FBN v. NAZIA & BROTHERS (NIG) LTD & ORS (2022)

FBN v. NAZIA & BROTHERS (NIG) LTD & ORS

(2022)LCN/16349(CA)

In The Supreme Court

On Friday, June 03, 2022

SC.483/2018

Before Our Lordships:

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

 

Between

FIRST BANK OF NIGERIA PLC APPELANT(S)

And

1. NAZIA & BROTHERS NIGERIA LIMITED 2. ALH. NASIRU KOKO 3. ALH ABUBAKAR H. JODA RESPONDENT(S)

 

RATIO:

WHETHER A LITIGANT CAN SHIELD HIMSELF FROM THE CONSEQUENCES OF LITIGATION WITH THE PRINCIPLE OF AUDI ALTERAM

The principle of audi alteram partem is not a devise for a litigant to take cover in order to circumvent or shield himself from the consequences of litigation; see FOLBAD INVEST. LTD. VS. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (PT. 478) PAGE 344. EMMANUEL AKOMAYE AGIM, J.S.C. 

POSITION OF LAW WHEN THE GARNISHEE FAILED TO FILE AN AFFIDAVIT TO SHOW CAUSE AND FAILED TO PUT UP APPEARANCE

Once the garnishee failed to file an affidavit to show cause and failed to put up appearance, willfully, the trial Court has every right not only to proceed to make the order absolute but even order execution, without any further need for notice on it as a garnishee. It is for this reason that Order 8(1) of the Judgment Enforcement Rules provides that:
“if no amount is paid into Court, the Court, instead of making an order that execution shall issue, after hearing the judgment creditor, the garnishee, and the judgment debtor, or such of them as appear, determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor as to cost as may be just, or may make order under …”; see also OCEANIC BANK PLC V OLADEPO & ANR supra. EMMANUEL AKOMAYE AGIM, J.S.C. 

POSITION OF LAW ON THE SERVICE OF COURT PROCEEDINGS

The fundamental requirement of law that the persons named as parties in a case be notified in advance that the Court would on a particular date hear any aspect of the case in which they are parties cannot be avoided by reliance on the sui generis nature of the law of the subject matter of the case. This requirement applies to all cases irrespective of the law of the subject matter of the case. In any case, the law in each subject is sui generis in that it acquires a peculiar character in relation to that subject area. This accounts for the classification of law into different types.
But in applying a law to meet the specific objective in that subject area, the fundamental requirements of justice such as notice of proceedings which cut across the application of law in all subject areas must be satisfied. In the absence of notice of a judicial proceeding or any part of it to all the parties thereto, the Court would lack jurisdiction to proceed and if it proceeds, there can be no fair trial and therefore no valid proceedings.
This Court has in many cases over time restated the law on the requirement of advance service of notice of hearing on any date on all parties to the case. Examples include Achuzia v. Ogbomah (2016) LPELR-40050 (SC), Darma v. Ecobank Nig. Ltd (2017) 9 NWLR (Pt. 1571) 480 at 511 and The Registered Trustees of the Presbyterian Church of Nig. v. Etim (2017) 13 NWLR (Pt. 1581) 1. EMMANUEL AKOMAYE AGIM, J.S.C. 

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): On the 6th day of February, 2014 the Niger State High Court at Minna rendered judgment in Suit No. NSHC/MN/195/2010 in favour of the respondents herein as plaintiffs against AIMCO Integrated Services Ltd, The Accountant General of Niger State and Mainstreet Bank Ltd as 1st, 2nd and 3rd defendants therein, holding that “the 1st and 2nd Defendants are jointly indebted to the 3rd Defendant to the tune of N592,912,820.23k (Five Hundred and Ninety-Two Million, Nine Hundred and Twelve Thousand, Eight Hundred and Twenty Naira, Twenty-Three Kobo) as at 11/11/2010 and all the charges accruing therefrom that date until final liquidations of the entire loan.” In execution of this judgment, the Respondents herein applied for and obtained a Garnishee Order Nisi on the 18th day of February, 2014 from the Niger State High Court at Minna to attach the funds of the 1st and 2nd defendants with the appellant herein and other banks. On the 21st day of February, 2014, the same High Court of Niger State at Minna set aside the Garnishee Order Nisi for the reason that the consent of the Attorney General was not first obtained before the Garnishee Proceedings was commenced.

The respondents then proceeded to register the said judgment of 6th day of February, 2014 of the High Court of Niger State at Minna with the High Court of Federal Capital Territory Abuja and thereafter commenced another Garnishee Proceedings on the 22nd day of April, 2014 in the High Court of the Federal Capital Territory to execute the judgment of the Niger State High Court. On the 28th day of April, 2014, the High Court of the Federal Capital Territory made a Garnishee Order Nisi against the appellant herein and other banks enforcing the said judgment of the Niger State High Court. This Garnishee Order Nisi was served on Appellant herein with a return date of 12th June, 2014.

On 19th May, 2014 the High Court of Niger State at Minna made an interim order restraining the appellant and other Garnisnees in the Garnishee Proceedings pending in the High Court of the Federal Capital Territory from acting on the Garnishee Order Nisi made by that Court pending the hearing and determination of an application for stay of execution dated 6th May, 2014 and filed at the Niger State High Court. On the 11th day of June, 2014 an Order was made by the Niger State High Court Minna staying the execution of the judgment in Suit No NSHC/MN/195/2010, the subject matter of the Garnishee Order Nisi made by the High Court of the Federal Capital Territory, pending the determination of the appeal against the judgment in Suit No NSHC/MN/195/2010.

The appellant herein was served the Garnishee Order Nisi on 13th May, 2014 with a return date of 12th June, 2014 and the interim injunction of 19th May, 2014 restraining it and other garnishees from acting on the said Garnishee Order Nisi earlier issued by the High Court of the Federal Capital Territory.

​On the 12th day of June, 2014, the return date, because of the motions raising preliminary objections filed by two of the parties, the matter was adjourned to 20th June, 2014 for hearing of the motions. The Court subsequently sat on the 20th June, 2014 and on 4th July 2014, 11th July, 2014 and on 15th day of September 2014. It made the garnishee order absolute on 15th September 2014 against the appellant herein and other garnishees attaching the funds of Niger State Government in their custody. The appellant was not served notices for the hearings of 20th June, 2014, 4th July, 2014, 11th July, 2014 and 15th September, 2014 and any of the applications filed by other parties.

Dissatisfied with the ruling of the High Court of Federal Capital Territory making the garnishee order absolute in suit No. FCT/HC/FJ/5/2014, the appellant herein filed a notice of appeal to the Court of Appeal against it and commenced Appeal No. CA/A/112/2015 at the Court of Appeal.

After considering the arguments in the briefs before it, the Court of Appeal on 10-5-2018, delivered its judgment dismissing the appeal, affirming the ruling of the High Court of the Federal Capital Territory delivered on 15-9-2014 and awarded costs of N100,000 Naira in favour of the respondents.

Dissatisfied with the judgment of the Court of Appeal, the appellant herein on 15-5-2018 filed a notice of appeal to this Court, which notice was deemed filed on 28-10-2019.

The parties herein filed, exchanged and adopted the following briefs – appellant’s amended brief, respondents’ brief and appellant’s reply brief. The respondents also filed a notice of preliminary objection to this appeal which they argued in their brief.

Let me first determine the preliminary objection before I consider the merit of this appeal if need be.

The grounds of the objection as stated in the notice and argued in the respondents’ brief are as follows –
“1. That the appellant’s appeal is null and void ab initio for being an appeal against the concurrent judgments of mixed law and facts of the two lower Courts to the Supreme Court.
2. That the appellant’s appeal, being of grounds of mixed law and facts, is a nullity for having been filed without leave first had and obtained and the Supreme Court lacks the jurisdiction to regularize such appeal subsequently.
3. That Ground 3 of the appellant’s Notice of Appeal is deemed abandoned as no competent issue for determination has been distilled therefrom
4. That the appellant’s appeal as argued, in substance, being against the decision of the trial Court and not that of the Court of Appeal, is incompetent”.

​The respondents contend in grounds 1 and 2 of the objection that the appellant did not first obtain the leave of the Court of Appeal or of this Court to appeal on grounds of facts or mixed law and facts before this appeal was filed and that all the grounds of this appeal are of mixed law and facts.

Learned counsel for the appellant stated in the appellant’s reply in response to the respondents’ objection that this Court granted the appellant leave to appeal on all the grounds. Learned counsel for the respondents agree that this Court on 28-10-2019 granted the appellant leave to appeal on grounds of mixed law and facts, but argued that this Court lacked the jurisdiction to grant such leave 17 months after the appeal was filed without leave, that this Court cannot act retroactively to give life to a stillborn appeal, that the motion filed on 23-10-2019 applied for leave to appeal only on ground 2, but this Court erroneously granted leave to appeal on all the grounds of this appeal, that this appeal is void and should be dismissed.

​My view is that the nature of grounds 1 and 2 as grounds of pure law is obvious. The complaint in ground 1 is that the appellant is entitled to be served notices of the hearings on every day the trial Court sat after the first return date stated in the Garnishee Order Nisi served on it and that the failure to serve it the said notices of hearing nullified the hearing and proceedings of 15-9-2014 and the garnishee order absolute made that day. All parties agree and it is the unchallenged concurrent findings of the two lower Courts that the appellant was not served notice of hearings on dates after 12-6-2014, the return date on the Garnishee Order Nisi. All the facts relevant to the complaints in the said grounds of appeal are not in dispute. The issue is the legal consequences of these undisputed facts.

​The complaint in ground 2 is that the High Court of the Federal Capital Territory should not have admitted the Garnishee Proceedings to execute the judgment of the Niger State High Court and should not have made the order nisi after the Niger State High Court had struck out the same Garnishee Proceedings before it for lack of the consent of the Attorney General and after an order had been made by the Niger State High Court restraining the enforcement of the garnishee order and during the pendence of the motion applying for stay of execution the Niger State High Court judgment sought to be enforced by the process of garnishee and should not have made the garnishee order absolute for similar reasons.

It is not in dispute that a similar application for enforcement of the same judgment had earlier been made to the Niger State High Court that gave the judgment sought to be enforced and it struck out the application for lack of Attorney General’s consent, that an application for stay of the execution of same judgment was pending before the Niger State High Court and that the said High Court had made an interim order of injunction restraining the garnishee process before the order absolute was made on 15-9-2014 by the High Court of Federal Capital Territory enforcing the same judgment.

The complaint in ground 3 of this appeal though framed as a jurisdictional one is based on the appellant’s dispute of the fact of its indebtedness to Niger State Government, which must be resolved one way or the other before the issue of the trial Court’s lack of jurisdiction to make the garnishee orders can be tried. It is a ground of mixed law and facts. The leave of this Court granted the appellant on 28-10-2019 to appeal on grounds of mixed law and facts validates the appeal in ground 3 of this appeal.

​So, the issue in grounds 1 and 2 of this appeal concerns the application of law to the undisputed facts by the two lower Courts and the inferences or conclusions the Courts drew from the said undisputed facts. The complaints in grounds 1 and 2 of the grounds of this appeal are clearly of pure law. Therefore, leave of Court to bring this appeal on those grounds was not required by virtue of Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria 1999. Where the facts relevant to the complaint in a ground of appeal are not in dispute and the complaint is about the application of law to those facts and the correct inference to be drawn from them, the ground of appeal is one of pure law. See COKER V. UBA (1997) ALL NLR 34 AND OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt20) 370.

​Ground 3 of the objection alleges that ground 3 of the notice of appeal is abandoned as no competent issue has been distilled from it. In arguing this ground of the objection, learned Counsel for the respondents changed his objection when he admitted that issue No. 3 is distilled from ground 3 of this appeal but argued that the arguments of the issue did not border on jurisdiction and rather centered on whether not “funds existed in the garnishee’s possession at the time the garnishee order absolute was made, an issue that was not canvassed at the trial Court and in the Court of Appeal. This argument is both baseless and confusing.

The gist of the complaint in ground 3 of this appeal is that the trial Court lacked the jurisdiction to make the Garnishee Order Nisi and absolute as the appellant was not shown to be indebted to the Niger State Government, a condition precedent to the exercise of such jurisdiction. Under issue No. 3 in the appellant’s brief, the appellant argued that “the trial Court did not have the jurisdiction to make the garnishee order absolute in that the respondents did not show that the appellant was indebted to the judgment debtor”. This argument clearly deals with the complaint in ground 3 of this appeal.

In the light of the forgoing, I hold that the respondents’ preliminary objection has no merit and is hereby dismissed.
Let me now proceed to determine the merit of this appeal.

The appellant’s brief raised the following issues for determination –
“1. Whether the lower Court was right in holding that the trial Court had jurisdiction to make the Garnishee Order Absolute given that Hearing Notice of the Courts’ sitting was not served on appellant herein. (Ground 1 of the Notice of Appeal).
2. Whether the lower Court was right in holding that the entire garnishee proceedings conducted before the trial Court was not an abuse of Court process. (Ground 2 of the Notice of Appeal).
3. Whether the lower Court was right in holding that the learned trial Court had the jurisdiction to make the Garnishee Order Absolute (Ground 3).”

The respondents’ brief adopted and argued the issues for determination raised in the appellant’s brief.
I shall determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

Let me start with issue no. 1 which asks – “Whether the lower Court was right in holding that the trial Court had jurisdiction to make the Garnishee Order Absolute given that Hearing Notice of the Court’s sitting was not served on appellant herein.”
The part of the judgment of the Court of Appeal complained against under this issue reads thusly- “In this case, even by the appellant’s own admission it was served with the order nisi; but clearly hearing notice was not served on the appellant before the order was made absolute. Now that being so, can the appellant be said to have been denied fair hearing in the circumstances of this case?
Having been served with the order nisi, the appellant in this case failed to appear in Court to show cause, why the order nisi should not be made absolute. Not only did the appellant fail to appear, but the appellant did not deem it fit to even file the affidavit necessary to indicate it had cause, to prevent the order nisi being made absolute. It would have been another thing, if the appellant did not appear, but had filed the requisite affidavit, that would have indicated its willingness or desire to present its case for cause before the trial Court. The principle of audi alteram partem is not a devise for a litigant to take cover in order to circumvent or shield himself from the consequences of litigation; see FOLBAD INVEST. LTD. VS. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (PT. 478) PAGE 344.
Having failed or neglected to show cause, after having been served, the appellant cannot now turn around to say that he was entitled to notices on the 20th June, 2014, 5th July, 2014, 11th July, 2014 and 15th September, 2014 when in fact all of these dates were for objections and other motions, not the substantive garnishee proceedings.
Furthermore, as rightly submitted for the respondent’s garnishee proceedings are governed by Sheriff and Civil Process Act and the Judgment Enforcement Rules, none of which require that a garnishee who refuses to show cause, after service of an order nisi has to be served before the order can be made absolute, in spite of its disinterest; and this belief is supported by Section 86 of the Sheriff and Civil Process Act which provides that where the garnishee fails to pay into Court the amount due after the prescribed period, after failing to dispute the amount due from him to the debtor or when he fails to appear when summoned, the Court may order execution, without need for any writ or process.
Once the garnishee failed to file an affidavit to show cause and failed to put up appearance, willfully, the trial Court has every right not only to proceed to make the order absolute but even order execution, without any further need for notice on it as a garnishee. It is for this reason that Order 8(1) of the Judgment Enforcement Rules provides that:
“if no amount is paid into Court, the Court, instead of making an order that execution shall issue, after hearing the judgment creditor, the garnishee, and the judgment debtor, or such of them as appear, determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor as to cost as may be just, or may make order under …”; see also OCEANIC BANK PLC V OLADEPO & ANR supra.

I have carefully read and considered the arguments in the respective briefs of the parties on this issue.

​Learned counsel for the appellant argued that the appellant being a necessary party to the Garnishee Proceedings, was entitled to be served notice of hearings on other dates that the objections and motions were heard and on the 15th of September 2014 when the garnishee order was made absolute, that the failure to serve it the said notices of hearing and the making of the order absolute without giving him an opportunity to be heard before it was made, violated its right to be heard.

Learned Counsel for the respondents argued in substance that the appellant having been served with the order nisi and having not deemed it fit to appear physically or file an affidavit to show cause against the stated return date carrying address for further service of processes, the appellant was not entitled to any further notices of hearing for the 20th June, 2014, 5th July, 2014 and 15th September, 2014, all of which dates were for objections and other motion and not the substantive Garnishee Proceedings which was halted, that Section 86 of the Sheriffs and Civil Process Act and Order VIII Rule 8(1) of the Judgment Enforcement Rules do not require any further service on a garnishee who refuses or neglects to show cause by affidavit upon service on him of an order nisi, that the phrase “without any previous writ or process” in Section 86 of the Sheriff and Civil Process Act implies that once no appearance has been entered and no affidavit to show cause is filed by the garnishee, the Court may proceed not only to order absolute but to even order physical execution, without service of a writ of fifa or hearing notices on the garnishee.
Let me now determine the merits of the above arguments.
The return date stated in a Garnishee Order Nisi is for the hearing and determination of the liability of the garnishee for any debt due from him to the judgment debtor and his obligation to pay same into Court and the justification to make the garnishee order absolute. This is provided for in Section 86 of the Sheriff and Civil Process Act and Order VIII Rule 8(1) of the Judgment Enforcement Rules.
Section 86 of the Sheriffs and Civil Process Act provides that-
“if the garnishee does not within the prescribed time pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the costs of the garnishee proceedings, and does not dispute the debt or claimed to be due from him to such debtor, or if he does not appear upon summons, the Court upon proof of service may order execution to issue, and it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with costs of the garnishee proceedings.” (EMPHASIS MINE).
Order VIII Rule 8(1) of the Judgment Enforcement Rules provides that-
“If no amount is paid into Court, the Court, instead of making an order that execution shall issue, may, after hearing the judgment creditor, the garnishee, and the judgment debtor, or such of them as appear, determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor and as to cost as may be just, or may make order under Section 87 of the Act.”
​In our present case, on 12-6-2014, the determination of the liability of the appellant as garnishee and the consideration of whether the order nisi should be made absolute did not take place or proceed even though the appellant who had been served with the Garnishee Order Nisi did not physically appear or file an affidavit to dispute liability or show cause why the Garnishee Order Nisi should not be made absolute and did not pay into Court the amount due from it to the judgment debtor. The said hearing was halted because motions objecting to the Garnishee Proceedings had been filed by other parties in those proceedings and the trial Court decided to adjourn the proceedings for the hearing and determination of those objections and applications. If the hearing concerning the determination of the garnishee’s liability and the order nisi being made absolute had taken place on 12-6-2014, the return date conveyed to all the parties by the order nisi served on them, and the order nisi made absolute, the appellant who had been served with the Garnishee Order Nisi notifying him of the return date for the hearing, would have no right to complain that the hearing and the making of the order absolute was done in its absence or without hearing it. This is because he was given reasonable opportunity to dispute its liability for any debt to the judgment debtor on the 12th of June, 2014. Since the said hearing did not take place on that day and the matter had to be adjourned to another date due to some intervening processes filed by other parties in the case, the absent garnishee as a party to the proceedings was entitled to be given notice of the new return date. Being named a party in the proceedings, it was entitled to be afforded reasonable opportunity to participate in the proceedings so long as it remains pending. The notion that because the garnishee was absent on the return date and had not filed an affidavit disputing its liability, it has lost the right to be notified of any date of proceedings in the matter and the right to participate in such proceedings has no support in law. If hearing did not take place that day, it was entitled to be served notice of the next date of hearing even if it had not filed any responsorial process or appeared in the matter.
So long as it is named as a party to the case, it is entitled to notice of any hearing in the case, whether it shows interest in the proceedings or not. The service of the notice of hearing on it is a condition precedent to a valid hearing in its absence.
​The garnishee is entitled to be heard concerning the objections and applications adjourned for hearing on other dates as a party to the Garnishee Proceeding even though the said objections and applications were filed by other parties in the case. When those objections and applications were disposed of, the appellant was entitled to be served the notice of the new date for hearing concerning its liability for any debts due from it to the judgment debtor.
There is nothing in Section 86 of the Sheriffs and Civil Process Act and Order VIII Rule 8(1) of the Judgment Enforcement Rules providing that if the determination of the garnishee’s liability does not take place on the return date in the order nisi and the order nisi is not made absolute on that date, the garnishee who was absent on that date without filing an affidavit disputing any liability of any debt from him to the judgment debtor, even though he was served the order nisi, need not be served notice of hearings on subsequent dates.
​The fundamental requirement of law that the persons named as parties in a case be notified in advance that the Court would on a particular date hear any aspect of the case in which they are parties cannot be avoided by reliance on the sui generis nature of the law of the subject matter of the case. This requirement applies to all cases irrespective of the law of the subject matter of the case. In any case, the law in each subject is sui generis in that it acquires a peculiar character in relation to that subject area. This accounts for the classification of law into different types.
But in applying a law to meet the specific objective in that subject area, the fundamental requirements of justice such as notice of proceedings which cut across the application of law in all subject areas must be satisfied. In the absence of notice of a judicial proceeding or any part of it to all the parties thereto, the Court would lack jurisdiction to proceed and if it proceeds, there can be no fair trial and therefore no valid proceedings.
This Court has in many cases over time restated the law on the requirement of advance service of notice of hearing on any date on all parties to the case. Examples include Achuzia v. Ogbomah (2016) LPELR-40050 (SC), Darma v. Ecobank Nig. Ltd (2017) 9 NWLR (Pt. 1571) 480 at 511 and The Registered Trustees of the Presbyterian Church of Nig. v. Etim (2017) 13 NWLR (Pt. 1581) 1.
The Court of Appeal placed reliance on its decision in Zenith Bank v. Igbokwe & Ors. (2013) LPELR-21975 (CA). But its decision in that case does not support what it decided in this case. The facts of that case are restated in the Court of Appeal Judgment. In that case, the order nisi was made absolute after several opportunities were given to the garnishee by way of adjournments, including service of the enrolled order. On the 18th day of June 2009, the learned trial Judge granted the Garnishee Order Nisi and the appellant therein was ordered to show cause within 14 days why the Order Nisi should not be made absolute within the time given by the trial Court. The matter was adjourned to 18th June, 2009. The enrolled order was served on the garnishee on 17th of June, 2009. The garnishee did not appear in Court on the 18th of June and the trial Court adjourned the matter further to the 9th day of July, 2009, to enable the garnishee have more time to respond. Fresh hearing notice was also ordered on the 9th of July, 2009, the garnishee did not appear again, apparently because of non-service of the hearing notice and the learned trial Judge further adjourned the matter to the 27th day of July, 2009 and ordered another hearing notice to issue. The hearing notice was duly served but again, the garnishee failed, refused and/or neglected to file any process showing cause or even appear in Court. Accordingly, on the 28th of September, 2009, the learned trial Court Judge made the order of garnishee absolute. The Court of Appeal in that case correctly supported what the trial Court did because the trial Court scrupulously ensured that the garnishee was served the notice for the new return date before proceeding to hear the matter.
If the Court of Appeal had considered the basis of its decision in the precedent case, it would have decided this case differently. As it is the proceedings of the trial Court on 20-6-2014, 5-7-2014, 11-7-2014 and 15-9-2014 and the garnishee order made on 15-9-2014 are a nullity. The trial Court lacked the jurisdiction to conduct those proceedings and make that order. Its exercise of jurisdiction to conduct the proceedings and make the order is not a valid exercise of jurisdiction. The conduct of the proceedings and making of the order in the circumstance violated the right of the appellant to be heard or given reasonable opportunity to be heard. The said proceedings and order, are hereby set aside.
Issue Nos. 1 is resolved in favour of the appellant.

​Having held that the trial Court had no jurisdiction to conduct the proceedings on the dates mentioned above and make the order nisi absolute on 15-9-2014 there would be no need determining issues Nos. 2 and 3.
On the whole, this appeal succeeds as it has merit. It is accordingly allowed.

The judgment of the Court of Appeal delivered on 10-5-2018 in Appeal No, CA/A/112/2015 is hereby set aside. The ruling of the High Court of the Federal Capital Territory in Suit No. FCT/HC/FJ/5/2014 delivered on 15-9-2014 and the garnishee order absolute made therein against the garnishee (appellant herein) is hereby set aside.

The proceedings of the said High Court of the Federal Capital Territory on 20-6-2014, 5-7-2014, 11-7-2014 and 15-9-2014 are hereby set aside.

Suit No. FCT/HC/FJ/5/2014 is remitted back to the High Court of the Federal Capital Territory for the hearing of the Garnishee Proceeding and all applications and objections.
I make no order as to costs.

CHIMA CENTUS NWEZE, J.S.C.: My learned brother, Agim, JSC, obliged me with the draft of the leading judgment just delivered. I agree with his reasoning and conclusion that this appeal is pregnant with merit and should be allowed.

Not only is failure to serve processes on parties, where required, generally fatal to adjudication, Section 83 of the Sheriffs and Civil Processes Act, particularly, Subsection (2) provides that service of garnishee proceedings on the judgment debtor and garnishee(s) is mandatory.
The hearing notice is a part of these proceedings. In the instant case, the inference to be drawn from the failure of the respondents to produce affidavit of service is that the respondents failed to serve hearing notice to the appellant, in the initial proceedings. Consequently, the trial Court lacked jurisdiction to make the order absolute. In the circumstance, the garnishee order absolute is invalid and of no effect, Wema Bank Plc v. Bra Stem-Sterr (Nig,) Ltd [2011] 6 NWLR (pt. 1241) 58; Emeka v. Okoroafor [2017] 11 NWLR (pt. 1577) 410.

It is actually for these, and the more elaborate reasons in the leading judgment, that I too, shall enter an order allowing the appeal.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Agim, JSC, and I totally agree with him that this appeal is, indeed, meritorious.

It is an elementary principle that the service of hearing notice on a Party, notifying him of the date a matter is coming up in Court, is of utmost importance, because it is the service of hearing notice on the Party that confers on the Court the jurisdictional competence to entertain the matter in the first place – see Compact Manifold & Energy Services Ltd. V. Pazan Services Nigeria Ltd. (2019) LPELR-49221(SC), wherein this Court per Galumje, JSC, added that:
“Where a matter is adjourned to a date other than the date the Parties had previous notice of hearing, the Court has a duty to notify them of the subsequent adjournment. The Court should not predicate its decision on mere assumption that a Party must have been served with Court process at one stage and that he should be aware of the subsequent hearing dates.”

The position of the law on the issue is that where a Party is entitled to notice of a proceeding and there is failure to serve him, the failure goes to the root of the competence (or jurisdiction) of the Court to deal with the matter – see Leedo Presidential Motel Ltd. V. BON Ltd. & Anor (1998) 10 NWLR (Pt. 570) 353, and Iyoho V. Effiong (2007) 11 NWLR (Pt. 1044) 31, wherein this Court held:
“The Appellant, before bringing her application for certiorari in the High Court, had brought an application before the Rent Control Court to set aside the judgment against her. She relied on the fact that she was not given a hearing date for the proceedings, which led to the judgment against her. This was the correct thing to have done, as a Party not served with the hearing date of proceedings leading to a judgment or Order made against him is entitled ex- debito-justitiae to have the proceedings set aside as a nullity.”

In this case, the High Court of the Federal Capital Territory [FCT High Court] made the Garnishee Order Nisi that was served on appellant with a return date of 12/6/2014. On 19/5/2014, the Niger State High Court made an interim Order restraining the appellant and others from acting on the Garnishee Order Nisi made by the FCT High Court. The appellant was served with both Orders.

​On the return date, 12/6/2014, the matter was adjourned to 20/6/2014. The Court subsequently sat on 20/6/2014, 41712014, 11/7/2014 and 15/9/2014, and it made the Garnishee Order absolute on 15/9/2014 against the appellant. The appellant was not served with hearing notice for those dates, which means that the proceedings of the trial Court on 20/6/2014, 41712014, 11/7/2014 and 15/9/2014, and the said Garnishee Order it made on 15/9/2014 are a nullity.

In the circumstances, I also allow this appeal, and I also abide by all the consequential Orders in the lead judgment, including no order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading before now, the lead judgment just delivered by my learned brother EMMANUEL AKOMAYE AGIM, JSC. My Lord has exhaustively explored all the nuances of the issues in controversy for determination in this appeal. Service of hearing notice to a party is one of the requisites of the jurisdiction of the Court. Where a party has not been served with hearing notice, one of the pillars of fair hearing, audi alteram partem -hear the other side, has been violently assaulted. The decision cannot stand. In the circumstances of this appeal, I agree with my learned brother that the appeal should be allowed. Appeal allowed. I abide by all orders in the lead judgment.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I concur, wholeheartedly, with the reasoning reached in the judgment just delivered by my learned brother, HON. JUSTICE EMMANUEL AKOMAYE AGIM, JSC, to the conclusive effect that the present appeal is meritorious, thus ought to be allowed.

​Hence, having adopted the said reasoning and conclusion as mine, I too hereby allow the appeal. Consequently, the judgment of the Court of Appeal, Abuja Judicial Division, delivered on 10/5/2018, in appeal No. CA/A/112/2015, is hereby set aside.
Appeal allowed.

Appearances:

Prisca Ozoilesike, Esq, with him, Emeka Ibeneme, Esq. For Appellant(s)

Dr. N. A. Ayagi, Esq., with him, Jude O. Ugwuanyi, Esq. For Respondent(s)