuja or the state as the case may be to satisfy the judgment and costs and the cost of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the Court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the Court against the immovable property of the judgment debtor in accordance with the provisions of this Act, and any rules under thereunder: Provided that where the judgment has been obtained in a Magistrate’s Court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.”
Order IV Rules 13 of the Judgment Enforcement Rules

which provides thus:
“A writ of sequestration and a writ of interim attachment directed against any immovable property of a defendant or judgment debtor shall not issue out of a Magistrate’s Court, but such writs may issue out of the High Court upon the transfer thereto of the proceedings.”
Order VIII Rules 1, 2 (A) & (B) of the Judgment Enforcement Rules, which provides thus:
1. “Subject to the next succeeding rule, garnishee proceedings may be taken in a Magistrate Court notwithstanding that the debt owing or accruing from the judgment debtor is for an amount exceeding the jurisdiction of that Court.
2. Garnishee proceedings may be taken –
a) In any Court in which the judgment debtor could under the High Court (Civil Procedure Rules) or under the appropriate section or rule governing civil procedure in magistrate’s Court as the case may be, sue the garnishee in respect of the debt or
b) Where the debt is not yet payable or is for such Court, in any Court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable or had not exceed the jurisdiction.

The parties are ad idem that the judgment sought to be enforced is the judgment of the trial Magistrate Court and is being sought to be enforced before the Court below, which had already assumed jurisdiction and granted the Garnishee Order Absolute against the Appellant. Having taken time to ponder on the purport and effect of the above provisions of the extant laws governing the enforcement of judgments, I am strongly persuaded by the apt and unassailable submissions by the learned counsel for the Appellant that in law the Court below, being the High Court of Edo State lacked the jurisdiction to enforce a monetary judgment of the trial Magistrate Court where the enforcement sought does not involve any immovable property as required of it by law. In law jurisdiction, as I had observed earlier in this judgment, is the epicenter of the entire adjudicatory process. Thus, without jurisdiction there is nothing any Court can do to exercise powers it does not possess under the law. Indeed, a Court is incapable of creating or manufacturing jurisdiction for itself merely to hear and determine a matter not within its jurisdiction by law. The Courts are never hungry for

jurisdiction! See Saraki V Frn (2016) LPELR – 40013 (SC); National Bank V. Shoyoye (1977) 5 SC 181; Kalio V. Daniel Kalio (1975) 2 SC 15; Obasanjo & Ors V. Yusuf & Anor (2004) LPELR – 2151 (SC); NDLEA V. Okorodudu (1997) 3 NWLR (Pt. 492) 221 @ 242.
Now, since it is the law no proceeding in a Magistrate’s Court shall be transferred, for the purpose of enforcing any judgment therein, to the High Court except as otherwise permitted in law, it does appear very clear to me, and I so hold, that the Garnishee proceedings initiated by the 1st and 2nd Respondents against the 3rd Respondent solely to enforce the monetary judgment of the trial Magistrate Court against the Appellant was grossly incompetent. Thus, the Court below was wrong when it assumed jurisdiction not only to hear but had also proceeded to determine the same without any iota of jurisdiction under the extant applicable laws and Rules. See Order II Rule 25, Order IV Rule 13 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012. See also Section 44 of the Sheriff and Civil Process Act; Rule 13 of Order IV; C.G.G. (Nig) Ltd V Ogu

(2005) 8 NWLR (Pt. 927) 366; Ansa V. R.T.P.C.N. (2008) 7 NWLR (Pt. 1086) 421 @ pp. 438-439; Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266; State V. Onagoruwa (1992) 2 NWLR (Pt. 221) 33.
Having taken time to consider the contending submissions of counsel for the parties on the applicable law, it is my view, and I so hold, that Order II Rule 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012 is the applicable law and it expressly provides that except for the purpose of Section 44 of the Act and Rule 13 of Order IV, no proceeding in a magistrate’s Court shall be transferred, for the purpose of enforcing any judgment therein, to the High Court, subject however to the power of enforcement by a High Court of the judgment of a Magistrate Court where the judgment has been obtained against an immovable property upon the conditions and in the manner prescribed by law. See Section 44 of the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012.
It is very clear that the word used in the above provision of the applicable law is ‘shall’, whose interpretation as to

its purport and meaning or implication no longer poses any difficulty to the Courts. Thus, in law, once the word ‘shall’ is used in a Statute or Rules of Court it connotes mandatory and must be complied. It does not brook any deviation and therefore, a failure to do so will render such proceeding or act incompetent and liable to be struck out. I find therefore, that the judgment and Order Garnishee Absolute made by the Court below over the monetary judgment of the trial Court were reached and made without any requisite jurisdiction, and thus null and void and of no legal consequences whatsoever. It is like it was either never made or it never ever existed. It is liable to be set aside ex – debi to justitiae at the instance of the Appellant and or any other person affected by it without much ado. See Order II Rule 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012. See also Animashaun & Anor V. Ogundimu & Ors (2015) LPELR – 25979 (CA); Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209) 513 @ p. 589; John V Igbo-Etiti Local Government Area (2013) 7 NWLR (PT.1352) 1.

My lords, I even find it so curious that the trial Magistrate cognizance or supposedly cognizance of the limit of its monetary jurisdiction would proceed to hear and determine a matter and award monetary amounts together with interest whose calculation would be far in excess and way beyond its monetary jurisdiction and thereby creating the self- induced fiasco of a scenario to warrant the enforcement of its monetary judgment against the judgment debtor before the Court below, even against the outright prohibition of same by the Sheriff and Civil Process Act and the Judgment Enforcement Rule made pursuant to the said Act. In very simple and clear terms, the judgment of the Court below is a nullity, and I so hold. See Nigerian Breweries Plc V. Dumuje & Anor (2015) LPELR – 25583(CA).
I have in coming to the conclusion above taken time to consider the various submissions of who in law are the proper and or necessary parties to a Garnishee proceedings, and suffice for me to say that on the current state of the law a judgment debtor, whose money is to be garnisheed in a garnishee proceeding, is not and cannot be regarded in good conscience as nominal

party in so strict a technical sense of the word ‘party’ but rather he is a necessary party in that he is entitled by law not only to be served with the Garnishee Order Nisi but also to participate on the return date for the Garnishee to show cause why the Garnishee Order Nisi should not be made Absolute. See Fidelity Bank Plc V. Okwuowulu (2012) LPELR – 8497 (CA); CBN V. Auto Import Export (2013)2 NWLR (Pt. 1337) 80 @ p. 127.
I agree with the apt and very unassailable submission of the learned counsel for the Appellant that Order VIII Rule 1, 2(A) and (B) of the Judgment Enforcement Rules, heavily relied upon by the learned counsel for the 1st and 2nd Respondents, the true position of the law is that whilst a judgment of a High Court can be enforced by both the High Court itself and a Magistrate Court and while a Magistrate Court can enforce its own judgment delivered within its jurisdictional competence as to subject matter and monetary limit, a High Court cannot and does not have the jurisdiction to enforce a monetary judgment of a Magistrate Court, except where such enforcement bothers only on enforcement on an immovable property of a

Judgment Debtor in the light of the very clear express provisions of Order II Rules 25 the Judgment Enforcement Rules by which the High Court is expressly forbidden from enforcing the judgment of a Magistrate Court except in respect of enforcement on immovable property. This to my mind, and I so hold, is the true purport of the use of the word ‘shall’ in Order II Rule 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012. See Babatope & V. Sadiku & Anor (2017) LPELR – 41966(CA), where Georgewill JCA., had opined inter alia thus:
“The word ‘shall’ have received countless pronouncements of the Apex Court and this Court as to its interpretation when used in an enactment or rules of Court. It is almost in all case, interpreted as denoting a command. It is never a word that gives room for deviation or option. It requires strict compliance since it is obligatory. In Ugwu & Anor V. Ararume & Anor (2007) 6 SC (Pt.1) 80 @P.88, the Supreme Court, in interpreting the meaning of the word “Shall” when used in an enactment, had succinctly stated inter alia

this: “Generally, when the word ‘shall’, is used in a statute, it is not permissive. It is mandatory. The word “shall” in its ordinary meaning is a word of communal, which is normally given compulsory meaning because it is intended to denote obligation.”
See also Tamti D.U. v. Nigeria Customs Service Board & Anor (2008) LPELR – 8490(CA).
Having therefore, arrived at the inescapable conclusion in the resolution of issue one now under consideration that the Court below lacked the requisite jurisdiction to hear and determine the Garnishee proceedings initiated by the 1st and 2nd Respondents against the 3rd Respondent in respect of the judgment debts due payable by the Appellant arising from the judgment of the trial Magistrate Court, the judgment of the Court below, including the Garnishee Order Absolute have become sheer nullity and liable to be set aside, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance this lack of competence of the 1st and 2nd Respondents;

Garnishee proceedings and proceed to consider the other two issues for determination or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent cause or matter, which is liable to be terminated in limine?
In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See

Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541. See also Mrs. Susan Olapeju Sinmisola Olley V. Hon. Olukolu Ganiyu Tunji & Ors. (2013) 10 NWLR (Pt. 1362) 275; Madukolu V. Nkemdilim (1962) 1 All NLR 587.
I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the 1st and 2nd Respondents’ Garnishee proceedings initiated and conducted to a resounding successful conclusion before the Court below was grossly incompetent in law. In the circumstances therefore, I hereby resolve issue one in favor of the Appellant against the 1st and 2nd Respondents, and hold firmly that the appeal has great merit, even on this score alone, and therefore, ought to be allowed.

ISSUE TWO
Whether in the circumstance of this case the Appellant was denied fair hearing?

APPELLANT’S COUNSEL SUBMISIONS
On his issue two, learned counsel for the Appellant had submitted that the Court below was under a firm duty to determine all applications properly filed before it before giving judgment or ruling and contended that failure to do so is fatal

to the whole proceedings, as well as the judgment or ruling delivered there from and urged the Court to hold that the Court below breached the right to fair hearing of the Appellant when it failed to hear and determine its pending application before proceeding to entering judgment against it and to allow the appeal and set aside the judgment and Orders of the Court below. Counsel relied on Oteju V. Magma Maritime Services Ltd. (2000) 1 NWLR (Pt.640) 331 @ p. 344; Dasofunjo V. Ajiboye (2017) LPELR- 42354 (CA); Nalsa and Team Associates V. NNPC (1991) 8 NWLR (Pt. 212) 652; Akpan vs. Bob (2010) 17 NWLR (pt 1223) 412; Irolo vs. Uka (2002) 14 NWLR (Pt 786) 195 @ 225; Emeka vs. Okadigbo & Ors (2012) LPELR 9338 (SC); FCMB Ltd vs. Abiola & Sons Bottling Co. Ltd (1991) 1 NWLR (Pt 165) 14; Newswatch Comm. Ltd vs. Atta (2006) All FWLR (Pt. 318) 580; Asamu vs. Lawanson (2014) LPELR 24416 (CA). This Court in the case of Sambo vs. Solomon Okon & Ors (2013) LPELR 20394 CA

It was also submitted that by the failure of the Court below to hear the Appellant’s pending motion before delivering its judgment, it denied the Appellant of its right to

fair hearing and contended that in law it vitiates not only the judgment delivered, but the whole proceedings as it was wrong for the Court below, fully aware of the pending application filed before it by the Appellant, to refuse to hear and determine it one way or the other before proceeding to enter its judgment and making the Orders it made and urged the Court to hold that all the proceedings and judgments and order absolute made by the Court below are all nullity and thus liable to be set aside and should be set aside in the interest of justice having been rendered null and void by reason of the brazen breach of the Appellant’ right to fair hearing. Counsel relied on EFCC V. Akingbola (2015) LPELR – 24546(CA) @ pp. 52-54.

It was further submitted that assuming without conceding that copy of the Appellant’s application was not yet in the Court’s file at the time the Court sat and delivered its judgment, the learned counsel for the Appellant having raised the issue orally before the Court below and having properly served the application on the Respondents, the Court below ought to put any of its Registrars that is not doing his job on its

toes and not visit the sin of the Court registrar on the Appellant and contended that the failure to have the Appellant’s application into the Court’s file was not within the responsibility of the Appellant and ought not to have resulted into the non-hearing and determination of its application by the Court below before it proceeded to deliver its judgment during the pendency of the Appellant’s application and urged the Court to so hold and to allow the appeal and set aside the null judgment and Orders of the Court below. Counsel relied on United Bank For Africa V. Ujor (2001) 10 NWLR (Pt. 722) 589 @ 607.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On issue two, learned counsel for the 1st and 2nd Respondents had submitted that the Appellant’s application filed on 16/5/2017 was not brought to the attention of the Court below neither was it filed in line with the Rules of the Court below and contended that in law though a Court is duty bound to rule on every application argued before it and failure to do so amounts to a dereliction of duty, it is only an application properly pending and brought to the notice of the

Court and which was not heard that can give rise to such a failure and the drastic consequences of denial of the right to fair hearing of the Appellant and urged the Court to hold that failure was not made out against the Court below and to dismiss the appeal as there has not been established any breach of the Appellant’s right to fair hearing against the Court below. Counsel relied on Arabi V. State (2001) 5 NWLR (Pt. 706) 256 @ p. 271; Ekpeto V. Wanogho (2004) 18 NWLR (Pt. 905) 394 @ p. 412.

It was also submitted that it was a dereliction of duty for the Appellant’s lawyers not to be up and doing to making sure their application was in the pack of case file reserved for judgment and contended that in law filing an application a day before a pending judgment date amounts to an arrest of judgment, which is unconstitutional and merely intended to frustrate the due delivery of the reserved judgment and urged the Court to hold that there was not any breach of the Appellant’s right to fair hearing by the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Ukachukwu V. PDP (2014) NWLR (Pt.

1396) 65 @ p. 86; Newswatch Communication Ltd V Atta (2006) 12 NWLR (Pt. 993) 144; ACB V. Emedo (2003) 10 NWLR (Pt. 828) 244 @ pp. 256-257; Vanguard Nigeria Ltd V. AJOKU (2003) 11 NWLR (Pt. 831) 437 @ p. 448; Ejeka V. State (2003) 7 NWLR (Pt. 819) 408 @ p. 421.

It was further submitted that the Appellant’s application filed on 16/5/2017 merely intended to arrest the reserved judgment of the Court below already fixed for delivery on 17/5/2017 amounted to an abuse of Court process and was thus liable to be dismissed without much ado and urged the Court to consider the said application as in the oriented record and to dismiss same for being an abuse of Court process and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Okorodudu V. Okoromadu (1977) 11 NSCC 106; Owonikoko V. Arowosaiye (1997) 10 NWLR (Pt. 523) 61 @ p. 78; Dingyadi V. Independent National Electoral Commission (No.2) (2011) 18 NWLR (Pt. 1224) SC 154; Zenith Bank V Arthur John (2015) 7 NWLR (Pt. 1458) 393 @ p. 424; Alex V. FRN (2018)7 NWLR (Pt.1618) 228 @ p. 244.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for

the Appellant had reiterated virtually all his earlier submissions in the Appellant’s brief and submitted further that the pendency of the Appellant’s application was duly brought to the notice of the Court below before it regardless of its pendency proceeded to deliver its judgment with hearing and determining, for whatever it was worth, the said pending application and contended that the failure to do so by the Court below clearly amounted to a brazen breach of the Appellant’s right to fair hearing and consequently vitiated the subsequent judgment delivered by the Court below and urged the Court to so hold and to allow the appeal and set aside the null judgment of the Court blow.

RESOLUTION OF ISSUE TWO
My Lords, the fulcrum of issue two is the vexed issue of when in law can the proceedings and or judgment or ruling of a Court be said to be in breach of the right to fair hearing as constitutionally guaranteed to the citizen in the determination of his civil rights and obligations? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See Ekpenetu V. Ofegobi

(2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522.
Now, by Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which guarantees the right of the citizen to fair hearing, it is provided thus:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In considering whether or not a proceeding or judgment or ruling of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach

of the party’s right to fair hearing.
The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensue from the conduct of the Court in the hearing of a case or in the judgment of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144. See also Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572; A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede v. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment or ruling of such a Court, notwithstanding the merit or otherwise of the

cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642, where Ngwuta JSC, had pronounced emphatically thus:
“As for the related complaint of denial of right to fair hearing, my lord Chukwuma Eneh JSC had this to say: “There can be no doubt from the foregoing that fair hearing has become the whipping principles for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised only seriously and not lightly.” I agree with his Lordship.”
See also Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078)

465 @ p. 503; Uzodinma V. Izunaso (N0. 2) (2011) 17 NWLR (Pt. 1275) 30; Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 531; Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40; Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642.
Now, before the Court below the Appellant filed an application by way of Motion on Notice on 16/5/2017 praying for the following reliefs, namely:
1. An Order striking out the Garnishee proceedings as instituted by the judgment creditor in its entirety.
2. And for such further or other orders as the Court may deem to make in the circumstances. See pages 53 – 54 of the Record of Appeal.
The Application was duly served on the Respondents on the same date it was filed and the Respondents did not deny being served with the said application by the Appellant. The application was supported by an affidavit of 11 paragraphs deposed by one Oluwagbenga Ige, wherein it was deposed inter alia thus:
4. That on 28/2/2017, the judgment creditor/respondent obtained a garnishee order nisi against the judgment debtor, to enforce a judgment delivered on the 15th day of

December, 2016, Her Worship F. I. Oghoator (Mrs.) Chief Mag. SP. GD.
5. That the judgment debtor/applicant was not aware that a matter of this nature was instituted in any Court not to talk of judgment as no Court process was served on the judgment debtor/Applicant’s company.
6. That the garnishee proceeding as instituted by the judgment creditor constitutes an abuse of Court process because it ought not to have been instituted in this Court.
7. That the garnishee proceedings ought not to have been brought as a fresh action with a different suit number from the original suit number on the judgment sought to be enforced.
8. That the garnishee proceedings ought to have been instituted at the magistrate Court being the Court where the judgment was delivered.
9. That I verily believe that the provisions of the law have not be complied with and that this is fundamental, by reason of which, this Honorable Court ought to strike out the proceedings in its entirety. See pages 55 – 56 of the Record of Appeal
Earlier, on 21/3/2017, the Court below heard the parties in an earlier motion filed by the Appellant on 6/3/2017 and

thereafter adjourned the matter to 17/5/2017. Now, while matter was pending for ruling on 17/5/2017, on 16/5/2017, the Appellant filed a Motion on Notice challenging the competence of the 1st and 2nd Respondents’ Garnishee proceeding and duly served same on the 1st and 2nd Respondents. However, on 17/11/2017 the Court below, without countenancing the Appellant’s said application, proceeded to deliver its ruling making the Garnishee Order Nisi Absolute, holding inter alia thus:
“This Ruling is predicated on a Motion on Notice dated and filed on 06/03/2017 on behalf of the Judgment debtor/applicant… That the Garnishee has searched diligently through the records and the record shows that the Judgment/Debtor has sufficient funds in its account. The net effect is that the Garnishee is not opposed to the Order Nisi being made absolute. In this regard, having dismissed the application to set aside the Garnishee Order Nisi, there is nothing before the Court inhibiting it from making the garnishee Order Absolute. In the circumstance, I hereby make the Garnishee Order Nisi made on 28/2/2017 ABSOLUTE.” See pages 40 – 52 of the Record of Appeal.

My lords, it is a cardinal principle of our administration of justice that all applications properly brought before the Court must be heard and in law a party to a cause or matter is entitled and must be given the opportunity to be heard before a decision affecting his rights and obligation can be given either for or against him. It is thus the law that though a Court is enjoined to hear and determine every application before it notwithstanding how outrightly frivolous or patently irritating to the Court it may be, yet it is also the law that it is not in all cases that failure of a Court to hear and determine every application before delivering its judgment that is fatal to the proceedings and the judgment delivered therein.
The real essence of this principle of law is to ensure that by the failure to hear and determine the pending application, the Court has not occasioned any breach of the right to fair hearing of the party or miscarriage of justice to the party. It follows therefore, where either both or any of these twin elements are absent, a failure to hear and determine a pending application before delivery of judgment or ruling

would not render the judgment or ruling a nullity. See Nalsa and Team Associates V. NNPC (1991) 7 NWLR (Pt.212) 652. See also Prince John Emeka V. Lady Margery & Ors (2012) LPELR – 9338(SC).
It is principally for the above reason, amongst others, that the law is and has always been that a Court of law must not only hear, consider and determine all and every applications pending before it but must also consider and pronounce on all issues arising and properly submitted before it for determination by the contending parties. Generally, issues for determination are formulated by the parties and or the Court. Thus a Court is at liberty, and possesses the jurisdiction, to modify or reject all or any of the issues formulated by the parties, and frame its own issues or reframe the issues formulated by the parties, if in its view, such issues will not lead to a proper determination of the case.
It is worth being reiterated and repeated even if for the umpteenth time that in law every application filed before a Court of law must be heard and determined by the Court no matter how frivolous it may be. See FAAN V. WES (Nig.) Ltd

(2011) 8 NWLR (Pt. 1249) 219 @ p. 237, where it was held inter alia thus:
“The process may be a downright abuse of the judicature as an institution. It may be stupid, reckless, irregular, aberrant or unmeritorious, but still, the Court must hear it and rule on it… The position of the judgment of the Court below is a nullity as it failed to do what it ought to have done in the first place i.e. treating an impending application process before it. That judgment is liable to be set aside and to accordingly to so do.”
Also in Ani V. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 @ p. 120, this Court had per Niki Tobi JCA., (as he then was, later JSC and now may God bless his soul) succinctly observed inter alia thus:
“A Court of law and indeed a Court of equity have neither jurisdiction nor discretionary power not to take a process before it, whatever may be its pre-trial opinion on it. The process may be a downright abuse of the judicature as an institution or judicialism. It may be stupid, reckless, irregular, aberrant or unmeritorious; the Court must hear it and rule on it”.

See also Dingyadi V. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 @ p. 53; Mobil Oil (Nig.) Unlimited V. Monokpo (2003) 18 NWLR (Pt.852) 346 @ pp. 413 – 414; AG. Rivers State V. AG. Akwa Ibom State (2011) NWLR (Pt. 1248) 31 @ p. 165.
Now, while a Court may have a choice to reformulate issues and must certainly determine such issues arising for determination, it must, and is under a bounden duty, indeed an obligation, to hear, consider and determine in one way or the other every application filed by parties before it and in this it has no choice to refuse or neglect or fail to hear and determine application pending before it, no matter how frivolous or unmeritorious or even vexatious the application might be. A Court which finds that an application is frivolous or vexatious or unmeritorious has indeed determined such an application, whether rightly or wrongly, but to fail or neglect or deliberately refuse to do so one way or the other is unjust and clearly would amount to a breach of the constitutionally enshrined right to fair hearing of the party whose application was either outrightly not heard or even heard but not determined or pronounced upon. It would clearly be a failure of duty on

the part of such a Court. See AG Federation V. Nse (2016) LPELR- 40518 (CA). See also Adebayo V. AG of Ogun State (2008) 7 NWLR (Pt. 1055) 201; Dawodu V. National Population Commission (2000) 6 WRN 116 @ p. 118.
I have taken a calm look at the ruling of the Court below delivered on 17/5/2017 as touching on the complaints of breach of fair hearing of the Appellant in relation to the Motion on Notice filed on 16/5/2017 challenging the competence of the 1st and 2nd Respondents, and it does appear to me that no matter how zealous the Court below seems to portray itself it ought not to be bothered only about its ruling already fixed for 17/5/2017 but also to consider an application, no matter how frivolous it may be, challenging the competence of the entire Garnishee proceedings set in motion by the 1st and 2nd Respondents to pave way for the delivery of its ruling. In so doing, it would not have mattered how brisk that the Appellant’s said Motion is heard or how terse the ruling thereon might be. It was thus not right for the Court below to abandon and jettison the very application challenging the competence of the proceedings on which it was about

deliver its ruling, which by implication is also challenging the competence of the Court below itself.
My lords, an application such as the one filed by the Appellant which borders on the issue of jurisdiction and alleging abuse of Court’s processes, is not one which can just be brushed aside with a wave of the hand under the guise of it amounting to an arrest of the already scheduled ruling of the Court below. I make bold to say that even an application expressly seeking to arrest a ruling or judgment should be heard and disposed – off even if summarily to pave the way for the delivery of the ruling or judgment. In my finding therefore, on 17/5/2016 the Court below ought to and was indeed under a duty to pronounce upon and determine the Appellant’s application filed on 16/5/2017 before proceeding to deliver its ruling rather than to keep in everlasting limbo to await perhaps the resurrection day. It is my view that no Court has such a discretion to treat with so much levity the determination of the rights of a parties which had been properly placed before it by way of an application seeking reliefs to which they may or not be entitled but

which nonetheless the Court has a duty to determine and pronounce upon one way or the other.
Our attention was drawn to the decision of the Apex Court in Newswatch Communication Ltd V. Atta (2006) 12 NWLR (Pt. 993) 144, where the Applicant filed a motion to adduce oral and documentary evidence and open defence after the case has been adjourned for judgment. The Appellant was not allowed to formally move the application by the trial Court. The appellant/Applicant appealed to the Court of Appeal and this Court on the ground that it was denied the right to fair hearing by the trial Court by not allowing it to formerly move its application was dismissed by the Court of Appeal. Still dissatisfied, the appellant appealed to the Supreme Court which unanimously dismissed the appeal. His lordship Niki Tobi JSC (God bless his soul) had at @ page 170, opined inter alia thus:
“There still remains a point and it is the refusal of the learned trial judge to hear counsel move the motion. Can that vitiate or nullify the decision of the learned trial judge? I think not. Although the learned trial judge did not formally hear counsel on the motion, he really

considered it in the judgment and came to a conclusion that I cannot fault. In my view, there is no miscarriage of justice by not formally hearing the counsel in the peculiar circumstances of this case and the peculiar circumstance is that the learned trial judge thoroughly considered the motion and gave a brilliant judgment which I cannot fault. If what I have said above is no enough to justify the decision of the learned trial judge, I will invoke the powers conferred on this Court by Section 22 of the Supreme Court Act and the impact of the invocation of the section is that I place myself in the position of the trial judge. In coming to the same conclusion, I have carefully, read the affidavit in support of the motion and I do not see any merit. Has the appellant suffered any injustice in my action, I do not see any injustice? Looking at this issue from all possible angles, I am of the firm view that it must fail and it accordingly fails.”
My lords, the application though not formally heard by the trial Court was deemed by the Apex Court to have been ruled upon even if impliedly by the Lower Court and then the Apex Court itself went ahead to invoke its

powers to hear and determine the application against the Appellant. The point to be taken away here is that no matter how frivolous the application, solely in that intended to arrest the judgment of the Court was, it was still referred to by the Court in its judgment and on appeal to the Apex Court it was formally considered and expressly determined and pronounced upon by way of a dismissal. This is the fine distinction between that case and the instant case, where no reference was even made to the Appellant’s Motion on Notice filed on 16/5/2017.
In the circumstances of this appeal in the light of the position of the law as discussed above, I find that the Appellant having through its counsel filed the motion on 16/5/2017 and duly served the 1st and 2nd Respondent with same, of which there was no denial of due service, had done all he ought to do to get the process into the Court file as it is certainly not his further duty to take the processes duly filed by him and put into the case file of the Court below. I believe that is the exclusive duty of the staff of the Registry, the Registrar, of the Court below and thus, in my finding, a

failure in that regard, being not the fault of neither the Appellant nor attributable to the fault of his counsel cannot be justly an fairly visited on the Appellant. That, in my view, and to say the least would be unjust and outright injustice to the Appellant. See United Bank For Africa V. Ujor (2001) 10 NWLR (Pt. 722) 589 @ p. 607, where Opene JCA., had opined inter alia thus:
“It is not the duty of counsel after filing a suit, or motion or any document in the high Court registry and also after paying the necessary fees to see that those processes are in the judge’s file.”
In the circumstances therefore, I hold that the Court below failed in its duty to hear and determine all pending applications, no matter how frivolous, one way or the other before proceeding to enter its final judgment, particularly an application challenging, whether frivolously or not, the competence of the very suit and its jurisdiction to determine it before proceeding to delivering its judgment. Consequently, this failure is fatal to the entire Garnishee proceedings, as well as the judgment and the Garnishee Order Absolute made thereon by the Court below having been

reached in breach of the Appellant’s right to fair hearing, and therefore, null and void, and thus liable to be set aside and the appeal ought to be allowed. See EFCC V. Akingbola (2015) LPELR – 24546 (CA) @ pp. 52-54. Oteju V. Magma Maritime Services Ltd. (2000) 1 NWLR (Pt.640) 331 @ p. 344; Dasofunjo V. Ajiboye (2017) LPELR- 42354 (CA); Nalsa and Team Associates V. NNPC (1991) 8 NWLR (Pt. 212) 652; Newswatch Comm. Ltd vs. Atta (2006) All FWLR (Pt. 318) 580.
In my finding therefore, the failure or neglect or deliberate refusal of the Court below to determine the Appellant’s application filed on 16/5/2017, for whatever it is worth and or no matter how worthless it may be, amounted to an outright denial of the right of the Appellant to fair hearing as constitutionally guaranteed to it by law and such a ruling, being a nullity, cannot stand. The right to fair hearing is sacrosanct and therefore, cannot be lightly disregarded or discarded by the Court. It is indeed one of the pillars on which the concept of justice and fairness is built. The Court, which is always to hold the balance of justice between the parties in their quest for

justice, cannot and should not make it a habit of denying a party of his right to fair hearing as constitutionally guaranteed under Section 36 ((1) of the Constitution of Nigeria 1999 (as amended). See Ceekay Traders Ltd. V. General Motors Ltd. (1993) 2 NWLR (Pt. 222) 132. See also Mains Ventures Co. Ltd. V. Petroplast Industry Ltd. (2000) 4 NWLR (Pt. 651) 151 @ p. 165; Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 530.
In the circumstances therefore, and having considered all the facts and submissions of counsel on this issue of allegation of breach of fair hearing by the Appellant against the decision of the Court below, I hold firmly that the Appellant was denied its constitutionally guaranteed right to fair hearing by the unwarranted and unreasonable refusal and or failure of the Court below to determine the Appellant’s application filed on 16/5/2017 one way or the other as required of the Court below by law. The right to fair hearing, and indeed to be fairly heard, is not a cosmetic right but a fundamental one and must be scrupulously observed by the Courts. I have no difficulty whatsoever therefore, resolving issue two in favor of the

Appellant against the Respondents, particularly the 1st and 2nd Respondents.

ISSUE THREE
Whether the Appellant was duly served with The Garnishee Order Nisi?
My lords, having found that the entire Garnishee proceedings, judgment and Garnishee Order Absolute made by the Court below are a nullity and thus liable to be set aside, issue three has become, in my view, merely academic. This is so because no matter whichever way it is decided it would no longer have any crucial effect on the outcome of this appeal. In other words, whether the Appellant was properly served or not served at all becomes of no significance once it has been found that the Court not only had no jurisdiction to hear and determine the Garnishee proceedings but had also acted in brazen breach of the Appellant’s right to fair hearing, both of which sins had combine to render the entire Garnishee proceedings, judgment and Orders of the Court below without any redemption in law and thus liable to be set aside. Consequently, issue three is hereby discountenanced as no longer going to any real issue crucial to the just and fair determination of this in this appeal.

But for whatever it is worth, upon a due consideration of both the affidavit of service of the Garnishee Order Nisi on the Appellant as in the Record of Appeal and in the absence of any serious and effective affidavit of non – service, except the bare denial of service by the Appellant, the submissions of learned counsel for the respective parties, I have no difficulty finding as fact that the Appellant was properly served with the Garnishee Order Nisi as required by law. In law an affidavit of service is prima facie evidence of proof of service though rebuttable but and unless and until it is rebutted, which the Appellant failed woefully to do, it is evidence of good and proper service, and I so hold. Consequently, issue three, if were still a live issue, would be resolved by me against the Appellant in favor of the 1st and 2nd Respondents.

However, in the light of my reasoning above, and by way of ex – abundandi cautela, for the avoidance of doubt, issue three is hereby resolved against the Appellant in favor of the 1st and 2nd Respondents.

On the whole therefore, having resolved issues one and two in favor of the Appellant against the

1st and 2nd Respondents, and having resolved issue three against the Appellant in favor of the 1st and 2nd Respondents, I hold that the Appeal has merit and ought to be allowed. Consequently, I hereby so allow it.

In the result, the Ruling of the High Court of Edo State, Coram; M. N. Asemota J., in Suit No. B/21/M/2017: Euagie Alex & Anor V. Dangote Cement Plc., & Anor., delivered on 17/5/2017, in which the Garnishee Order Nisi was made Garnishee Order Absolute against the Appellant’s monies in the custody of the 3rd Respondent in favor of the 1st and 2nd Respondents, without jurisdiction and in which the Appellant’s application filed on 16/5/2017 was neither determined nor pronounced upon is hereby set aside.

In its place, the 1st and 2nd Respondents’ Suit No.B/21/M/2017: Euagie Alex & Anor V. Dangote Cement Plc. & Anor. is hereby struck out for being incompetent.
There shall be no order as to cost

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Sir BIOBELE ABRAHAM GEORGEWILL, JCA. I agree with the

reasoning and conclusions of my learned brother.
For all the reasons advanced in the leading judgment, I allow the appeal in the manner set out by my learned brother.
I abide by all the orders made in the leading judgment.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have read the draft of the lead judgment just delivered by my learned brother, Honourable Justice BIOBELE ABRAHAM GEORGEWILL, JCA, wherein the appeal was found to meritorious and was consequently allowed.
I am in agreement with the reasoning and conclusion therein. I too allow appeal for it has merit.
No order as to costs is made, parties are to bear their Appeal
Appeal succeeds.

Appearances:

Oluwagbenga Ige Esq. For Appellant(s)

President Aigbokhan Esq. – for the 1st & 2nd Respondents
The 3rd Respondent, though served with hearing notice on 12/11/2020, was not represented by counsel. For Respondent(s)

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DANGOTE CEMENT PLC v. ALEX & ORS (2020)

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