LawCare Nigeria

Nigeria Legal Information & Law Reports

HERITAGE BANK OF NIG v. AFRIMPEX ENTERPRISES LTD (2022)

HERITAGE BANK OF NIG v. AFRIMPEX ENTERPRISES LTD

(2022)LCN/16798(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, February 24, 2022

CA/KN/580/2018

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

HERITAGE BANK OF NIGERIA APPELANT(S)

And

AFRIMPEX ENTERPRISES LIMITED RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON GARNISHEE PROCEEDINGS

This appeal emanated from a garnishee proceeding. Now, garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed strictly by the provisions of the Sheriffs and Civil Process Act – United Bank for Africa Plc Vs Ubokulo (2009) LPELR 8923(CA), Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801(CA). The nature of and procedure for garnishee proceedings has been stated and reiterated by the Courts in several cases. Garnishee proceeding is one of the ways of executing a judgment.
It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as “attachment of debt.” A successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the Judge will make an order which is technically known as a “garnishee order nisi” attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the judgment creditor the debt owed by it to the judgment debtor. The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 86 of the Sheriffs and Civil Process Act –First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199, Barbedos Ventures Ltd Vs First Bank of Nigeria Plc (2018) 4 NWLR (Pt 1609) 241, Gwede Vs Delta State House of Assembly (2019) 8 NWLR (Pt 1673) 30.
PER ABIRU, J.C.A.

WHETHER OR NOT THE JUDGMENT DEBTOR IS ENTITLED TO BE HEARD ON A GARNISHEE PROCEEDINGS

The status of a judgment debtor in a garnishee proceeding is an issue that has engaged this Court over the years and on which this Court failed to maintain one position. In one breath, this Court maintains that a judgment debtor has no role to play in garnishee proceedings and is not entitled to be heard in the proceedings and that a judgment debtor seeking to be heard on a garnishee proceeding is a meddlesome interloper and that, as such, a judgment debtor has no right to appeal against a garnishee order absolute. This was position taken by this Court in the cases of Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt. 1083) 418, Star Deepwater Petroleum Ltd Vs A. I. C. Ltd (2010) LPELR-9165(CA), United Bank of Africa Plc Vs Ekanem (2010) 6 NWLR (Pt 1190) 207, NIMASA Vs Odey (2012) LPELR-14419(CA), SCOA (Nig) Plc Vs Registered Trustees of Methodist Church of Nigeria (2016) LPELR-40192(CA), Ibeto Petrochemical Industry Ltd Vs Total Nig Plc (2016) LPELR-41457(CA), Technip Vs A. I. C. Ltd (2016) 2 NWLR (Pt 1497) 421, Dangote Sugar Refinery Vs Vinan Petroleum Ltd (2017) LPELR-43189(CA), Heritage Banking Co Ltd Vs N. U. C. (2017) 5 NWLR (Pt. 1557) 104, ABU Teaching Hospital Vs Star Global Marketing (2019) LPELR-43213(CA), Zenith Bank Plc Vs National Trucks Manufacturing Ltd (2020) LPELR-50941(CA). PER ABIRU, J.C.A.

WHETHER OR NOT A JUDGEMENT DEBTOR IS A NECESSARY PARTY IN GARNISHEE PROCEEDINGS

In another breath, this Court holds that a judgment debtor is a necessary party in garnishee proceedings, from after the grant of a Garnishee Order Nisi, and is entitled to be heard in certain limited circumstances in the proceeding leading to the grant of a Garnishee Order Absolute and that, as such, can appeal as of right against a garnishee order absolute. This is the decision in the cases of Awoyomi Vs Chief of Army Staff (2013) LPELR-22121(CA), Nigerian Breweries Plc Vs Dumuje (2015) LPELR-25583(CA), Zenith Bank Plc Vs Erunke (2015) LPELR-40592(CA), University of Lagos Vs Oluwasanmi (2017) LPELR-42305(CA), Barbedos Ventures Ltd Vs Zamfara State (2017) LPELR-42499(CA), Delta State Government Vs Kay Que Investment Ltd (2018) LPELR-45545(CA), Nigerian Navy Vs Ironbar (2019) LPELR-47006(CA), Archibong Beaches Ltd Vs Attorney General, Cross River State (2019) LPELR-48145(CA), Bogoro Local Government Council Vs Kyauta (2020) LPELR-49812(CA). PER ABIRU, J.C.A.

THE POSITION OF LAW ON WHEN AN APPEAL IS DEEMED ENTERED IN THE APPELLATE COURT

The question is – whether the lower Court acted correctly in declaring the facts brought to its attention as irrelevant and going on with the garnishee proceedings despite them? Now, the law is that an appeal is deemed entered in the appellate Court when the records of appeal from the lower Court are compiled and transmitted to and accepted by the Registry of the appellate Court and the appeal is listed on the cause list of the appellate Court by being given an appeal number – Adewoyin Vs Adeyeye (1962) 1 SCNLR 91, Ogunremi Vs Dada (1962) 2 SCNLR 417, Ezomo Vs Attorney General, Bendel State (1986) 4 NWLR (Pt. 36) 448, Erisi Vs Idika (1987) 4 NWLR (Pt. 66) 503, Audu Vs Attorney General, Federation (2012) 8 NWLR (Pt. 1355) 175, Barigha Vs Peoples Democratic Party (2013) 6 NWLR (Pt. 1349) 108, VAB Petroleum Inc. Vs Momah (2013) 14 NWLR (Pt. 1374) 284, Peoples Democratic Party Vs Badaire (2019) LPELR-47063(CA).  PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision contained in the ruling of the High Court of Kano State delivered in Suit No. K/554/1998 by Honorable Justice Nura Sagir Umar on the 5th of July, 2018 wherein a Garnishee Order Absolute was made attaching the funds of the Appellant in the custody of five banks – Central Bank of Nigeria, Zenith Bank Plc, First Bank of Nigeria Plc, Heritage Bank Limited and Nova Merchant Bank Limited.

The relevant facts to this appeal are that the Respondent obtained a monetary judgment against the Appellant in the total sum of N442.5 Million from the High Court of Kano State on the 6th of January, 2011. The appeal of the Appellant against the judgment was dismissed by the Court of Appeal sitting in Kaduna in a judgment delivered on the 29th of March, 2018. Thereafter, the Respondent commenced garnishee proceedings to enforce the judgment by a motion ex-parte dated and filed on the 16th of April, 2018 and whereon it listed twenty-eight Banks, including the five above mentioned Banks, as Garnishees and the Appellant was listed as the judgment Debtor/Respondent on the application.

The lower Court heard and granted the motion ex-parte on the 26th of April, 2018 and it made a Garnishee Order Nisi attaching monies in the sum of N442.5 Million due to the Appellant and standing to its credit in its accounts with the twenty-eight Garnishees. The lower Court fixed the matter for the 21st of June, 2018 for the Garnishees to show cause why the Garnishee Order should not be made Absolute against them.

The records of appeal show that the Appellant filed a motion for change of Counsel dated the 1st of June, 2018 as well as an affidavit of notification, both on the 4th of June, 2018. In the affidavit of notification, the Appellant caused to be deposed the facts that it had filed a notice of appeal against the judgment of the Court of Appeal delivered on the 29th of March, 2018 and that the records of the appeal had been compiled and transmitted to the Supreme Court and that the appeal was entered at the Supreme Court on the 10th of May, 2018 and given Appeal No SC/446/2018. A document said to evidence the entry of the appeal at the Supreme Court was attached as an exhibit to the affidavit.

The records of appeal show that the Respondent filed a counter-affidavit to the Appellant’s affidavit of notification on the 21st of June, 2018 and wherein it caused to be deposed the fact that it has neither been served with the said notice of appeal that the Appellant claimed it filed against the judgment of the Court of Appeal to the Supreme Court nor with the records of appeal entered as Appeal No. SC/446/2018. The Respondent contended against the truth of the contents of the affidavit of notification and deposed that they were of no relevance to the garnishee proceedings.

The records of appeal show that all the other Garnishee Banks filed their respective affidavits to show cause and that there was motion for stay of execution of the judgment of the Court filed by the Appellant on the 4th of April, 2018. When the matter came up before the lower Court on the 21st of June, 2018, Counsel to the Respondent prayed the lower Court to discharge the Garnishee Order Nisi made against the 2nd, 3rd, 4th, 5th, 6th, 9th, 10th, 11th, 13th, 15th, 16th to the 20th and the 26th to the 28th Garnishees and to make the Order Absolute against the 1st, 7th, 8th, 12th and the 24th Garnishees. Counsel to the Appellant, as the judgment debtor, opposed the application to make the Garnishee Order Absolute against the 1st, 7th, 8th, 12th and the 24th Garnishees on the ground that there was a pending appeal against the judgment of the Court of Appeal upon which the garnishee proceedings was predicated and which had been entered as Appeal No. SC/446/2018 and he prayed the lower Court to stay proceedings in the matter.

The lower Court delivered a ruling on the same day wherein it discharged the 2nd to the 6th, the 9th, 10th, 11th, 13th, 15th to the 28th Garnishees on the ground that the Appellant did not maintain any account with those Banks and it adjourned the ruling on the request to make the Garnishee Order Absolute against the 1st, 7th, 8th, 12th and 14th Garnishees to the 5th of July, 2018. On the 5th of July, 2018, the lower Court delivered its ruling and it made the Garnishee Order Absolute against the 1st, 7th, 8th, 12th and 14th Garnishees as prayed by Counsel to the Respondent. In the ruling, the lower Court deliberated, in part, thus:
“… The learned Counsel for the judgment debtor has submitted inter alia that the Court should stay its hands on the grounds that the judgment debtor has filed an appeal to the Supreme Court against the decision of the Court of Appeal. The learned Counsel for the judgment creditor on the other part submitted that garnishee proceedings are/is a special one and even the pendency of a motion for stay cannot stay the proceedings.
On the issue of whether existence of an application for stay of execution can preclude commencement of garnishee proceedings, it has been held as follows: ‘the existence of an application seeking an order of stay of execution of a judgment does not preclude a judgment creditor from seeking to use garnishee proceedings which is a separate proceedings entirely to enforce the judgment’ …
Secondly, it has been held that a garnishee proceedings cannot be restrained by an order of injunction. Therefore neither interlocutory, prohibitory nor mandatory injunction can be employed to either stop or undo garnishee proceedings …
In the circumstances, I do agree with the submissions of the learned Counsel for the Judgment Creditor/Applicant that in a garnishee proceedings, what is required is to serve the Order Nisi on the Judgment Debtor. This is for the purpose of being aware of the garnishee proceedings and not to file an application …
Having said that, I have carefully considered all the submissions of the learned Counsel for the judgment debtor and the authorities cited and I am of the view that they can be distinguished from the instant case. Paragraph 3(g) of the counter affidavit in response to the judgment debtor’s affidavit of notification states ‘That the affidavit of notification is of no relevance to this proceedings’, I am of the same opinion. …”

The Appellant was dissatisfied with the ruling and it caused its Counsel to file a notice of appeal dated the 6th of July, 2018 and containing three grounds of appeal against it. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 6th of February, 2019 on the 21st of February, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 30th of May, 2019. In response, Counsel to the Respondent filed a notice of preliminary objection dated the 16th of February, 2021 on the 23rd of February, 2021 challenging the competence of the appeal. Counsel to the Respondent also filed a brief of arguments dated 16th of February, 2021 on the 23rd of February, 2021 and the brief of arguments was deemed properly filed and serve by this Court on the 2nd of December, 2021. Counsel to the Appellant filed a reply brief of arguments dated 7th of October, 2021 on the same date and the reply brief of arguments was also deemed properly filed and serve by this Court on the 2nd of December, 2021. At the hearing of the appeal, Counsel to the parties relied on the submissions contained in their respective briefs of arguments in arguing the notice of preliminary objection and the substantive appeal.

The Court will commence its deliberations with the notice of preliminary objection of the Respondents. The Respondent contended on the notice of preliminary objection that the Appellant, as the judgment creditor, was a not a necessary party to the garnishee proceedings, but only an interested party and that, as such, could only appeal with the leave of Court, and not as of right, and that the Appellant neither sought for nor obtained leave of Court before filing this appeal and that the appeal was thus incompetent and liable to be struck out. Counsel referred to the case of Wema Bank Plc Vs Brastem-Sterr (Nig) Ltd (2011) 6 NWLR (Pt 1242) 58 in restating the nature of garnishee proceedings and stated that it was obvious therefrom that the person that can be aggrieved by a Garnishee Order Absolute is the garnishee in whose hands funds are attached and it is such a garnishee that has a right of appeal, and not a judgment debtor. Counsel stated that this was so in this case, notwithstanding that the Appellant filed an affidavit of notification in the garnishee proceedings and that the Appellant had no right of appeal against a Garnishee Order Absolute and he referred to the cases of IGP Vs Adelabu (1956) SCNLR 109 and Re: Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120.

Counsel stated that the fact that Section 83(2) of the Sheriffs and Civil Process Act prescribes service of a garnishee order nisi on a judgment debtor did not make the judgment debtor a party to the garnishee proceedings, and that the best a judgment debtor can be in the proceeding is a nominal party and not a necessary party. Counsel stated that the option open to a judgment debtor who desires to appeal against a Garnishee Order Absolute is to seek the leave of Court to do so under Section 243(a) of the 1999 Constitution and that the judgment debtor cannot appeal as of right and he referred to the case of Pipeline & Products Marketing Co. Ltd Vs Delphi Petroleum Inc (2005) 8 NWLR (Pt 928) 459. Counsel stated that the failure of the Appellant to seek for and obtain the leave of Court before filing the appeal rendered the appeal incompetent and robbed this Court of jurisdiction to entertain same and he referred to the cases ofFaleye Vs Otapo (1987) 4 NWLR (Pt 64) 186 and Ibrahim Vs Umar (2012) 7 NWLR (Pt 1300) 507. Counsel urged the Court to uphold the preliminary objection and to strike out the appeal.

In response, Counsel to the Appellant stated that the position canvassed by the Counsel to the Respondent on the status of the judgment debtor in a garnishee proceeding represents the old position of the law on the point. Counsel stated that the position of the law was modified by this Court in the case of Nigerian Breweries Plc Vs Dumuje (2015) LPELR-25583(CA) wherein it was held that a judgment debtor is a necessary party in the garnishee proceedings and is entitled to be heard in the proceedings in certain circumstances and as such can appeal as of right against a Garnishee Order Absolute. Counsel stated that this Court, in the case of Nigerian Breweries Plc Vs Dumuje supra, reviewed its earlier decisions relied on by Counsel to the Respondent and jettisoned the position taken in those decisions because they did not take into consideration the provisions of the Sheriffs and Civil Process Act. Counsel urged the Court to follow the decision in the case ofNigerian Breweries Plc Vs Dumuje supra and to accordingly dismiss the notice of preliminary objection.

This appeal emanated from a garnishee proceeding. Now, garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed strictly by the provisions of the Sheriffs and Civil Process Act – United Bank for Africa Plc Vs Ubokulo (2009) LPELR 8923(CA), Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801(CA). The nature of and procedure for garnishee proceedings has been stated and reiterated by the Courts in several cases. Garnishee proceeding is one of the ways of executing a judgment.
It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as “attachment of debt.” A successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the Judge will make an order which is technically known as a “garnishee order nisi” attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the judgment creditor the debt owed by it to the judgment debtor. The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 86 of the Sheriffs and Civil Process Act –First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199, Barbedos Ventures Ltd Vs First Bank of Nigeria Plc (2018) 4 NWLR (Pt 1609) 241, Gwede Vs Delta State House of Assembly (2019) 8 NWLR (Pt 1673) 30.

The status of a judgment debtor in a garnishee proceeding is an issue that has engaged this Court over the years and on which this Court failed to maintain one position. In one breath, this Court maintains that a judgment debtor has no role to play in garnishee proceedings and is not entitled to be heard in the proceedings and that a judgment debtor seeking to be heard on a garnishee proceeding is a meddlesome interloper and that, as such, a judgment debtor has no right to appeal against a garnishee order absolute. This was position taken by this Court in the cases of Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt. 1083) 418, Star Deepwater Petroleum Ltd Vs A. I. C. Ltd (2010) LPELR-9165(CA), United Bank of Africa Plc Vs Ekanem (2010) 6 NWLR (Pt 1190) 207, NIMASA Vs Odey (2012) LPELR-14419(CA), SCOA (Nig) Plc Vs Registered Trustees of Methodist Church of Nigeria (2016) LPELR-40192(CA), Ibeto Petrochemical Industry Ltd Vs Total Nig Plc (2016) LPELR-41457(CA), Technip Vs A. I. C. Ltd (2016) 2 NWLR (Pt 1497) 421, Dangote Sugar Refinery Vs Vinan Petroleum Ltd (2017) LPELR-43189(CA), Heritage Banking Co Ltd Vs N. U. C. (2017) 5 NWLR (Pt. 1557) 104, ABU Teaching Hospital Vs Star Global Marketing (2019) LPELR-43213(CA), Zenith Bank Plc Vs National Trucks Manufacturing Ltd (2020) LPELR-50941(CA). In Cross River State Forestry Commission Vs Anwan (2012) LPELR-9479(CA), this Court expressed this position thus:
“ … speaking the law strictly, the Appellants who were the judgment debtors in the garnishee proceeding leading to this appeal, were not parties in the proceedings against whom the Order Nisi was made absolute in the decision appealed against. The record of the appeal do not show any indication that the appellants were parties in the garnishee proceedings at any stage thereof although a Notice of Preliminary Objection and motion was filed for them in the proceedings. As is well known now, garnishee proceedings are between a judgment creditor and a garnishee, i.e. a person who owes the judgment debtor some amount at the time of the proceedings which the judgment creditor applies to the Court to order it to be used to settle the judgment debt. Even though the rules of procedure may require that the judgment be notified of the proceedings, they do not thereby make him a party to the proceedings with the right to take part therein. In garnishee proceedings, no dispute exists in respect of the judgment debt between the judgment creditor, the judgment debtor or the garnishee. All that the judgment creditor does by the proceedings is to bring the garnishee to Court to explain why the amount owed to the judgment debtor should not be ordered by the Court to be used to settle the judgment debt. In such circumstances, the judgment debtor’s presence or participation in the proceedings is unnecessary and even undesirable because the proceedings can be fully and completely disposed of finally between the judgment creditor and the garnishee who holds, has in custody, or owes the amount to be used to settle the judgment debt.
For not being a party to the proceedings in which the Federal High Court delivered, the ruling making an earlier Order Nisi absolute, the Appellants lack the competence to appeal against that decision as of right.”
In another breath, this Court holds that a judgment debtor is a necessary party in garnishee proceedings, from after the grant of a Garnishee Order Nisi, and is entitled to be heard in certain limited circumstances in the proceeding leading to the grant of a Garnishee Order Absolute and that, as such, can appeal as of right against a garnishee order absolute. This is the decision in the cases of Awoyomi Vs Chief of Army Staff (2013) LPELR-22121(CA), Nigerian Breweries Plc Vs Dumuje (2015) LPELR-25583(CA), Zenith Bank Plc Vs Erunke (2015) LPELR-40592(CA), University of Lagos Vs Oluwasanmi (2017) LPELR-42305(CA), Barbedos Ventures Ltd Vs Zamfara State (2017) LPELR-42499(CA), Delta State Government Vs Kay Que Investment Ltd (2018) LPELR-45545(CA), Nigerian Navy Vs Ironbar (2019) LPELR-47006(CA), Archibong Beaches Ltd Vs Attorney General, Cross River State (2019) LPELR-48145(CA), Bogoro Local Government Council Vs Kyauta (2020) LPELR-49812(CA). In Stanbic IBTC Bank Vs Long Term Global Capital Ltd (2016) LPELR-40157(CA), this Court stated this position thus:
“In proceedings relating to garnishee order nisi which is usually initiated ex parte, it is safe to say that the proceedings involve only the judgment creditor and the garnishee, it is also safe to conclude that any decision to the effect that the judgment debtor is not a party at this stage can be said to represent the correct and settled position of the law, but where the proceedings are with respect to garnishee order absolute, a tripartite party arrangement is in place, a tripod is established, that is the judgment creditor, the judgment debtor; and the garnishee. It is to be noted that in proceedings relating to garnishee order absolute, the judgment debtor by law becomes an active participant in the process. This is obvious from the effect of Section 83(2) of the Sheriffs and Civil Process Act as well as Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules. Section 83(2) of the Sheriffs and Civil Process Act makes the service of the order nisi on the judgment debtor at least fourteen days before the hearing wherein the order nisi will be made absolute mandatory. The pertinent question to ask is, why must the judgment debtor be served copy of the order Nisi? I think the reason is not farfetched, it is obviously to enable him appear in Court on the adjourned date to be so heard if he desires before the order is made absolute. The section makes it mandatory for the service of the order nisi on the judgment debtor, which presupposes that he is a necessary party in the proceedings, service upon him of the order Nisi serves as an invitation to him (the Judgment Debtor) to enable him to be heard by the Court before the order absolute is finally made. … A careful reading of Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules also makes a Judgment Debtor a necessary party to garnishee proceedings. The Order provides as follows and I quote:
‘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 costs as may be just, or may make an order under Section 87 of the Act .’
The implication of the above provision is that a judgment debtor in garnishee proceedings is required to be heard along with the judgment creditor and garnishee before an Order Nisi is made absolute, let me also state that, the Order states clearly that ‘after hearing the judgment creditor, the garnishee and the judgment debtor’ the use of the word ‘AND’ in the wordings of the order makes the tripod complete because the word ‘AND’ is conjunctive. …
Where the lower Court refuses to discharge the order nisi and proceeds to make the order absolute, the judgment debtor, being a necessary party, and feeling aggrieved by the decision of the lower Court can appeal as of right since the order absolute is regarded as a final decision of the lower Court.” 

It is this disparity in the position of this Court on the status of a judgment debtor in garnishee proceedings that has fueled the contentions of the parties on the notice of preliminary objection. Happily, the position of the law on the issue has been resolved by the Supreme Court. In Gwede Vs Delta State House of Assembly (2019) 8 NWLR (Pt 1673) 30 and Sani Vs Kogi State House of Assembly (2021) 6 NWLR (Pt 1773) 422, the Supreme Court endorsed the position that a judgment debtor is a necessary party in the garnishee proceeding and is entitled to be heard in certain limited circumstances, for instance, to highlight irregularities in the proceedings or in what was presented before the Court by the judgment creditor. 

In the present case, the Appellant was served with the order of Garnishee Nisi and it attended the proceedings leading to the grant of the Garnishee Order Absolute by the lower Court to point out what it considered to be irregularities in the proceedings. It was a necessary party in the garnishee proceedings.
In Virgin Atlantic Airways Vs Amaran (2021) 12 NWLR (Pt 1789) 91, the Supreme Court took it a step further and held that since a judgment debtor is a named party in the garnishee proceedings and a participant in the proceedings leading up to the grant of the garnishee order absolute, it can appeal as of right against the order, and did not require leave of Court to appeal as a person interested. The Supreme Court made the point thus:
“The named party in a trial proceeding or a party who actively participated in a trial proceeding has a right to appeal against any decision in the proceeding and does not require the leave of Court to appeal against a decision in such trial proceeding as a person interested. It is only an unnamed party that has an interest in the matter that requires leave to appeal against a decision in such a matter as a person interested. The right of a named party and that of an unnamed party in a civil proceeding in the High Court to appeal is prescribed in Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). In the instant case, the appellant as judgment debtor was not only made a party to the Garnishee proceedings at the trial Court at the inception by the respondent as judgment creditor, but was also a party to the intervening proceedings at the trial Court that led to its ruling of 4/4/2017 and was the main respondent to the appeal at the Court of Appeal against the ruling. Thus, the appellant having been made a party to the Garnishee proceedings by being named therein and being a party to the intervening proceedings that led to the appeal at the Court of Appeal and being the main respondent in that appeal, did not require leave of Court to appeal to the Supreme Court as a person interested in the matter.”
These decisions of the Supreme Court completely “take the wind out of the sail” of the preliminary objection of the Respondent. The Appellant having been named as a party in the garnishee proceedings and having participated in the proceedings leading up to the grant of the Garnishee Order Absolute, it could appeal as of right against the order and it did not need the leave of Court to appeal as a person interested in the matter, as canvassed by Counsel to the Respondent. The appeal as filed is thus competent. The preliminary objection fails and it is hereby dismissed.

This takes us to the substantive matter. Counsel to the Appellant distilled two issues for determination in the appeal and these are:
i. Whether the lower Court had jurisdiction to make an Order Absolute during the pendency of the Appeal No SC/446/2018 filed by the Appellant before the Supreme Court.
ii. Whether the Appellant being the judgment debtor was a necessary party to the garnishee proceedings and whether the lower Court could validly entertain garnishee proceedings during the pendency of the motion for stay of execution filed by the Appellant in the lower Court.

Counsel to the Respondent similarly distilled two issues for determination in the appeal and these are:
i. Whether the pendency of an appeal and motion for stay of execution at the Supreme Court robbed the lower Court of the jurisdiction to continue with the garnishee proceedings and make the order nisi absolute.
ii. Whether the trial Court was right when he held that the Appellant, as judgment debtor, was not a necessary party in the garnishee proceeding.

Reading through the arguments canvassed by the Counsel to the parties in their respective briefs of arguments on the question formulated by Counsel to the Appellant as part of his second issue for determination and by Counsel to the Respondent as his second issue for determination, i.e. whether the lower Court was correct in holding that the Appellant, as judgment debtor, was not a necessary party in the garnishee proceeding, this Court finds that they are very similar to the arguments canvassed by the parties on the preliminary objection. The question has already been resolved by this Court in its determination of the preliminary objection and as stated earlier, the present position of the law, as laid down by the Supreme Court in the cases of Gwede Vs Delta State House of Assembly supra, Sani Vs Kogi State House of Assembly supra, Virgin Atlantic Airways Vs Amaran supra, is that a judgment debtor is a necessary party in the garnishee proceeding and is entitled to be heard in certain limited circumstances, for instance, to highlight irregularities in the proceedings or in what was presented before the Court by the judgment creditor.

This Court found that the Appellant attended the proceedings leading to the grant of the Garnishee Order Absolute in the lower Court to point out what it considered to be irregularities in the proceedings and that it was a necessary party in the garnishee proceedings. Resolving this question again in the substantive appeal will only be repetitive. In the light of this fact, it is the view of this Court that the issues for determination in the substantive appeal are:
i. Whether the lower Court was correct to have continued its consideration of the garnishee proceedings of the Respondent upon being made aware of the entry and the pendency of the appeal of the Appellant against the substantive judgment of the Court of Appeal as Appeal No SC/446/2018 in the Supreme Court.
ii. Whether the lower Court was correct to have continued its consideration of the garnishee proceedings of the Respondent upon being made aware of the pendency of the motion for stay of execution filed by the Appellant in respect of the substantive judgment of the Court of Appeal.

The appeal will be resolved under these two issues for determination and the relevant arguments of Counsel to the parties will be considered thereunder. The two issues for determination will be resolved together.

In arguing the first issue for determination, Counsel to the Appellant answered the question posed therein in the negative and stated that it was clear from the decision appeal against that the lower Court was fully aware that Appeal No SC/446/2018 had been entered in the Supreme Court, as contained in the affidavit of notification filed before it, and that, as a matter of fact, the lower Court held that the affidavit of notification was of no relevance to the proceedings. Counsel stated that this holding of the lower Court was erroneous and that the law is that once an appeal has been entered, a lower Court ceases to have jurisdiction to continue to adjudicate on the matter, the subject matter of that appeal, and that any step taken or decision given thereafter by a lower Court in the matter is a nullity and he referred to the cases of VAB Petroleum Inc. Vs Momah (2013) LPELR-19770(SC) and Leaders & Company Ltd Vs Kusamotu (2008) All FWLR (Pt. 405) 1800 and the provisions of Order 8 Rule 11 of Rules of the Supreme Court.

Counsel referred to the case of Ezeokafor Vs Ezeilo (1999) LPELR-1209(SC) in reiterating the position of law that once the records of appeal are compiled and transmitted by the Court below to the Court that will hear an appeal and the appellant Court receives the same, the appeal is said to be entered in the appellate Court. Counsel stated that apart from the affidavit of notification, a letter dated the 4th of July, 2018 was also addressed to the lower Court to bring its attention to the fact that the appeal against the judgment sought to be enforced in the garnishee proceedings had been entered in the Supreme Court. Counsel stated that the lower Court ignored both the affidavit of notification and the letter and proceeded to make the Garnishee Order Absolute on the 5th of July, 2018. Counsel stated that the lower Court ceased to have jurisdiction to entertain the garnishee proceedings the moment it became aware that the appeal against the judgment sought to be enforced in the garnishee proceedings had been entered in the Supreme Court. Counsel stated that the Garnishee Order Absolute made the lower Court in these circumstances is wrongful and liable to be set aside and he referred to the cases of Forestry Research Institute of Nigeria Vs Gold (2007) LPELR-1287(SC) and Utih Vs Onoyivwe (1991) 3436(SC). Counsel urged the Court to resolve the issue for determination in favour of the Appellant.

On the second issue for determination, Counsel again answered the question in the negative and stated that the reliance placed by the lower Court on the case of Purification Techniques (Nig) Ltd Vs A. G. Lagos State (2004) 9 NWLR (Pt 879) 665 was erroneous because the facts and circumstances of the case were distinguishable from those in the present case. Counsel stated that garnishee proceedings, being a process of execution of judgment, should not be made superior to a motion for stay of execution and that the holding of the lower Court that the pendency of the motion for stay of execution in the Court of Appeal did not affect the garnishee proceedings is contrary to the principle of hierarchy and jurisdiction of Court, a fundamental feature of our legal system, and is wrong and he referred again to the case of Nigerian Breweries Plc Vs Dumuje supra. Counsel urged the Court to also resolve the second issue for determination in favour of the Appellant.

Counsel concluded his submissions by urging the Court to find merit in the appeal and to allow same, set aside the ruling of the lower Court and discharge the Garnishee Order Absolute.

In his response, Counsel to the Respondent argued the two issues for determination together and, after recanting the facts of the case, stated that the law recognizes a variety of means of enforcement of judgments such as execution by attachment and sale and execution by garnishee orders, which are available to a judgment creditor in money judgments. Counsel stated that the position of case law authorities as decided by the superior Courts is that the filing of an appeal against the substantive judgment and the pendency of a motion for stay of execution of the judgment by a judgment debtor are immaterial to a garnishee proceedings and cannot stop or stay the proceedings from going on because garnishee proceedings are a means of enforcing a judgment and not a manner of execution of a judgment and are thus competent notwithstanding the pendency of a motion for stay of execution and he referred to the cases of Purification Techniques (Nig) Ltd Vs A. G. Lagos State (2004) 9 NWLR (Pt 879) 665, Denton-West Vs Muoma (2008) 6 NWLR (Pt 1083) 418, United Bank of Africa Plc Vs Ekanem (2010) 6 NWLR (Pt 1190) 207, NITEL Plc Vs I.C.I.C (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356.

Counsel stated that the lower Court was thus perfectly in order when it proceeded with the garnishee proceedings despite its being aware of the notification of the appeal filed to the Supreme Court and of the motion for stay of execution. Counsel urged the Court to resolve the two issues for determination in favour of the Respondent and he prayed the Court to find no merit in the appeal and to dismiss same and affirm the decision of the lower Court.

It is clear from the records of appeal and the arguments of both Counsels that there is no dispute on the facts leading up to this appeal. On the 29th of March, 2018, this Court dismissed the appeal filed by the Appellant against a money judgment entered against it in favour of the Respondent by the lower Court. The Appellant was dissatisfied with the judgment of the Court of Appeal and it caused a notice of appeal against same to the Supreme Court to be filed and it also filed a motion for stay of execution of the judgment in this Court on the 4th of April, 2018. The Respondent commenced garnishee proceedings to enforce the judgment by a motion ex-parte dated and filed on the 16th of April, 2018 and the lower Court heard and granted the motion ex-parte on the 26th of April, 2018 and it made a garnishee Order Nisi.

The garnishee order Nisi was served on the Appellant and the Garnishee Banks and the Appellant filed affidavit of notification in the lower Court on the 4th of June, 2018 wherein it deposed facts reiterating that it had filed a notice of appeal against the judgment of the Court of Appeal sought to be enforced by the garnishee proceedings and that the records of the appeal had been compiled and transmitted to the Supreme Court and that the appeal was entered at the Supreme Court on the 10th of May, 2018 and given Appeal No SC/446/2018. On the 5th of June, 2018, the return date for the continuation of the garnishee proceedings, Counsel to the Appellant drew the attention of the lower Court to the facts contained in the affidavit of notification and of the pendency of the motion for stay of execution of the judgment and he urged the lower Court to cease the garnishee proceedings. Counsel followed this up with a letter dated the 4th of July, 2018 intimating the lower Court with the same information. The lower Court held that the facts contained in the affidavit of notification and the fact of the pendency of the motion for stay of execution were irrelevant in a garnishee proceedings and it proceeded and granted the Garnishee Order Absolute on the 5th of July, 2018.

The question is – whether the lower Court acted correctly in declaring the facts brought to its attention as irrelevant and going on with the garnishee proceedings despite them? Now, the law is that an appeal is deemed entered in the appellate Court when the records of appeal from the lower Court are compiled and transmitted to and accepted by the Registry of the appellate Court and the appeal is listed on the cause list of the appellate Court by being given an appeal number – Adewoyin Vs Adeyeye (1962) 1 SCNLR 91, Ogunremi Vs Dada (1962) 2 SCNLR 417, Ezomo Vs Attorney General, Bendel State (1986) 4 NWLR (Pt. 36) 448, Erisi Vs Idika (1987) 4 NWLR (Pt. 66) 503, Audu Vs Attorney General, Federation (2012) 8 NWLR (Pt. 1355) 175, Barigha Vs Peoples Democratic Party (2013) 6 NWLR (Pt. 1349) 108, VAB Petroleum Inc. Vs Momah (2013) 14 NWLR (Pt. 1374) 284, Peoples Democratic Party Vs Badaire (2019) LPELR-47063(CA). This means that the appeal of the Appellant against the judgment of the Court of Appeal, which was being enforced by the garnishee proceedings in the lower Court, was entered in the Supreme Court on the 10th of May, 2018 when the record of the appeal compiled by the Registry of the Court of appeal was transmitted and received by the Registry of the Supreme Court and the appeal was listed as Appeal No SC/446/2018.

Order 8 Rule 11 of the Supreme Court Rules reads that:
“After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole proceedings as between the parties thereto, and except as may be otherwise provided in this order, every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.”
This provision is in pari materia with the provision of Order 4 Rule 11 of the Court of Appeal Rules. The provision has been interpreted by the Courts to mean that after an appeal has been entered in the Supreme Court, all applications in respect of the judgment appealed against can only be made in the Supreme Court, and that where any application is filed in the Court below it shall be transmitted to the Supreme Court for hearing. In other words, the Courts below will cease to have jurisdiction to hear any application in respect of a judgment when the records of appeal is received in the Supreme Court, which then has the sole jurisdiction to deal with all matters interlocutory or otherwise – Coker Vs Adeyemo (1965) All NLR 120, Erisi Vs Idika (1987) 4 NWLR (Pt 66) 503, Biocon Agrochemicals (Nigeria) Ltd Vs Kudu Holdings (Property) Ltd (1996) LPELR-783(SC), Amoo Vs Alabi (2003) 12 NWLR (Pt 835) 537, Dingyadi Vs Independent National Electoral Commission (No. 1) (2010) 18 NWLR (Pt 1224) 1, Shell Petroleum Development Co. Ltd Vs Amadi (2011) 14 NWLR (Pt 1266) 157, Mekwunye Vs Carnation Registrars Ltd (2021) 15 NWLR (Pt 1798) 1.
This means that from the 10th of May, 2018 when the appeal of the Appellant against the judgment of the Court of Appeal was entered in the Supreme Court, all the lower Courts ceased to have jurisdiction to entertain any application relating or pertaining to the judgment and the Supreme Court became the appropriate forum to ventilate all such applications. This encompasses any and all applications for the enforcement of the judgment appealed against, including garnishee proceedings – Denton-West Vs Mouma (2008) 6 NWLR (Pt 1083) 418, West African Examination Council Vs Ikang (2011) LPELR-5098(CA). The lower Court was thus in grave error when it continued with the garnishee proceedings after the fact of the entry in the Supreme Court of the appeal against the judgment being enforced thereby was brought to its notice. The lower Court had no vires to progress the garnishee proceedings and to make the Garnishee Order Absolute, the outcome of the said proceedings, on the 5th of July, 2018. The first issue for determination in the appeal is resolved in favour of the Appellant.

With respect to the second issue for determination on the effect of a pending motion for stay of execution on a garnishee proceedings, the contention of Counsel to the Appellant that since garnishee proceedings is one of the modes of enforcement of a monetary judgment, it should not have proceeded in the face of a pending motion for stay of execution of the judgment, accords with the position taken by this Court in the case of Nigerian Breweries Plc Vs Dumuje (2016) 8 NWLR (Pt. 1515) 536 relied upon by Counsel, and it tallies with the decision of this Court in First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199 wherein it was held that if the motion for stay of execution predates the garnishee proceedings, the motion for stay should be taken and disposed of before the garnishee order is made.
There is, however, no unanimity in the view of this Court on the point. On the other side are decisions of this Court that maintain that there is a distinction between the enforcement of a judgment by writ of execution and by garnishee proceedings and that, as such, the existence of an application for stay of execution of a judgment does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment – Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State (2004) 9 NWLR (Pt 879) 665, Denton-West Vs Mouma (2008) 6 NWLR (Pt 1083) 418, United Bank for Africa Plc Vs Ekanem (2010) 6 NWLR (Pt 1190) 207, SCOA (Nigeria) Plc Vs Registered Trustees of Methodist Church of Nigeria (2016) LPELR-40192(CA), Nigeria Agip Oil Co Ltd Vs Ogini (2017) LPELR-42859(CA).
In other words, there are conflicting decisions of this Court on the point and this Court is not aware that the conflict has been resolved by a decision of the Supreme Court. It is settled law that where there are conflicting decisions of a Court on a position of the law, it is the latest of the decisions that controls – Osakwe Vs Federal College of Education (2010) 3 SCNJ 529, Central Bank of Nigeria Vs Zakari (2018) LPELR-44751(CA). The latest decision on the point that this Court is presently aware of is that in Nigeria Agip Oil Co Ltd Vs Ogini supra and it is on the side of the divide which says that the pendency of a motion for stay of execution does not debar the commencement and prosecution of garnishee proceedings to enforce the said judgment. This supports the stance taken by the lower Court that the pendency of the motion for stay of execution did not prevent it from continuing and concluding the garnishee proceedings. The decision of the lower Court to continue with the garnishee proceedings in the face of the pending motion for stay of execution cannot thus be faulted. The second issue for determination is resolved in favour of the Respondent.

In view of the resolution of the first issue for determination in favour of the Appellant, this Court finds some merit in the appeal and it succeeds. The decision contained in the Ruling of the High Court of Kano State delivered in Suit No K/554/1998 by Honorable Justice Nura Sagir Umar on the 5th of July, 2018 wherein a Garnishee Order Absolute was made attaching the funds of the Appellant in the custody of five banks – Central Bank of Nigeria, Zenith Bank Plc, First Bank of Nigeria Plc, Heritage Bank Limited and Nova Merchant Bank Limited is hereby set aside and the Garnishee Order Absolute is discharged. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, HABEEB ADEWALE O. ABIRU, JCA and I am in complete agreement with the reasoning and conclusion reached therein. I too find this appeal meritorious and allow it. The decision of the trial Court in K/554/1998 is hereby set aside and the Garnishee Order Absolute is discharged. I abide by all other consequential orders as contained in the leading judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother, HABEEB ADEWALE. O. ABIRU, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by my Lord. I have nothing more to add. I abide by the conclusions reached therein.

Appearances:

M. O. Salau, with him, Ahmad Musa For Appellant(s)

Okechukwu Nwaeze, with him, S. U. Jibril For Respondent(s)