FIRST BANK OF NIGERIA PLC v. JACOB AGIDI NIGERIA LIMITED
(2018)LCN/11976(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of July, 2018
CA/B/224/2016
RATIO
COURT AND PROCEDURE: WHEN A GARNISHEE ORDER IS SERVED
“It is the law that when a garnishee order is served on a garnishee it becomes obligatory on the part of the Garnishee not to release the money attached by the order unless and until he is directed by the Court to do so. This obligation to obey the Courts order supercedes the garnishees duty to repay the Judgment debtor the amount due to him. The garnishee now becomes the caretaker of the fund due to the Judgment Creditor on behalf of the bank. This view was endorsed by Lord Justice Bakes and Lord Justice Alkines in Joachimson V. Swiss Bank Corp (1921) 2 KB 110 where they stated at page 173 thus: Whether the necessity for demand by the customer is implied by law as in the English case quoted or provided for by the contract as in this case can make no difference. The principle seems to me to be the same. In each case the service of the Garnishee order nisi is sufficient demand or notice to make this Garnishee the Custodian for the Court of the fund in question. See Afe Babalola OFR, SAN; Enforcement of Judgments (2003) Intec Printers Limited, Ibadan, Nigeria.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
FIRST BANK OF NIGERIA PLC – Appellant(s)
AND
JACOB AGIDI NIGERIA LIMITED – Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of the Federal High Court, Benin Division delivered on the 11th day of April, 2016 wherein the Appellants motion on notice dated 6/2/2016 seeking the order of the said Court to vary the garnishee order absolute made on 15/12/2015 and set aside the writ of execution filed by the Respondent was dismissed.
The facts of the case is that sequel to a judgment entered in favour of the Respondent herein against the Defendants/Judgment debtors. The Respondent commenced garnishee proceedings in the Federal High Court, Benin (lower Court) and the Appellant herein is 3rd amongst the garnishees. The Respondent obtained an Order Nisi from the lower Court and served same on the garnishees including the Appellant on the 30/6/2012. The Appellant complied with the said order Nisi by placing a lien on the account of the judgment debtor which was to the tune of N89,782,082.61 and filed an affidavit to that effect as per the order of the Court.
The judgment debtors however filed a motion on notice seeking an order of the lower Court to set aside the judgment being executed. In a ruling delivered by the lower Court coram Liman J., on the 15/12/2015, the said motion was dismissed and on the application by the Respondents counsel, the garnishee order Nisi was made absolute that same day and was subsequently served on the Appellant.
However, the Appellant filed a motion on notice on 7/1/2016 praying the Court for an order to vary the garnishee order absolute made on 15/12/2015 and to set aside the writ of execution filed by the Respondent. Upon hearing arguments from both parties, the learned trial Judge in a considered Ruling delivered on the 11th day of April, 2016 dismissed the said application.
Aggrieved with the outcome of the said Ruling, the Appellant filed a notice of appeal containing two grounds of appeal on the same 11/4/2016. This was followed by six additional grounds of appeal filed on 10/5/2016.
Briefs of argument were subsequently filed and served by the parties who also adopted and relied on their respective briefs at the hearing of the appeal on the 22/6/18.
In the Appellant’s amended brief of argument filed on 20/6/18 but deemed properly filed on 22/6/18, the following four issues were formulated for determination.
1. Whether the learned trial Judge did not err in law when he held that the lower Court became funtus officio after the garnishee order nisi was made absolute against the appellant herein when Exhibits B, C, D, E, F, G, H, I, J, J1, J2, K, K1, K2 AND L attached to the appellants motion on notice were not brought to the Courts attention before the garnishee order was made absolute on 15th December, 2015. (From grounds 1 and 2 of the notice of appeal)
2. Whether the learned trial Judges (mis)interpretation of the sole issue for determination formulated by the appellant to read whether the Court can make an order to vary the order absolute made on 15/12/15 by his Lordship, Hon. Justice A.M. LIMAN to accommodate the 3rd garnishee/Applicants unilateral decision to lift the lien imposed by this Court on the sum of N89,782,082.61 standing to the credit of the 1st judgment debtor as at 30th June, 2012 when the 3rd garnishee was served with the order nisi of this Federal Capital Territory High Court did not occasion a grave miscarriage of justice and the ruling subject matter of this appeal not liable to be set aside. (From grounds 1 and 4 of the additional grounds of appeal)
3. Whether the learned trial Judge was not wrong in law and in fact when in the face of overwhelming evidence that the appellant was compelled by the Federal Territory High Court to lift the lien placed on the 1st Judgment debtors account, he held that the appellant had no power to remove the lien placed on the account by the order nisi and that the appellant was clearly in error when it made the funds a subject of affidavit to show cause in subsequent orders nisi served on it in other garnishee cases. (From grounds 2 and 3 of the additional grounds of appeal)
4. Whether the failure of the learned trial Court to consider the totality of the case put forward by the appellant is not a breach of the appellant right to fair hearing and did not therefore occasion a miscarriage of justice. (From grounds 6 of the additional grounds of appeal)
The Respondents brief of argument was filed on 13/6/17 and deemed properly filed and served on 16/11/17 but was further deemed on 22/6/18.
Therein the Respondent in paragraphs 3.09 to 3.11 at page 3 of the said brief raised a preliminary objection challenging issues 2, 3 and 4 as formulated by the Appellant. However the said preliminary objection was not argued before the hearing of the appeal on 22/6/18 and no mention was even made about it during the said hearing. Accordingly the said preliminary objection is deemed abandoned and it is hereby discountenanced. See MAGIT VS. FEDERAL UNIVERSITY OF AGRICULTURE, MAKURDI (2006) All FWLR (PT. 298) 1313; TIZA VS. BEGHA (2005) All FWLR (PT. 272) 200; OKOLO VS. U.B.N LTD (1998) 2 NWLR (PT. 539) 618; AJIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248; NSIRIM VS. NSIRIM (1990) 3 NWLR (PT. 138) 295.
On the main appeal, the four issues raised by the Respondent are conually in tandem with the Appellants four issues. I will however adopt the latter in the consideration of this appeal.
ISSUE NO. 1
Dwelling on this issue, learned counsel for the Appellant referred to the Exhibits attached to the affidavit in support of the motion on notice as Exhibits A to L. The question was then raised, whether considering the circumstances of the case the Appellant could be punished when from the aforementioned Exhibits, the Federal Capital territory High Court were duly informed about the existence of the garnishee order nisi made by the lower Court herein but nevertheless went ahead to make both order Nisi and order absolute against the Appellant herein in respect of the account which was already subject matter of garnishee proceedings before the lower Court in Benin.
He added that since justice must not be sacrificed on the altar of technicality, the issue should be resolved in favour of the Appellant.
Issue No. 2 & 3
Herein learned counsel in arguing the two issues together submitted that the learned trial Judge while refusing the Appellants motion on notice re-phrased the sole issue raised for determination by the Appellant thus:
Put in another way, whether the Court can make an order to vary the order it made absolute on 15th December, 2015 to accommodate the 3rd garnishee/applicants unilateral decision to lift the lien imposed by this Court on the sum of N89,782,082.61 standing to the credit of the 1st Judgment debtor as at 30th June, 2012 when the 3rd garnishee was served with the order nisi of this honourable Court. The 3rd Garnishee has no power to unilaterally lift the lien granted by this Court. It is only the Court that can lift the lien.
It was then contended that a trial Court is bound by the case presented to it by the parties and has no duty to make a case for either of the parties or raise issues or matters outside the limits of the parties case. The following cases were cited in support. UTB (NIG) LTD VS. OZOEMENA (2001) 7 NWLR (PT. 713) 718; IFER VS. IKYANYON (2001) 4 NWLR (PT. 703) 324; OBULOR VS. OBORO (2001) 8 NWLR (PT. 714) 25 at 32.
He added that none of the parties deposed to any facts suggesting that the Appellant unilaterally removed the lien placed on the judgment debtors account by the lower Court and that the Exhibits annexed to the affidavit in support of the Appellants motion on notice show clearly that the lien was lifted by the Federal Capital Territory (FCT) High Courts which are Courts of co-ordinate jurisdiction with the lower Court.
It was further submitted that a Court cannot raise an issue suo motu without calling on the parties or their counsel to address it on the issue raised.
Therefore the Court is duty bound to give parties an opportunity to be heard on any issue it raised suo motu. Reliance was placed on the case of SHASI VS. SMITH (2010) 6 WRN 39 and OGEMBE VS. USMAN (2011) VOL. 12 MJSC 72; GWEDE VS. INEC & ORS. (2014) VOL. 10 – 11 MJSC page 1 at page 6.
Learned counsel then contended that the decision of the lower Court to raise the issue suo motu without giving the Appellant the opportunity to be heard denied the Appellant of its right to fair hearing and resulted in a miscarriage of justice.
Issue No. 4
Learned counsel herein submitted that denying a party the opportunity to be heard in any given case amounts to a breach of the right to a fair hearing as held in the case of USMAN VS. LAWAL (2010) VO. 18 WRN 1. It was then urged on the Court to hold that a denial of the opportunity to address the Court on issues raised suo motu amounts to a serious miscarriage of justice to the Appellant and this includes failure by the lower Court to examine the exhibits put before it by the Appellant that it was compelled by the FCT High Court to lift the lien placed on the 1st judgment debtors account but held that the Appellant had no power to lift the lien placed on the said account by an order Nisi and also erred by making the funds so attached a subject of sworn affidavit to show cause before the FCT High Court. This Court was then urged to allow the appeal and also invoke the provisions of Section 15 of the Court of Appeal Act 2016 to determine the issues in controversy between the parties.
Replying in their own issue No. 1, learned counsel for the Respondent submitted that the trial Court rightly held that the garnishee order absolute made on 15/12/2015 was a final order which can only be reviewed on appeal and that the case of UNION BANK OF NIGERIA PLC. VS. BONEY MARCUS INDUSTRIES LTD & ORS. (2005) 13 NWLR (PT. 943) 654 at 666, relied on by the lower Court is quite apt on the issue.
It was further submitted that when a Court makes a final order in a matter before it, the Court becomes funtus officio and cannot thereafter review, set aside or vary the order and any aggrieved party can only appeal against such order. Reliance was placed on the following cases. ONYEABUCHI VS. INEC (2002) 8 NWLR (PT. 769) 417; OMELIKE VS. OMELIKE (2013) 13 NWLR (PT. 1371) 423) 423 at 433; OLADOSU VS. OLAOJOYETAN (2012) 1 NWLR (PT. 1335) 285 at 301.
He added that the Appellant did not challenge the Garnishee order absolute made on 15/12/2015 by way of an appeal in which case it is incumbent upon the Appellant to comply with the said order which was made when it was shown that there was sufficient funds in the judgment debtors account to satisfy the judgment debt. The following cases were cited in support. MILITARY GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) 1 NSCC 304; MOBIL OIL (NIG) LTD. VS. ASSAN (1995) 8 NWLR (PT. 412) 129; OJO VS. INEC (2008) 13 NWLR (PT. 1105) 577.
Learned counsel also contended that the Exhibits B to L annexed to the Appellants affidavit in support of the motion on notice were not materials placed before the Court when the order absolute was made on 15/12/2015. He added that the said Exhibits are also irrelevant and immaterial because the order attaching the account of the 1st judgment debtor was made on 20/6/12 long before the order of the FCT High Court attaching the same account was made in a matter not connected with the instant action.
ISSUES 2 & 3
Arguing the two issues together, learned counsel for the Appellant submitted that the learned trial Judge was right to hold that the Appellant had no power to remove the lien placed on the 1st Judgment debtors account with it. Also that the reasoning as contained in page 178 of the record is consistent with settled principles of garnishee proceedings as held in the following authorities. FIDELITY BANK PLC VS. MR. FRANCIS OKWUOWULU & ANOR. (2012) LPELR 8497 (CA) 15; NIGERIA BREWERIES PLC VS. CHIEF WORTH DUMUJE & ANOR (2015) LPELR 25583 (CA) 97.
It was also pointed out that the FCT High Court did not by its order lift the lien imposed on the 1st Judgment debtors account with the Appellant in which case it could not have reviewed, varied or in any way altered the earlier order made by the lower Court. This means that the Appellant on its own lifted the lien on the said account as shown in paragraphs 3, 5 and 6 of the Appellants affidavit evidence before the lower Court.
It was equally submitted that a Court has the power to re-formulate the issues submitted to it for determination by the parties, as held in INEC VS. ABUBAKAR (2009) 8 NWLR (PT. 1143) 259 and DANIEL VS. INEC (2015) 9 NWLR (PT. 1463) 113 at 146. Therefore it cannot be correct to complain that the Court raised any issue suo motu outside those presented by the parties.
ISSUES NO. 4
Herein, it was submitted that the lower Court was right to have held that there was no basis for setting aside the writ of execution filed by the Respondent as a result of the Appellants refusal to pay the balance of the judgment debt pursuant to the order absolute made on 15/12/2015 and which judgment debt is outstanding to the tune of N25million.
It was therefore urged on this Court to resolve the four issues against the Appellant and dismiss the appeal.
Now dealing with the Appellants issue No. 1, which relates to the status of a trial Court after making a garnishee order absolute. That is to say, whether such Court has the power to vary or set aside such order upon an application by a garnishee. Judicial pronouncements in this aspect of the law are quite numerous. Firstly, it is the law that a garnishee order absolute whenever made, is final. It constitutes a final decision of the Court to all intents and purposes. See ODUTOLA VS. ODERINDE (2004) 12 NWLR (PT. 888) 574 and SUNNET SYSTEMS LTD. VS. NERC & ANOR (2014) LPELR 23967 (CA). A garnishee order absolute being a final order is appealable as of right and the only way by which a garnishee can ventilate his grievance against an order absolute is by way of an appeal. See ECOBANK PLC VS. AKAEHOMEN (2017) LPELR 43058 (CA).
In SKYE BANK PLC VS. DAVID & ORS. (2014) LPELR 23731 (CA) this Court per Mbaba JCA held at pages 15 to 16 that:
Of course, a decision on a garnishee proceedings that makes an order Nisi (which infact is an interlocutory order) absolute, is a final judgment in the case on which an appeal lies as of right. See the case of Garba Vs. Ummuani (2012) LPELR 9841 (CA), on when a decision is interlocutory and when it is final, where it was held: The Nigerian Courts have accepted and followed the latter test id est that where an order made by a Court finally determines the rights of the parties to an action, then it is final, and where it does not, then it is interlocutory. See Igunbor Vs. Afolabi (2001) 11 NWLR (Pt. 723) 148; Ogolo Vs. Ogolo (2000) 5 NWLR (Pt. 972) 163; Owoh Vs. Asuk (2008) 16 NWLR (pt. 1112) 113.An order absolute is the final decision in any garnishee proceedings and a garnishee proceedings by its very nature is a suit taken out to enforce or execute the judgment of a Court and so it is a fresh and separate action from the suit that brought about the judgment debt. See OCEANIC BANK PLC VS. OLADEPO (2012) LPELR 19676 (CA).
In the case of UBA PLC VS. EKANEM & ANOR (2010) 6 NWLR (PT. 1190) 207, it was emphasised that an order of a trial Court refusing to discharge its garnishee order nisi and at the same time making it an absolute order is a final one and it is appealable as of right.
It follows therefore that with the garnishee order absolute made by the lower Court on 15/12/15 the garnishee proceedings comes to an end. The lower Court having at this stage completely and finally determined the matter between the parties as far as the garnishee proceedings brought before it was concerned and it thenceforth becomes functus officio. There is nothing left for the Court to decide between the Appellant and the Respondent herein, including the motion on notice to vary the said order absolute. Except where it is shown that a garnishee order nisi or absolute is made without jurisdiction rendering the whole proceedings incompetent and void that an aggrieved party can apply to set it aside and the Court will have the power to consider same. See SUNNET SYSTEMS VS. NERC & ANOR supra. Barring such legal shortcoming a Court, upon making a garnishee order absolute becomes functus officio and the only option open to an aggrieved party is to appeal as of right. The case of UNION BANK OF NIGERIA PLC VS. BONEY MARCUS INDUSTRIES LTD. & ORS. (2005) 13 NWLR (PT. 943) 654 rightly cited by learned counsel for the Respondent as well as the lower Court aptly provides a germane elucidation on the principle guiding a garnishee order nisi and order absolute, wherein the Supreme Court held thus:
Applications for garnishee proceedings are made to the Court by the Judgment Creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman France word and it means Unless. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the Judgment Creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the Judgment Creditor. The Court thereafter becomes functus officio as far as that:
(a) Matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him.
Furthermore, the Court held:
(b) During that period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing.
(c) Left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned.
The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at that stage, being interlocutory would therefore not arise.
In the light of the above cited authorities, it is no doubt settled that a Court becomes functus officio upon pronouncement of a garnishee order absolute and lacks the power to revisit any issue pertaining thereof, thus leaving an aggrieved party with the only option of an appeal. This issue is therefore resolved against the Appellant.
On issues No. 2 and 3, as argued together by the Appellant, that is, whether the learned trial Judges misinterpretation of the sole issue for determination formulated by the appellant to read:
Whether the Court can make an order to vary the order absolute made on 15/12/15 by His Lordship, Hon. Justice A.M. Liman to accommodate the 3rd garnishee/Applicants unilateral decision to lift the lien imposed by the Court on the sum of N89,782,082.61 standing to the credit of the 1st judgment debtor as at 30th June, 2012 when the 3rd garnishee was served with the order nisi of this Federal Capital Territory High Court.
Did not occasion a grave miscarriage of justice and the Ruling subject matter of this appeal not liable to be set aside. And whether the learned trial Judge was not wrong in law and in fact when in the face of overwhelming evidence that the Appellant was compelled by the Federal Capital Territory High Court to lift the lien placed on the 1st judgment debtors account, he held that the Appellant had no power to remove the lien placed on the account by the order nisi and that the Appellant was clearly in error when it made the funds earlier attached, a subject of affidavit to show cause in subsequent orders nisi served on it in other garnishee cases.
The crux of the Appellants first complaint is that the learned trial Judge rephrased the sole issue for determination while considering the application to vary the garnishee order absolute, contrary to the law that a Court cannot make a case for the parties other than that presented to it for determination.
It is indeed a correct statement of the law that a Court is not imbued with the powers to set up a case different from that which the parties have brought before it for determination. See BISIRIYU AKINLAGUN & ORS. VS. TAIWO OSHOBOJA & ANOR (2006) 12 NWLR (Pt. 993) 60 or (2006) 5 SC (PT. 11) 100; ALABURA VS. MAINA & ORS. (2015) LPELR 41653 (CA); UHEMBE & ANOR. VS. PARKES (2014) 3 NWLR (PT. 1395) 475; EBBA VS. OGODO (1984) 4 SC 84. In NIGERIA AIRFORCE VS. SHEKETE (2002) 18 NWLR (PT. 188) 129 at 151, the Supreme Court per Niki Tobi JSC (now of blessed memory) expressly admonished thus:
The litigation is for the parties and not the Court. Therefore the Court has no jurisdiction to extend or expand the boundaries of the litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.
On the strength of the above established principle of law, I have carefully perused the ruling delivered by the lower Court vis-a-vis the complaint raised by the learned counsel for the Appellant but unfortunately I do not locate any part of the said ruling where the learned trial Judge seem to have formulated any issue outside or alien to the case presented by the parties.
The learned counsel for the Appellant therefore seem to have misconstrued or misinterpreted the view of the learned trial Judge as expressed in the said ruling. For purpose of clarity, I hereinbelow reproduce the part of the Ruling that engendered this appeal as contained in pages 123 to 124 of the record of appeal. It reads:
In his written address dated 6th January, 2016, the 3rd Garnishee/Applicant formulated one issue for determination thus:
Whether this is not a case, where this honourable Court ought to exercise its discretionary powers to vary its order and vary the garnishee order absolute made on the 15th December, 2015.
Put in another way, whether the Court can make order to vary the order absolute it made on the 15/12/15 to accommodate 3rd Garnishee/Applicants unilateral decision to lift the lien imposed by this Court on the sum of N89,782,082.61 standing to the credit of the 1st Judgment debtor as at 30th June, 2012 when the 3rd garnishee was served with the order nisi of this honourable Court.
Arguing the issue, Learned Counsel reiterated the facts of the case as presented earlier in this ruling and premised his submission to the issue he formulated on the facts of the case. He submitted that Exhibit C (the order absolute made by this Court on the 15/12/15) is discretionary and that being so, a discretionary order by its nature can be varied if the circumstances arise which justify the variation. He referred the court to the case of NNPC V A.I.C. LTD (2002) 4 NWLR (pt. 756) 99 at 97 98 (paragraphs G A). He further submitted that 3rd Garnishee is ready to pay the sum of N64,782,081.61 to either the Judgment Creditor/Respondent or the Registrar of this Court subject to the directive of the Court. He urged the Court to grant the application in the interest of justice.
From my own understanding of the above set out portion of the ruling of the learned trial Judge, he merely restated the issue formulated for determination by the Appellant in a more explicit form but never relied on same to determine the application before the Court because he went ahead to summarise the submissions of the Appellant in support of the application. In other words, the said different issue formulated saga was a mere put in another way restatement of the issue raised by the Appellant in the course of summarising the submissions of the parties and not at the stage of reasoning or presentation of the opinion of the Court. It is nothing more than a mere surplusage with no relevance to the issue under discourse by the learned trial Judge who did not rely on same to reach his conclusion. The reality of this state of affairs is made quite clear in the subsequent part of the Ruling where at the onset of the Courts resolution of the issues raised, it was stated thus at pages 125 to 126 of the record in very clear and convincing terms:
For the just determination of this motion, I have decided to take the issue formulated by Learned Counsel for the Plaintiff/Judgment Creditor/Respondent to wit; whether the Applicant is entitled to the prayers sought in his application.
The above issue will be answered on two premises;
1. What is the effect of a garnishee order nisi; and
2. Whether a garnishee order absolute is a final or interlocutory order.
It is more than obvious from the above set out portion of the Ruling that the learned trial Judge did not formulate any issue on his own contrary to the argument by learned counsel for the Appellant. He only opted to adopt the sole issue formulated by the learned counsel for the Respondent. A Judge has the right to adopt any of the issue or issues raised by either of the parties which he finds apposite for the just determination of the dispute presented to the Court for resolution. He can also reformulate such issues or formulate issues on his own provided it is within the ambit of the issues joined by the parties. In other words such issue or issues so formulated should in the view of the Court be germane to, or pertinent in the determination of the matter in controversy between the parties. See AGBAREH VS. MIMRA & ORS. (2008) 1 SCNJ 409; MMASHA VS. DA RAP KWAN (2000) 5 SCNJ 101. In MPAMA VS. FBN PLC. (2013) 5 NWLR (PT. 1346) 176 the Supreme Court per Alagoa JSC rightly observed thus:
In UNITY BANK PLC VS. MR EDWARD BOUARI (2008) 7 NWLR (PT. 1086) 372, this Court per Ogbuagu JSC said as follows: It is now firmly settled that a Court can and is entitled to reformulate issue or issues formulated by a party or parties or counsel in order to give it precision and clarity.
See also AWOJUGBAGBE LIGHT INDUSTRIES LTD VS. P.N. CHINUKWE & ANOR. (1995) 4 NWLR (PT. 390) 379; OGUNBIYI VS. ISHOLA (1996) 6 NWLR (PT. 452) 12 at 24.”
On the contention by the learned counsel for the Appellant that it was wrong for the learned trial Judge to hold that the Appellant had no power to unilaterally lift the lien granted by the Court because none of the parties deposed to facts suggesting that the Appellant unilaterally removed the lien placed on the judgment debtors account by the lower Court, moreso that the said lien was lifted by the Federal Capital Territory High Court as shown in the Exhibits attached to the motion on notice to vary the order absolute.
This argument to my mind, amounts to an attacker misdirecting a missile to himself and the consequence no doubt will be a case of self destruction.
A careful reading of the ruling of the lower Court as well as the affidavit and counter affidavits deposed to by the parties with regard to the Appellants motion on notice to vary the order absolute show that the learned trial Judge acted on the basis of the facts deposed to by the
Appellant in paragraphs 3 to 6 of the affidavit in support of the application. The said paragraphs 3 to 6 reads thus:
3. That the 3rd garnishee/applicant was served with a garnishee order nisi dated 20th of June, 2012 issued by this honourable Court in this suit in respect of account No. 2017655572 held by the judgment debtors with the 3rd garnishee/applicant whereupon a lien was placed on the account accordingly.
4. That the 3rd garnishee/applicant filed several affidavits to show cause and the last affidavit filed by the 3rd garnishee/applicant was that headed FURTHER AND BETTER AFFIDAVIT OF 3RD GARNISHEE TO SHOW CAUSE in which it was disclosed that the judgment debtor had sufficient money in their account therein to satisfy the judgment debt of N89,000,000.00 (eighty nine million naira) only. A copy of the said affidavit is annexed herewith and marked Exhibit A.
5. That after a lien was placed in the account referred to above, several other garnishee orders were served on the 3rd garnishee/applicant in respect of the same account No. 2017655572 and some of such orders were made absolute against the 3rd garnishee/applicant despite the fact that the Courts in issue were duly informed of the lien placed on the account in obedience of the order nisi served on the 3rd garnishee/applicant by this honourable Court by way of affidavit evidence.
6. That the 3rd garnishee/applicant was therefore constrained to lift the lien and raise a total of N25,000,000.00 (Twenty-Five Million Naira) only in satisfaction of the judgment debts arising from the orders nisi made absolute against the 3rd garnishee/applicant in the cases under reference as a result of which the liened sum of N89,782,082.61 (Eighty-Nine Million, Seven Hundred and Eighty-Two Thousand, Eighty Two thousand naira and Sixty-One kobo) only which depleted the sum to N64,782,082.61 (Sixty-Four Million, Seven Hundred and Eighty-Two Thousand, Eighty-Two Thousand Naira and Sixty-One kobo) only as it was a pre-condition for the grant of stay of execution.
Paragraph 6, as above set out is indeed the killer punch which settles the matter to finality. Therein the Appellant deposed clearly thus:
6. That the 3rd garnishee/applicant was therefore constrained to lift the lien and raise a total of N25,000,000.00 (Twenty-Five Million Naira) only in satisfaction of the judgment debts (underline for emphasis)
The words used by the Appellant speaks for themselves and points to no other fact than that the Appellant on its own lifted the lien earlier placed by the lower Court on 20/6/12 via an order nisi which was made absolute on 15/12/2015.
It is therefore in my humble view, unfair for the Appellants counsel to wrongly accuse the learned trial Judge that he raised an issue of fact not derived from any of the parties affidavit evidence when infact he acted based on the affidavit evidence placed before the Court as deposed to in paragraph 6 of the Appellants affidavit in support of the motion on notice.
The learned trial Judge even went the extra mile to make the point very clear that it is only the Court that can lift the lien placed on a debtors account. I am infact inclined to reproduce the erudite reasoning of the learned trial Judge at pages 126 to 127 of the record. It reads thus:
In other words, what is the legal effect of a lien placed on the judgment debtors money in the hands of the garnishee by the order nisi of Court.
It is the law that when a garnishee order is served on a garnishee it becomes obligatory on the part of the Garnishee not to release the money attached by the order unless and until he is directed by the Court to do so. This obligation to obey the Courts order supercedes the garnishees duty to repay the Judgment debtor the amount due to him. The garnishee now becomes the caretaker of the fund due to the Judgment Creditor on behalf of the bank. This view was endorsed by Lord Justice Bakes and Lord Justice Alkines in Joachimson V. Swiss Bank Corp (1921) 2 KB 110 where they stated at page 173 thus:
Whether the necessity for demand by the customer is implied by law as in the English case quoted or provided for by the contract as in this case can make no difference. The principle seems to me to be the same. In each case the service of the Garnishee order nisi is sufficient demand or notice to make this Garnishee the Custodian for the Court of the fund in question.
See Afe Babalola OFR, SAN; Enforcement of Judgments (2003) Intec Printers Limited, Ibadan, Nigeria.
It is therefore apposite that from the very day, the order nisi is served on it, the garnishee has no power to either release the money in its custody to the Judgment debtor or deal with it by itself. In effect, the money has become frozen or crystallised and is no longer available to be dealt with either for payment or in satisfaction of another debt or for any use whatsoever except by the order of Court which issued the order (nisi) to attach it in the first place. That is the reason the money is said to be attached. It has been attached even at that stage and is no longer available. For any use contrary to the one for which the order was made. It cannot also be subject of any subsequent attachment or any interest whatsoever unless by the order of the Court which placed a lien on it. That being so, 3rd Garnishee/Applicant has no power to remove the lien placed on it by the order nisi and was clearly in error when it made the fund a subject of affidavit to show cause in the subsequent order nisi served on it in other garnishee cases. As at the date it received the order of this Court, that is 30th June, 2012, the sum of N89,782,082.61 which was standing to the credit of the judgment debtor has become attached, crystalised and frozen.
It is no longer available. The balance in the account of the Judgment debtor from that moment has become zero.
I wholly endorse the above set out reasoning and conclusion of the learned trial Judge on the legal effect of a lien placed on a judgment debtors funds in the bank of a garnishee by the order nisi made by a Court. See also ECOBANK (NIG) PLC. VS. MBANEFO & BROS LTD (2014) LPLER 41106 (CA). It does not indeed lie with a garnishee to lift a lien placed on a judgment debtors account with it by order of a Court. It is only the Court which made the order that can lift same when it is justifiable to so do. Consequently, when funds in an account with a bank is attached via an order Nisi (such as the case of the Appellant) it remains attached and this is so notwithstanding a subsequent order of attachment by another Court of co-ordinate jurisdiction. Just like where two equities are equal, the first in time prevails, it follows also that where there are two subsisting orders made on a subject matter of dispute by two Courts of co-ordinate jurisdiction, the first order of Court affecting the Res ought to take precedent over the subsequent one except where the first order has been set aside.
In the instant case, the order nisi of the lower Court made on 20/6/2012 placed a lien on the judgment debtors account with the Appellant and this order remains subsisting until it is either set aside or made absolute by the same Court. Therefore the order of the Federal Capital Territory High Court attaching the same account belonging to the same judgment debtor in the Appellant bank, ought not to have moved the Appellant to on its own lift the lien placed on the money kept in the said account because that amounts to a defiance of the order of the Federal High Court Benin made on 20/6/2012 and could subject the said Appellant to a contempt proceedings. A proper approach when faced with such an anomaly is to appeal against the order absolute made by the Federal Capital Territory High Court. On the whole, I resolve issues 2 and 3 against the Appellant.
On Issue No. 4, that is whether the failure of the learned trial Judge to consider the totality of the case put forward by the Appellant is not a breach of the Appellants right to fair hearing.
It is indeed a statutory responsibility of all Courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is capable of rendering any proceedings a nullity. In other words, denial of fair hearing to a party is often fatal to the judgment or ruling of the Court concerned. This is so because the right to fair hearing is a fundamental constitutional right guaranteed under the Constitution of the Federal Republic of Nigeria 1999 as amended and a breach of it in trials and adjudications vitiates the proceedings and renders same null and void and of no effect. See SAMBA PETROLEUM LTD & ANOR VS. UNITED BANK FOR AFRICA PLC & ORS (2010) 5- 7 SC (PT. II) 22; NDUKAUBA VS. KOLOMO & ORS. (2005) SCM 114; A.G. RIVERS STATE VS. GREGORY OBI UDE & ORS. (2006) 7 SCNJ 613; OLAGUNYI VS. OYENIRAN & ORS. (1995) 1996) All NLR 494.
In the instant case, I have read through the Ruling of the lower Court appealed against but do nothing than wonder askance at the justification for the Appellants complaint about denial of fair hearing.
The much I can glean from the Appellants complaint going by issues 1, 2 and 3 earlier considered related to Exhibits B, C, D, E, F, G, H, I, J, J1, K, K1, K2, and L attached to the affidavit in support of the motion on notice to vary the order absolute. The said Exhibits relates in the main to the proceedings at the Federal Capital Territory High Court which the Appellant had tendered to show proof that the lien placed on the judgment debtors fund by an earlier order nisi of the lower Court made on 20/6/2012 has been lifted and the money attached has been reduced to satisfy the subsequent order nisi and later order absolute made by the Federal Capital Territory High Court.
I had earlier in this judgment, while considering issues 2 & 3 held that the order of the Federal High Court Benin made on 20//6/12 attaching the judgment debtors fund held by the Appellant remains subsisting and takes priority over the subsequent order made by the Federal Capital Territory High Court in 2013 and 2014 which orders are by courts of co-ordinate jurisdiction. This is because, by the said order made on 20/6/2012, the sum of money standing to the credit of the judgment debtor in its account with the Appellant as at the 30/6/12 when the order was served or it remains frozen and cannot be altered or tampered with until the same Court or a higher Court orders otherwise. Order 37 Rule 3(2) of the Federal High Court (Civil Procedure) Rules 2009 earlier referred to confirms that such funds as attached by an order of the Court binds the hand of the garnishee as from the date of service of the order on him.
Furthermore, given the order absolute made by the lower Court on 15/12/2015 it became functus officio and cannot entertain any other matter relating to the garnishee proceedings. Hence the lower Court relying on the Supreme Court case of UNION BANK OF NIGERIA PLC VS. BONEY MARCUS IND. LTD & ORS. supra held at page 183 of the record that:
I adopt the above reasoning of the Supreme Court and have nothing more to add. Therefore, I hold that the order absolute made by this Court on the 15th December, 2015 is a final order which can only be appealed against. This Court has become functus officio and can no longer vary the order.
From the above set out holding of the lower Court, it is very clear that it could not delve further into the consideration of the motion on notice to vary the order absolute because it lacks the jurisdiction to do so. The option open to the Appellant is to appeal against the order absolute and not to intimidate the lower Court into doing what it lacks the competence to engage in.
The complaint about denial of fair hearing cannot therefore stand and as held by the Supreme Court, per Niki Tobi JSC (now of blessed memory) in the case of TIM ORUGBO & ANOR VS. BULARA UNA & ORS. (2002) 13 SCM 153:
It has become a fashion for litigants to resort to their right of fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder.
See also MILITARY GOVERNOR OF LAGOS STATE & ORS. VS. ADEBAYO ADEYIGA & ORS. (2012) 2 SC (PT. 1) 68. This issue is therefore resolved against the Appellant.
On the whole, this appeal is found to be totally unmeritorious and it is accordingly dismissed.
The Ruling of the Federal High Court delivered by O.O. Tokode J., on the 11th day of April, 2016 is hereby affirmed.
The sum of N200,000 is hereby awarded as costs against the Appellant.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading in draft form, the judgment of my learned brother, OSEJI, JCA just delivered. I agree that this appeal is devoid of any merit and I also dismiss it.
I abide by the orders made in the leading judgment, including that as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA. Obliged me in draft a copy of the judgment just delivered.
I had a preview of the said judgment and I am in full agreement with both the reasons adduced and the conclusion that the appeal is totally devoid of any merit and should be dismissed.
I also dismiss the appeal and abide by the consequential orders therein including the order for cost.
Appearances:
O. OkunkpolorFor Appellant(s)
C.C. OkpalekeFor Respondent(s)
