DELTA STATE GOVERNMENT v. KAY QUE INVESTMENT LIMITED & ANOR
(2018)LCN/12415(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of April, 2018
CA/L/791/2014
RATIO
COURT AND PROCEDURE: GARNISHEE PROCEEDINGS
“It is obvious that the proceedings leading to the present appeal is the aftermath of the garnishee order nisi. And the correct position of law is that in garnishee order nisi proceedings, due to the nature of the ex parte application employed in commencing same, the proceedings involves only the Judgment Creditor, with the Garnishee subsequently expected to appear before the Court on a named date to show cause why the funds due, to the Judgment debtor in the custody of the Garnishee should not be attached. See Section 83 of the Sheriffs and Civil Process Act. See also BAUCHI STATE WATER BOARD & ORS v. G. P. NIGERIA LIMITED (Unreported APPEAL No. CA/L/202M/2011) where this Court held inter alia that “in garnishee order nisi proceedings, which are ex parte in nature; only the Judgment Creditor and the Garnishee, are parties of this stage. A Judgment debtor is at best an interested party, who by law must obtain leave to appeal against an order nisi…” See also NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v. STEPHEN ADIODER & ORS (Unreported APPEAL NO. CA/C/45/2009).” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
DELTA STATE GOVERNMENT Appellant(s)
AND
1. KAY QUE INVESTMENT LIMITED
2. FIRST CITY MONUMENT BANK PLC Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Lagos State delivered by Olayinka J. (Mrs.) on the 11th day of July, 2013. The Judgment is found at pages 15-16 of the Records of Appeal. The facts grounding this appeal are that the lower Court on the 11th day of July, 2013 made a Garnishee Order Absolute following a Garnishee Order Nisi made by the Court on the 10th day of September 2012, after the Garnishee Order Nisi was made and before the Garnishee Order Absolute, the Appellant (Judgment-Debtor) filed an Application dated 23rd November, 2012 seeking to set aside the Order Nisi, and on the 18th day of March, 2013, the lower Court dismissed the Appellant’s (Judgment-Debtor’s) Application to set aside the Order Nisi. Consequently, the Appellant (Judgment-Debtor) filed an appeal against the Ruling of the lower Court refusing to set aside the Garnishee Order Nisi.
The Appellant also filed a Motion dated 2nd April, 2013 before the lower Court seeking for an order staying the Garnishee Proceedings.
The Affidavit filed on the 9th day of July, 2013 in support of the Motion dated 2nd April, 2013 is contained at pages 8-9 of the Records of Appeal. The Motion was also dismissed by the lower Court in the Ruling delivered on the 6th day of May, 2013 as found at pages 1-3 of the Records of Appeal. The Appellant (Judgment-Debtor) then filed another Motion for Stay of the Garnishee Proceeding before this Court on the 21st day of May, 2013 as contained at pages 10-14 of the Records of Appeal. Notwithstanding the foregoing, the lower Court made the Garnishee Order Absolute on the 11th day of July, 2013.
Nettled by the judgment of the Court below, the Appellant filed a Notice of Appeal dated 15th July, 2013, which is contained at pages 19-21 of the Records of Appeal, premised on sole ground of appeal. The Appellants’ Brief of Argument was settled by learned counsel, N. P. Osaemedike-Okeke (Mrs.) on the 8th day of March, 2016. The Appellant also filed a Reply Brief on the 12th May, 2017 which was deemed as properly filed and served on the 22nd January, 2018. The 1st Respondent on the other hand filed its Brief on the 21st day of April, 2017 through learned counsel, S. O. Saka, Esq.; it was deemed as properly filed and served on the 25th April, 2017. The 2nd Respondent filed no Brief of argument.
Learned counsel for the Appellant formulated a sole issue for determination in this appeal, the sole issue is reproduced as follows:
Having regard to the pendency of an Appeal against the Order Nisi of the lower Court and an application/motion for Stay of proceedings at the Court of Appeal, whether the Lower Court was not in error in ignoring the said processes in [sic]
The 1st Respondent equally distilled a corresponding sole issue for determination also reproduced below as follows:
Whether the lower Court was right when it proceeded to grant the Garnishee Order Absolute notwithstanding the pendency of appeal in respect of the Garnishee Order Nisi and an application for stay of further proceedings by the Appellant before this Honorable Court.
SUBMISSIONS OF COUNSEL
Learned counsel for the Appellant referred to ABACHA v. FAWEHINMI [2000] 4 SC (Pt. II) Pg. 1 to submit that once a lower Court becomes aware of the pendency of an appeal against its order or decision or a motion seeking to stay proceedings at the appellate Court, the proper thing to do is to stop so that a situation of helplessness is not foisted on the Superior Court. Counsel referred to the proceedings of the lower Court contained at pages 4-7 of the Record of Appeal to submit that the Appellant was completely shut out, and that the lower Court despite being aware of the pendency of the appeal in Appeal No. CA/L/390/13 and the Application for stay of proceedings before this Court proceeded to pronounce the Garnishee Order Absolute.
Learned counsel also relied on the decision in NIGERIAN ARAB BANK v. COMEX LTD [1999] 16 NWLR (Pt. 608) Pg. 648 at 655-566 to submit that the lower Court ought to have washed off its hand temporarily from the case, and that the decision to make the Garnishee Order Absolute occasioned a miscarriage of justice on the Appellant. Counsel referred to NIGERIAN BREWERIES PLC v. DUMUJE (2015) LPELR-25583 (CA); FIDELITY BANK v. OKWUOWULU [2013] 5 NWLR (Pt. 1349) Pg. 197 at 213; C.B.N. v. AUTO IMPORT/EXPORT [2013] 2 NWLR (Pt. 1337) Pg.80 at 126; VASWANI v. SAVALAKH [1972] 12 (SC) Pg. 77; A. M. CO. NIG. LTD v. VOLKSWAGEN NIG. LTD (2012) 11 NWLR (Pt. 1312) pg. 405 and DAWSON v. PRESTON [1955] 1 WLR pg. 1219 at 1221 to submit that the Judgment-Debtor is a necessary party in the Garnishee Proceedings.
Learned counsel cited LEADERS & COMPANY v. KUSAMOTU [2008] All FWLR (Pt. 405) Pg. 1800 at 1812-1814, paras H-G; DAEWOO NIGERIA LTD v. HAZCON NIGERIA LTD [1998] 7 NWLR (Pt. 558) Pg. 437 at 446-448 and VAB PETROLEUM INC v. MOMAH [2014] All FWLR (Pt. 712) Pg. 1677 to submit that once an appeal has been entered the jurisdiction of the trial Court recedes into abeyance until the appeal is heard and determined and that the lower Court’s jurisdiction to adjudicate over this matter became subsumed in the powers of the Court of Appeal from the date the appeal was entered. Counsel relied on ARUBO v. AIYELERU [1993] 3 NWLR (Pt. 280) pg. 126 to urge this Court to nullify and set aside the decision of the trial Court and set aside the Garnishee Order Absolute as it occasioned a miscarriage of justice on the Appellant.
Learned counsel for the 1st Respondent while submitting on the sole issue referred to WEMA BANK PLC v. BRASTEM-STERR NIGERIA LIMITED & ANOR [2011] 6 NWLR (Pt. 1242) Pg. 58 at 79; RE: DIAMOND BANK LIMITED (2002) 17 NWLR (Pt. 795) Pg. 120 at 133 and HON. JUSTICE DENTON-WEST v. CHUKS MUOMA [2008] 6 NWLR (Pt. 1083) Pg. 418 at 447 to submit that the lower Court was right to have held that the Garnishee proceedings is between the Judgment-Creditor and the Garnishee (2nd Respondent) and that in the instant case, the Garnishee (2nd Respondent) is satisfied with the Garnishee Orders Nisi and Absolute as none of the Orders was appealed against by the 2nd Respondent.
Learned counsel submitted that an appeal does not operate as a stay of execution or stay of proceedings. Counsel referred this Court toPURIFICATION TECHNIQUES NIGERIA LIMITED v. ATTORNEY GENERAL OF LAGOS STATE [2004] 9 NWLR (Pt. 879) Pg. 665 at 578 which is to the effect that the existence of an application seeking for an Order staying execution of a judgment does not preclude a Judgment-Creditor from seeking a Garnishee Order. Learned counsel submitted that the pending application for stay of further proceedings, as opposed to an Order of stay of proceedings, does not preclude the lower Court from making the Order Nisi Absolute. Counsel reiterated that it is the 2nd Respondent that could be aggrieved and competently appeal against the Order Nisi and urged this Court to dismiss the appeal as lacking in merit.
In Reply, learned counsel for the Appellant referred to VASWANI v. SAVALAKH (Supra); NIGERIAN BREWERIES PLC v. OSHO [2001] 7 NWLR (Pt. 716) Pg. 746 at 762; NIGERITE LTD v. DALAMI (NIG.) LTD [1992] 7 NWLR (Pt. 253) pg. 288 at 299; NITEL PLC v. ICIC (DIRECTORY PUBLISHERS) LIMITED [2009] 16 NWLR (Pt. 1167) Pg. 356 at 384; ABDULLAHI v. GOVERNOR OF LAGOS STATE [1989] 1 NWLR (Pt. 97) Pg. 356 at 359-370 and JULIUS BERGER NIG PLC v. TOKI RAINBOW COMMUNITY BANto reiterate that the substance of this appeal is whether the lower Court could properly exercise its jurisdiction to make the Garnishee Order Absolute despite its knowledge of the pendency of the appeal against its Ruling refusing to set aside the Garnishee Order Nisi.
Learned counsel argued that PURIFICATION TECHNIQUES NIGERIA LIMITED v. ATTORNEY GENERAL OF LAGOS STATE (Supra) relied upon by the 1st Respondent’s counsel supports the Appellant’s case and that the lower Court had improperly exercised its jurisdiction. Counsel cited JIMOH v. HONOURABLE MINISTER F.C.T. & ORS (2016) LPELR-40422 (CA) Pg. 14-16, Paras. C-B in support of his submissions and urged this Court to resolve this issue in favor of the Appellant.
RESOLUTION
The sole issue for determination in this appeal appears to be plain and therefore devoid of any ambiguity, it is the complaint of the Appellant that the lower Court ought not have made the garnishee order absolute, having regard to the fact that there is already pending before this Court, an appeal against the Order Nisi as well as an application for stay of proceedings. It is on record that the present appellant had filed an appeal against the refusal by the lower Court to set aside the garnishee order nisi vide Appeal No. CA/L/390/2013.
The genesis of the dispute leading to the present appeal stems from the proceedings of 11th July, 2013 where the following transpired:
“Judgment Creditor in Court
A. F. Okunugo for the Judgment Creditor,
Kelechi Onwuegbuchlem for the Judgment Defendant.
Mrs. Okunuga:- My Lord pursuant to the Order Nisi, the Garnishee filed an affidavit saving (sic) cause that it has N20 Million 278,173.29 in its custody. I therefore ask my Lord to make the Garnishee Order Nisi Absolute.
Court:- Are you aware of an application for stay of proceedings at the Court of Appeal.
Mr. Okunuga:- My Lord I am aware.
Court:- I shall stand this matter down to check the last ruling at this Court.
Court: Recalls 12 p.m.
A. F. Okunuga for the Judgment Creditor.
Kelechi:- Announces his appearance: Mr. Kelechi Onuwuegbuchulem. This Court recorded your appearance in error. In view of the last ruling on the 6th of May, 2013. In that ruling this Court held that this proceeding remain strictly between the Judgment Creditor and the garnishee and can no longer admit any other person.
In view of that ruling, the receipt of Judgment debtor’s Affidavit in support of their Judgment Debtor’s Application before the Court of Appeal was received by the registrar in error, as the Judgment debtor is not part of the pending proceedings.
The Affidavit in the record in this Court in support of the Judgment debtor’s Motion on Notice in the Court of Appeal dated 21st day of May, 2013 is hereby struck off the record.
The appearance of Kelechi Onwuegbechulem is also struck off the record.
Court:- On close scrutiny of the records when this Court rose. This Court observed an omission on the records of the 16th of May, 2013. On that day Chief Okunuga you were not in Court but you’re the Judgment debtor and counsel from your chambers as well as Oluwotosin Ayeni for the and Garnishee were in Court.
The record of the Court however read that the matter was to come up on 7th May, 2013. But counsel in Court informed the Court that was a mistake as the Court pronounce 6th May, 2012 & 7th. In spite of the record of all the parties agreed to proceed with the matter on the 6th May, 2012.
The record at that date cought (sic) at that stages should have reflected that the date of 7th May was set aside. This was a minor slip, which this Court has the jurisdiction to set right.
In view of the proceedings and the argument of parties by extension, the ruling of this Court delivered on the 11th day of March, 2013. The date of adjournment on the last paragraph as 7th May is corrected to 6th May, 2013. This 11th day of June, 2013 for the purpose of the ruling of 11th March, 2013 only I take notice that the Judgment debtors Counsel who is in Court is aware that the records have not been set strait (sic). Person as – the slip rule.
Mr. Okunuga:- Thanks my Lord. I can confirm the position, and I was briefed on the proceedings and mix-up in the dated
Mr. Okunuga:- My Lord, the Garnishee has filed affidavit to show case dated 23rd October, 2012 that the Judgment Debtors Account has the sum at N20,378,473,92 in Credit balance as at 15th October, 2012. I urge this Court to make the Garnishee Order Nisi Absolute.
RULING
Court:- I have carefully examined the law and I am satisfied that this being a proceeding strictly between the Judgment Creditor and the Garnishee, after the garnishee has disclosed that to Judgment Debtor has the sum of N20,378,473.92 in credit balance, in his account with the Garnishee, and after the Judgment debtor has been put on Notice as required by law, all the requirement and conditions for the grant of Garnishee order absolute has been fulfilled. Accordingly, I hereby pronounce the garnishee order absolute?”
It is obvious that the learned trial judge proceeded to grant the garnishee order absolute, resting his decision on the premise that the garnishee proceedings are strictly between the Judgment Creditor and the Garnishee, and the Judgment debtor, a stranger therein, who therefore lacks the locus to participate, interfere and or challenge the decision of the Court regarding the attachment of the sum due to the Judgment debtor with the Garnishee.
Garnishee proceedings, are ipso facto, sui generis. Before now, the attitude of this Court had been to hold that the judgment debtor is not a party to the garnishee proceedings, in line with the decisions in P.P.M.C LTD v. DELPHI PET. INC. (2005) 8 NWLR (Pt. 928) 458; STAR DEEPWATER PETROLEUM LTD & ORS v. A.I.C. LTD & ORS. (2010) LPELR-9165 (CA).
This is also the position adopted by the trial Court. It is obvious that the proceedings leading to the present appeal is the aftermath of the garnishee order nisi. And the correct position of law is that in garnishee order nisi proceedings, due to the nature of the ex parte application employed in commencing same, the proceedings involves only the Judgment Creditor, with the Garnishee subsequently expected to appear before the Court on a named date to show cause why the funds due, to the Judgment debtor in the custody of the Garnishee should not be attached. See Section 83 of the Sheriffs and Civil Process Act. See also BAUCHI STATE WATER BOARD & ORS v. G. P. NIGERIA LIMITED (Unreported APPEAL No. CA/L/202M/2011) where this Court held inter alia that “in garnishee order nisi proceedings, which are ex parte in nature; only the Judgment Creditor and the Garnishee, are parties of this stage. A Judgment debtor is at best an interested party, who by law must obtain leave to appeal against an order nisi…” See also NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v. STEPHEN ADIODER & ORS (Unreported APPEAL NO. CA/C/45/2009).
Similarly, in NIGERIAN BREWERIES PLC v. DUMUJE & ANOR (2015) LPELR-25583 (CA), this Court, per OGUNWUMIJU, JCA held and I quote as follows:
“The implication of the above is that where there is payment by the garnishee into Court, consent of the judgment debtor is necessary to pay some to the judgment creditor. Where the garnishee does not pay until the return date, the Court shall hear both the judgment creditor and the judgment debtor if the latter appears in Court before making such “order in the proceedings (including an order as to costs) as may be just.”
Even in cases where the garnishee disputes liability, the Court still has a duty to hear the judgment debtor just like the judgment creditor before determining the liability of the garnishee to pay out the amount to the judgment creditor. See Order VIII Rule 8(1) of the S & CPA. I agree with all amici in this case that any decision made on relevant parties in a garnishee proceedings post Order Nisi without advertence to the provisions referred to above is per incuriam.
I am of the firm view that after the service of the Order Nisi on him, the judgment debtor may convince the Court by way of affidavit to discharge the Order Nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the origination process of the main suit or any other vitiating factor based on which the trial Court has the power to set aside its own judgment or even payment or liquidation of the judgment sum which is being sought to be realized by way of enforcement where the Court refuses to discharge the Order Nisi and make the Order Nisi Absolute, the judgment debtor, being a necessary party, can appeal as of right since the Order Absolute is regarded as a final decision of the Court. The emphasis here is the fairness of the judicial process.
The right to fair hearing enshrined in S.36 of the 1999 Constitution only connotes that a party should be given the opportunity to be heard whether or not a party’s submission is accepted is entirely the Court’s prerogative. The service of the Order Nisi and all accompanying processes on the judgment debtor is not a matter of justifying righteousness. In my humble but strong view, it is a mandatory provision without which any subsequent judicial action would be rendered a nullity. In my humble view, the judgment debtor who is the owner of the money in possession of the garnishee has a right to be heard if he wishes before the garnishee order is made absolute. I am also of the strong but humble view that his right to be heard should not be at large. If not a Pandora’s box would be opened to enable the judgment debtor engage in all manner of activities that can abort the process and or make nonsense of the raison d’etre of the provisions and rules of Court in garnishee proceedings enacted for the express purpose of oiling the wheels of execution of liquidated money judgment. Therefore, it is my own humble conclusion that a judgment debtor is free to challenge the Order Nisi before the Court that made the order…”
See also STANBIC IBTC BANK PLC v. LONG TERM GLOBAL CAPITAL LTD & ORS (Unreported APPEAL NO. CA/L/245A/2011) where this Court held:
“Section 83(2) of the Sheriffs and Civil Process Act makes the service of the order nisi on the judgment debtor at least fourteen days before the hearing wherein the order nisi will be made absolute mandatory. The pertinent question to ask is, why must the judgment debtor be served copy of the order Nisi? I think the reason is not far-fetched, it is obviously to enable him appear in Court on the adjourned date to be so heard if he desires before the order is made absolute. The section makes it mandatory for the service of the order nisi on the Judgment debtor, which presupposes that he is a necessary party in the proceedings, service upon him of the order Nisi serves as an invitation to him (the Judgment Debtor) to enable him to be heard by the court before the order absolute is finally made…The implication of the above provision is that a judgment debtor in garnishee proceedings is required to be heard along with the judgment creditor and garnishee before an order nisi is made absolute….”
The controversy in the instant case is not, as seen from the argument canvassed by the respective counsel, with regards to the failure or otherwise of the Appellant to obtain leave of Court, but stems from the decision of the lower Court to make the garnishee order absolute notwithstanding notice by the Appellant to the Court and the Respondent that the Appellant had already filed an appeal against the garnishee order nisi. The learned trial judge held the view that since the Appellant/Judgment debtor is not a party to the garnishee proceedings, he cannot be heard to complain. This conclusion is in my humble view misconceived and does not represent the correct position of the law. From the facts relevant to this appeal, it is clear that the learned trial judge did not consider the merits of the case put forward by the judgment debtor before making the garnishee order absolute, it appears from the records and in my view too, that the learned judge made up his mind that the judgment debtor not being a party to the garnishee proceedings, cannot be heard by the lower Court and the appearance of the counsel for the judgment debtor, who was perceived by the lower Court to be an interloper meddling in the proceedings in which he is not a party.
It is on this ground that the lower Court ignored the judgment debtor, and therefore dispensed with the participation of the Appellant in the proceedings prior to the grant of the garnishee order absolute. Having found that he is a party to the suit, I have no hesitation in coming to the conclusion that the decision of the lower Court that the Judgment debtor is a stranger to the proceedings constitutes a grave misconception of the law and therefore occasioned gross miscarriage of justice in the circumstances. The failure by the learned trial Judge to grant audience to the Appellant is a grave infraction on the right of the Appellant to be heard, and so doing rendered the entire proceedings a nullity.
On the whole therefore, I am of the view that Appellant’s appeal is meritorious and deserves to be and is hereby allowed. The Ruling delivered by Olayinka, J., (Mrs.) of the Lagos State High Court delivered on the 11th day of July, 2013 in suit number ID/M/437/12 is hereby set aside.
Parties in this appeal shall bear their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I was afforded in advance a draft copy of the lead judgment just delivered by my learned brother, TIJJANI ABUBAKAR, J.C.A., and I am completely in agreement with the adroit reasoning and impeccable conclusion reached therein to the effect that the Appeal has merit and ought to be allowed.
I have nothing more useful to add to the lucid lead judgment. I hereby allow the appeal too and shall abide by the consequential orders made in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother TIJJANI ABUBAKAR, JCA. I agree with the reasoning and conclusion arrived at in the judgment, adopt it as mine with nothing further to add.
Appearances:
A. A. Malik with him Yusuf Jimoh and P. A. AriranFor Appellant(s)
Chief A. F. Okunuga for 1st RespondentFor Respondent(s)
