MRS. FRANCISCA PABLO AMARAN v. VIRGIN ATLANTIC AIRWAYS & ORS
(2018)LCN/11806(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/L/471/2017
RATIO
ISSUES OF DETERMINATION AND GROUNDS OF APPEAL
The issues formulated should also not be so prolix and proliferate as to outnumber the grounds of appeal on which they are based. Whereas, therefore, an issue to be determined can take care of, and relate to a number of grounds of appeal, it is undesirable to split a ground of appeal unnecessarily into several or a number of issues per YARGATA BYENCHIT NIMPAR, J.C.A.
PECULIARITIES OF A GARNISHEE PROCEEDINGS
A garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor. It is considered sui generis and is unlike other proceedings for enforcement of judgment, it has its peculiarities per YARGATA BYENCHIT NIMPAR, J.C.A.
WHEN A MOTION IS EXTRANEOUS TO A GARNISHEE PROCEEDINGS
A motion seeking to set aside orders nisi and a stay of execution are both extraneous to a garnishee proceedings per YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MRS. FRANCISCA PABLO-AMARAN Appellant(s)
AND
VIRGIN ATLANTIC AIRWAYS
-Judgment Debtor/Respondent
AND
1. ZENITH BANK PLC
2. GUARANTEE TRUST BANK PLC
-Garnishee /Respondents Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of the Federal High Court, sitting in Lagos, Coram ANEKE J., delivered on the 4th of April, 2017 wherein the Court below declined to make order nisi absolute and declined jurisdiction to determine the application while transferring same to the Court of Appeal because the Court of Appeal was seized of the substantive appeal. The Appellant filed an application for Garnishee proceedings against the judgment debtor and the 1st – 7th garnishee by motion ex parte dated 6th December, 2016. The order nisi was made and the application was adjourned to allow the garnishee show cause why they should not pay the judgment creditor, the credit balance in the account of the judgment debtor. Garnishee banks filed an affidavit showing cause as to why the order nisi should not be made absolute. The Court on a further date discharged some of the Garnishee banks except the 1st and 2nd Garnishee herein. The Appellant alleged that the 1st Garnishee filed a false affidavit with the intention to mislead the Court.
The main judgment was premised on a suit brought against the Respondent and judgment was entered in favour of the Appellant. The Respondent dissatisfied with the judgment filed a Notice of Appeal while Garnishee proceedings were on-going. Meanwhile, the Respondent filed an application opposing the garnishee proceedings at the Court below. After hearing the application, the lower Court agreed with the Respondent and declined jurisdiction on the 4th April, 2017 in view of the Court of Appeal being seized with the Respondents Appeal with No: CA/L/159/2017 which was entered on the 7th February 2017.
Dissatisfied with ruling of the Court below declining jurisdiction, the Appellant filed an Amended Notice of Appeal setting out 3 grounds of Appeal.
The Appellants brief settled by P. Amaran Esq., is dated 9th May, 2017 filed on the same day. It distilled 4 issues for determination which is in excess of the 3 grounds of Appeal filed by the Appellant. I will get back to it in due course.
The issues are as follows:
i. Whether the learned trial judge did not err in law in failing to make the garnishee order dated the 13th of January, 2017, absolute on the 1st garnishee having filed an affidavit to show cause that it had sufficient funds in the judgment debtor account and on the failure of the judgment debtor to file an affidavit to show cause after being served with the garnishee order nisi
ii. Whether the judgment debtor on being served with the garnishee order nisi dated 13th January, 2017, and having failed to file an affidavit to show cause is a party to the garnishee order absolute proceedings
iii. Whether the Notice of appeal filed on the 24th of January, 2017, which has no grounds of appeal against the garnishee nisi made on the 13th of January, 2017 is a ground to stay the garnishee proceedings as held by the lower Court
iv. Whether the 1st garnishee, should not pay fine of the N50,000,000.00 for perverting the cause of justice in favour of the judgment debtor by filing a false statement of account
The Respondent on its part filed a Respondents brief settled by Victoria Adedapo dated 19th June, 2017, filed on the 16th of May, 2018 and deemed on the 23/5/18. It formulated 3 issues for determination as follows:
a. Whether the lower Court was right to have declined jurisdiction in view of the fact that the Respondents Appeal No; CA/L/159/2017, had been entered at the Court of appeal and a motion seeking stay of execution pending before the Court.
b. Whether it is a precondition of the law that a judgment debtor must have filed an affidavit to show cause to be heard in garnishee proceedings
c. Whether the lower Court was right to have entertained the Respondent as a party to the garnishee order absolute proceedings.
The 1st Garnishee/Respondents Brief of Argument settled by Ademola Obayomi is dated 26th day of May, 2017 filed on the same day. It distilled a lone issue for determination as follows:
Whether upon a finding that the Appeal against the judgment of the Honourable Court filed on the 24th January, 2017 had been entered at the Court of Appeal, the lower Court was right in declining jurisdiction and adjourning the suit sine die.
The Appellant filed a Reply brief in response to Judgment Debtor/Respondent dated 29th of June, 2017 filed on the 30th of June, 2017 and deemed on 23/5/2018.
Now back to the issues for determination. There are 3 grounds of appeal on the Amended Notice of Appeal and issues were distilled for determination and as if to rub it in, the Appellant did not state the grounds from which the issues arose apart from the prolixity of issues. There is no consensus firmed up on what the Court should do in the circumstance. The apex Court in the case of CHUKWUMA V IFELOYE (2008) LPELR- 862 (SC) was emphatic on failure to state under which ground of appeal an issue is distilled, it held thus:
“…learned counsel for the Appellant, did not state under which ground of appeal of their Notice of Appeal, each issue or all the three issues, was or were formulated/distilled from. Admirably, the learned counsel for the Respondent in their brief, did so indicate/state. The consequence of failure to so state, has been stated and re-stated by the two Appellate Courts, in a plethora of decided authorities. The said issue or issues will be struck out as being incompetent. See the cases of MANAGEMENT ENTERPRISES V. OTUSANYA (1987) 2 NWLR (PT. 55) 179: (1987) 4 SCNJ 110: ALLI & ANOR. V CHIEF ALESINLOYE & 8 ORS (2000) 4 S. ( PT. 1) 111; (2000) 6 NWLR (PT. 660) 177 @ 212; (2000) 4 SCNJ 264 – PER IGUH, JSC and ADELUSOLA & 4 ORS. V. AKINDE & 3 ORS. (2004) 5 S. C. (PT. 11) 71; (2004) 12 NWLR (PT. 887) 295 @ 311; (2004) 5 SCNJ 235 @ 246 – PER EDOZIE, JSC citing some other cases.”
The question was then asked as to whether that enures substantial justice and a softening in approach was adopted allowing the Court to formulate issues for determination and consider such default as a mere irregularity, this Court relying on some Supreme Court cases adopted a middle course approach thus:
My understanding of that argument is that in writing the brief, the Appellant’s Counsel did not indicate specifically at the end of the issue for determination which ground of appeal it relates to. There is no doubt that this Court is incompetent to consider any issue not derived from ANY ground of appeal. See PRINCE BENJAMIN ADENIYI ALADEYELU V. MILITARY ADMIN EKITI STATE (2007) 5 SCNJ 1; (2007) 14 NWLR PT. 1055 PG. 619. However, I cannot agree with the greatest respect to the learned senior counsel for the 2nd & 3rd Respondents that the objection is worthy of serious consideration. Indicating the specific ground from where the issue is derived is merely a matter of preference and is not a matter of compulsion to warrant any penalty where it is not done. So long as any issue is properly derived from the grounds of appeal, it is worthy of our consideration. See UNITY BANK PLC V. EDWARD BOUARI (2008) 2 SCNJ 116; PAUL ONYIA V. STATE (2008) 2 SCNJ 373. This question was laid to rest in JFS INVESTMENT LTD V. BRAWAL LINE LTD (2010) NWLR (PT. 1225) PG. 495 @ 520 and IGWE V. EZEANOCHIE (2010) NWLR (PT. 1192) 61 @ 78-79. This Court per ARIWOOLA JCA supra held that the Court can on its own relate the issues to the grounds of appeal in order to do substantial justice between the parties.
The Supreme Court went further to explain the position further in JFS V. BRAWAL when ADEKEYE JSC held as follows at Pg 520 of the NWLR: “Though the rules of Court do not stipulate that the ground of appeal from which an issue for determination is formulated should be indicated, counsel do so for ease of reference. Consequently, where briefs of arguments are properly filed and an appeal is ripe for hearing, and the issues formulated in the briefs filed are not incompetent, the appellate Court shall not hesitate to bend backwards to glean through the grounds of appeal and marry them with the issues for determination raised in the briefs. This is so because briefs of argument and the issues raised therein are meant to assist the Court in easily identifying the issues in controversy between the parties. In the instant case, the 2nd and 3rd Respondents’ preliminary objection was frivolous.” In the circumstances, the preliminary objection against the form and not the substance of the sole issue for determination is overruled as misconceived and frivolous.” Per OGUNWUMIJU, J.C.A in LABOUR PARTY V INEC & ORS (2011) LPELR-4416(CA).
This Court has consistently cautioned and admonished counsel to state from which ground an issue is distilled which is primarily to assist the Court in knowing that the issue was distilled from a ground of appeal and whether the said grounds are competent since it is the law now that only issue from competent grounds would be competent for determination in an appeal and it also helps counsel offending rules against prolixity of issues.
Prolixity of issues is the next issue apparent in the Appellants Brief. Appellate Courts have condemned such practice in a plethora of cases, one of which is IWUOHA & ANOR V NIPOST LTD & ANOR (2003) LPELR-1569 (SC) which held:
“Prolixity of issues formulated is not a merit as it is more likely to obscure the core issues to be determined. Multiplicity of issues tend to reduce most of them to trifles. Issues formulated must have the content and character of issues and should be based on substantial law or fact rather than on numerous trifling slips. Appeals are not won on large number or quantity of grounds of appeal and issues. On the contrary, appeals are won on the quality of the content of grounds of appeal and issues.” Per TOBI, J.S.C
See also CLAY INDUSTRIES (NIG) LTD V AINA & ORS (1997) LPELR-871(SC).
The issues formulated should also not be so prolix and proliferate as to outnumber the grounds of appeal on which they are based. Whereas, therefore, an issue to be determined can take care of, and relate to a number of grounds of appeal, it is undesirable to split a ground of appeal unnecessarily into several or a number of issues. See A.G. BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 118) 646, UGO V. OBIEKWE (1989) 1 NWLR (PT. 99) 566, ADELAJA V. FANOIKI (1990) 2 NWLR (PT. 131) 137.
The issues formulated in this appeal by the Appellants in their brief of argument constitute, quite clearly, an unnecessary proliferation of issues in the case. I entertain the hope that counsel ought in future to be more careful and precise in the manner issues for determination in an appeal are formulated and/or identified.
It is in view of the lengthy discourse above that I adopt the issues formulated by the Respondent for determination in this appeal and in doing so the essence of the Appellants submissions shall be taken into account.
ISSUE ONE
Whether the lower Court was right to have declined jurisdiction in view of the fact that the Respondents Appeal No; CA/L/159/2017, had been entered at the Court of appeal and a motion seeking stay of execution pending before the Court.
The Appellant while referring to Section 85 and 86 of the Sheriffs & Civil Process Act and the case of UBA V EKANEM (2010) 6 NWLR (PT 1190) 207 submitted that the lower Court ought to have ordered execution to be levied on the 1st garnishee because the 1st garnishee did not dispute the debt or claim or pay into the Court the amount due from him.
The Appellant also submitted that the trial judge ought to have made the garnishee order nisi absolute since there was no appeal against it. Besides, the judgment debtor failed to file any affidavit to show cause why the order nisi should not be made absolute and the 1st garnishee filed an affidavit to show cause that it had the judgment debtors funds set aside to satisfy the judgment debt.
Furthermore, the Appellant submitted that since the 1st garnishee had sufficient funds of the judgment debtor in their custody, it was under a legal obligation to pay, it referred to Order 8 Rule 5 of the Judgment Enforcement rules. It also submitted that the judgment debtor is not a party to the garnishee proceedings as a garnishee proceeding is a separate and distinct proceeding different from the suit that pronounced the debt due to be paid, it relied on NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY V STEPHEN ODEY (2012) 52 WRN 108, WEMA BANK PLC V BRASTEM-STERR (NIG) LTD (2011) 6 NWLR (PT. 1242), N.A.O.C LTD V OGONO (2011) 2 NWLR (PT 1230) 136.
In any case, the Appellant submitted that a garnishee proceedings is sui generis and no appeal can lie from a garnishee order nisi to the Court of appeal. It also referred to NITEL PLC V I.C.C. (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR (PT. 1167), P.P.M.C LTD V DELPHI PET. INC (2005) 8 NWLR (PT. 928), UBA PLC V EKANEM (2010) 6 NWLR (PT. 1190) in submitting that the judgment debtor not being a party to the garnishee nisi proceedings cannot apply to set aside or stay the proceedings and referred to Section 14 (1) of the Court of Appeal Act as well as the cases of NIGERIAN TELECOMMUNICATION PLC V I.C.I.C LTD (2009) 16 NWLR (PT. 1167), ZENITH BANK PLC V JOHN (2015) 7 NWLR (PT. 1458). The Appellant therefore submitted that there is no appeal against the garnishee order nisi and urged the Court to make the order absolute.
In response, the Judgment debtor/Respondent argued that although an appeal does not operate as a stay of execution, where an appeal has been filed and served and there is an application for stay of execution, parties are prohibited from tampering with the subject matter of the appeal so as not to foist a fait accompli on the appellate Court, referred to VASWANI TRADING CO V SAVALAKH & COMPANY (1972) 12 S.C. 50 @ 57, JULIUS BERGER (NIG) PLC V T.R. COMM. BANK (2007) 1 NWLR (PT. 1016) 540. The Judgment Debtor/Respondent therefore submitted that the lower Court was right to have declined jurisdiction in the matter because an appeal had been entered at the Court of Appeal, besides if the lower Court had proceeded to make the garnishee order absolute, the res would have been dissipated, referred to Order 4 Rules 10 of the Court of Appeal Rules, 2016 and the following cases; WAEC & ORS V IKANG & ORS (2011) LPELR 5098 (CA), CHIEF SERGEANT AWUSE V PETER ODILI & ORS (2003) 18 NWLR (PT. 851) 116, M.U.O. EZOMO V AG BENDEL STATE (1986) NWLR (PT. 36) 448, OGUNREMI & ANOR V DADA (1962) 1 ALL NLR 663, BIOCON AGROCHEMICALS (NIG) LTD V KUDU HOLDINGS (PROPERTY) LTD (1996) 3 NWLR (PT. 437) 373. The Judgment Debtor/Respondent also submitted that an order for stay of execution is applicable to an order nisi especially where an appeal has been entered and the subject matter is pending before the Court of appeal, cited the cases of STANDARD TRUST BANK LTD V CONTRACT RESOURCES NIG LTD (2001) 6 NWLR (PT. 708) 115, FIRST INLAND BANK PLC V EFFIONG (2010) 16 NWLR (PT. 1218) 199 @ 207.
It therefore submitted that Section 86 of the Sheriffs and Civil Process Act be juxtaposed with the provisions of Order 8 Rule 8 of the Sheriffs and Civil Process Act so as to allow for the judgment debtor and the garnishee to be heard and dispute liability.
On the part of the 1st Garnishee/Respondent, it argued that the lower Court was right to have declined jurisdiction and adjourned the matter sine die because when an appeal has been entered, the appellate Court shall be seized of the whole proceedings, referred to Order 4 Rules 10 and 11 of the Court of Appeal Rules 2016. Further submitted that parties cannot confer jurisdiction on a Court that lacks it, referred to the cases of DANGANA V GOV KWARA STATE (2011) ALL FWLR (PT. 593) 1851, AUDU V AG FEDERATION (2013) ALL FWLR (PT. 667) 607 @ 624, ALADINMA MEDICARE LTD V RTO COM (2012) ALL FWLR (PT 647) 628 @ 635 in support.
The Appellant in its reply brief buttressed its arguments in its Appellants brief that the Court is bound to determine the liability of the garnishee and make the order nisi absolute because the garnishees failed to dispute the debt due from them to the judgment debtor while the judgment debtor failed to file an affidavit to show cause why the order nis should not be made absolute.
RESOLUTION
The Appellant passionately argued and stressed the point that the judgment debtor did not file any affidavit in response to the garnishee proceedings showing cause why the order absolute should not be made. The order nisi was made on the 13th January, 2017 to attach the funds of the Respondent. A garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor. It is considered sui generis and is unlike other proceedings for enforcement of judgment, it has its peculiarities. It has been defined in the case of CITIZENS INTL BANK V SCOA (NIG) LTD (2006) LPELR- 5509 (CA) thus:
Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due to or accruing to the judgment debtor, which forms part of his property in the hands of a third party for the attachment. By this process, the Court is competent to order the third party in whose hands the property of the judgment debtor is to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor or as much of it as may be sufficient to satisfy the judgment and the costs of the garnishee proceedings.
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-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 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 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.
The position of the law is that, Garnishee Proceeding is a separate and distinct action between the Judgment Creditor and the person or body known as the Garnishee, holding in custody the assets of the Judgment Debtor. Garnishee proceeding is “sui generis”, although it flows from the judgment that pronounced the debt.
The question whether the judgment debtor is a party arose in several situations and from a careful review of decisions of the Court, it is clear that the judgment debtor only comes in after the order nisi is made because the Sheriff and Civil Process Act requires that he be served. My brother ABUBAKAR, JCA gave a thorough analysis of the situation in the case of STANBIC IBTC BANK V LONG TERM GLOBAL CAPITAL LTD & ORS (2016) LPELR- 40517(CA) wherein he had this to say:
“I am mindful of the chains of decisions of this Court in seemingly endless decisions to the effect that the only parties envisaged in garnishee proceedings are the Judgment Creditor and the Garnishee, thereby excluding a Judgment Debtor from exercising any right to partake in the proceedings as a party, that even where a Judgment debtor feels aggrieved by the decision of the Court in garnishee proceedings he cannot maintain and sustain a valid action against the decision of the Court. Garnishee proceedings are held to be separate and distinct actions between the judgment creditor and the garnishee.
In the case of DENTON-WEST Vs. MUOMA [2008] 6 NWLR (Pt. 1083) 418 at 442 D-E, KEKERE-EKUN, JCA (as he then was), held as follows: “There is no doubt that garnishee proceedings are separate proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. See: In Re Diamond (supra) at 133 D-E; Purification Techniques (Nig.) Ltd v. A-G, Lagos State (supra).” Consequently, it has been held that a judgment debtor cannot appeal against a garnishee order made by the lower Court. This statement of law was expressed with emphasis in P.P.M.C. LTD. Vs. DELPHI PET. INC. [2005] 8 NWLR (Pt. 928) 458 at 484, C-G, where SALAMI, JCA, (Later PCA) held as follows and I quote: “The reason for inability of the appellants to appeal against a garnishee order is for the simple fact that it is a product of proceedings between the judgment creditor and the person in possession of the assets of the judgment debtor.
In the instant case, Guaranty Trust Bank is the garnishee or a person holding the assets of the judgment debtor, the appellants herein, while the respondent is the judgment creditor. A garnishee proceedings although incidental to the judgment pronouncing the debt owing, the appellants being judgment debtor are not necessary party to the said proceedings. The procedure whereby the judgment creditor obtains the order of the Court to attach from any person within the jurisdiction of the Court assets of judgment debtor to satisfy the judgment debt is described as attachment of debt and is one of the several methods of executing judgment. The proceedings for this separate and distinct action is between the respondent, herein and the Guaranty Trust Bank Plc., the garnishee which has not appealed the said decision. There is no substance respectfully in the submission of the learned counsel for appellants that the decision of Aderemi, J.C.A in In Re Diamond Bank Limited (2002) 17 NWLR (Pt. 795) 120 is obiter dictum.
The issue in that decision was an existence or otherwise of an appeal and, the person competent to bring an appeal in a garnishee proceedings.” See: also UBA Vs. EKANEM [2010] 6 NWLR (Pt. 1190) 207 at 222, B-D. The above settled position of the law in my humble understanding remains unassailable only with respect to a garnishee order nisi made by the lower Court and ought not in my humble view be extended to apply to garnishee order absolute as in the instant application, particularly where it relates to the determination of proper parties in garnishee proceedings. 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. See: WEMA BANK PLC. Vs. BRASTEM-STERR (NIG.) LTD. [2011] 6 NWLR (Pt. 1242) 58 at 80A-D, SKENCONSULT (NIG) LTD Vs. UKEY (1981) 1 SC 4 at 15.
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.
Let me provide further support to my opinion by relying on the decision of this Court delivered by my learned brother, OGUNWUMIJU, JCA in N.A.O.C. Vs. OGINI, [2011] 2 NWLR (Pt. 1230) 131 at 152-153, F-C, where my Lord and Learned brother said as follows and I quote: “If the judgment creditor knows that the judgment debtor has an amount of money with any Bank or institution, he will as Garnishor file for an ex parte application to be supported by an affidavit in Form 23 of the Judgment Enforcement Rules (JER) for an order that the Garnishee (in this case U.B.A. Plc.) shall show cause why he should not pay the amount due to the judgment debtor to him. These proceedings are strictly ex parte between the Garnishor (judgment creditor) and the Garnishee (the Bank or institution). Where the Court grants the order nisi on the garnishee, the Registrar through the Sheriff of the Court must serve on the garnishee, the judgment creditor and the judgment debtor the Order nisi on Form 26 of JER. The registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing.
This subsequent hearing envisages tripartite proceedings in which all interests are represented. That is when the judgment debtor has the opportunity to convince the Court to discharge the order nisi by filing affidavits to that effect. After that hearing on notice, the Court may discharge the order nisi or make it an order absolute. Thus, the judgment enforcement rules envisages two proceedings, one ex parte and the other one on notice. I agree with the learned respondent’s counsel and my learned brother that there can be no appeal against the order nisi made ex parte. See S. 14(1) of the Court of Appeal Act, Cap. C36, Laws of the Federation, 2004. On the other hand, the garnishee order absolute being proceedings in which all parties have been heard and the interest of the judgment debtor in the money in custody of the Garnishee determined is one in which an appeal can lie to this Court.” See: also FIDELITY BANK PLC Vs. OKWUOWULU [2013] 6 NWLR (Pt. 1349) 197 at 213-214, H-C, CBN Vs. AUTO IMPORT EXPORT [2013] 2 NWLR (Pt. 1337) 80 at 127 F-G. 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. See UBN PLC Vs. BONEY MARCUS INDUSTRIES LTD (2005) 13 NWLR (Pt. 943) 654, (2005) 7 S.C (Pt. II) 70.” Per ABUBAKAR, J.C.A
In SCOA NIG LTD & ANOR V REGISTERED TRUSTEES OF METHODIST CHURCH OF NIG & ANOR (2016) LPELR 40192 (CA), I had cause to add my voice in the following words:
It is after the making of the order Nisi that the law requires that the judgment debtor be served and even at that he has no part in the proceedings. It has been settled that garnishee proceedings are distinct from the proceedings leading to the judgment debt, see STAR DEEPWATER PETROLEUM LIMITED & ORS v. A.I.C LIMITED & ORS (2010) LPELR – 9165 (CA) where the Court held as follows: “It is trite law, that garnishee proceedings though incidental to the judgment pronouncing the debt owed, the judgment debtor is not a necessary party to the said proceedings.”
See also P.P.M.C v. DELPHI PETROLEUM INCORPORATED (2005) 1 NWLR (PT. 928) 458 at 486 and IN RE: DIAMOND BANK LTD (2002) 17 NWLR (Pt. 795) 120 at 133.
Taking the two authorities cited above together therefore suggest strongly that, though not a necessary party, the judgment debtor is only served with the order Nisi being a requirement of the law.
Therefore upon being served, is he duty bound to show cause In the first place, being an order directed against a Garnishee, is the judgment debtor a garnishee Certainly not, he is judgment debtor and not a Garnishee. The order nisi directs that a Garnishee who is in custody of some money belonging to the judgment show cause why the order nisi should not be made absolute Though the judgment debtor owns the money in the custody of a Garnishee, he is not in custody so can he have a say or is there anything to be demanded from him Obviously not. He is not under any obligation to file an affidavit because the determination of whether to make the order absolute is not strictly between him and the judgment creditor nor the Garnishee. Consequently, a judgment debtor is not required to file an affidavit showing cause and failure to so file has no effect on the application. In the same vein, his failure to file any affidavit cannot automatically transform the order nisi into absolute.
The decision whether to make it absolute is dependent on the whether the Garnishee was able to show cause. If a Garnishee shows cause then the order nisi is discharged and if he fails to show cause then the order nisi becomes absolute. Judgment debtor has little or nothing to do with whether the order nisi is made absolute. The Appellant missed it here.
Looking at the ruling against which the appeal is based, it was premised on an application made by the judgment debtor praying the Court for orders of stay of execution, setting aside of order nisi pending the determination of an appeal, an order staying further garnishee proceedings and injunction. This was after the order nisi was made by the Court before the making of the order absolute. The reason why the order nisi was not made absolute was clearly stated in the ruling and the Court said thus:
It is therefore very clear that as from the 7th of February, 2017, this Court would not have any jurisdiction to entertain any application in respect of this case anymore. By 7-2-17 any application or proceeding in respect of this suit should have been made to the Court of Appeal.
I therefore hold that all applications made to this Court in respect of this suit from 7-2-17 and any proceedings and orders made by this Court from 7-2-17 including this application and all other applications filed in this Court has lost jurisdiction to proceed further in any way with this suit.
I therefore declare this application and all other applications filed in this suit after 7-2-17 a nullity including any proceedings and orders made as from the said date 7-2-17.
The reason the Garnishee proceedings did not proceed to make the order absolute was because the appeal was supposedly entered at the Court of Appeal and the Court below thought it lost jurisdiction, rightly when an appeal is entered but wrongly here because the appeal was merely brought and not entered. My brother ABUBAKAR, JCA in the case of STANBIC IBTC supra held:
“… the law is well settled that giving Notice of appeal is not sufficient to consider the appeal as having been properly entered, an appeal is deemed to be properly entered when the records of appeal are compiled and transmitted to the Court of Appeal by the Registrar.
See: Order 4 Rule 10 of the Court of Appeal Rules 2011 which provides that “An appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court.”
The appeal was only entered on the 13th April, 2017 and not earlier as contended by the Court below. When an appeal is entered in this Court, all Courts below should hands off. Once record is transmitted, the Court below will cease to have jurisdiction in respect of the subject of the appeal but would have the jurisdiction to continue with other aspects of the Suit. Consequently, the act of setting aside all previous proceedings before the entering of appeal occasioned a miscarriage of justice and therefore perverse because the record of appeal had not been transmitted to the Court of Appeal. In fact the Respondent could not state the exact date the record of appeal was received in the Court of Appeal. That information was on the face of the Record of Appeal which the court is entitled to view in order to determine when the appeal was entered. It was on the 13th April, 2017.
The Court below erred in setting aside the Garnishee proceedings proceeding and orders made before the 13th April, 2017 because there the appeal had not been entered by that date in which those proceedings were conducted. I agree with the Appellant that the Court below was in error in failing to proceed to determine whether to make the Garnishee order nisi absolute. The sums attached by the order nisi should have been sustained until the appeal is determined. In fact, I agree with the Appellant that the judgment debtors applications should not have been made part of the Garnishee proceedings at all. He had nothing to urge the Court even though he could seek leave to appeal against the order absolute as a person interested.
The Respondent as judgment debtor in a garnishee proceeding should not have been allowed to interject those proceedings with other applications which are extraneous to the Garnishee proceedings. A motion seeking to set aside orders nisi and a stay of execution are both extraneous to a garnishee proceedings. The judgment debtor is merely to be served with the order nisi after which he has no role to play except if he desired to appeal after the order absolute. The second stage of Garnishee proceedings which is on the return date, and the law expects one of two scenarios presenting itself, these are:
i. the Garnishee does not attend;
ii. does not dispute dispute the debt claimed to be due from him to the judgment debtor.
Then the Court may subject to certain restrictions make the order absolute under which the garnishee is ordered to pay the judgment creditor. Going by the record of appeal there was no reason stopping the Court below from proceeding to adjudicate on the affidavits filed by the garnishees herein. The Respondent was just meddlesome and truncated the Garnishee proceedings and blocked the Court from concluding the proceedings. The Court should have also known that no appeal was entered and therefore, it still had jurisdiction to proceed. The Court will only lose jurisdiction when the appeal is entered, see CHIEF SERGEANT AWUSE V PETER ODILI (2003) 18 NWLR (851) 116; OGUNREMI V DADA (1962) 1 ALL NLR 663 and M.U.O EZOMO V ATTORNEY GENERAL BENDEL STATE (1986) NWLR (PT. 36) 448.
There may be conflicting decisions as to whether the judgment debtor is a party in Garnishee proceedings but the most important issue is how the Court below washed its hands off without justification. It has been said times without number that the mere filing of a Notice of Appeal cannot ipso facto amount to a stay of proceedings or execution. The authorities cited by the Respondent on the fact that filing a Notice of Appeal would stop the Court below is certainly not the position of law. It must be reiterated that the appeal was only entered on the 13th April, 2017 when the record of appeal was received in the Court of the Appeal and not any date earlier. That makes the facts in this case different from the case of WAEC & ORS V IKANG & ORS (2011) LPELR- 5098(CA) where the appeal was entered after the order nisi was made and before the making of the order absolute. That is not the situation here.
On the whole the appeal is meritorious and I hereby allowed. I hereby restore back the order nisi made against the two garnishees named herein. The Court below shall await the determination of the substantive appeal before concluding the process of either discharging the order nisi or making it absolute.
Cost of N200, 000.00 in favour of the Appellant against the Respondent only and not the Garnishees.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Yargata Byenchit Nimpar, JCA, made available to me the draft of the leading judgment which has just been delivered.
I agree with the conclusion in the leading judgment that the appeal not having been entered, the lower Court was wrong when it declined jurisdiction to proceed with the proceedings for the garnishee order nisi to be made absolute and that this occasioned a miscarriage of justice on the basis of which the decision of the lower Court should be set aside.
I however express my reservations with the view taken in the leading judgment that a judgment debtor is merely to be served with the order nisi after which he has no role to play at the hearing on whether the order nisi should be made absolute. In STANBIC IBTC BANK vs. LONG TERM GLOBAL CAPITAL LTD (2016) LPELR (40517) 1 at 27-31, my learned brother, Abubakar, JCA stated as follows:
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 on invitation to him (the Judgment Debtor) to enable him to be heard by the Court before the order absolute is finally made. See: WEMA BANK PLC. Vs. BRASTEM-STERR (NIG.) LTD. (2011) 6 NWLR (Pt. 1242) 58 at 80A-D, SKENCONSULT (NIG) LTD Vs. UKEY (1981)1 SC 4 at 15.
A careful reading of Order VIII, Rule 8(1) of the Judgment (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 state 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. Let me provide further support to my opinion by relying on the decision of this Court delivered by my learned brother, OGUNWUMIJU, JCA in N.A.O.C. Vs. OGINI, (2011) 2 NWLR (Pt. 1230) 131 at 152-153, F-C, where my Lord and Learned brother said as follows and I quote:
If the judgment creditor knows that the judgment debtor has an amount of money with any Bank or institution, he will as Garnishor file for an ex parte application to be supported by an affidavit in Form 23 of the Judgment Enforcement Rules (JER) for an order that the Garnishee (in this case U.B.A Plc.) shall show cause why he should not pay the amount due to the judgment debtor to him.
These proceedings are strictly ex parte between the Garnishor (judgment creditor) and the Garnishee (the Bank or institution). Where the Court grants the order nisi on the garnishee, the Registrar through the Sheriff of the Court must serve on the garnishee, the judgment creditor and the judgment debtor the Order nisi on Form 26 of JER. The registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing. This subsequent hearing envisages tripartite proceedings in which all interests are represented. That is when the judgment debtor has the opportunity to conceive the Court to discharge the order nisi by filling affidavits to that effect. After that hearing on notice, the Court may discharge the order nisi or make it an order absolute. Thus, the judgment enforcement rules envisages two proceedings, one ex parte and the other one on notice…
Equally, in NIGERIAN BREWERIES PLC vs. DUMUJE (2015) LPELR (25583) 1 at 116-121, I stated thus:
..it is my deferential opinion that even though garnishee proceedings are directed at the garnishee to make over the funds of the judgment debtor in his possession, the brass tacks remain that the funds still belong to the judgment debtor and he is to be affected by whatever decision reached in the garnishee proceedings in relation to his funds which are in possession of the garnishee. The litigation process is not a spectator sport, it does not accommodate of having persons as cheerleaders, whose presence will only be to observe and applaud the toreadors in the litigation.
Section 83 (2) of the Sheriffs and Civil Process Act stipulates that a copy of the order nisi made in garnishee proceedings is to be served on the judgment debtor. Now, if as contended that it isnt necessary to have the judgment debtor as a party in the garnishee proceedings, what is the essence of the provision for the order nisi to be served on him, is it merely for his information or for him to attend Court as a spectator to applaud and cheer on the judgment creditor and garnishee in the contention on the destination of funds which belong to him… It is definitely for a purpose which transcends being a mere onlooker that the law provides that the order nisi be served on the judgment debtor before a hearing on whether the order should be made absolute. This purpose seems to be in tandem with the classification of parties as set out by Oputa, JSC in GREEN vs. GREEN (1987) LPELR (1338)1 at 20.
From the classification of parties, it is effulgent that in garnishee proceedings, the judgment debtor who may be affected by the result of the proceedings is a desirable party. The wisdom of the law in stipulating that the order nisi be served on the judgment debtor is definitely not for idle purposes. It is no floccinaucinihilipilification. It is not worthless, neither is it valueless. It has to be emphasized that in the light of the clear provisions of Order VIII Rules 6 & 8 of the Judgment Enforcement Rules, which make provisions for hearing the judgment creditor, the garnishee and the judgment debtor… in a situation where the garnishee either pays the judgment sum into Court or disputes his liability; there is no justifiable legal basis for shutting out a judgment debtor from garnishee proceedings subsequent to service of garnishee order nisi or treating him as a stranger thereto, which evidently he is not; the enquiry ought to be on what the judgment debtor should be heard to say in the proceedings and not whether he can be heard at all, on the premise that the garnishee order nisi is not directed at him but at the garnishee….
I am therefore in complete agreement with the views expressed in the leading judgment on the areas in which the judgment debtor can be heard to postulate that the order nisi should not be made absolute, namely:
1. Show cause why the order nisi should be set aside for want or excess of jurisdiction, for instance where the garnisheed amount is not in accordance with the judgment of the Court.
2. Show that there has been a partial or full execution of the judgment subject of the garnishee proceedings.
3. Prove that proper parties are not before the Court.
4. Show that there has been on order staying execution of the judgment or that there is a pending application for stay of execution of the judgment before the Court.
The further point to emphasize is that the judgment debtor by virtue of being a desirable party does not have the unbridled right to challenge the judgment being enforced by the garnishee proceedings.
Any challenge to the judgment will be at a different forum, definitely not at the garnishee proceedings.
Happily, the outcome of this appeal does not depend on whether, in garnishee proceedings, the judgment debtor has a role to play or not. As already stated, I agree with the decision that the lower Court was in error to have declined jurisdiction to further entertain the garnishee proceedings when the appeal had not been entered in this Court. Accordingly, I also allow the appeal and abide by the consequential orders made in the leading judgment, inclusive of the order as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: My Lord YARGATA BYENCHIT NIMPAR JCA afforded me the opportunity of reading the draft of the judgment just delivered.
I agree with the reasoning and conclusion in the judgment and I adopt it as mine with nothing to add.
Appearances:
- AMARAN with him, J. AJADIFor Appellant(s)
VICTORIA ADEDAPO – FOR THE RESPONDENT (VIRGIN ATLANTIC)
ADEMOLA OBAYOMI FOR THE 1ST GARNISHEE/
RESPONDENTFor Respondent(s)
Appearances
- AMARAN with him, J. AJADIFor Appellant
AND
VICTORIA ADEDAPO – FOR THE RESPONDENT (VIRGIN ATLANTIC)
ADEMOLA OBAYOMI FOR THE 1ST GARNISHEE/
RESPONDENTFor Respondent
