NIGERIA AGIP OIL COMPANY LTD. v. PETER OGINI & ORS.
(2010)LCN/3926(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of July, 2010
CA/PH/462/2008
RATIO
METHODS OF ENFORCEMENT OF JUDGMENT: DISTINCTION EXISTING BETWEEN EXECUTION OF JUDGMENT AND OTHER METHODS OF ENFORCING JUDGMENT SUCH AS GARNISHEE PROCEEDINGS
Again, given the distinction that exists between execution and garnishee proceedings for the enforcement of a judgment. I do not think the existence of an application seeking for an order staying execution of a judgment does preclude a judgment creditor from seeking to use some other legal method to enforce judgment. There is a clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings. The distinction is brought out by the definition of “writ of execution” in section 19 of the Sheriffs and Civil Process Act, Cap 407 Laws of Federation, 1990. Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration. It excludes a garnishee proceedings.” The distinction is further made clear by the learned authors of Atkin’s court Forms Volume 19, 2nd Edition paragraph 21 on page 47 thus: “Garnishee proceedings or attachment of debts is a method auxiliary to that of execution for the enforcement of judgment or order for the payment of money into court enabling the judgment creditor to attach money due to the judgment debtor from a third person called the garnishee, who must be within jurisdiction”. And concluded that: “Execution of a judgment entails the seizure and sale of chattels of the judgment debtor under warrant of the court. This is different from attachment of debt owed to a judgment debtor by a third party, who is indebted to the judgment debtor and not proceedings against the judgment debtor directly…” Also, in the more recent case of Hon. Justice Sotonye Denton-West vs. Chief (Iche) Chuks Muoma, SAN (2008) 6 NWLR (Pt. 1083) 418 at 442, Kekere-Ekun, JCA, who delivered the lead Ruling of the Court of Appeal (Port Harcourt Division) relied on the cases of Purification Techniques (Nig.) Ltd. vs. A-G, Lagos State (supra), In re: Diamond Bank Ltd. (supra) at 133, Section 243(a) of the 1999 Constitution and in one breadth answered the question that a judgment debtor is neither a party to a garnishee proceeding or an aggrieved party that can appeal on a garnishee order nisi. The learned Justice of the Court of Appeal said: “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'” PER MOJEED ADEKUNLE OWOADE, J.C.A.
RIGHT OF APPEAL: WHETHER OR NOT A RIGHT TO APPEAL IS ONLY EXERCISABLE BY A PARTY TO THE PROCEEDINGS OR BY AN INTERESTED PARTY WITH LEAVE OF COURT
The right to appeal is only exercisable by a party to the proceedings or by an interested party with leave of court. With regard to garnishee proceedings, it is the garnishee, that, is the person or bodies in custody of or holding the assets of the judgment debtor that could be aggrieved and competently appeal against the Order’ See: In re. Diamond (supra) P. P. M C. vs. Delphi Pet Incorp. (2005) 1 NWLR (Pt. 928) 458 at 486. PER MOJEED ADEKUNLE OWOADE, J.C.A.
RIGHT OF APPEAL: WHEN CAN A RIGHT OF APPEAL BE INVOKED AND WHO CAN EXERCISE A RIGHT OF APPEAL AGAINST THE DECISION OF A HIGH COURT IN CIVIL PROCEEDINGS
The right of appeal does not exist in a vacuum. It must be invoked only when there is in existence, against the person wishing to exercise the right of appeal, a decision of the Court. See, A-G., Federation vs. A.N.P.P (2003) 15 NWLR (Pt 844) 600 at 644. Any right of appeal from the decision of a High Court in Civil Proceedings can be exercised by any party thereto or with leave of the High Court or the Court of Appeal by person interested in the proceedings. See, Section 243 (a) of the 1999 Constitution, also In Re: Arowolo (1993) 2 NWLR (Pt. 275) 1 at 325. PER MOJEED ADEKUNLE OWOADE, J.C.A.
MEANING OF THE PHRASE “A PERSON HAVING AN INTEREST IN THE MATTER, AS CONTAINED IN SECTION 243 (A) OF THE CONSTITUTION
The phrase “a person having an interest in the matter, as contained in section 243 (a) is synonymous with a person aggrieved, meaning who has suffered a legal grievance, a man against whom a decision has been pronounced which wrongfully deprived him of something, or wrongfully refused him something likely to be affected or aggrieved or likely to be aggrieved. See Funduk Engineering Ltd. vs. James Macarthur Ltd. In Re. Col. Y. A. Madaki (1990)4 NWLR (pt. 143) 226 at 269 -270 and In Re: Yinka Folawivo & Sons Ltd. (1991) 7 NWLR (pt. 202) 23t at 244. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
NIGERIA AGIP OIL COMPANY LTD. Appellant(s)
AND
1. PETER OGINI
2. OKECHUKWU OKORO
3. HON. DAMIAN EZERU
(For themselves and as representing the elected representatives of Etekwuru Village, Egbema, Ohaji/Egbema Local Govt. Area of Imo State)
4. JJ-LYN NIGERIA LTD.
5. UNITED BANK FOR AFRICA PLC. Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): By a motion on Notice dated and filed on 16th September, 2008, the applicant, Nigeria Agip Oil Company ltd, who was the Defendant/Judgment/Debtor in the Garnishee proceeding in Suit No.HOW/42M/2008 prays this court for the following reliefs:
“1. An order of this Honourable Court enlarging the time within which the applicant may seek the leave of court to appeal the decision of the High Court of Imo State, Owerri Judicial Division coram: The Honourable Justice C. I. Durueke delivered on the 12th day of March, 2008 in respect of Suit No. HOW/41M/2008 between Peter Ogini, Okechukwu Okoro, Hon. Damian Ezeru (for themselves and as representing the elected Representatives of Etekwuru Village, Egbema, Ohaji/Egbema Local Government Area of Imo State) and JJ-LYN Nigeria Limited vs Nigeria Agip Oil Company Limited. And United Bank for Africa Plc.
2. An order of this Honourable Court granting the applicant leave to appeal the decision of the High Court of Imo State, Owerri Judicial Division coram: The Honourable Justice C. I. Durueke delivered on the 12th day of March,2008 in respect of Suit No.HOW41M/2008 between Peter Ogini Okechukwu Okoro, Hon. Damian Ezeru (for themselves and as representing the elected Representatives of Etekwuru Village, Egbema, Ohaji/Egbema Local Government Area of Imo State) and JJ-LYN Nigeria Limited. vs Nigeria Agip Oil Company Limited And United Bank for Africa Plc.
3. An order of this Honourable Court enlarging the time within which the applicant may appeal the decision of the High Court of Imo State, Owerri Judicial Division, coram: The Honourable Justice C. l. Durueke delivered on the 12th day of March, 2008 in respect of Suit No HOW/41M/2008 between Peter Ogini Okechukwu Okoro, Hon. Damian Ezeru (for themselves and as representing the elected Representatives of Etekwuru Village Egbema, Ohaji/Egbema Local Government Area of Imo State) and JJ-LYN Nigeria Limited. vs. Nigeria Agip oil company Limited. And United Bank for Africa Plc.”
The applicant’s motion is supported by Affidavit dated 16th September 2008, sworn to by one Messiah Edafe Ugbeta and three(3) other further Affidavits as follows:
“1. Further Affidavit in support of Motion on Notice dated and filed on 12/2/10 sworn to by Inyefai Wobo, with four (4) Exhibits annexed thereto.
2. Further Affidavit No. 2 in support of Motion on Notice filed on September 16,2008 dated and filed on 12/12/10 sworn to by Messiah Edafe Ugbeta; with one (1) Exhibit annexed hereto.
3. Further Affidavit of Abel Ikio in support of Motion on Notice dated 16th September, 2008, dated and filed on 15/3/10 sworn to by Abel Ikio with one (1) Exhibit annexed thereto”
The respondents in opposition to the applicant’s motion for enlargement of time filed a counter-affidavit dated and filed on 9/2/09 sworn to by Ngozi Ononuju, with one (1) Exhibit annexed thereto.
By order of court the parties to this application filed Written Addresses as follows:
1. Written Address in support of Applicant’s Motion dated 16th, September, 2008 dated and filed 25/2/10 prepared by Babatunde J. Fagbohunlu, SAN.
2. 1st to 4th Respondents’ Written Address in opposition to the Applicant’s Motion on Notice of 16th September, 2008 prepared by L. C. Ugorji Esq. dated and filed on 4/3/10.
3. Reply Address to 1st – 4th Respondents Written Address in opposition to Applicant’s Motion on Notice of 16th September,2008 prepared by Babatunde J, Fagbohunlu, SAN, dated and filed 15/3/10.
The facts of the case from the Affidavits filed by the parties are as follows: In Suit No. HOW/22/2001 between Peter Ogini & Ors. vs. Nigeria Agip Oil Company Ltd. Hon. Justice N. Okoronkwo on 4/2/06, gave judgment in favour of the plaintiffs therein and awarded damages totalling N180,260,000.00 (one hundred and eighty million, two hundred and sixty thousand naira) against the defendant.
The present applicant, as Defendant/Appellant filed a Notice of Appeal dated 8/11/2006 before this court in which the Defendant/Appellant complained on the judgment delivered on 4/12/2006. The Defendant’s/Appellant’s appeal was entered in the Court of Appeal as CA/PH/247/2007.
On 10/5/2007, Hon. Justice Nonyerem Okoronkwo delivered a Ruling in which Lordship dismissed the Appellant’s/Applicant’s for stay of execution in Suit No.HOW/22/2001.
By a motion dated and filed on 4th March, 2008 the Appellant/Applicant applied to the Court of Appeal for a stay of execution of the judgment of Okoronkwo J., in Suit No. HOW/22/2002 and by another motion dated and filed on 10/3/2008, the same Appellant/Applicant prayed the court of Appeal for enlargement of time to file the motion for stay of execution and a deeming order.
The Appellant/Applicant’s motion for enlargement of time and a deeming order to fire the Applicant’s Motion for stay of execution dated 10/3/2008 has not been heard in this Court when the Hon Justice C. I. Durueke also of the Owerri Judicial Division of the High court of Imo State made an order Nisi in a Garnishee proceeding in suit No.HOW/41M/2008 which order was made absolute by the same C. I. Durueke, J, on 23rd June, 2008.
The Appellant/Applicant on 241612008,filed a Notice of Appear against the Garnrsnee order absolute of 23/6/2008. The said appeal was entered in the court of Appeal as CA/PH/273/2008. Also, on 23/6/2008, the Applicant/Appellant filed a Motion on Notice for stay of execution of the garnishee order absolute of 23/6/2008 in suit No.HOW/41M/2008 before the High Court of Owerri.
In support of the Applicant’s Motion for trinity reliefs for leave to appeal the garnishee order nisi of 12/3/2008 by C. I. Durueke, J. learned senior counsel for the Applicant has submitted that the issue for determination by this court is ,,whether the court of Appeal in the circumstances of this case ought to grant the applicant (i) extension of time to apply for leave to appeal, (ii) leave to appeal and (iii) extension of time to appeal”.
In contrast, in his own written Address, learned counsel for the 1st – 4th, Respondents submitted the following issues for determination from the Affidavit evidence filed before this Court.
“(i) Whether the applicant has any right of appeal against the ex parte order made by the High Court of Justice Imo State, Owerri, Judicial Division on 12th day of March, 2008 in Suit No. HOW/41M/2008 by Honourable Justice C. I. Durueke.
(ii) Whether the grounds of appeal as comprised in the Notice of Appeal show any good and arguable cause.
(iii) Whether the appeal for which the applicant is seeking for an extension of time is not an abuse of process.”
The first issue formulated by the learned counsel for the 1st – 4th Respondents is in the nature of a preliminary objection and it is on its own capable of determining this application. The Applicant must possess a right of appeal before he can seek leave and extension of time to appeal.
I will therefore first consider 1st – 4th Respondents issue No. 1 in the determination of this application. Learned counsel for the respondents submitted that the Applicant is seeking enlargement of time within which to appeal against the order of High Court of Justice, Imo state, Owerri Judicial Division made on 12th day of March, 2008 in Suit No HOW/41M/2008 by Honourable Justice Durueke. That, the order in question is contained in the certified true copy of the record of proceedings of the court below exhibited as Exhibit “A05” to the further Affidavit filed by the applicant. That, the said order as contained in the certified true copy of the record of proceedings reads as follows.
“Court: Orders 1- 3 as prayed are hereby granted. I further order the Garnishee to appear and show cause why the judgment debt should not be paid to the judgment creditors/Applicants'”
Respondents’ counsel submitted that the right of appeal conferred by section 240(1) of the 1999 Constitution is in favour of a person against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. He relied on the case of FBN Plc. v. Akparabong Community Bank & Anor. (2006) 1 NWLR (Pt. 962) 438, 447. Counsel submitted that it is trite law that a party to a proceeding cannot appeal a decision thereat which does not wrongfully deprive him of an entitlement or something which he has the right to demand. Unless, there is a grievance, he cannot appeal against judgment which has not affected him since the whole exercise may turn out to be academic, Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party. He relied on the case of Mobil Producing (Nig) Unlimited vs. Monokpo (2003) 18 NWLR (Pt. 852) p. 346, Unilorin vs. Akinyanju (2008) All FWLR (Pt. 406) p.1989 at 1991 .
Learned counsel to the 1st- 4th Respondents referred to the dictum of this Court in the case of Purification Tech. Nig.) Ltd vs. Att.-Gen., Lagos State (2004) All FWLR (Pt.211) P.1479 of 1495 that:
“Given the nature of the relationship between banker and customer and of the contract that exist between them, the customer has neither the custody nor the control of monies standing in his credit in an account with the banker, Monies in the hands of Garnishee banker are not in custody or under control of the judgment debtor customer. Such monies remain the property in the custody and control of the bankers.”
Respondents’ counsel further submitted that garnishee proceedings are 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, He referred to the case of Denton-West vs. Muoma (2008) All FWLR (Pt 433) p. 1423 at page 1441. Counsel submitted that the Order of the Court below made on 12th day of March, 2008 in Suit No. HOW/41M/2008 as shown in Exhibit A05 attached to the Applicant’s further affidavit requesting the Garnishee to show cause why the judgment Debt should not be paid to the judgment creditors, cannot under any stretch of imagination be said to have affected the applicant in any form or manner, to confer the applicant with any right of appeal.
It is trite law, said respondents’ counsel that in a Garnishee proceedings, it is only the Garnishee who has the right of appeal. counsel referred again to the case of Dentonwest vs. Muoma (supra) at p. 1427 where the court of Appeal (Port Harcourt Division) held that:
“With regard to Garnishee Proceedings, it is the Garnishee, that is, the person or bodies in custody of or holding the asset of the judgment Debtor that could be aggrieved and competently appeal against the order.”
Respondents’ counsel concluded in answer to issue No, 1 that the Applicant has failed to show that he is a person aggrieved by the order made by the court on 12th day of March, 2008 in Suit No. HOW/41M/2008 and therefore lacks locus to bring any appeal against the said order of the Court below.
The replies to the Respondents’ issues in this application are generally contained in the Reply Address to the 1st – 4th Respondents Written Address by the Applicant.
On Issue No.1, learned senator counsel for the applicant submitted that the applicant was a party to the garnishee proceeding before the High court of Imo state. That, it is the property of the applicant (money kept with the garnishee) that the order nisi was made against. That, the applicant is therefore a proper person against whom the decision has been pronounced against and the order nisi has affected the applicant’s title to the property (money kept with the garnishee).
Learned senior counsel for the applicant submitted that there are conflicting decisions of the Court of Appeal on who the proper parties ought to be in a garnishee proceedings. While some authorities hold that a garnishee proceeding is strictly between the judgment creditor and the garnishee and the judgment debtor is not a party; other authorities are of the view that there are three parties namely; the judgment creditor, the judgment debtor and the garnishee. Learned senior counsel for the applicant referred to the decision of the Court of Appeal (Lagos Division) in Sokoto State Government vs. Kamdax (Nig.) Ltd.(2004) 9 NWLR (Pt. 878) 345 at 354, where P. O. Aderemi, JCA (as he then was) stated thus:
“…The proceeding envisaged namely, the judgment creditor (the garnishor) the judgment debtor and the garnishee…..”
On the other hand, said counsel, the Court of Appeal (Port Harcourt Division) in the recently decided case of Hon. Justice Sotonye Denton-West vs. Chief Chuks Muoma, SAN (2008) 6 NWLR (Pt. 1083)458 held 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. This view follows the decisions in purification Techniques (Nig.) Ltd, vs. A-G., Lagos state (2004) 9 NWLR (Pt. 879) 665 and In re; Diamond Bank Ltd (2002) 17 NWLR (pt. 795) 120.
Applicant’s counsel submitted that if the prayers contained in the motion on Notice dated 16th September 2008 are granted, this case will give the court an opportunity to resolve the contradictions. And, that there is a very strong argument that this court should resolve the contradiction in favour of decisions which hold that the judgment debtor is also a proper party to garnishee proceedings. Counsel submitted that the provision of section 83(2) of the sheriffs and civil processes Act, cap 86 Laws of the Federation of Nigeria, 2004, which requires that at least fourteen days before the hearing, a copy of the Order nisi shall be served upon the garnishee and on the judgment debtor shows that the Sheriffs and civil Processes Act envisages that the judgment debtor will be a party to the proceedings.
Applicant’s counsel further submitted that incidental to the judgment pronouncing the debt owed, there will be a constitutional ‘fair hearing’ obligation to put the judgment debtor on notice as it is his property, indeed his money that is being sought to be attached by way of garnishee proceedings.
On this, counsel referred first to the unreported decision of Auta J., in the case of Romanian National Oil vs. Chrome Oil Services Limited. (unreported suit No. FHC/L/CS/963/2005 delivered on 26/2/2008. And, also the decision of the Supreme court in the case of Leedo Presidential Motel vs. B.O.N. Ltd. (199s) 10 NWLR (pt. 520) 353 which declared an ex parte application which sought to attach immovable property of the judgment debtor to be a flagrant branch of the principle of audi alteram partem and an infraction of the judgment’s debtor’s right of fair hearing.
Applicant’s counsel concluded on this issue, that since the order nisi affects the property of the applicant, the argument that the applicant has no locus standi to appear it cannot be sustained.
There are two related aspects to the argument of the learned counsel to the respondents on issue No. 1, the first is that the applicant was not a party to the garnishee proceeding and not being a party cannot lodge an appeal based on the proceedings, the second is the fact that the applicant could not be said to have been aggrieved by the order nisi granted by the court on 12th March, 2008, and therefore not capable of lodging an appeal on the said order.
On the question of the applicant not being a party, there is no doubt that a garnishee proceeding is a proceeding that is sui qeneris, in a class of its own and is to be distinguished from other proceedings for enforcement of judgment, such as that by writ of execution. This point was clearly made by the court of Appear (Lagos Division) in the case State (2004) 9 NWLR (pr. 879) 665 at pages 678 – 679, where Galadima, JCA, who read the lead judgment said:
“Again, given the distinction that exists between execution and garnishee proceedings for the enforcement of a judgment. I do not think the existence of an application seeking for an order staying execution of a judgment does preclude a judgment creditor from seeking to use some other legal method to enforce judgment. There is a clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings. The distinction is brought out by the definition of “writ of execution” in section 19 of the Sheriffs and Civil Process Act, Cap 407 Laws of Federation, 1990. Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration. It excludes a garnishee proceedings.”
The distinction is further made clear by the learned authors of Atkin’s court Forms Volume 19, 2no Edition paragraph 21 on page 47 thus:
“Garnishee proceedings or attachment of debts is a method auxiliary to that of execution for the enforcement of judgment or order for the payment of money into court enabling the judgment creditor to attach money due to the judgment debtor from a third person called the garnishee, who must be within jurisdiction.”
And concluded that:
“Execution of a judgment entails the seizure and sale of chattels of the judgment debtor under warrant of the court. This is different from attachment of debt owed to a judgment debtor by a third party, who is indebted to the judgment debtor and not proceedings against the judgment debtor directly…”
Also, in the more recent case of Hon. Justice Sotonye Denton-West vs. Chief (Iche) Chuks Muoma, SAN (2008) 6 NWLR (Pt. 1083) 418 at 442, Kekere-Ekun, JCA, who delivered the lead Ruling of the Court of Appeal (Port Harcourt Division) relied on the cases of Purification Techniques (Nig.) Ltd. vs. A-G, Lagos State (supra), In re: Diamond Bank Ltd. (supra) at 133, Section 243(a) of the 1999 Constitution and in one breadth answered the question that a judgment debtor is neither a party to a garnishee proceeding or an aggrieved party that can appeal on a garnishee order nisi.
The learned Justice of the Court of Appeal said:
“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'”
And at pages 442- 443, that.
“I have carefully examined the records in this appeal and observed, as rightly noted by learned counsel for the respondent, that there is no appeal against the order of D. M. Okocha, J., made on 25/7/2007. There is no application either before the trial court or this court for leave to appeal against those orders as an interested party, or for leave to seek the relief in prayer 3 as an interested party. The right to appeal is only exercisable by a party to the proceedings or by an interested party with leave of court. With regard to garnishee proceedings, it is the garnishee, that, is the person or bodies in custody of or holding the assets of the judgment debtor that could be aggrieved and competently appeal against the Order’ See: In re. Diamond (supra) P. P. M C. vs. Delphi Pet Incorp. (2005) 1 NWLR (Pt. 928) 458 at 486.
In the instant case, as there is no pending appeal against the Order of D. W. Okocha, J , and as the appellant herein was not a party to those proceedings I hold that prayer 3 is incompetent. It is accordingly stuck out.”
Applicant’s counsel in this case has drawn our attention to the need to reconcile what he termed “conflicting decisions of the Court of Appeal” as to whether a Judgment debtor is indeed a party to garnishee proceedings. In particular, applicant’s counsel relied on the judgment of the Court of Appeal (Lagos Division) per Aderemi, JCA, in Sokoto State Government vs. Kamdax (Nig ) Ltd. (supra) at page 354 to the effect that;
“…the proceeding envisages three parties to it namely, the judgment creditor (the garnishor), the judgment debtor and the garnishee.”
First, and on point of correction, the passage referred and credited to Olayiwola Aderemi, JCA (as he then was) at page 354 of the above judgment is actually contained in the supporting judgment of Chukwuma-Eneh, JCA, at page 380 of that Report Beyond this, I have carefully gone through the judgment of the Court of Appeal in Sokoto State Government vs. Kamdax (Niq.) Ltd. (supra) in comparison with other judgments of the Court of Appeal referred to by learned senior counsel for the Applicant, such as the cases of Hon. Justice Sotonye Denton-West vs. Chief Chuks Muoma,(supra) and Purification Techniques (Nig.) Ltd vs. A-G., Lagos State (supra): with utmost respect to the learned senior counsel for the Applicant, I could not see any conflicts in the binding aspects of the various decisions.
It is not unusual in describing a given hypothetical and/or theoretical situation, in this case the nature of garnishee proceedings to render different descriptions as to whether it is a proceeding strictly between two parties namely the judgment Creditor and the garnishee or whether in the light of the origin of such proceeding the judgment debtor could be said to be a party. It is however important in reading or analyzing the decision of a court of law to make a valid distinction between the binding force of the decision i.e. the ratio decidendi and the non-binding portion of the decision i.e. the Obiter dicta.
For example, in contradistinction to the case of Purification Techniques (Nig.) Ltd. vs. A-G., Lagos State (supra) the Court of Appeal in the Sokoto State Government vs. Kamdax Nig. Ltd. case (supra) was not called upon to determine the question whether a judgment debtor is a party to a garnishee proceeding. Thus, when the question arises as in the instant case of whether a judgment debtor is a party to a garnishee proceeding, the case of Purification Techniques Nig. Ltd. vs. A-G., Lagos State (supra) and Hon. Justice Sotonye Denton West vs. Chief Chuks Muoma are preferred authorities from the Court of Appeal on the subject matter.
Also, in the instant case, it is clear from the ex-parte nature of the preceding application to the grant of the garnishee order nisi, that the judgment debtor was not and could not have been heard as a party to the proceeding. In this respect, the reference by the learned senior counsel to the Applicant to the provision of Section 83(2) of the Sheriffs and Civil Processes Act, Cap. 86 LFN, 2004 to the effect that “at least fourteen days before the hearing, a copy of the Order nisi shall be served upon the garnishee and on the judgment debtor…..” does not derogate from the fact that the application to obtain the Order nisi was Ex parte which clearly excludes the judgment debtor as a party.
The learned counsel to the 1st – 4th Respondents was also right to have suggested in relation to this case that the applicant could not have been said to be aggrieved or claim to be an aggrieved party on the Order nisi of 12th March 2008, which did not in any form affect its legal position or circumstances.
The said order as contained in the certified true copy of the record of proceedings and Exhibit “A05″read as follows;
“Court: Orders 1 – 3 as prayed are hereby granted. I further order the garnishee to appear and show cause why the judgment debt should not be paid to the judgment Creditors/Applicants.”
Now, the right of appeal does not exist in a vacuum. It must be invoked only when there is in existence, against the person wishing to exercise the right of appeal, a decision of the Court. See, A-G., Federation vs. A.N.P.P (2003) 15 NWLR (Pt 844) 600 at 644. Any right of appeal from the decision of a High Court in Civil Proceedings can be exercised by any party thereto or with leave of the High Court or the Court of Appeal by person interested in the proceedings. See, Section 243 (a) of the 1999 Constitution, also In Re: Arowolo (1993) 2 NWLR (Pt. 275) 1 at 325.
The phrase “a person having an interest in the matter, as contained in section 243 (a) is synonymous with a person aggrieved, meaning who has suffered a legal grievance, a man against whom a decision has been pronounced which wrongfully deprived him of something, or wrongfully refused him something likely to be affected or aggrieved or likely to be aggrieved. See Funduk Engineering Ltd. vs. James Macarthur Ltd. In Re. Col. Y. A. Madaki (1990)4 NWLR (pt. 143) 226 at 269 -270 and In Re: Yinka Folawivo & Sons Ltd. (1991) 7 NWLR (pt. 202) 23t at 244.
Since the applicant in the instant case could not show that he was a party to the proceeding which led to the granting of the Garnishee order nisi on 12th March 2008, in the least, it needed leave of court under Section 243 (a)of the 1999 Constitution to show that it was a “person having interest in the matter” or that it was aggrieved having suffered a legal grievance. See, Hon. Justice Sotonye Denton West vs. Chief Chukus Muoma per Kekere-Ekun, JCA, at pp. 442 – 443. Finally, the contention of the respondents, counsel that the applicant has no right of appeal on an Ex parte order as the order nisi in the instant case is buttressed by the provision of section 14 (1) of the court of Appeal Act C36 LFN 2004 which says:
“14(1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made, in the course of any suit or matter, an appeal shall, by leave of that court or of the court of Appeal, lie to the court of Appeal, but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to cost.”
Based on the aforegoing, I hold in agreement with the learned counsel to the respondents that the applicant was not a party to the garnishee proceeding which led to the grant of the order nisi of 12th March, 2008 and that the applicant has no right of appeal on the said order. Issue No. 1 is resolved against the Applicant,
Having resolved issue No, 1 against the applicant in this matter, I do not find it any longer necessary to determine the other issues raised by the respondents which deal in the main(SIC) with the merit of the Applicant’s Motion on Notice for trinity prayers dated 1st September, 2008.
According, Applicant’s motion on Notice dated 16th September, 2008 is incompetent and it is hereby struck out.
Appearances
J. B. Fagbohunlu, SAN, with him B. T. J. Krukrubo, Esq.For Appellant
AND
L. C. Ugorji, Esq.For Respondent
