NIGERIA DEPOSIT INSURANCE CORPORATION v. SYLVANUS IFEDIEGWU & ORS
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2002
EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
NIGERIA DEPOSIT INSURANCE CORPORATION Appellant(s)
- SYLVANUS IFEDIEGWU
2. CENTRAL BANK OF NIGERIA Respondent(s)
MUHAMMAD,J.C.A. (Delivering the Leading Judgment): This is an appeal against the garnishee order nisi decreed by Hon. Justice A. O. Ajakaiye of the Federal High Court, Enugu on 28/5/2001, in favour of Sylvanus Ifediegwu the garnishor thereat and the 1st respondent before us. By the said order, the appellant’s (i.e. Nigeria Deposit Insurance Corporation’s) money to the tune of (N18,810,000.00k) Eighteen million, eight hundred and ten thousand naira in the possession of the Central Bank of Nigeria, the 2nd respondent in the appeal, was attached.
The need to understand the issues raised by the instant appeal necessitates stating in some details the facts from which the appeal evolved. These facts are hereunder supplied.
On 30th January, 1998, the Co-operative and Commerce Bank of Nigeria, Plc applied for and took out a writ to wind-up its affairs through proceedings at the lower court pursuant to the provisions of Companies and Allied Matters Act, 1990, as amended by S. 38 of the Banks and Other Financial Institutions Decree, 1991.
In furtherance of the writ so taken out, by a motion ex-parte dated the 30/1/98 as well, the applicant/petitioner sought and obtained the leave of the lower court on 9/2/98 to advertise the winding-up petition as filed in the official gazette of the Federal Republic of Nigeria and one National Daily Newspapers circulating in Enugu State.
Pursuant to the leave of court, publication of the fact of the wind-up petition was undertaken in the specified media. Apparently from the publication, solicitors to the garnishor/1st respondent wrote letter contained at p.22 of the record of appeal dated 3/3/98 to the lower court stating in part as follows:-
“It has been brought to our attention that the above winding-up petition is pending in your court. We hereby apply for a certified true copy of the petition in the above suit to enable us join the proceedings as creditors of the petitioner/applicant.”
The garnishor/1st respondent’s notice of intention to appeal on and support the petition of the Co-operative and Commerce Bank of Nigeria Plc hereinafter to be called petitioner and/or applicant, was filed on 10/3/98. In the said notice the garnishor/1st respondent indicated his being a creditor of the petitioner/applicant to the tune of N18,810,000.00k. At the hearing of the petition, the garnishor/1st respondent remained the only purported creditor.
The lower court’s order pursuant to the petition proceedings spans pp. 29-30 of the record of appeal and of significance is p.30 a portion of which is hereunder reproduced:-
“And after hearing S. B. Monokpo, Esq. of counsel for the petitioner addressing the court on the facts of the petition.
And Igboekwe, Esq. of counsel for the creditor, Mr. Sylvanus E. Ifediegwu, in support of the petition.
And the court having considered the advertised petition, granted same this 12th day of March, 1998.
The court doth ordered that the Co-operative and Commerce Bank (Nig.) Plc, be and is hereby wound-up in accordance with the provisions of the Companies and Allied Matters Act, 1990 and the Bank and Other Financial Institutions Decree, 1991 (BOFID). It is further ordered that the interest of Mr. Sylvanus Ifediegwu be taken into account in the final winding-up exercise.
That the Nigeria Deposit Insurance Corporation be and is hereby appointed the provisional liquidator of the said Co-operative and Commerce Bank of Nigeria Plc.
And it is further ordered that the costs of the said petition be paid out of the assets of the said Bank. Issued at Enugu under the seal of the court and the hand of the presiding Judge this 12th day of March, 1998.” (italics supplied for emphasis)
In a subsequent application on notice dated 23rd July, 1999, the petitioner/applicant pursuant to S. 425(a) of the Companies and Allied Matters Act and rules 74 – 81 of Companies Winding-up Rules, Cap. 59, Laws of the Federation, 1990, further prayed the lower as follows:-
“(a) An order allowing Nigeria Deposit Insurance Corporation the provisional liquidator of Co-operative and Commerce Bank (Nigeria) Plc to bring this motion in the name of and on behalf of Co-operative and Commerce Bank (Nigeria) Plc (In liquidation).
(b) An order directing Mr. Sylvanus C. Ifediegwu to prove the debt of N18,810, 000. 00 which he claimed that is owed him by Co-operative and Commerce Bank (Nigeria) Plc. (In liquidation).
(c) AND for such further order(s) as the honourable court may deem fit.” (italics for emphasis)
The petitioner/applicant’s motion on notice was supported by a twelve-paragraph affidavit deposed to by Emmanuel Eze, a legal practitioner in the office of the Assistant Liquidator in charge of Cooperative and Commerce Bank (Nigeria) Plc (In liquidation). It important to and paragraphs 3 – 11 of the supporting affidavit are hereunder reproduced:-
“3. That on 12th March, 1998 the Federal High Court, Enugu made an order winding-up CCB and also appointed the applicant, Nigeria Deposit Insurance Corporation as its provisional liquidator. That I hereby exhibit and cause to be marked as exhibit ‘A’ a Photostat copy of the said order by which CCB was wound-up by the honourable court.
4. That while the application for winding-up of CCB was pending Mr. Sylvanus E. lfediegwu of 181 Atani Road, Iyiowa Odekpe, Ogbaru Local Government Area of Anambra State filed a notice of intention to appear on the petition and stated that he was a creditor of C.C.B to the tune of N 18,810,000.00 (eighteen million eight hundred and ten thousand naira). That I hereby exhibit and cause to be marked as ‘exhibit ‘B’ a certified true copy of the said notice.
5. That pursuant to the above notice the list of parties attending the hearing of the petition was compiled with the name of Mr. Sylvanus E. Ifediegwu being the only name on the list. That I hereby cause to be marked as exhibit ‘C’ a certified true copy of the said list. That pursuant to this development Mr. Ifediegwu’s name appeared in exhibit ‘A’.
6. That I have gone through the list of creditors of CCB in their various files and the name of Mr. Sylvanus E. Ifediegwu does not appear anywhere on the said list.
7.That the name of Mr. Sylvanus Ifediegwu appears as a debtor of CCB as he was granted a loan of N1,800,000.00 (one million eight hundred naira) by the CCB on 18th May, 1993 and as at 19th July, 1996 the said loan together with interest had risen to an indebtedness of N2,542, 097. 00.
8. That Mr. Sylvanus lfediegwu has not paid any sum in respect of the liquidation of the said loan since 19th July, 1996 when he paid the sum of N50, 000. 00.
9. That as at today Mr. Sylvanus Ifediegwu’s indebtedness to the CCB is in excess of N5,000,000.00 (five million naira).
10. That in view of paragraphs 4 to 9 above it is in the interest of justice that Mr. Ifediegwu should come up with proof of the said amount owed to him by CCB.
11. That the Nigeria Deposit Insurance Corporation being the provisional liquidator of CCB hereby applies to be allowed to bring this motion in the name of CCB.” (Italics for emphasis)
The garnishor/lst respondent did file a counter-affidavit in opposition to the petitioner/appellant’s application. It is helpful to a full understanding of the issues in controversy to refer particularly to paragraphs 11 – 16 of the garnishor’s affidavit sworn to by Mr. Sylvanus Ifediegwu.
“11. That paragraphs 7, 8 and 9 of the affidavit in support of the petitioner’s application are false. In further denial, I avers (sic) that it is rather the CCB (Nig.) Plc in liquidation who is indebted to me to the sum of N18,81O,000.00 as the Federal High Court, Enugu, has in the making of the 12/3/98 winding-up order for CCB, ordered my interest taking into account in the final winding-up exercise and the order still remain subsisting.
12. That paragraph 10 of the petition and applicant’s affidavit is false and misleading, as I diligently file my notice of intention to appear during the hearing of the petition.
13. That in my notice of the intention to appear for the hearing of the CCB petition, I included my claim, of N18,810,000.00 being the debt the petitioner (CCB) is indebted to me, and the CCB after a careful perusal of available documents at its disposal, the CCB (then) approved my notice of the N18, 810, 000. 00 claim as he presented same before the court during the winding up, and this honourable court made the order on it.
14. That it will tantamount to subjecting me to double jeopardy if 1 am called upon to prove the order of the court made against the CCB Nig. Plc (in liquidation) on the 12/3/98.
15. That the petitioner/appellant’s call on me to prove my claim is out of malice borne from the fact that on the 24/7/95, they forceful1y broke into my house at No. 181 Atani Road, Iyiowa – Odekpe in Ogbaru Local Government Area, and seized my valuable possession including documents and large sum of money in various denominations.
16. That the petitioner/appellant was fully aware of my notice of intention to appear in court for hearing of the petition for the wind-up of CCB, and at the hearing of the petition did not make any attempt to oppose or make any objection to my interest being considered by the honourable court. ” (Italics for emphasis)
The lower court granted petitioner’s prayer (a) and adjourned hearing in respect of prayer (b) in the above motion, as supported or countered by the affidavits of the two sides, to a subsequent date.
The garnishor/lst respondent by a motion on notice objected to the lower court’s hearing and granting petitioner’s second prayer on the ground that in view of the court’s earlier decision that his “interest be taken into account”, the court being one without appellate jurisdiction over its own decision, had become functus officio. The court had neither taken the appellant’s prayer (b) nor the garnishor/1st respondent’s objection thereto when the latter’s further application dated 17/5/2001 was filed on 25/5/2001. In this exparte motion, the garnishor/lst respondent’s prayers pursuant to Order 44 rules 1 & 2 of the Federal High Court Rules were for:-
“1. Garnishee order nisi directing the garnishee to appear H before this honourable court to show cause why the garnishor as a creditor; whose interest totalling the sum of NI8,810,000.00 (Eighteen million eight hundred and ten thousand), and directed to be taken into account in the winding-up order dated the 12th March, 1998 made by this court in suit No. FHC/E/M18/98, should not be paid from Account Number 1010470117 (formerly known as Account No: FGD 2405 or Account Number 101047218 (formerly known as Account No. 2406) or from any other account opened in favour of the judgment debtor in and with the Central Bank of Nigeria (the garnishee).
2. Attaching in the meantime the sum of N18,810,000.00 (Eighteen million eight hundred and ten thousand naira in Account No: 1010470117 (formerly Account No. FGD 2406), or in any other accounts opened in favour of the judgment debtor in/at/or with the garnishee Central Bank to answer the interests of the garnishor.
The lower court granted the garnishor/1st respondent orders in terms of his prayers. The instant appeal is against this decision and order of the lower court.
Parties have filed and exchanged briefs of argument. The appellant had in addition filed a reply brief.
The two issues formulated by the appellant for the determination of the appeal are at p.2 of its brief and read as follows:-
“(a) Whether there is a judgment for the sum of N18,810,000.00 in favour of the 1st respondent against the appellant which can be the subject-matter of a garnishee order nisi.
(b) Whether the Federal High Court was right in law when it made the said ex-parte garnishee order nisi in favour of the 1st respondent while ignoring the appellant’s motion on notice praying the court for an order directing the 1st respondent to prove the debt ofN18,810,000.00 which he claimed that is owed him by Co-operative and Commerce Bank (Nigeria) Plc. (In liquidation).
The 1st respondent has, formulated, the following two issues for the determination of the appeal as well. These are:-
“1. Is there a judgment to the tune of N18,810,000.00 (Eighteen million eight hundred and ten thousand naira) made on behalf of the 1st respondent?.
2. Was the learned trial Judge right to have made the garnishee order of 28/5/2001 notwithstanding the pendency of prayer (b) of the motion dated 23/7/99 as filed by the appellant?.”
In arguing the appeal, both in the brief and their oral argument advanced before us, learned appellant’s counsel copiously referred to the facts upon which the appeal evolved, and brought the provision of S. 83 of the Sheriff’s and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990 to bear on these facts. Learned counsel submitted that it was wrong of the lower court to have granted the order attaching the appellant’s money held by a third party, here the Central Bank, for two reasons.
Firstly, there was never a judgment in favour of the 1st respondent capable of enforcement by way of the order obtained from the lower court. Learned counsel referred to and relied on S.83 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990 to support his contention. He also cited in aid Saraki v.Kotoye (1992) 9 NWLR (Pt.264) 156 at 186; and Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527 at 524.
Secondly, the court having appointed appellant the provisional liquidator of CCB, the petitioner in the winding-up proceedings, the 1st respondent could only have validly sued the appellant with the leave of court having regard to S.417 of the Companies and Allied Matters Act, Cap. 59 of 1990. Counsel submitted that failure of 1st respondent to obtain the necessary leave before commencing proceedings for the recovery of his debts, against the appellant, if the winding-up petition can be so called, disentitled 1st respondent to the ex-parte order obtained from the lower court. Counsel found support for his submission in Federal Mortgage Bank of Nigeria v. F NDIC (1999) 2 NWLR (Pt.591) 333 at 365.
Regarding the appellant’s 2nd issue for the determination of the appeal, counsel contended that it was wrong of the lower court to have ignored the 2nd limb of the appellant’s motion dated 23/7/99 asking that 1st respondent be made to prove his claim. 1st respondent could not have legitimately obtained the order he got from the lower court if the fact of the pending prayer before the court had not been suppressed.
Learned counsel further submitted that by virtue of S.500 and 501 of Cap. 59, Laws of the Federation, 1990, once a liquidator had been appointed following a winding-up order as in the instant case, 1st respondent had been rendered incapable of enforcing the garnishee order nisi.
On being served with the respondent’s brief, appellant’s counsel filed a reply brief. Therein, appellant reiterated what the appellant’s brief had already contained. Reply briefs are not meant to serve the purpose appellant had put theirs to. It does no good to this appeal to further reproduce arguments already presented by a party and adequately summarised earlier on in this judgment now.
On the whole appellant’s counsel urged us to allow the appeal.
In the respondent’s brief, arguments have been advanced to convince this court that 1st respondent was party to the winding-up proceedings leading to the winding-up order of the lower court dated 12/2/98. Learned counsel has urged that 1st respondent had, before the order for winding-up, indicated that he was a creditor to CCB Plc, the petitioner. It was argued, as well, that the petitioner by not opposing 1st respondent’s claim had admitted same. The lower court’s order that 1st respondent’s interest be taken care of, it was submitted, was as a result of the admission by the appellant of the respondent’s claim. Learned counsel urged on us to read the winding-up petition proceedings in its entirety and not just to consider the consequential order that found for the 1st respondent in isolation.
Learned counsel cited and relied on Obikoya v. Wema Bank Ltd. (1991) 7 NWLR (Pt.201) 119 at 129; Calabar Cement Limited v. Daniel (1991) 4 NWLR (Pt.188) 750 at 761, amongst others, to support his submissions. Furthermore, the point was made too that by virtue of S. 425(1)(2) and S. 481(2) of the Company and Allied Matters Act, the appellant being the liquidator of CCB was obliged to pay the judgment debt. Learned counsel argued also that since the present appeal is not against the decision of Kasim, J., as delivered on 12/3/98 but rather against the order of Ajakaiye, J., of 28/5/2001, the former cannot through the instant appeal be faulted.
Counsel insisted that the lower court’s decision of 12/3/98 as sought to be enforced consequent upon the order of 28/5/2001 was a judgment obtained through the special proceedings allowed for by the winding-up procedure and on the “admission” of the appellant.
It was unnecessary for the 1st respondent to prove his case. This was the principle enunciated in Ajibade v. Mayowa (1978) 9-10 SC 1 and Odume v. Nnachi (1964) 1 All NLR 329, counsel contended.
The garnishee proceedings, resultantly was an execution of the order of court dated 12/3/98 and not a fresh suit as viewed by the appellants.
In arguing their 2nd issue, 1st respondent surmised that he must not be denied the fruits of his success which was what the appellant’s application dated 23/7/99 sought to do. The lower court having giving a decision earlier on had become functus officio and was for that reason not in a position to revisit its own decision. Furthermore, Where a person (in this order referred to as “the judgment creditor”) has obtained a judgment or order for the payment by some other person (in this order since appellant had failed to comply with the lower court’s order that 1st respondent be paid the judgment debt of N18,810,000.00, the appellant stood in contempt such that it would not be listened to again by the lower court. Appellant was, therefore, not in position to press that its application of 23/7/99 be taken by the trial court.
Reliance is here placed on the cases of Akporue v. Okei (1973) 12 SC 137; N.I.CO.N. v. P.I.E. Company Limited (1990) 1 NWLR (Pt.129) 697 and Shugaba v. UBN Plc. (199) 11 NWLR (Pt. 627) 459, (1999) 71 LRCN 2720.
It was contended by 1st respondent’s counsel that S. 501 of the Companies and Allied Matters Act does not apply to the situation at hand. Liquidation has concluded and the sections talk of claims before the conclusion of liquidation.
In conclusion, it was argued that it was not the duty of the respondent to remind the lower court that there was a pending application and it was the duty of the court to take judicial notice of same.
I find the concluding paragraph at p.12 of the tortuously repetitive brief of the 1st respondent decidedly useful and same is hereunder reproduced:-
“Further, the appellant ought not to have appealed against the order nisi of Ajakaiye, J., on the grounds of the pendency of the said application. What it ought to have done is to use the pendency of the application to argue against making an order absolute in the circumstance. Suffice it to state that his appeal is premature.”
I shall come back to the foregoing in due course. Suffice it to state for now, that learned counsel to the 1st respondent has urged us to dismiss this appeal for the reasons advanced in the respondent brief.
I am afraid we cannot.
Firstly, I agree with appellant’s counsel that in the determination of the instant appeal Order 44 rules 1, 2 & 5 of the Federal High H Court Civil Procedure Rules cannot be ignored. I hereunder reproduce them:
“1(1) Where a person (in this order referred to as “the judgment creditor’) has obtained a judgment or order for the payment by some other person (in this order debtor) of a sum amounting in value to at least N100, not being a judgment or order for the payment of money into court and any other person within the jurisdiction (in this order referred to as ‘the garnishee’) to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.
(2) An order this rule shall in the instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in sub-rule (1) or so much thereof as may be specified in the order, to answer the judgment or order mentioned in that and the costs of the garnishee proceedings.
2. An application for an order under rule 1 of this order shall be made ex-parte supported by an affidavit-
(a) Starting the name and last know address of the judgment debtor;
(b) Identifying the judgment or order to be enforced and stating the amount of judgment or order and the amount remaining unpaid under it at the time of the application;
(c) Stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent’s information or the grounds for his belief; and
(d) Stating, where the garnishee is a deposit-taking institution having more than one place of business, the name and address of the branch at which the judgment debtor’s account is believed to be held and the number of that account or, if it be case, that all or part of this information is not know to the deponent.
3.(1) Unless the court otherwise directs, an order under rule 1 of this order to show cause shall be served –
(a) on the garnishee personally, at least 15 days before the day appointed thereby for the further consideration of the matter; and
(b) on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the day appointed for the further consideration of the matter.
(2) Not applicable
4.(1) Not applicable
(2) Not applicable
5. Where on the further consideration of the matter, the garnishee dispute liability to pay the debt due or claimed to be due from him to the judgment debtor, the court may summarily determine the question at issue or order that any question necessary for determining the liability of the garnishee be tried, without, if it orders trial before a master, the need for any consent by the parties.”
The foregoing provisions of the rules of the lower court are clear and unambiguous. It is an elementary principle of law that in deciphering what the words in these provisions connote we must ascribe to them their natural and ordinary meaning. See First Bank of Nigeria Plc. v. lbennah (1996) 5 NWLR (Pt.451) 725 Sc.
In so doing, a combined consideration of the relevant rules will reveal:
(a) 1st respondent could only have been in position to attach the debt due to him, here by the decree nisi. “after a judgment or order for the payment of the debt” by the appellant had been obtained.
(b) The order of attachment pursuant to sub-rule (1) of Order 44 being not an absolute order for attachment of the debt due to 1st respondent must be served on the appellant who by virtue of the lower court’s order dated 8/5/2000 has substituted CCB Plc the petitioner in the winding-up proceedings as the “perceived” judgment debtor. This notice must be served on the appellant who was by order of court appointed liquidator of CCB Plc at least seven clear days to the return date for the further consideration of the 1st respondent’s prayer in the garnishee proceedings. See rule 3(1)(b) above.
(c) The proceedings pursuant to Order 44 is capable of being set aside for reasons stipulated partly under Order 44 rule 5 before the interim order is made absolute.
Now, the pertinent question to answer here is whether 1st respondent had obtained a “judgment” or “order” of the lower court to entitle him to the execution of same under Order 44 of the lower court’s procedural rules. I do not hesitate to agree with appellant’s counsel that having regards to the facts of the instant appeal such “judgment” or “order” had not been shown to exist for same to sustain the lower court’s order of interim attachment of the appellant’s property. We must here appreciate that a “judgment” or “order” of a court of law is a positive command arrived at, after competing rights and the basis of making same had been considered by the court. An uncontested fact, a claim without proof or an assertion in respect of which an opposing party’s position had not been considered cannot be the subject of a law court’s “judgment” or “order”. See Ajiboye v. Adeyelu (1997) 9 NWLR (Pt.519) 152 at 158. Olaore v. Oke (1987) 4 NWLR (Pt.67) 769. A “judgment” or “order” of court in the con of Order 44 rule 1 (supra) convey’s the notion of a court’s decision invariably arrived at after the court’s consideration and determination of competing claims.
In the instant case the 1st respondent’s claim against the appellant had in fact not been considered and determined by any court for such a determination to form the basis of the execution permitted by Order 44.
Order 44 of the lower court’s rule, being adjectival facilitates the provision of S. 83 of the Sheriffs and Civil Process Act, Cap. 407, alluded to by the appellant’s counsel. In the instant case the decree nisi ordered by the lower court stands in breach of both legislations.
Beyond the fact that the order of the lower court being appealed against was not predicated on a “judgment” or “order” the decree nisi for the attachment of appellant’s property must be negative for added reasons. Any decision of a court of law that by itself or because of itself determined a person’s civil rights and obligations without giving the person whose rights and obligations were so determined the opportunity of making representations must be declared void on appeal. The decision stands in conflict with S. 36 of the 1999 Constitution and shall not survive for that very reason. See U.B.N. Plc. v. C.F.A.O. (1997) 11 NWLR (Pt.527) 118 CA and Ekiyor v. Bomor (1997) 9 NWLR (Pt.519) 1 SC.
1st respondent cannot plead ignorance of Order 2 rule 1 of the lower court’s rules which provide for the mode of commencement of action thereat. The breach of this particular rule is fundamental in the sense that it has resulted also in a breach of the Constitution as well.
Lastly, it is equally beyond dispute that by virtue of S.417 of the Companies and Allied Matters Act, Cap. 59 of 1990, 1st respondent required leave of court to commence any action against the appellant.
The leave had not been acquired before his purported action against appellant was undertaken. Where by law, a party required leave of court to commence an action, an action commenced without the required leave is incompetent. See Udene v. Ugwu (1997) 3 NWLR (Pt.491) 57 CA and Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536 Sc.
S. 414 is also hereunder reproduced for its effect:-
“414. Where a company is being wound-up by the court, any attachment, sequestration, distress or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void.”
It flows from the foregoing provisions that with the lower court’s order for the winding-up of CCB and the appointment of the appellant as the liquidator it was impossible to attach the wound-up company’s property.
The 2nd issue for the determination of this appeal has raised the question of the justice of the lower court’s failure to consider appellant’s application requiring proof by 1st respondent of the sum he claimed against the CCB Plc and by extension the appellant.
Courts by a fundamental principle of the administration of justice have the duty to hear and determine all applications brought before them on the merits. Where multiple applications mature simultaneously for hearing, the decision as to which to hear first is a discretionary matter. The discretion must be exercised judicially and judiciously. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt.212) 652 at 667; and Attorney-General, Federation v. A.I.C. Limited (1995) 2 NWLR (Pt.378) 388 at 397 and Urhobo v. Oteri (1999) 2 NWLR (Pt.589) 147 at 157.
In the instant case, it was clearly a wrong exercise of the lower court’s discretion when it abandoned the appellant’s constructive application in preference of the 1st l:espondent’s. The subsequent
application held the clear signals of being both destructive and illegal.
It was not a farfetched conclusion that the application and its grant was an exercise in breach of not only S.414 and S.417 of the Companies and Allied Matters Act but also S.36 of the 1999 Constitution.
It is unfortunate to say the least that 1st respondent’s counsel never realised in the first place that he had the duty to remind the lower court that appellant’s application was still pending let alone discharge the said duty. This seeming irresponsibility does not mitigate the consequence of the court’s failure to discharge its functions in accordance with the law.
Invariably, the two issues in the appeal are hereby resolved in favour of the appellant. For all the foregoing reasons, the lower court’s garnishee order nisi is hereby set aside on the appeal being allowed.
In conclusion, it must be remarked that it has not proved pragmatic after all that appellant had pursued a right of appeal that had enured to it. A speedier access of justice would have been exploited by virtue of the very Order 44 of the rules, under which the order nisi was issued, to have same reversed by the lower court.
The time and resources employed in the prosecution of this appeal is not commensurate with the victory recorded.
I make no order as to cost.
UBAEZONU, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother Muhammad, JCA. I agree that this appeal should be allowed. The appeal is accordingly allowed.
The garnishee order nisi is set aside. I abide by the consequential orders made in the lead judgment.
OLAGUNJU, J.C.A.: I agree.
Chief Okwuchukwu Ugolo (with him, G.U. Ahuchogu, Esq.)For Appellant
Afam Akputa, Esq. (with him, S. T. Ebichnawo, Esq.)For Respondent