FIDELITY BANK PLC v. JERRAI INTERNATIONAL SECURITY SERVICE
(2019)LCN/13159(CA)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
These findings have been findings of truth made by the Court docket under and these knowledgeable the final word conclusion to have the order Nisi change into absolute. There may be, to my thoughts no attraction towards these particular findings of truth as contained within the ruling of the Court docket under delivered on the 30/7/15A discovering of truth of which there isn’t any attraction stay legitimate and subsisting. In different phrases, the place a trial Court docket makes essential discovering of truth on a difficulty earlier than it upon which the judgment or ruling of Court docket is made, and such findings will not be appealed towards or challenged on attraction, such findings stay legitimate and subsisting. See Golden Building Co. Ltd v. Stateco Nig. Ltd (2014) Eight NWLR (Pt. 1408) 171, 198; Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (Pt. 879) 631, 653. PER HUSSAINI, J.C.A.
FACTORS TO BE OBSERVED FOR THE SUSTENANCE OF GARNISHEE ORDER IN GARNISHEE PROCEEDINGS
This Court docket within the case of Re: Diamond Financial institution (2002) 17 NWLR (Pt. 795) 120, 133 has set out the process events are anticipated to observe for the sustenance of garnishee order in garnishee proceedings thus:-It behoves a profitable plaintiff who doesn’t need to lose the fruits of his victory to maneuver quick towards the property of the judgment-debtor to appreciate the fruits. Considered one of such strategies is to acquire the order of Court docket to connect any debt owing to the judgment debtor from any individual or physique throughout the jurisdiction of the Court docket to fulfill the judgment-debt. That course of is called attachment of debt. And it’s a separate and distinct motion between the plaintiff/judgment-creditor and the individual or physique holding in custody the property of the judgment-debt, though it flows from the judgment that pronounces the debt owing. A profitable plaintiff, in his quest to maneuver quick towards the property normally makes an software ex-parte for an order in that course. If the applying introduced exparte is adjudged to meritorious, a decide will make an order which is technically referred to as a garnishee order Nisi attaching the debt due or accruing as a result of judgment debtor from such individual or physique who from the second of constructing the order is known as the garnishee. The order additionally carries a directive on the garnishee to seem and present trigger why he shouldn’t pay to the judgment-creditor the debt owed by it to the judgment-debtor or a lot of it as might suffice to fulfill his declare. Nevertheless, the order should be served personally on the garnishee. Upon private service, that order binds the debt in his palms and he should due to this fact pay the debt to the judgment creditor. Nevertheless, if the garnishee needs to dispute the debt or legal responsibility by it to the judgment-debtor he should seem earlier than the Court docket. If the garnishee doesn’t seem in obedience to the order Nisi or doesn’t dispute the legal responsibility, the Court docket might then make the order Nisi, absolute pursuant to the provisions of Part 86 of the of the Sheriffs and Civil Course of Act, Cap. 407%. PER HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Main Judgment): Within the judgment delivered on the Excessive Court docket of Katsina State on 25th April, 2014, vide Swimsuit No. KTH/804/M/2014, the defendant to the swimsuit, particularly, the Federal Ministry of Youth Improvement was ordered to pay to the Plaintiff the sum of N24,444,000.00 along with value assessed at N150,000.00 and curiosity on the Judgment Sum on the charge of 10%. The Plaintiff to the motion is the respondent on this attraction. The Respondent had by the Exparte software made and introduced earlier than that Excessive Court docket on the eighth June, 2015, Movement No. KTH/320M/2015, looked for the next reliefs, particularly: –
?(i) A garnishee order Nisi attaching a lot of all of the monies due or accruing the Judgment Debtors accounts with the garnishee and for which shall in future accrue to the Judgment Debtor however within the custody, management and energy of the garnishees to disburse as is enough to fulfill the Judgment Debt in Swimsuit NO. KTH/864M/2014 entered in favour of the Judgment Creditor/Applicant on the 25th day of April, 2015.
?(ii) An order directing the Garnishee to seem and present trigger why the Garnishee
shouldn’t pay to the Judgment Creditor/Applicant the quantity of any cash or monies or a lot thereof as could also be enough to fulfill your entire/international judgment debt along with the price of this Garnishee Proceedings.
(iii) A Garnishee Order Nisi attaching all monies standing in/to the credit score of the Judgment Debtor or which shall in future accrue and resident within the garnishee to wit: Skye Financial institution Plc. and Constancy Financial institution Plc.
(iv) AND for such additional order(s) or consequential directives this honourable Court docket deems for to make within the circumstance of this case.?
As clearly acknowledged underneath prayer No. Three above, Skye Financial institution Plc. and Constancy Financial institution Plc. have been named or recognized as Garnishee Banks. Upon the Movement Exparte being heard, the Katsina State Excessive Court docket sitting on the 25th June, 2015 granted the applying by way of the reliefs or prayers sought. The Court docket by means of additional order directed on the Banks (the garnishees) to seem earlier than it on the return date to indicate trigger why they need to not pay the Judgment Debt to the Judgment Creditor. I check with the file of attraction at pages 34 to 35 on this level.
?
It’s obvious on the pages of the
printed file of attraction that the Garnishee Banks have been duly notified of this ruling and order of the Excessive Court docket. Within the quick ruling learn and delivered on the 30th July, 2015 as seem at web page 36 of the file, the Excessive Court docket made absolute, towards Constancy Financial institution Plc, the order Nisi whereas Skye Financial institution Plc. was by the order of the identical Court docket discharged of any additional obligation or obligations within the swimsuit or as a garnishee.
Efforts made to have the ruling of the 30th July, 2015 put aside didn’t yield any fruitful outcome as could be seen at pages 37-46 of the file of attraction, therefore the Financial institution lodged attraction to this Court docket towards the order Nisi made absolute by dint of depart sought and granted on the 14/02/2017 by this Court docket. The Discover of Enchantment dated the 14th February, 2017 and filed on the 16th February, 2017 comprises 4 (4) grounds of attraction as could be seen at pages 49-51 of the file of attraction.
The file had been compiled and transmitted to this Court docket on 10/5/2017. On the listening to of the attraction, on the 6/2/19, the one temporary submitted and is earlier than the Court docket is the temporary of argument for the appellant, Constancy Financial institution Plc. dated and filed on the 2nd June, 2017.
Respondent didn’t file any temporary of argument. Mr. Udoji, realized counsel to the appellant on the listening to adopted his temporary of argument to induce on us to permit this attraction and put aside the judgment of Katsina State Excessive Court docket.
He had argued this attraction primarily based on the three(three) points formulated by him in his temporary, thus:
?1. Whether or not taking a course of to the suitable registry and earlier than the suitable officer of the Court docket, paying the submitting charges and acquiring a receipt thereof, such a course of will not be in legislation deemed filed. (Floor one).
2. Whether or not it was proper in legislation in step with the Sheriff and Civil Course of Act for the Court docket under to have made the phrases of the order absolute materially totally different from the contents of the order prayed for by the Respondent within the Movement Exparte and granted by the identical Court docket to wit: Order Nisi. (Floor 2 and three)
3. Whether or not any order of Court docket which isn’t in compliance with Statutory Provision can’t be put aside on floor of being invalid and a nullity moreso when it has occasioned miscarriage of justice. (Floor 4)?
?
Relative to Situation No. 1, realized appellant?s counsel has argued that
the appellant did all that was required of it underneath the legislation. He referred us to pages 18-19 of the file of attraction, in reference to the affidavit deposed to on behalf of the appellant and filed on the registry of the Excessive Court docket of Katsina State on the 8/7/2015 because the response to the ruling or order of Court docket made on the 25th June 2015, to indicate trigger. He argued that this affidavit having been filed on the registry of the Excessive Court docket on 8/7/2015, effectively forward of the sitting of Court docket held on 30/7/2015, the appellant can’t take the blame of the registry if the registry didn’t carry this affidavit or course of filed by the appellant to the eye of the Court docket under on or earlier than the 30/7/15 i.e. to say, the date the order Nisi was made absolute. He relied on a number of authorities to again up his argument on this level together with the choice in: Dominic Ede Mba & 10 Ors. v. Nwegbara Nwabodo Mba & 2 Ors. (2012) ALL FWLR (Pt. 612) 1646, 1665-1666. United Parcel Service Ltd v. Ufot (2006) ALL FWLR (Pt. 314) 337, 357; Dominic Nwani v. J.S. Bakari & 10 Ors (2005) ALL FWLR (Pt. 281) 1803, 1824.
?
He argued that the failure by the registry to ahead the
affidavit exhibiting trigger to the Court docket or decide was the error of the registry and similar shouldn’t be visited on the appellant. He relied on the dictum in: Wassah v. Kara (2015) ALL FWLR (Pt. 769) 1034, 1063 the place the Court docket held:
?Positively, it was not the obligation of the Appellants to jot down that ruling and so they had no method of forcing the Court docket to take action. It’s my view that there can be a desecration of justice if we permit the Appellants to undergo from the failure of the trial Court docket to do its work correctly. The place there’s an apparent mistake by the Court docket which has led to a miscarriage of justice, I feel the Court docket ought to be humble sufficient to simply accept its mistake and make amends appropriately.
We have been urged to resolve challenge No. 1 in favour of the appellants and invoke Part 15 of the Court docket of Enchantment Act to discharge the Appellant as a Garnishee and put aside the Order absolute made towards her.
Below challenge No. 2 recognized within the appellant?s temporary of argument, it was contended that the order absolute entered on the Court docket under on the 30th July 2015 didn’t move from the order Nisi earlier made by the identical Court docket on 25th June, 2015,
the latter order absolute, being distinct and totally different from the order Nisi. He argued {that a} Court docket listening to Garnishee Proceedings on the return date was solely restricted to both vacating the order Nisi or making absolute that order however the Court docket can’t introduce a brand new or recent order.
Discovered appellant’s counsel faulted the choice on the Court docket under who, within the try and make the order Nisi, absolute granted a recent order, totally different distinct and fully at variance with the order Nisi. He referred us to the ruling of Court docket and the order made on 30/7/2017 which it’s argued, is akin to an award of damages for an harm or a improper. He urged us to resolve Situation No. 2 in favour of the appellant. Below Situation No. 3, it was argued that there was failure on the a part of the Court docket under to watch the process for making an order Nisi, to change into an absolute order. For causes of failure of compliance with statutory provisions as in Sections 83, 86 of the Sheriff and Civil Course of Act, it was argued has rendered the proceedings of 30th July, 2015 and certainly the order absolute, null and void. We have been referred to selections in Nigercare Dev. Cop. Ltd. v. Adamawa State Water Board
(2008) ALL FWLR (Pt. 422) 1052, 1076; Eimskip Ltd. v. Beautiful Ind. (Nig) Ltd. (2003) FWLR (Pt. 151) 1842 or (2003) Four NWLR (Pt. 809) 88, 118 or (2003) 1 SCNJ 317, amongst others. We have been urged to put aside the order Nisi made absolute on 30/7/2015 and resolve Situation No. Three in favour of the appellant. On the entire, we have been urged to permit this attraction.
In addressing Points canvassed earlier than us on this attraction, one essentially have to have a look at the order or ruling of Court docket giving rise to this attraction. The Court docket under within the ruling of the 30th July, 2015 at web page 36 of the file held thus:
Having listened to the Judgment Creditor/Applicant that the first Garnishee has appeared earlier than this Court docket by way of his counsel and has equally filed counter affidavit to indicate trigger, he’s hereby discharged. As for the 2nd Garnishee who has neither appeared nor filed any counter affidavit to indicate trigger inspite of being served with this Courts earlier order of NISI an ABSOLUTE is hereby made towards him as follows:
1. An order discharging the first Garnishee/Respondent is hereby made towards the first Respondent/Garnishee being SKYE
BANK PLC.
2. An order ABSOLUTE is nevertheless hereby made towards the 2nd Garnishee/Respondent being FIDELITY BANK PLC for his failure to indicate trigger and is hereby ordered to pay in to this Court docket the sum of N24,444,000.00 plus 10% Court docket charge curiosity along with the sum of N150,000.00 value as earlier ordered within the order NISI of this Court docket.?
This ruling of Court docket is, in my opinion, premised on the:
(i) Non-appearance of the appellant or their duly appointed consultant on the proceedings of the Court docket held or carried out on the 30th July, 2015, and extra importantly,
(ii) Failure of the appellant to file an affidavit to sluggish trigger why the order Nisi entered on the 25th June, 2015 shouldn’t be made absolute on the return date that’s, on the 30th July, 2015.
(iii) The appellant was served with copy of the Order Nisi.
These findings have been findings of truth made by the Court docket under and these knowledgeable the final word conclusion to have the order Nisi change into absolute. There may be, to my thoughts no attraction towards these particular findings of truth as contained within the ruling of the Court docket under delivered on the 30/7/15.
A discovering of truth of which
there isn’t any attraction stay legitimate and subsisting. In different phrases, the place a trial Court docket makes essential discovering of truth on a difficulty earlier than it upon which the judgment or ruling of Court docket is made, and such findings will not be appealed towards or challenged on attraction, such findings stay legitimate and subsisting. See Golden Building Co. Ltd v. Stateco Nig. Ltd (2014) Eight NWLR (Pt. 1408) 171, 198; Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (Pt. 879) 631, 653.
Following the Exparte software dated 8/6/2015 which commenced the garnishee proceedings, the Court docket under upon taking the applying filed on the occasion of the respondent, granted their request therefore the Court docket on the 25/6/15 made the order Nisi and directed similar on the appellant, amongst different garnishee Banks to seem and present trigger why the garnishee shouldn’t pay to the Judgment Creditor, the quantity standing to her credit score. This process is according to provisions set out in Sections 83 and 86 of the Sheriff and Civil Course of Act. Part 86 of the Act supplies that:
If the garnishee doesn’t throughout the prescribed time pay into Court docket the quantity due from him to the Judgment debtor, or an quantity
equal to the judgment debt along with the price of the garnishees proceedings and doesn’t dispute the debt due or claimed to be due from him to such debtor, or if he doesn’t seem upon summons, the Court docket upon proof of service might order execution to challenge, and it might challenge accordingly with none earlier writ or course of, to levy the quantity due from such garnishee, or a lot thereof as could also be enough to fulfill the judgment or order, along with the prices of the garnishee proceedings.
It’s obvious on the pages of the printed file of attraction that the appellant didn’t seem earlier than the Court docket on 30th July, 2015 not to mention make makes an attempt to indicate trigger as ordained by legislation. This Court docket within the case of Re: Diamond Financial institution (2002) 17 NWLR (Pt. 795) 120, 133 has set out the process events are anticipated to observe for the sustenance of garnishee order in garnishee proceedings thus:-
It behoves a profitable plaintiff who doesn’t need to lose the fruits of his victory to maneuver quick towards the property of the judgment-debtor to appreciate the fruits. Considered one of such strategies is to acquire the order of Court docket to connect any debt owing to the judgment
debtor from any individual or physique throughout the jurisdiction of the Court docket to fulfill the judgment-debt. That course of is called attachment of debt. And it’s a separate and distinct motion between the plaintiff/judgment-creditor and the individual or physique holding in custody the property of the judgment-debt, though it flows from the judgment that pronounces the debt owing. A profitable plaintiff, in his quest to maneuver quick towards the property normally makes an software ex-parte for an order in that course. If the applying introduced exparte is adjudged to meritorious, a decide will make an order which is technically referred to as a garnishee order Nisi attaching the debt due or accruing as a result of judgment debtor from such individual or physique who from the second of constructing the order is known as the garnishee. The order additionally carries a directive on the garnishee to seem and present trigger why he shouldn’t pay to the judgment-creditor the debt owed by it to the judgment-debtor or a lot of it as might suffice to fulfill his declare. Nevertheless, the order should be served personally on the garnishee. Upon private service, that order binds the debt in his palms and
he should due to this fact pay the debt to the judgment creditor. Nevertheless, if the garnishee needs to dispute the debt or legal responsibility by it to the judgment-debtor he should seem earlier than the Court docket. If the garnishee doesn’t seem in obedience to the order Nisi or doesn’t dispute the legal responsibility, the Court docket might then make the order Nisi, absolute pursuant to the provisions of Part 86 of the of the Sheriffs and Civil Course of Act, Cap. 407%
