MULTICHOICE (NIG) LTD v. HASSAN & ANOR
(2022)LCN/17160(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/YL/74/2020
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
MULTICHOICE NIGERIA LIMITED APPELANT(S)
And
1. NANA GANKI HASSAN 2. ZENITH BANK PLC RESPONDENT(S)
RATIO
WHETHER OR NOT THE RIGHT TO APPEAL IS STATUTORY IN NATURE
There is no gainsaying the fact that the right to appeal is statutory in nature and in order to determine whether a person has lost his right to appeal or improperly exercised said right, recourse must be had to relevant principles of law.
The law is settled that parties to a case before a trial Court may appeal final decisions of that Court as of right, that is without the need to seek leave of Court. The foregoing is the implication of Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides thus:
“an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: (a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
See GLOBESTAR ENGINEERING COMPANY NIGERIA LTD v. MALLE HOLDINGS LTD (1999) LPELR-6637(CA). PER TUKUR, J.C.A.
THE POSITION OF LAW ON THE COMMENCEMENT OF GARNISHEE PROCEEDINGS
Section 83(1) and (2) of the Sheriff and Civil Process Act which contains the enabling provisions for commencement of garnishee proceedings provides thus:
“(1) 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 debts 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 garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment 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.”
“(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.”
The provisions of Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules, is also instructive and provide thus:
“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.” PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Jalingo Division, Taraba State in FHC/JAL/CS/15/2018 delivered on 23rd March, 2020, by Honourable Justice S.D. Pam in favour of the 1st Respondent.
The material facts are that following its dissatisfaction with the decision of the lower Court delivered on 3rd July, 2019 entering judgment in favour of the 1st Respondent, the Appellant appealed the decision via a Notice of Appeal filed on 30th September, 2019, with the Registry of this Court receiving the record of appeal on 13th March, 2020. Subsequent to the filing of appeal but prior to the entering of same, the 1st Respondent filed garnishee proceedings on 30th January, 2020. During the hearing for the order nisi to be made absolute on 23rd March 2020, it was Appellant’s contention that the lower Court had no jurisdiction to continue with the matter as an appeal on the case had been entered in this Court. The lower Court went ahead with the proceedings and made an order absolute in favour of the 1st Respondent herein.
Dissatisfied with the above decision of the lower Court, the Appellant appealed the ruling via Amended Notice of Appeal dated 9th November, 2020 and filed on 10th November, 2020, but deemed as properly filed on 13th January, 2021, with 6 grounds of appeal.
The Appellant’s Brief of Argument is dated 9th November, 2020 and filed on 10th November, 2020, but deemed properly filed on 13th January, 2022.
Appellant’s counsel formulated four issues for determination to wit:
1. Whether the trial Court had jurisdiction to continue with the garnishee proceedings during the pendency of the appeal or after an appeal has been entered. (Grounds 1 & 3)
2. Whether the judgment debtor is a necessary party who is supposed to be heard in the garnishee proceedings. (Ground 2)
3. Whether the decision of the trial Judge to strike out the Appellant’s earlier Motion on Notice for stay of execution with the suit during the proceedings of 4th December, 2019 without giving notice to the counsel to the Appellant indicates a likelihood of bias, judicial rascality and amounts to a breach of fair hearing. (Grounds 3, 5 and 6)
4. Whether the lower Court was right to have entertained the Motion exparte for garnishee proceedings without relisting the suit after he had struck out the suit on 4th December, 2019 with a condition that the matter could not be relisted without payment of the sum of N20,000.00. (Ground 5)
The 1st Respondent’s Brief of Argument is dated 9th March, 2021 and filed on 1st April, 2021, but deemed as properly filed on 2nd March, 2022.
1st Respondent`s counsel adopted the 4 issues as formulated by the Appellant.
PRELIMINARY OBJECTION
Learned counsel for the 1st Respondent brought a preliminary objection to the hearing of this appeal via a Notice of Preliminary Objection dated 9th March, 2021, and filed on 1st April, 2021.
The grounds upon which the preliminary objection was brought was stated in the notice thus:
1. The Appeal is incompetent having been filed without leave of Court.
2. The parties as reflected on Appeal No: CA/YL/74/2020 and the parties in Motion No: FHC/JAL/M/9/2020 were unilaterally altered by the Appellant without the leave of Court.
3. The grounds of appeal did not emanate from the decision of the trial Court.
4. The Notice of Appeal filed by the Appellant does not relate to any garnishee application filed and determined by the Federal High Court, Jalingo.
5. The grounds of appeal and their particulars are argumentative, verbose, vague, did not flow from the ruling of the trial Court and are not supported by the Record of Proceedings transmitted to this Honourable Court.
6. Grounds 2,5 and 6 of the Amended Notice of Appeal are incompetent as they did not emanate from the decision of the trial Court delivered on the 23rd March, 2020 and same was filed without the leave of Court.
7. Ground six (6) of the Amended Notice of Appeal is an appeal against an exercise of discretion of the trial Court in a ruling delivered on the 4th day of December, 2019, and was filed out of time without seeking and obtaining an order of enlargement of time from this Court.
Learned counsel for the 1st Respondent in arguing the preliminary objection distilled two issues for determination to wit:
1. Whether the Appellant who is the judgment debtor has a right of appeal in the garnishee proceedings without leave of Court?
2. Whether this appeal is grossly incompetent and liable to be struck out by this Honourable Court?
In arguing issue one, learned counsel for the 1st Respondent argued that the Appellant as judgment debtor and not a Garnishee cannot appeal as of right, but with leave of either this Court or the lower Court and its failure to so do in this appeal means that this Court lacks the jurisdiction to hear and determine the appeal.
He relied on the case of Zenith Bank Plc v. National Trucks Manufacturing Ltd & Ors (2020) LPELR 50941 (CA) pages 10-11 paras B-A; and Nigeria Agip Oil Company Limited v. Godstime Hart & Ors (2018) LPELR 44622(CA) pages 8-15, paras C-F.
On his second issue, learned counsel for the 1st Respondent submitted that the Notice of Appeal which is grounding this appeal is incompetent as it relates to the main suit at the lower Court, that is: Suit No: FHC/CS/15/2018 rather than the motion which led to the grant of a garnishee order absolute, which is Motion No: FHC/JAL/M/9/2020. Counsel also argued that the Appellant unilaterally altered the parties to this appeal without requisite leave of Court, an act which renders the Notice of Appeal incompetent and liable to be struck out.
He relied on a number of judicial authorities including: Mohammed Nyavo v. Benjamin Zading (2016) LPELR 40803 (CA) pages 20-22 paras G-C; Afribank Nigeria Plc & Ors v. Nigeria Deposit Insurance Corporation (2015) LPELR 24654(CA) 8-9, paras B-D; and Glover Princess v. Nigeria Customs Board & Ors (2018) LPELR 45551 (CA) pages 12-17 paras B-F.
Learned counsel submitted further on issue two that the grounds of the Notice of Appeal are incompetent, making the Notice of Appeal liable to be struck out and that ground 6 which relates to the ruling delivered by the lower Court on 4th December, 2019 ought to be struck out as the time for appealing against the said decision has since elapsed without any grant of extension of time. He referred to the case of INEC v. Nwosu (2018) LPELR 44019 (CA) page 13 paras C-F.
In response to 1st Respondent’s submissions on issue one, learned counsel for the Appellant argued that no leave was required before the filing of this appeal, as the Appellant herein, being a party to the garnishee proceeding on the basis that it ought to have been heard by the lower Court in the garnishee proceedings, is a necessary party and the decision making the garnishee order absolute is a final decision of the lower Court which requires no leave to appeal.
He relied on: Gwede v. DSHA (2019) 8 NWLR (Pt1673) page 30; UBN Plc v. Boney Marcus Ind Ltd (2005) 13 NWLR (Pt943) 654; and Sani v. KSHA (2021) 6 NWLR (Pt 1773) page 422.
On issue two, learned counsel for the Appellant submitted that the present appeal is against the ruling of the lower Court delivered on 23rd March, 2020 and the fact that the Motion No. FHC/JAL/M/2020 was not typed on the face of the Notice of Appeal is a misnomer that does not go to the root of the case particularly as the jurisdiction of the lower Court to make the garnishee order absolute is subject matter of this appeal.
Counsel also submitted that the parties as reflected in the Notice of Appeal are the proper parties being the judgment Debtor, the undischarged Garnishee and the Judgment Creditor. He stated that the appeal against the ground of appeal against the order of 4th December, 2019, striking out the Appellant’s motion is proper because it is an appeal against an ancillary order of the Court made after the Court became functus officio over the main case. He relied on the case of Obi v. Obi (2004) 5 NWLR (Pt 867) 649.
RESOLUTION OF THE PRELIMINARY OBJECTION
There is no gainsaying the fact that the right to appeal is statutory in nature and in order to determine whether a person has lost his right to appeal or improperly exercised said right, recourse must be had to relevant principles of law.
The law is settled that parties to a case before a trial Court may appeal final decisions of that Court as of right, that is without the need to seek leave of Court. The foregoing is the implication of Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides thus:
“an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: (a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
See GLOBESTAR ENGINEERING COMPANY NIGERIA LTD v. MALLE HOLDINGS LTD (1999) LPELR-6637(CA).
Section 83(1) and (2) of the Sheriff and Civil Process Act which contains the enabling provisions for commencement of garnishee proceedings provides thus:
“(1) 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 debts 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 garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment 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.”
“(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.”
The provisions of Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules, is also instructive and provide thus:
“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.”
A careful examination of the above provisions makes it clear that it is incorrect to argue as done by Counsel to the 1st Respondent that a Judgment Debtor is not a necessary party to a garnishee proceeding after an order nisi attaching the sum in the custody of the Garnishee has been made.
The current and correct position of the law is as argued by Appellant’s counsel, to the effect that at the stage of a garnishee proceedings, where an order nisi is to be made and has not been made, the Judgment Debtor has no role to play.
However, after the order nisi has been made, at the proceedings to determine whether the temporary order of attachment of the Judgment Debtor’s funds in the custody of the Garnishee ought to be made absolute, the Judgment Debtor is a necessary party. This Court has consistently held in recent decisions that a Judgment Debtor is a party to garnishee proceedings at the stage of determining whether an order nisi ought to be made absolute or vacated. The parties at that stage consist of the Judgment Creditor, the Garnishee and the Judgment Debtor. The case of Nigerian Breweries Plc v. Dumuje [2016] 8 NWLR (Pt. 1515) 536, pages 622-623, paras F-B, which was rightly cited by Appellant’s counsel, is very instructive. Therein this Court stated the correct position of the law thus:
“Section 83(2) of the Sheriffs and Civil Process Act provides that a copy of the garnishee order nisi must be served on the judgment debtor. Such service gives the judgment debtor the right to be heard on whether the order nisi should be made absolute. And that is in consonance with the constitutional provision of fair hearing. Accordingly, the judgment debtor is a necessary party who should be heard before the Court makes a garnishee order absolute…”
It was also clearly held in that appeal that if after hearing the three parties – judgment creditor, judgment debtor and garnishee in the proceedings, the trial Court decides to make the order nisi absolute, or to discharge or vacate same, any of the parties have a right of appeal against that decision.
See: BOGORO LOCAL GOVT COUNCIL v. KYAUTA & ORS (2020) LPELR-49812(CA); IBRAHIM v. ECOBANK (2019) LPELR-47969(CA); and DELTA STATE GOVT v. KAY QUE INVESTMENT LTD & ANOR (2018) LPELR-45545(CA).
The above position of the law was backed by the Supreme Court in the cases of SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2021) LPELR-53067(SC); and GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC).
The other heads of argument against the propriety of the Appellant`s appeal, save for grounds 5 an d 6 will also fail, as the grounds are clear and constitute an attack against the decision of the lower Court of 23rd March, 2022. A careful scrutiny of grounds 5 and 6 reveals that they constitute a complaint against the decision of the lower Court striking out the suit and striking out the Appellant’s motion for stay of execution respectively, which grouse cannot be properly ventilated against in these circumstances.
In light of the foregoing, the preliminary objection against the whole of this appeal fails, but grounds 5 and 6 and the issues emanating therefrom are struck off.
A careful consideration of the surviving issues formulated by Appellant’s counsel coupled with the facts leading to this appeal reveals that the sole issue that calls for consideration is:
Whether the lower Court was right to have continued the garnishee proceedings and grant an order absolute in the circumstances?
Learned counsel for the Appellant argued that the learned trial Judge was wrong to have ignored the Motion for Stay of Execution, dated 13th December, 2019 and proceed to hear and grant Motion Ex Parte for garnishee order nisi filed over one month after the motion for stay had been filed; and that the lower Court erred in law by granting the order absolute while it was aware that an appeal had been entered in the matter, having been so informed by the affidavit of notification filed by the Appellant before the order was made, in line with the settled position of the law that once an appeal is entered in the Court of Appeal, the jurisdiction of the trial Court is temporarily suspended until the appeal is determined.
He relied on a host of authorities including: Order 4 Rules 10 and 11 of the Court of Appeal Rules 2016; Abacha v. Fawehinmi (2000) 4 SC (PtII) page 1; Nigerian Arab Bank v. Comex Ltd (1999) 16 NWLR (Pt608) page 648; Leaders & Company v. Kusamotu (2008) ALL FWLR (Pt405) page 1800 at 1812-1814, paras H-G; Daewoo Nigeria Ltd v. Hazcon Nigeria Ltd (1998) 7 NWLR (Pt.558) page 437 at 446-448; Duke v. Duke (2012) LPELR-19700 (CA); Honourable Justice Denton-West v. Chief Muoma SAN (2008) ALL FWLR (Pt433) 1423; UBN Plc v. Uwa Printers Nigeria Ltd & Ors (2014) LPELR-22682 (CA).
Learned counsel for the Appellant further argued that the learned trial Judge was wrong to have refused the Appellant’s counsel audience during the garnishee proceedings of 23rd March, 2020 on the grounds that the Appellant was not a party to the proceedings. Counsel posited that the implication of Section 83(2) of the Sheriffs and Civil Process Act which makes mandatory the service of the order nisi on the Judgment Debtor at least 14 days before the hearing wherein the order nisi will be made absolute is that the Judgment Debtor is a necessary party who ought to be heard before the garnishee order is made absolute.
He relied on: Order VIII, Rule 8(1) of the Judgment (Enforcement) Rules; CBN v. Auto Import Export [2013] 2 NWLR (Pt1337) 80 at 126 paras F-G; Sokoto State Govt v. Kamdex (Nig) Ltd [2004] 9 NWLR (Pt878) 345 at 380 para.D; NAOC v. Ogini [2010] 2 NWLR (Pt.1230) 131 pages 152-153; Nigerian Breweries Plc v. Dumuje & Anor 82015) LPELR-25583 (CA); Delta State Govt v. Kay Que Investment Ltd & Anor (2018) LPELR-45545(CA).
On the other hand, learned counsel for the 1st Respondent argued that the purported entering of an appeal could not truncate the garnishee proceedings because no appeal was entered as at the date the trial Court made the order nisi absolute. Counsel predicated the foregoing on the fact that the Appellant filed its Notice of Appeal on the 30th day of September, 2019 but compiled and transmitted the record of appeal on 13th March, 2020, meaning the transmitting of the record was out of time for about 75 days and the appeal was incompetent until this Court deemed it as properly compiled and transmitted on the 13th Day of January, 2021, thus both the trial Court and this Court shared concurrent jurisdiction until 13th January, 2021.
He relied on: Order 8 Rules 1 and 4 of the Court of Appeal Rules 2016; Ifebunandu v. Okoye (2018) LPELR-45622 (CA) pages 9-11 paras E-F; SPDC v. Agbara (2015) LPELR-25987(SC) pages 27-28 paras E-A; and IAR Multipurpose Cooperative Society Ltd & 10 Ors v. Mallam Ibrahim Idris (2015) LPELR-25959 (CA) pages 4-6, paras C-F.
Counsel argued that the trial Court could not have considered the pendency of a motion for stay before proceeding to grant the garnishee order nisi on 31st January, 2020, because the motion for stay of execution had earlier been struck out by the trial Court on 4th November, 2019. He also argued that the motion for stay of execution before this Court as found at pages 139-149 of the record of appeal reveals that there was no competent motion to warrant the lower Court staying proceedings of the garnishee proceedings as the relief therein does not indicate nor give particulars of the particular judgment of the trial Court the application was seeking to stay.
Counsel submitted that assuming the appeal had been entered, the filing or entering of an appeal does not amount to an automatic stay of proceedings without the order of this Honourable Court. He further submitted that contrary to the position of Appellant’s counsel, the learned trial Judge granted audience to Appellant’s counsel and duly recorded him as borne out by the records of appeal in pages 156-158 of the records of appeal, which the Appellant`s counsel has not formally challenged and as such is bound by.
He relied on: Reynolds Construction Company Ltd v. Hon (Barr) Jerry Akpan (2019) LPELR-48142 pages 45, Para A; and Onda (M) v. COP (2020) LPELR-51373 (CA) pages 9-13, para D.
In the reply brief, Appellant’s counsel submitted that since the Appellant raised the issue of lack of jurisdiction at the hearing to make the order nisi absolute, the Court ought to have resolved the issue before making such order. He also submitted that the failure of the lower Court to determine the Motion for stay of execution before entertaining garnishee proceedings amounts to shutting the Appellant out and denying it fair hearing. He referred to the case of Ajayi v. Adebiyi (2012) 11 NWLR (Pt1310) 137.
RESOLUTION OF THE ISSUE
An appeal has been defined as the judicial examination by a higher Court of the decision of a lower Court. It involves calling upon an appellate Court, via filing and service of requisite processes such as the Notice of Appeal, to review the decision of the Court of first instance or even a lower appellate Court and find out whether based on the facts and evidence placed before the lower Court, and upon the application of all relevant and applicable laws, the lower Court reached a sound and just decision. If the higher Court is of the opinion that the decision was right, the appeal is dismissed.
See: PDP v. SYLVA & ORS (2016) LPELR-42559(SC); and IBEKWE & ORS v. AZUBUIKE (2016) LPELR-40546(CA).
Flowing from the above, an appeal on the final decision of the lower Court involves rehearing of the matter, which necessarily requires that the appellate Court be seized of the whole case.
The position of the law on the effect of an appeal against the final decision of the lower Court is clear and is aptly captured in Order 4 Rule 11 of the extant rules of this Court (Court of Appeal Rules 2021), which is on all fours with the 2016 rules save for the addition of sub rule (2) in the extant rules, thus:
11(1) “After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto. Except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the lower Court”.
(2) Nothing in sub-rule (1) above shall be construed as requiring the lower Court to order stay of proceedings, or adjourn sine dine, proceedings in relation to matters or proceedings in the lower Court that are not impacted by or to which the appeal entered in the Court of Appeal does not relate to.
The straightforward meaning of the above provisions is that immediately an appeal is entered before this Court, that is, once the record of appeal has been compiled, successfully transmitted to the Registrar of this Court within the time prescribed by the Rules and the Registrar goes ahead to enter the appeal as a pending appeal, then the lower Court immediately loses jurisdiction over every part of the case, including ancillary proceedings, so as not to foist a fait accompli on this Court.
See: DINGYADI & ANOR v. INEC & ORS (2011) LPELR-950(SC); and UBN PLC v. UWA PRINTERS (NIG) LTD & ORS (2014) LPELR-22682(CA).
The pertinent question that follows is whether the appeal had been entered as at the time the hearing to determine order nisi was conducted. Order 4 Rule 10 leaves no room for controversy as to when an appeal is entered by providing thus:
An appeal is entered in the Court when the Record has been received in the Registry of the Court within the time prescribed by the Rules or within such other extended time as ordered by the Court.
Order 4 Rule 10 of the 2016 Rules of this Court which was in force as at when the appeal was filed provides thus:
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 within the time prescribed by the Rules.
From the above, it is clear that the appeal which was one of the reasons upon which the Appellant has based its assertion that execution of the lower Court’s judgment ought to be stayed, was not entered before this Court as at the hearing at which the garnishee order nisi was made absolute, as the period of time provided by the Rules for the filing of the record had elapsed and there was no order rectifying same. Thus it cannot be rightly argued that an appeal had been entered before this Court which robbed the lower Court of jurisdiction over every part of the case.
This Court in the case of SALAKO v. ABINDE & ORS (2017) LPELR-50663(CA) per YARGATA BYENCHIT NIMPAR, JCA (Pp 16 – 16 Paras A – D), put it thus:
“The rule on when an appeal is deemed brought and entered are separate but clear stages of an appeal. When an appeal is entered is also settled and does not require citing of authorities, but for clarity, Order 4 Rule 10 of the Court of Appeal Rules 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 within the time prescribed by the Rules. So the entering of an appeal cannot be uncertain but definite.”
See: AMARAN v. VIRGIN ATLANTIC AIRWAYS & ORS (2018) LPELR-44786(CA).
There remains however, another key attack on the validity of the garnishee order absolute made by the Court below, which is the fact that there was a pending application for stay of execution dated 13th December, 2019, before the lower Court, which the lower Court ignored before granting the order nisi and before going ahead to make the order nisi absolute. Appellant’s counsel has argued that this constitutes a breach of Appellant’s fundamental right to fair hearing and I am inclined to agree.
Fair hearing connotes giving both parties an equal opportunity to be heard and there can be no justification for the lower Court’s decision to totally ignore the Appellant`s application for stay of execution, whilst going ahead to execute the judgment via the garnishee proceedings.
In the case of CBN v. SHIPPING COMPANY SARA B.V. & ORS (2015) LPELR-24665(CA) per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA (Pp 20 – 21 Paras B – B), this Court in similar circumstances held thus:
In the instant case, even if the counter-Affidavit was not in existence, it behoves on the lower Court to hear the application for stay of proceedings dated 30th May of 2012 filed by the Appellant even before the motion on notice of the 1st Respondent for garnishee order absolute filed on 31st May 2012 notwithstanding the fact that the Court neither believed nor accept the contention of the Appellant/Garnishee’s contention that an Appeal had been entered in respect of the Court’s earlier ruling. No doubt, the Appellant has a right to be heard. In PB (NIG) PLC v OK CONTACT POINT LTD (2001) 9 NWLR (PT717) 80, PER PATS-ACHOLONU JCA (as he then was) held: “before a Court decides to take a shortcut in the process of adjudication, it must weigh the fact of the case very carefully and consider the implication of short-circuiting proceedings that could have enabled it give and eruditely considered decision…” In the instant case, the ruling on the application for garnishee Order absolute leaves more to be desired as it was seemingly uncontested and did not take into consideration the pending application in the Court’s file. Clearly, the lower Court in is breach of the fundamental principle of fair hearing.”
See: UNITY BANK v. IGALA CONSTRUCTION CO. LTD & ANOR (2020) LPELR-49878(CA) (Pp 25 – 33 Paras D – F); and NIGERIAN BREWERIES PLC v. DUMUJE & ANOR (2015) LPELR-25583(CA).
In the light of the above, the sole issue is resolved in favour of the Appellant. The Appeal is meritorious and same is hereby allowed. The garnishes order absolute made in favour of the 1st Respondent by the lower Court on 23rd March, 2020 is hereby set aside. Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the leading judgment delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I agree with his reasoning and conclusion arrived at. I have nothing more to add.
I abide by the order made in the leading judgment by my learned brother that the appeal is meritorious and it is accordingly allowed, also, that the garnishee order absolute made in favour of the 1st Respondent by the lower Court on 23rd March, 2020 is hereby set aside.
I abide by the order made as to costs in the leading judgment.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA in the matter.
I agree entirely with his Lordship’s argument and conclusion that the appeal has merit. The garnishee order absolute in favour of the 1st Respondent is hereby set aside.
