KEYSTONE BANK LTD v. DUTSE & ANOR
(2022)LCN/17006(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Wednesday, June 22, 2022
CA/KN/180/2020
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
KEYSTONE BANK LTD
APPELANT(S)
And
ALH. MUHD MAI FULANI DUTSE JAMILU YAHAYA RESPONDENT(S)
RATIO
WHETHER OR NOT COURTS HAVE THE JURISDICTION TO VACATE THEIR DECISIONS
The apex Court and this Court had on several occasions held that in deserving situations, the Courts have the jurisdiction to vacate their decisions. In OTU Vs. ACB INT’L BANK PLC (2008) 3 NWLR (Pt. 1073) 179, the Supreme Court inter alia held;
“In the judicial process, a Court of law has the power or jurisdiction to set aside its own order in appropriate circumstances. It has the discretion so to do and once the discretion is exercised judicially and judiciously, an appellate Court cannot interfere.”
This Court in SUNNET SYSTEM LTD Vs. NERC & ANR (2014) LPELR – 23967 (CA) also held;
“The orders of garnishee nisi and absolute having been made without jurisdiction, it is within the jurisdiction of the lower Court to set those orders aside on the application of a party aggrieved by the orders…”
The appellant would have had a good reason to have the order absolute set aside if he had proved lack of service of processes on them.
It is trite that a Court must be willing to go extra mile to satisfy itself that a party to a case has notice of the hearing date. See UTOBIVWI Vs. OMAMO (2007) LPELR – 8289 (CA).
The Supreme Court per Bello, JSC (as he then was) later CJN in SCOTT-EMUAKPOR Vs. OKAVBE & ORS (1975) 12 SC (reprint) 31 held;
“Where notice of any proceedings is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom an order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for making of the order has not been fulfilled.” See also OBIMONURE Vs. ERINOSHO (1966) 1 ALL NLR 250. PER MUSALE, J.C.A.
WHETHER OR NOT A GARNISHEE OWES THE COURT A DUTY TO DISCLOSE THE TRUTH ABOUT THE STATE OF ACCOUNT OF A JUDGEMENT DEBTOR IN ITS CUSTODY
We have stated, several times, that a Garnishee owes the Court a duty to disclose the truth about the state of account of the judgment debtor in its custody and to, honestly, place before the Court the necessary information to enable the Court dispense justice in the case, upon being served with the Order Nisi. The Garnishee is not permitted to play the role of advocate or defender, to shield the account of the judgment debtor, or protect the funds of the judgment/debtor, in its custody, from being attached. See the case Gov. of Imo State & Anor Vs Ogoh & Ors (2015) LPELR-25949 (CA):
“A garnishee is under a duty to obey the order of Court, called Order Nisi, once the account(s), showing the funds of the judgment debtor in its (Garnishee’s) custody is attached, and the accounts shows evidence of funds to satisfy the judgment debt, either in full or in part. It is not open to the garnishee to devise a means or way to save or help the judgment debtor, or to act as defence Counsel for the judgment debtor, by showing why the funds in its custody may not be applied to satisfy the judgment debt, In the said case of Oceanic Bank Plc, vs. Oladepo (Supra), this Court held that:
“…it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst! It can therefore be made to pay the debt of the judgment debtor, if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody. In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt.”
See also GTB vs Innoson Nig. Ltd (2017) LPELR-42368 (SC) where it was held:
“The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession belonging to the judgment debtor should not be garnished to pay the judgment debt, it is not the duty of a garnishee to play the role of advocate for the judgment debtor nor to protect the debtor’s money in its possession, See Oceanic Bank Plc v. Michael Olusegun Oladepo & Anor (2012) LPELR – 19670 (C/A).” Per KEKERE-EKUN, JSC. PER MBABA, J.C.A.
USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Jigawa State High Court of Justice delivered by His Lordship Hon. Justice Umar M. Sadiq on the 10th day of September, 2020 in Suit No. JDU/11/A/2018 wherein the trial Court dismissed the application to setting aside order absolute made against the appellant.
The appellant filed a motion on notice praying for an order of Court, setting aside garnishee order absolute dated the 7th day of November, 2019 made against the appellant by the lower Court for lack of jurisdiction.
The appellant’s originating motion was filed on the 24th day of February, 2020 seeking for;
1. AN ORDER OF THIS HONOURABLE COURT setting aside the order absolute dated the 7th day of November, 2019 made by Your Lordship, for lack of jurisdiction.
2. AN ORDER OF COURT staying and/or suspending the execution of the order absolute contained in the decision of the Jigawa State High Court in Suit No. JDU/11/A/2018 pending the hearing of this application.
3. AND FURTHER ORDER as this Honourable Court may deem fit to make in the circumstance.
See pages 5 – 37 of the record.
The judgment creditor/respondent filed a counter-affidavit on 5/03/2020. See pages 38 – 48 of the record.
After hearing the parties, the lower Court delivered its ruling on the 10th day of September, 2020 against the appellant. Pages 86 – 105 of the record.
Dissatisfied with the decision of the lower Court, the appellant appealed to this Court on the 11th September, 2020. The Notice of Appeal contains three (3) grounds of appeal;
1. The learned trial judge erred in law when he held that the Court was functus officio and dismissed the application seeking to set aside the Order Absolute dated 7th day of November, 2019 made against the appellant.
2. The learned trial judge misdirected himself in law when he held that he was not misled before making the Order Absolute and his subsequent refusal to set aside the said order.
3. The learned trial judge erred in law when he held that he cannot set aside the Order Absolute dated the 7th day of November, 2020 for lack of jurisdiction.
Particulars of error were provided.
The learned senior counsel to the appellant, Yakubu A. H. Ruba, SAN settled the brief of argument filed on 12th day of March, 2021 and deemed properly filed and served on 17th of January, 2021. The reply brief was settled by K. S. Adamu Esq., on behalf of the appellant. Both briefs were adopted, wherein three issues were formulated for the determination of the appeal viz;
1. Whether or not the learned trial judge was right when His Lordship held that the Court was functus officio and dismissed the application seeking to set aside the order absolute dated the 7th day of November, 2020 made against the appellant. (Ground One).
2. Whether or not the learned trial judge was right when His Lordship held that he was not misled before making the order absolute. (Ground Two).
3. Whether or not the learned trial judge was right when His Lordship held that he cannot set aside the order absolute dated the 7th day of November, 2020 for lack of jurisdiction. (Ground Three).
M. B. Dikwa Esq., of learned counsel settled the brief of the 1st respondent. He adopted the issues distilled by the appellant for the determination of the appeal.
On Issue No. 1, the learned counsel to the appellant argued that generally, once a Court makes an order absolute, the Court becomes functus officio and has completely determined the matter between the parties. However, he humbly submitted that, there are exceptional circumstances that allow the Court to revisit its decision over such an issue just like in the instant appeal, where the judgment debtor (2nd respondent in this appeal) is unknown to the appellant, as he does not maintain an account with the appellant. That it is unjust to order the appellant to pay any sum to the 1st respondent in the circumstance.
Counsel submitted further that, the principle of functus officio is not absolute but admits some exceptions. He relied on Order 30 Rule 4 (2) of the Jigawa State High Court (Civil Procedure) Rules 2008 which provides that;
“Any judgment obtained where any party does not appear at the trial may be set aside by the judge upon such terms as he may deem fit.”
He continued that a party dissatisfied with the decision of a Court and desires to challenge same has two choices, to appeal against the decision or to apply to set the decision aside, NIGERIAN BREWERIES PLC Vs. DUMEJE (2016) 8 NWLR (Pt. 1515) 578 AT 625.
Counsel emphasized that the lower Court was misled by the judgment creditor for his failure to make full and detailed disclosures, CBN Vs. INTERSTELLA COMM. LTD (2015) 8 NWLR (Pt. 1462) 456 AT 509.
Counsel further raised the issue of lack of service of hearing notice before the order was made against the appellant. That this alone was enough for the lower Court to set aside the decision, ECOBANK (NIG) PLC Vs. KUNLE (2019) 10 NWLR 90 AT 109.
He urged the Court to resolve the issue in favour of the appellant.
In response, the learned counsel to the 1st Respondent submitted that it is trite law that once a Court made an order absolute, the Court is functus officio and has completely determined the matter between the parties as held by the Supreme Court in U.B.N PLC Vs. BONEY MARCUS IND. LTD (2005) ALL FWLR (Pt. 278) 1037 AT 1047.
The learned counsel urged the Court to hold that the lower Court was right to have dismissed the application to set aside the order absolute.
The Supreme Court in UBN Vs. BONEY MARCUS IND. LTD & ORS (supra) heavily relied upon by the learned counsel to the 1st respondent in my view had clearly solved this issue. It said;
“Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually comes in two steps. The first is a garnishee order nisi. Nisi is a Norman French 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 reasons 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 matter is concerned in that the judgment who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him.”
From the record of the lower Court, the appellant was served with order nisi wherein it was commanded to appear before the lower Court on 5th of November, 2019, to show cause why an order absolute shall not be made against them. See page 44 of the record.
The Supreme Court further held that;
“During the 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 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.”
This issue is therefore resolved in favour of the 1st respondent.
The learned counsel to the appellant on Issue No. 2, submitted that the respondent when he initiated the garnishee proceedings failed to make full disclosures to the Court, as to whether the respondent was indebted to the appellant, which is in contravention of the provisions of Section 83(1) OF THE SHERIFFS AND CIVIL PROCESS ACT CAP 56 LFN 2004;
“The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debt owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such document or order, the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.”
The learned counsel to the appellant submitted that the appellant is not indebted to the respondent at the time the garnishee proceeding was initiated, concluded, and the order absolute made and therefore urge this Honourable Court to resolve this issue in favour of the appellant.
In his reply, learned counsel to the 1st Respondent submitted that the judgment creditor had furnished the trial Court with adequate information on the judgment debtor, in the motion seeking for an order nisi and the information are contained in the order nisi served on all the garnishees including the appellant.
The learned counsel further submitted that it was based on the information provided by the judgment creditor that fourteen out of sixteen garnishees appeared at the trial Court and showed cause. That the appellant and one other garnishee failed to appear at the trial Court to show cause why an order absolute shall not be made against them, despite the fact that they were duly served. He referred to pages 1 and 2 of the record.
The learned counsel urged the Court to resolve this issue in favour of the 1st Respondent.
In my view, the appellant acted in contravention of Section 83 (1) of the Sheriffs and Civil Process Act, having failed to appear to show cause why order absolute shall not be given against them. From the record, order nisi was served on the appellant with a command to appear before the lower Court to show cause. The appellant did not appear before the lower Court on the 5th of November, 2019 as directed.
On pages 5 – 37 of the record is the application of the appellant that sought to set aside the order absolute granted by the Court. Paragraph 11 of the affidavit in support of the application deposed to by David A. Wilfred, Service Manager of the appellant is hereunder reproduced as couched;
“11. That I was later showed proof of service on the Garnishee/Applicant received by Mallam Salisu Ibrahim, who is no longer with the branch and who may have inadvertently as a human forgot to forward same to the management of the Garnishee/Applicant for further action. Consequently, the Garnishee/Applicant was not aware of this matter till when it was served with Form 27, consequent upon which a default judgment was entered against the Garnishee/Applicant.”
This Court in UBA Vs. PRIMA IMPEX NIG LTD & ORS (2017) LPELR – 42015 (CA) inter alia held;
“Where a garnishee fails to file an affidavit to show cause why a Garnishee Oder Nisi should not be made absolute, the Court should proceed and make the Order Nisi to become absolute. The only way by which the Garnishee can express dissatisfaction with the order is to appeal against it. See also IN RE DIAMOND BANK LTD (2002) 17 NWLR (Pt. 795) 120.”
This issue is also resolved against the appellant.
The learned counsel to the appellant in arguing Issue No. 3, submitted that the appellant was not heard at the lower Court due to failure to serve hearing notice. He continued that they are at liberty to challenge a garnishee order nisi, by proving some conditions. He went further to submit that the 1st respondent misled the lower Court to believe that the appellant was/is indebted to the 2nd respondent.
Counsel conceded that once a Court made an order absolute, the Court is functus officio. He also conceded that an order absolute is a final decision. He however relied on TOTAL UPSTREAM (NIG) LTD Vs. A.J.C. LTD (2016) 2 NWLR (Pt. 1497) 467 and EZE Vs MBA (2011) 18 NWLR (Pt. 1278) 236 to the effect that such decision can be set aside. The learned counsel cited several decisions with respect to when the Court has the liberty to set aside its decision. On the totality of his submission, counsel urged the Court to allow the appeal and set aside the decision of the lower Court delivered on 10th September, 2020. He further urged the Court to invoke Section 15 of the Court of Appeal Act, to determine the appellant’s application.
In his response, the learned counsel to the respondent submitted that the lower Court was not misled as rightly held by His Lordship on page 103 of the record. That all judicial processes were followed and service of all the processes were done on all including the appellant. He referred to pages 1 – 3 of the record in proof. He urged the Court to resolve the issue in favour of the respondent and finally to dismiss the appeal with cost.
From the totality of the argument of the appellant’s counsel, 2 issues stood out. They are lack of disclosure that misled the lower Court and failure to serve hearing notice. These issues were re-emphasized in their reply brief with the conclusion that the 2nd respondent does not have an account with the appellant at all.
Now, in the counter-affidavit filed by the respondent against the motion to set aside the order absolute, the deponent in paragraph 14 averred that;
“14. That the respondent has provided the applicant with the name, Bank Verification Number (BVN) and phone number of the judgment debtor which are also contained on the Order Nisi served on the applicant and which information is enough to trace anybody’s bank account. We also refer the Court to Exhibit “A” above.”
Exhibit ‘A’ is the Garnishee Order Nisi served on the appellant. It says;
“IT IS HEREBY ORDERED THAT:
1. An Order Nisi granted to the Applicant that the Garnishees to attached all funds in all accounts belonging to the Judgment Debtor Jamilu Yahaya with BVN number 22337718610, phone number 08065984938 with the 2nd – 16th Garnishees …
2. …
3. The 1st – 16th Garnishee are to appear before this Court on the 5th November, 2019 to show cause why an order absolute should not be made against them for the payment of debt together with the cost of the garnishee proceedings.”
See pages 43 – 44 and pages 1 – 2 of the record and additional record respectively. Surprisingly, the appellant omitted this vital page in the exhibits attached to his application before the lower Court. The page would have been page 20 referred to as Exhibit ‘C’ in paragraph 12 of the affidavit in support of his motion to set aside.
The apex Court and this Court had on several occasions held that in deserving situations, the Courts have the jurisdiction to vacate their decisions. In OTU Vs. ACB INT’L BANK PLC (2008) 3 NWLR (Pt. 1073) 179, the Supreme Court inter alia held;
“In the judicial process, a Court of law has the power or jurisdiction to set aside its own order in appropriate circumstances. It has the discretion so to do and once the discretion is exercised judicially and judiciously, an appellate Court cannot interfere.”
This Court in SUNNET SYSTEM LTD Vs. NERC & ANR (2014) LPELR – 23967 (CA) also held;
“The orders of garnishee nisi and absolute having been made without jurisdiction, it is within the jurisdiction of the lower Court to set those orders aside on the application of a party aggrieved by the orders…”
The appellant would have had a good reason to have the order absolute set aside if he had proved lack of service of processes on them.
It is trite that a Court must be willing to go extra mile to satisfy itself that a party to a case has notice of the hearing date. See UTOBIVWI Vs. OMAMO (2007) LPELR – 8289 (CA).
The Supreme Court per Bello, JSC (as he then was) later CJN in SCOTT-EMUAKPOR Vs. OKAVBE & ORS (1975) 12 SC (reprint) 31 held;
“Where notice of any proceedings is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom an order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for making of the order has not been fulfilled.” See also OBIMONURE Vs. ERINOSHO (1966) 1 ALL NLR 250.
I am satisfied that the appellant had been adequately informed about what is required of them in the order nisi served on them on 8th October, 2019 per proof of service on page 3 of the Additional Record of Appeal filed on 29th/11/2021 and deemed properly filed on 17th/01/2022. Appellant had information on the judgment debtor and the date to show cause.
For the reasons given, the appeal fails and it is dismissed. The judgment of the lower Court in Suit No. JDU/11/A/2018 is affirmed.
No order as to cost.
ITA GEROGE MBABA, J.C.A.: I had the privilege of reading in draft, the leading judgment of my learned brother, U. A. Musale, JCA, dismissing this appeal and I agree completely with those sound and succinct reasonings, beautifully articulated by my learned brother.
We have stated, several times, that a Garnishee owes the Court a duty to disclose the truth about the state of account of the judgment debtor in its custody and to, honestly, place before the Court the necessary information to enable the Court dispense justice in the case, upon being served with the Order Nisi. The Garnishee is not permitted to play the role of advocate or defender, to shield the account of the judgment debtor, or protect the funds of the judgment/debtor, in its custody, from being attached. See the case Gov. of Imo State & Anor Vs Ogoh & Ors (2015) LPELR-25949 (CA):
“A garnishee is under a duty to obey the order of Court, called Order Nisi, once the account(s), showing the funds of the judgment debtor in its (Garnishee’s) custody is attached, and the accounts shows evidence of funds to satisfy the judgment debt, either in full or in part. It is not open to the garnishee to devise a means or way to save or help the judgment debtor, or to act as defence Counsel for the judgment debtor, by showing why the funds in its custody may not be applied to satisfy the judgment debt, In the said case of Oceanic Bank Plc, vs. Oladepo (Supra), this Court held that:
“…it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst! It can therefore be made to pay the debt of the judgment debtor, if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody. In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt.”
See also GTB vs Innoson Nig. Ltd (2017) LPELR-42368 (SC) where it was held:
“The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession belonging to the judgment debtor should not be garnished to pay the judgment debt, it is not the duty of a garnishee to play the role of advocate for the judgment debtor nor to protect the debtor’s money in its possession, See Oceanic Bank Plc v. Michael Olusegun Oladepo & Anor (2012) LPELR – 19670 (C/A).” Per KEKERE-EKUN, JSC.
I too dismiss the appeal and abide by the consequential orders in the leading judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother, USMAN ALHAJI MUSALE, J. C. A. In this appeal, I am in agreement with his reasoning and conclusion. I have nothing else to add. I also dismiss the appeal and decline to award costs to the parties.
Appearances:
Yakubu A. H. Ruba, SAN, with him, K. S. Adamu, Esq, H. Abdulmumini, Esq, S.S. Shehu, Esq, C. K. Udeoba, Esq, H. B. Abubakar, Esq, G. A. Joaba, Esq, and A. I. Nata’ala, Esq, For Appellant(s)
M. B. Dikwa, Esq, For 1st Respondent For Respondent(s)
