NIGERIAN BREWERIES PLC v. CHIEF WORHI DUMUJE & ANOR
(2015)LCN/7970(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of July, 2015
CA/B/289/2009
RATIO
PRACTICE AND PROCEDURE: THE TWO CHOICES OPENED TO A PARTY WHO IS DISSATISFIED WITH A DECISION OF A COURT AND DESIRES TO CHALLENGE SAME AND THE OBJECTIVE OF BOTH PROCEDURES
All parties and amici in this matter are agreed and I also agree with them that a party who is dissatisfied with a decision of a court and desires to challenge same has two choices. One to initiate an appeal against the decision or, two, to initiate an application to set aside the judgment. The choice is usually dependent on the circumstances of each case. The first choice is predicated on an acceptance of the inherent validity of the decision but a resort to appellate intervention to review the decision either on some legal or factual basis and to determine whether on either grounds the decision is correct. The second choice, to set aside the judgment, is predicated on the premise that as a matter of law, the judgment does not exist due to inherent lack of jurisdiction of the court and should be judicially declared null and void. See Adeyemi-Bero v. L.S.D.P.C. (2013) 8 NWLR (Pt. 1362) Pg. 209 at 220-221, Akpan v. Effiong (2010) 17 NWLR (Pt. 1223) Pg. 421 cited by Dr. Ikpeazu, SAN. There is no doubt that the objective of both procedures is essentially the same in that while the first choice seeks to obliterate the judgment, the latter seeks to abrogate it. Thus, generally an application to set aside a judgment on the ground that the party seeking the order was not heard is not an application that is extraneous to the suit more so, as the decision to set it aside or not qualifies as a decision within the con of S.241(1) of the Constitution. See C.P.C. v. INEC (2010) 18 NWLR (Pt. 1279) Pg. 493 at 565 where the Supreme Court defined a “decision” to include a “judgment” and a “ruling”. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PRACTICE AND PROCEDURE: STAY OF EXECUTION AND AN INJUNCTION; THE DISTINCTION BETWEEN A STAY OF EXECUTION AND AN INJUNCTION
The situation here is akin to the thin but real distinction between a stay of execution and an injunction. An order for stay is granted after completion of trial but pending the determination of the appeal. The sameness in the processes lies in the fact that the two are granted to maintain “status quo” pending the determination of the appeal. Both orders are preservatory in effect, ensuring that the subject matter of litigation is still available at the end of the appeal and matter finally determined.
The next distinction that flows from the above is that while a stay of execution is made in respect of an order capable of being enforced, an injunction pending appeal is granted in respect of declaratory judgments. This is because a declaratory judgment contains no order that is capable of being enforced nonetheless it vindicates a particular right which the successful party can take steps in furtherance of and which steps can however affect the subject matter of the suit.
I appreciate the point made by most amici on this issue that having not appealed against the substantive judgment, no stay of execution can lie. See Okoya v. Santilli (1990) 2 NWLR (Pt. 131) Pg. 172 at 226. In Akibu & Ors. v. Oduntan & Ors. (1991) LPELR-335 (SC); Obaseki, JSC stated unequivocally that a declaratory judgment cannot be stayed.
The ratio in Okoya v Santilli is that a motion for stay against a declaratory order in which there is an appeal is misconceived. What is proper is a prayer for an order of injunction. Agbaje, JSC was clear to hold that: “An order for stay pending appeal therefore can only be granted in respect of an executory judgment or order.” per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PRACTICE AND PROCEDURE: STAY OF EXECUTION; THE PREREQUISITE FOR A GRANT OF STAY OF EXECUTION
I have considered the point that a ruling not to set aside a default judgment is not executory. I concede that technical point, however, an order for stay of execution is an Equitable remedy. In Olayinka v. Elusanmi (1971) 1 NMLR 277 at 279, it was held that the prerequisite for a grant of stay of execution is to be made “pending the incidence of a certain legal occurrence”. I am of the strong view that in the circumstances of this case, the “pending incidence” or “legal occurrence” is the pending appeal in this court against the ruling refusing to set aside the judgment sought to be stayed. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
APPEAL: ORDER TO SET ASIDE; WHETHER A JUDGEMENT SET ASIDE ON APPEAL FOR BEING A NULLITY IS SUBSERVIENT TO THAT SET ASIDE FOR PERVERSION IN THE FINDING OF FACT OR ERROR IN LAW
There is no doubt that a judgment set aside on appeal for being a nullity is not subservient to that set aside for perversion in the findings of fact or error in law. Accordingly, an application for stay of execution in an appeal to reverse a judgment on the merit, is not superior to that brought to stay the same judgment in an appeal arising from refusal of an application to set aside the same judgment. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PRACTICE AND PROCEDURE; THE IMPORT PF THE WORD “STAY” IN THE CON OF A JUDGEMENT
On the import of the word “stay” in the con of execution of a judgment, the Court of Appeal in Albion Construction Co. Ltd. v. RAO Investments & Properties Ltd. & Anor (1992) 1 NWLR (Pt. 219) Pg. 583 at 597, para B-F adopting the explanation of that word in Black’s Law Dictionary 8th Edition per Tobi, J.C.A (as he then was) opined thus:
“The word “stay” in this con means stop, tarry and wait. The word “suspend” conually means to make, to stop for some time, to defer or to debar from any privilege. In their twin and aggregate con and particularly in this con, the words convey some utilitarian and practical meaning relative to their etymological meaning of temporary stoppage of the order of the learned trial judge by way of non-execution or non-enforceability” per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS; THE MEANING OF GARNISHEE PROCEEDINGS
Black’s Law Dictionary in describing Garnishee Proceedings otherwise known as garnishment states thus:
“A judicial proceeding in which a creditor (or potential creditor) ask the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party.” per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS: WHETHER THE WORD “SUIT” IN ORDER VII RULE 5 OF THE SUPREME COURT (CIVIL PROCEDURE) RULES IS WIDE ENOUGH TO COVER GARNISHEE PROCEEDINGS WHICH ARE A SPECIE OF EXECUTION AND ANCILLARY TO A SUIT
The word “suit” in Order VII Rule 5 of the Supreme Court (Civil Procedure) Rules is not wide enough to cover garnishee proceedings which are a species of execution and ancillary to a suit. See Raccah v. Wahab (1958) NRNLR 58. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS; WHETHER THE AMOUNT AT THE JUDGEMENT DEBTOR’S CREDIT IN HIS SAVINGS BANK ACCOUNT IS THE PROPERTY OF THE JUDGEMENT DEBTOR AND WHETHER THE SAID AMOUNT CAN BE ATTACHED BY A GARNISHEE PROCEEDINGS
The amount at the judgment debtor’s credit in his savings bank account is the property of the judgment debtor- the bank is the “person indebted” under the Supreme Court Ordinance Schedule II Rules 11, 15, 16, 17 and 20 and the said amount can be attached by garnishee proceedings. See Filone v. Oladipo (1934) 11 NLR 168. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS: WHETHER THE GARNISHEE ORDER NISI WILL BE DISCHARGED PENDING THE INQUIRY OF THE GARNISHOR AS TO THE OWNERSHIP OF THE ATTACHED DEBT
Should the Garnishor wish to proceed to inquire as to ownership of the attached debt, the Garnishee Order Nisi will not be discharged pending the inquiry. See Barclays Bank D.C.O. v. Baderinwa: re L.E. D.B. (1962) 2 All NLR 28. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS: WHETHER A GARNISHEE ORDER NISI WILL BE MADE ABSOLUTE WHERE THERE IS DOUBT AS TO WHETHER OR NOT THE MONEY BELONGS TO THE JUDGEMENT DEBTOR ABSOLUTELY
A Garnishee Order Nisi will not be made absolute where there is doubt as to whether or not the money belongs to the judgment debtor absolutely. See Barclays Bank D.C.O. v. Baderinwa: re L.E. D.B. (Supra). per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS: WHETHER AN INQUIRY AS TO OWNERSHIP OF THE DEBT ATTACHED WILL BE DIRECTED AT THE REQUEST OF THE GARNISHOR, WHERE DOUBT AS TO THE OWNERSHIP OF THE ATTACHED DEBT EXISTS
An inquiry as to ownership of the debt attached will be directed at the request of the garnishor, where doubt as to the ownership of the attached debt exists. See Barclays Bank D.C.O. v. Baderinwa: re L.E. D.B. (Supra). per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF THE COURT IN EQUITY TO WITHHOLD A GARNISHEE ORDER ABSOLUTE AND TO DIRECT AN ENQUIRY WHERE IT COMES TO THE KNOWLEDGE OF THE COURT THAT A THIRD PERSON HAS REASONABLE CLAIM UPON THE DEBT
Section 87 of the S & CPA and some provisions of JER provide that whenever in any proceedings to obtain an attachment of the debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person who has a lien or charge upon it, the court may order such third person to appear and state the nature and particulars of his claim upon such debt. This does not exhaust the powers of the court: if by any means it comes to the knowledge of the court that a third person has reasonable grounds a claim, it is the duty of the Court in equity to withhold a garnishee order absolute and to direct an inquiry. In Idosu v. Abudu Ojikutu (1952) 14 WACA 88 the court held as follows:
“In view of the evidence before the magistrate that there was an arrangement that any contracts given to the judgment debtor should be carried out by Ojikutu, the person who applied to be joined, and that the moneys accruing from the contracts should be paid to him it was necessary to have such an inquiry and for that purpose to admit the respondent (Ojikutu) as a party in the garnishee proceedings by making some suitable order, which the magistrate had power to make under Section 67 of the Magistrates’ Courts (Civil Procedure) Ordinance (Cap. 124) (S67):
“The court may in all cases and matters make any order which it considers necessary for doing justice whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”” See Idosu v. Abudu Ojikutu (1952) 14 WACA 88. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS: HOW TO DETERMINE THE AMOUNT DUE FROM THE GARNISHEE TO THE JUDGEMENT DEBTOR
In Osibamowo v. Shodeko (1967) LLR Pg.7, the judgment creditor claimed from the garnishees, the Lagos City College the sum of #724:8s:11d as money due from the garnishees to the judgment debtor. It appeared during the proceedings that there was a dispute between the garnishees and the judgment debtor as to the amount of money due from the garnishee to the judgment debtor. The court held that:
i. Garnishee proceedings should never be made available for the purpose of resolving an issue in dispute between the garnishees and the judgment debtor.
ii. The test to be applied is whether any sum certain is due and payable by the garnishees to the judgment debtor. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
GARNISHEE PROCEEDINGS: STAGES IN A GARNISHEE PROCEEDINGS
In the case of Fidelity Bank v. Okwuowulu (Supra), this court has adumbrated on this issue at Pg. 213-214 of the NWLR, it was held inter-alia
“A garnishee proceedings can be described in two stages: the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of debt owed to the judgment debtor. This is usually done ex parte and limited to the judgment creditor and the court.
The second stage is where on the return date, the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the court may subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor, the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other” per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PRACTICE AND PROCEDURE: JOINDER OF PARTIES; WHO ARE NECESSARY PARTIES TO THE PROCEEDINGS
I have to resort finally to the locus classicus in Nigeria on joinder of parties which is Green v. Green (Supra). In (Pt. 61) of the NWLR Pg. 492-433, the Supreme Court held that:
“Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with” (Underlining mine). per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
NIGERIAN BREWERIES PLC Appellant(s)
AND
1. CHIEF WORHI DUMUJE
2. ZENITH BANK PLC Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): From the records transmitted by the Appellant to this court, this is an appeal against a garnishee order absolute of the High Court of Delta State delivered on 21/5/2009 by Hon. Justice T. O. Uloho. The background facts that led to this appeal as gathered from the record are as follows: In Suit no E/236/94, the 1st Respondent as plaintiff had sued the Appellant and two others jointly and severally.
The 1st Respondent had claimed that he drank a bottle of Maltina malt drink manufactured by the Appellant which said drink contained a dead slimy cockroach as a result of which the 1st Respondent suffered a plethora of ailments.
He had asked for damages of N3,000,000M (Three Million Naira).
After several adjournments the 1st Respondent as plaintiff called witnesses and testified in support of his case.
At the end of the trial and address, the trial court entered judgment for the Appellant on 4/7/2001 in the total sum of N2,006,000 to be paid immediately. The Appellant filed a motion to set aside the said judgment of the trial court. The motion to set aside was taken and ruling delivered on 13/03/02.
The notice of appeal against the refusal to set aside the ruling was filed on 22/3/2002 from pages 44-46 of the record.
By a motion EHC/M/20/2009, nearly a year after the judgment was delivered the 1st Respondent instituted garnishee proceedings against the Appellant and the 2nd Respondent who are bankers to the 1st Respondent. Order Nisi was granted on 12/3/09.
The Appellant and the 2nd Respondent resisted the garnishee proceedings and filed affidavits to contest same. On 21/5/09, the court delivered a ruling making the garnishee order absolute. The Appellant is the judgment debtor and the 1st and 2nd Respondents are the judgment creditor and garnishee respectively. Notice of appeal was filed on 3/6/2009 and the relief sought is an order setting aside the ruling of the trial judge making the garnishee order absolute.
The Appellant’s brief was settled by V. O. Nwafor, Esq. and filed on 30/11/2009 while it was deemed filed on 19/10/2010. Therein counsel identified six issues for determination and they are set out below:-
1. Whether an application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment (Ground 1).
2. Whether in the circumstances of this case the judgment debtor/appellant served with a garnishee order nisi as directed by the Sheriffs and Civil Process Act is not a necessary party to the garnishee proceedings (Ground 2).
3. Whether the learned trial judge was right in holding that a pendency of an application for stay of execution at the Court of Appeal does not prevent a judgment creditor from initiating garnishee proceedings (Ground 3).
4. Whether failure to name the other judgment debtors in the substantive suit in the garnishee proceedings does not make the proceedings incompetent (Ground 4).
5. Whether the learned trial judge exercised her discretion judicially and judiciously in refusing to give effect to the unchallenged and uncontradicted affidavit evidence of the judgment debtor/appellant (Ground 5).
6. Whether the resort to Garnishee proceedings by the judgment creditor does not amount to double execution of one judgment (Ground 6).
In the brief settled by Irikefe Ovwighorienta, Esq., filed on 12/11/10 the learned Respondent’s Counsel distilled the issues as follows:-
1. Is the Appellant in this case a necessary party to garnishee proceedings and if so has she suffered any miscarriage of justice in this case.
2. Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not preclude a Judgment Creditor from seeking to use Garnishee Proceedings to enforce Judgment.
3. Whether the learned trial Judge was right in holding that the garnishee proceedings in this case is an independent action from the judgment sought to be enforced and failure to name other parties to the judgment does not invalidate the garnishee proceedings.
After judgment was reserved on 10/2/15 and during conference on the appeal, it was decided that because of the contentious issues of contemporary interest raised by the issues distilled for determination, the court should seek and consider wider opinion of senior counsel who may proffer arguments as amicus curiae on the matter. The court then directed all counsel in the matter to submit further brief and also several counsel (as amici curiae) who were felt competent to do so to submit briefs on the following issues:
1. Whether the application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment.
2. Is the Appellant in this case a necessary party to garnishee proceedings and if so, has it suffered any miscarriage of justice?
3. Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment.
4. Whether the learned trial judge was right in holding that the garnishee proceedings in this case is an independent action from the judgment sought to be enforced and failure to name the other parties to the judgment does not invalidate the proceedings.
The Appellant’s supplementary brief as directed was filed on 25/5/15. The 1st Respondent’s supplementary brief was filed on 8/5/15. Dr. Alek Izinyon, SAN OFR filed an amicus brief on 25/5/15. Dr. Onyechi Ikpeazu, OON, SAN filed an amicus brief on 25/5/15. Mr. P. I. N. Ikwueto, SAN filed an amicus brief on 26/5/15. Mr. Ken Mozia, SAN also filed an amicus brief on 25/5/15. Mr. Aham Eke Ejelam, SAN filed an amicus brief on 27/5/15. Dr. Muiz Bamire filed an amicus brief on 26/5/15. Dr. Olumide Ayeni also filed an amicus brief on 27/5/15. Dr. Dapo Olanipekun filed an amicus brief on 25/5/15.
At the re-hearing of the appeal on 27/5/15, some of the said briefs were adopted by counsel present and the other counsel who were absent due to severe petrol and aviation fuel shortage were deemed adopted pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011. In the determination of this appeal, the briefs adopted by counsel to the parties and all the briefs filed by the amici curiae will be considered.
ISSUE ONE
Whether an application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside the default judgment.
On this issue, learned Appellant’s counsel argued that the judgment of the trial court was a default judgment in which the Appellant was denied fair hearing. An application to set aside the judgment was refused and an appeal was filed against the refusal.
The contention of the judgment creditor/respondent was to the effect that such an appeal not being against the main judgment itself was not competent for an application for a stay of execution to be predicated thereupon. The learned trial judge acquiesced to this view.
Counsel argued that the learned trial judge was wrong to have accepted that argument in view of the fact that there was no counter affidavit from the respondent to rebut the facts in the affidavit evidence of the appellant. Counsel argued that the appellant has the right to appeal against the order refusing to set aside the default judgment as well as against the main judgment. See Abuimie v. Abumiere (2002) 10 NWLR (Pt. 776) P.5.441 and 451.
Counsel argued that since the result of an appeal against the substantive judgment and an appeal against the ruling if successful, there would be nothing upon which the Appellant would base his garnishee proceedings. Counsel cited MMS Ltd v. Oteju (2005) 14 NWLR (Pt. 943) p.5417 AT 539; Akinnuli v. Ayo Odughesen (1992) 8 NWLR (Pt. 258) Pg. 176, Williams v. Hope Rising (1992) 2 SC 145.
In reply, the 1st Respondent’s counsel argued that an application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment.
As in a declaratory judgment in which there can be no grant of a stay of execution, so too there can be no stay of an order or ruling refusing to set aside a default judgment. The order or ruling refusing to set aside did not confer or vest any right on any of the parties. There is therefore nothing to be executed. Once there is nothing to be executed there is nothing to be stayed also. Therefore, the purported application for stay of execution of the judgment of the trial court dated 4/7/2001 predicated on an appeal against a ruling refusing to set aside the judgment, is an incompetent application.
1st Respondent’s counsel submitted that before there can be a competent application for stay of execution of a judgment, there must first be a valid appeal against that judgment, the determination of which appeal the stay of execution will be pending. An application for stay of execution of a judgment against which there is no appeal is premature and incompetent.
Dr. Alex A. Izinyon, SAN filed amicus brief which was taken as properly adopted by him pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules. Learned senior counsel posited that where the appeal is against the order of refusal to set aside alone, without touching the main judgment, no proper motion for stay can be predicated on refusal to set aside a default judgment. That judgment remains intact and not answerable to stay of execution, while the application to set aside which was refused can only arise by injunction pending appeal, as there is nothing to stay in the refusal to set aside the default judgment. Counsel cited Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172; HON. v. ABUBAKAR (2012) ALL FWLR (Pt. 649) 1188 AT 1200-1201, PARAS E-C.
Senior counsel’s view on this issue is that an application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment which does not attack the main judgment.
Dr. Onyechi Ikpeazu, OON, SAN who graciously appeared in person to adopt his brief as amicus curiae, submitted on this point that the essence of an application for stay of execution of a judgment is to preserve the ‘res’ of a case, an application for stay of execution brought within the con of an appeal against the decision refusing to set aside the judgment, is a direct challenge to the subsistence of the judgment itself in the same manner as if the application was brought in an appeal directly challenging the judgment. The effect of both procedures is the same, just as is the effect of the two avenues for challenging a judgment.
In the amicus brief settled by P. I. N. Ikwueto, SAN which was adopted at the hearing by Emeka Obegolu, Esq. it was argued that a judgment debtor seeking to stay execution of a judgment needs to show that he has challenged the said judgment. Inter Contractors Nig Ltd. v. U.A.C. (1998) 2 NWLR (Pt.) P5.303 at P.5 324, Julius Berger Nig Plc v. T.R. Commercial Bank (2007) 1 NWLR (Pt. 1016) Pg. 540 at 549 and Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 50 at 57 were cited. Counsel also agreed with the position that in certain instances, a party who is dissatisfied by a decision of a Court (and or affected thereby) need not appeal but may rightly apply to the same court to set aside its judgment for being a nullity.
In the amicus brief filed by Ken Mozia, SAN, adopted by Santos Owootori, Esq. it was argued that the discretion is available to the court to order stay of execution where an application to set aside a default judgment is pending before the court and where it appears just and reasonable so to do. The appeal against the decision refusing to set aside a default judgment has the effect of questioning the validity of the default judgment. The application for stay of execution of a default judgment must of necessity be contingent upon the determination of an appeal against the decision refusing to set aside the default judgment where such exists. An appeal against an order refusing to set aside a default judgment is sufficient to ground an application for stay of execution thereof. The case of Carrena v. Akinlase (2008) 14 NWLR (Pt. 1170) 262 (SC) at 284-285 paragraphs D-A was cited.
In the amicus brief filed by Aham Eke Ejelam, SAN, which was adopted by C. Sigolo Esq., it was argued that one of the critical steps to be taken to ensure that the ‘res’ in a judgment is preserved is that there must be an appeal against the judgment and also an application for stay of execution of the said judgment. The two must co-exist.
Senior counsel was emphatic that the absence of any appeal against the substantive judgment means that there cannot be a valid stay of execution pending a non-existent appeal on the res which is the judgment sum. He cited Zenith Bank Ltd v. Chief Arthur John & Ors in Suit No. SC.519/2012.
Learned senior counsel’s position on this issue is that the trial judge cannot be said to be right in her position that the existence of an application for stay of execution does not preclude a judgment creditor from taking the route of garnishee proceedings to enforce the judgment and that the learned trial court could only have been correct if it stated that since there is no appeal against the substantive judgment, the motion for stay of execution cannot preclude the judgment creditor from taking advantage of the window of garnishee proceedings to enforce the judgment.
Dr. Muiz Banire’s amicus brief was taken as adopted by him pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules. Learned counsel argued that the declaration by the lower court refusing to set aside its alleged default judgment is not in any way capable of being stayed on any supposed “good and arguable point or points of law” or on any supposed “exceptional circumstances.” The requirement that there must be a competent and arguable appeal requires an appeal against the judgment itself and not the decision refusing to set the judgment aside as the latter is merely a declaratory statement. Dr. Banire argued stridently that this court must consider the distinction between a declaratory and an executory judgment and that the decision of the trial court being a declaratory one, motion for stay cannot lie. He cited Gov. of Gongola v. Tukur (1989) 4 NWLR (Pt. 117) Pg. 592; Makinde v. Akinwale (1995) 6 NWLR (Pt. 399) Pg.1 and Makinde v. Akinwale (1995) 6 NWLR (Pt. 399) Pg.1, Enekwe v. I.M.B. (Nig.) Ltd. (2007) All FWLR (Pt. 349) 1053 at 1073 para. H (SC), (2007) Vol. 1 M.J.S.C. 193 at 208 Para D; Alims Nig. Ltd v. U.B.A. Plc (2007) All FWLR (Pt. 348) 971 at 981 (CA); Obaseki v. Orukwo (2007) 17 NWLR (Pt. 1062) 138 @ 159-160.
Dr. Olumide Ayeni in the amicus brief taken as adopted by him pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules argued that an application for stay of execution can in principle be predicated upon an appeal against an order refusing to set aside a default judgment. Counsel cited the Supreme Court Practice (white book) 1988 Pg. 736-737 and 4th Edition of the Halsbury’s laws of England Page 372 Article 1230.
Dr. Dapo Olanipekun in the brief filed by him which was taken as argued pursuant to Order 18 rule 9(4) of the Court of Appeal Rules, submitted that even though the Appellant had the option to appeal against the default judgment or the ruling refusing to relist the cause to be heard on the merit, one choice does not preclude the other, the right of appeal being a constitutional right. Counsel cited Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) Pg. 467; Magna Maritime Services Ltd. & Anor v. Oteju & Anor (2005) 22 NSCQLR 295 at 315; Nosa Hotels v. Nicon Hilton Hotels (2007) 7 NWLR (Pt. 1032) and the extant rules of some State High Courts relating to the right of a party to have a default judgment set aside. Counsel further submitted that an appeal against a ruling to set aside a default judgment is not an appeal against the default judgment, even if the default judgment would be affected invariably by the outcome of the appeal.
Since a motion for stay of execution must be predicated on a valid and subsisting appeal, a party cannot bring an application to stay a decision/judgment against which he has not appealed.
Stay of execution of a judgment that has not been appealed against is a non-starter. Of the two relevant conditions for the grant of an application for stay of proceedings identified earlier, the satisfaction of the first is the precursor and trigger for the second.
RESOLUTION
The learned trial judge held at Pg. 82 of the record in the ruling appealed against as follows:
“From the unchallenged affidavit evidence of the Judgment Debtor which is to the effect that the application for stay was pending at the Court of Appeal before the Judgment Creditor applied to this court for an Order Nisi, can this court proceed to grant an Order absolute? Granted that this was the position and the Judgment Creditor failed to bring this piece of information to the court before the Order Nisi was made, it is my humble view that if this fact had been brought to the knowledge of the court, such piece of information would not have in any way affected the mind of the court as the court would have still proceeded to grant the Order Nisi. The existence of an application seeking for an Order staying the execution in my humble view will not preclude a Judgment Creditor from seeking to use the Garnishee Proceedings to enforce the Judgment. See the case of PURIFICATION TECHNIQUES NIGERIA LIMITED v. ATTORNEY-GENERAL OF LAGOS STATE (SUPRA)”.
The point in this issue is really whether the court should take a lax and practical position to state that an appeal against a judgment, be it default or not and an appeal against a decision not to set aside the judgment is making a difference between six and half a dozen and since they both would ultimately have the same effect, an application for stay of execution can be predicated on both of them. On the other hand, the court can also stick to the technical position that the ruling refusing to set aside the judgment not being an executory one, no application for stay of execution can lie against it. All parties and amici in this matter are agreed and I also agree with them that a party who is dissatisfied with a decision of a court and desires to challenge same has two choices. One to initiate an appeal against the decision or, two, to initiate an application to set aside the judgment. The choice is usually dependent on the circumstances of each case. The first choice is predicated on an acceptance of the inherent validity of the decision but a resort to appellate intervention to review the decision either on some legal or factual basis and to determine whether on either grounds the decision is correct. The second choice, to set aside the judgment, is predicated on the premise that as a matter of law, the judgment does not exist due to inherent lack of jurisdiction of the court and should be judicially declared null and void. See Adeyemi-Bero v. L.S.D.P.C. (2013) 8 NWLR (Pt. 1362) Pg. 209 at 220-221, Akpan v. Effiong (2010) 17 NWLR (Pt. 1223) Pg. 421 cited by Dr. Ikpeazu, SAN.
There is no doubt that the objective of both procedures is essentially the same in that while the first choice seeks to obliterate the judgment, the latter seeks to abrogate it. Thus, generally an application to set aside a judgment on the ground that the party seeking the order was not heard is not an application that is extraneous to the suit more so, as the decision to set it aside or not qualifies as a decision within the con of S.241(1) of the Constitution. See C.P.C. v. INEC (2010) 18 NWLR (Pt. 1279) Pg. 493 at 565 where the Supreme Court defined a “decision” to include a “judgment” and a “ruling”. If this appeal succeeds, can it be argued that the substantive judgment against which there is no appeal is still extant? An answer in the affirmative would be ludicrous. In my humble view, and I agree with Dr. Ikpeazu SAN and P. I. N. Ikwueto, SAN on this point, what is paramount where a judgment debtor is seeking to stay execution of a judgment is the need to show the court that he is challenging the judgment in whatever form he is legally entitled so to do. See Inter Contractors Nig. Ltd. v. U.A.C. (Supra).
In this case, I believe the Appellant chose what would ordinarily be the cheaper and seemingly more expeditious alternative of seeking to set aside a judgment it believes was made in default of appearance. The law allows him that prerogative.
The situation here is akin to the thin but real distinction between a stay of execution and an injunction. An order for stay is granted after completion of trial but pending the determination of the appeal. The sameness in the processes lies in the fact that the two are granted to maintain “status quo” pending the determination of the appeal. Both orders are preservatory in effect, ensuring that the subject matter of litigation is still available at the end of the appeal and matter finally determined.
The next distinction that flows from the above is that while a stay of execution is made in respect of an order capable of being enforced, an injunction pending appeal is granted in respect of declaratory judgments. This is because a declaratory judgment contains no order that is capable of being enforced nonetheless it vindicates a particular right which the successful party can take steps in furtherance of and which steps can however affect the subject matter of the suit.
I appreciate the point made by most amici on this issue that having not appealed against the substantive judgment, no stay of execution can lie. See Okoya v. Santilli (1990) 2 NWLR (Pt. 131) Pg. 172 at 226.
In Akibu & Ors. v. Oduntan & Ors. (1991) LPELR-335 (SC); Obaseki, JSC stated unequivocally that a declaratory judgment cannot be stayed.
The ratio in Okoya v Santilli is that a motion for stay against a declaratory order in which there is an appeal is misconceived. What is proper is a prayer for an order of injunction. Agbaje, JSC was clear to hold that:
“An order for stay pending appeal therefore can only be granted in respect of an executory judgment or order.”
This is because of the nature of the difference in the judgment awarding damages in tort to the 1st Respondent which is an executory judgment and the ruling refusing to set aside the default judgment which is a declaratory judgment. To say that there is no important distinction between the two decisions would be wrong in law. However, the lines separating both decisions becomes blurred when an effort is made to preserve the ‘res’ which is the subject of litigation. The distinction between a motion for stay of execution and an order for injunction lies not in the effect they hope to achieve but in the circumstances in which they can be deployed. We are here concerned with the effect they both hope to achieve.
In this case, the Appellant had applied for stay of the execution of the judgment delivered on 4/7/01. The application was refused on 23-07-2004 by the trial court. Appellant also filed an application in this court on 24/4/09 for stay of execution of the judgment of 4/7/01. See Pg.15 of the record. The application had not been taken before the Order Absolute was granted. There exists as a matter of fact, an application for stay against the substantive judgment even though there is no appeal against the said substantive judgment in this court. The Appellant knowing that a stay cannot be granted in respect of the ruling of 21/5/09 applied for stay of execution in respect of the substantive judgment delivered on 4/7/01. See Pg. 47 of the Record.
Let us have recourse to available legislation on this point. The most apt is Or 2 r 14 of the Judgment and Enforcement Rules (hereinafter called JER) made pursuant to S.94 of the Sheriffs and Civil Process Act (hereinafter called S & CPA). It provides as follows:
Whenever any proceeding shall be pending in the court against the holder of a previous judgment of the court by the persons against whom the judgment was given, the court may, if it appears just and reasonable to do so, stay execution of the judgment either absolutely or on such terms as it may think just until a judgment shall be given in the pending proceeding. (Underlining mine)
I have considered the point that a ruling not to set aside a default judgment is not executory. I concede that technical point, however, an order for stay of execution is an Equitable remedy. In Olayinka v. Elusanmi (1971) 1 NMLR 277 at 279, it was held that the prerequisite for a grant of stay of execution is to be made “pending the incidence of a certain legal occurrence”. I am of the strong view that in the circumstances of this case, the “pending incidence” or “legal occurrence” is the pending appeal in this court against the ruling refusing to set aside the judgment sought to be stayed.
There is no doubt that a judgment set aside on appeal for being a nullity is not subservient to that set aside for perversion in the findings of fact or error in law. Accordingly, an application for stay of execution in an appeal to reverse a judgment on the merit, is not superior to that brought to stay the same judgment in an appeal arising from refusal of an application to set aside the same judgment.
On the import of the word “stay” in the con of execution of a judgment, the Court of Appeal in Albion Construction Co. Ltd. v. RAO Investments & Properties Ltd. & Anor (1992) 1 NWLR (Pt. 219) Pg. 583 at 597, para B-F adopting the explanation of that word in Black’s Law Dictionary 8th Edition per Tobi, J.C.A (as he then was) opined thus:
“The word “stay” in this con means stop, tarry and wait. The word “suspend” conually means to make, to stop for some time, to defer or to debar from any privilege. In their twin and aggregate con and particularly in this con, the words convey some utilitarian and practical meaning relative to their etymological meaning of temporary stoppage of the order of the learned trial judge by way of non-execution or non-enforceability”
I agree with Dr. Ikpeazu that the foregoing practically was what the Appellant sought within the con of the procedure which sought to set aside the judgment desired to be vacated.
I also agree with the argument of Mr. A. E. Ejelam, SAN to the extent and effect that it is wrong to severe garnishee proceedings from the other general modes of executing a judgment. I am also of the view that garnishee proceedings is just one of the ways of executing a judgment and thus, a stay of execution so defined must include stay of garnishee proceedings which is just a specie of execution. The argument that the absence of an appeal against the main judgment vitiates a right to stay execution or stay garnishee proceeding is in my view too narrow a view of the law and I would rather take an expansive rather than a narrow view and to agree with Dr. Ikpeazu’s idea of the justice of the issue to hold that a motion for stay of execution can indeed be predicated upon an appeal against an order refusing to set aside a default judgment.
In the circumstances, I resolve this issue in favour of the Appellant.
ISSUE TWO
Whether in the circumstances of this case, the Appellant is a necessary party to garnishee proceedings, and if so, has it suffered any miscarriage of justice in this case.
On this issue learned Appellant’s counsel urged this court to take cognizance of the peculiar circumstances of this case. Counsel argued that Section 83(2) of the S & CPA enjoins the judgment creditor to serve the Garnishee Order Nisi on the judgment debtor. In this case, upon being served, the Judgment Debtor/Appellant filed an affidavit against the grant of the Order Absolute. Counsel insistently argued that the purpose of the affidavit was to intimate the court with the true position of the matter in controversy. The judgment creditor had already commenced the process of executing the judgment and in fact, he had attached some vehicles of the Appellant before the Appellant applied for a stay of further execution.
Counsel further argued that these facts were uncontradicted by the Judgment Creditor. In his affidavit in support of the motion ex-parte for Order Nisi, the judgment creditor did not disclose the whole facts. The Appellant’s counsel is of the view that the judgment creditor abandoned the case at the Court of Appeal and went behind the judgment debtor to obtain the Order Nisi.
Appellant’s counsel submitted that the learned trial judge was wrong to place reliance on the case of PPMC Ltd. v. Delphi Petroleum Inc (2005) 5 NWLR (Pt. 928) Pg. 458 at 484 to hold that the Judgment Debtor/Appellant was not a necessary party to the garnishee proceedings. Counsel argued that it was the dissenting opinion of the Court that was followed by the trial judge. He also urged us to look at the difference in facts. He urged this court not to resort to technicality but to do justice in this case as the days of technicality are over. He cited Odonigi v. Oyeleye (2001) 6 NWLR (Pt. 708) Pg. 12 at 24. Counsel argued that there is no known legal authority which had supported the view that a judgment debtor who has an appeal and an application for stay of execution pending at the Court of Appeal should not be regarded as a necessary party in garnishee proceedings. Counsel submitted that the S & CPA which provided for garnishee proceedings did not contemplate this situation as it would amount to a travesty of justice to prevent the judgment debtor from availing the trial court with the facts which were suppressed by the judgment creditor in the ex-parte application for garnishee Order Nisi.
Appellant’s counsel argued that the view that a necessary party is he who has not only an interest in the subject matter of the proceedings, but also who in his absence the proceedings could not be fairly dealt with and that the view that the judgment debtor is not a necessary party in a garnishee proceedings would have been justified if the circumstance of this case (the pending appeal and the motion for stay of execution at the Court of Appeal) did not indicate otherwise. Counsel pointed out that while there is a pending appeal and a motion for stay of execution at the appeal court, the 1st respondent went behind the Appellant to apply for a garnishee Order Nisi to frustrate the motion for stay at the Court of Appeal. Counsel urged us to hold that in the circumstances of this case, the Appellant as judgment debtor is a necessary party.
Counsel submitted that a necessary party has been defined by the Supreme Court, Per Eso, JSC (as he then was) in the case of Green v. Green (1989) 3 NWLR (61) 480 at 482 as “those who are not only interested in the subject matter of the proceeding but also in their absence, the proceedings could not be fairly dealt with”. He also cited, R.T.C. v. F.O.B. Investment & Pro Ltd. (2001) 6 NWLR (Pt. 708) 2455 at 265, Para A, Nitel Plc v. I.C.I.C (2009) 16 NWLR (Pt. 1167) Pg. 225 at 384-385, Ivory Merchant v. Partnership Investment (1996) 5 NWLR (Pt. 448) Pg. 363 at 367-368.
Counsel argued that the rules of natural justice enjoins the court to hear all parties in a cause. Counsel also argued that S. 83(2) of the S & CPA which stipulates that an Order Nisi be served on the garnishee and the judgment debtor is to make both of them party to the proceedings. The Sheriffs and Civil Process Act did not specifically state that the judgment debtor is not a party to garnishee proceedings. Counsel argued that no court set out to do justice would hold that the Judgment Debtor is not a necessary party especially on the premise that the Garnishee is neither privy to the appeal nor application for stay of execution. It is only the judgment debtor that can avail the court with the true position of the case as in this case, otherwise, he would have been seen to have waived its right to do so, or be held guilty of standing by. Furthermore, if all judgment debtors should be treated as non-parties to garnishee proceedings, then in cases of this nature any appeal at the appellate and consequential applications for stay of executions would be a sheer waste of time as the Respondent would easily abandon the case at the Court of Appeal and rush to the trial court via garnishee proceedings to have his way and consequently the appeal will be nothing but an academic exercise.
In reply on this point, learned 1st Respondent’s counsel argued that the garnishee proceedings are proceedings strictly between a judgment creditor, who is called the garnishor and a third party called the garnishee in whose hands are funds due or accruing to the judgment debtor. Counsel submitted that in Nigeria, garnishee proceedings are regulated by Ss.83-92 of the Sheriffs and Civil Process Act. Under S.83 (2) of the Act, a copy of the Order Nisi shall be served upon the garnishee and on the judgment debtor. The judgment debtor is not enjoined or required in law to appear before the court to show cause or do anything. Only the garnishee is required or enjoined in law to appear before the court to show cause why he should not pay to the judgment creditor 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”.
Counsel concluded that the implication that there is no requirement of the law for the judgment debtor to show cause is that the judgment debtor is not a necessary party to garnishee proceeding. Counsel argued that the express mention of one is the exclusion of the other not mentioned. 1st Respondent’s counsel further submitted that the debtor is not to be heard. He cited Citizen International Bank Ltd. v. S.C.O.A Nig Ltd. (2006) All FWLR (Pt. 323) Pg.1680 at 1692-1695. Counsel cited Denton-West v. Muoma (2008) 6 NWLR (Pt. 1083) Pg.418 at 440,442, Diamond Bank v. Ndubuisi (2002) FWLR (Pt. 105) Pg. 729 at 735, PPMC Ltd. v. Delphi Pet Inc. (2005) 8 NWLR (Pt. 928) 428 at 484-487 to support the submission that in garnishee proceedings, it is the garnishee that is the person or body in custody of or holding the assets of the judgment debtor that could be agreed are competent to appeal against the garnishee order absolute and that the judgment debtor is not a party to the garnishee proceedings.
Dr. Alex Izinyon, SAN, OFR is of the view that the application to institute garnishee proceeding will have the judgment creditor, judgment debtor and the garnishee as its heading which makes the judgment debtor a party on record even though the motion is one made ex-parte. If there is a pending appeal against the substantive judgment, the judgment debtor can be heard before the order is made absolute. Where there is no pending appeal against the judgment itself, the judgment debtor has no right of audience before the trial court.
On this point, Learned senior counsel Dr. Ikpeazu, OON, SAN urged this court to depart from its previous views in Purification Techniques Nig. Ltd. v. A.G. Lagos (2004) 9 NWLR (Pt. 879) Pg. 665, U.B.A. v. Ekanem (2010) 6 NWLR (Pt. 1190) Pg.207, PPMC v. Delphi Petroleum Inc. (2005) 8 NWLR (Pt. 428) Pg. 488 where this court had insisted that garnishee proceedings are distinct and separate proceedings and that the judgment debtor is not a party. He urged this court to adopt the views of this court in Fidelity Bank v. Okumowulu (2013) 6 NWLR (Pt. 1349) Pg. 197 at 213 and C.B.N v. Auto Import/Export (2013) 2 NWLR (Pt. 1337) Pg. 80 at 126. He cited S. 83 of the S & CPA and insisted that the better view is one that would not impose a fait accompli on the court since the judgment debtor would have an opportunity to be heard. He cited Vaswani v. Savalakh (1972) 12 SC 77, A.M. Co. Nig Ltd. v. Volkswagen Nig Ltd. (2012) 11 NWLR (Pt. 1312) Pg. 405 and STB Ltd. v. Contract Resources Ltd.
Learned senior counsel P. I. N. Ikwueto, SAN also argued that the provision of S.83 (2) of the S & CPA besides requiring that the Judgment Debtor be aware that the Garnishee proceedings are pending, is also to enable the Judgment Debtor guide the court on whether to make the Order Nisi, Absolute or not. Counsel submitted that this section did not state that the Judgment Debtor who is served with the Order Nisi should not make any contribution at the hearing of the proceedings prior to making the order absolute. If the law requires that a party be served and heard, then lack of hearing such a party may render the proceedings unconstitutional. Counsel referred this court to the contribution of Dr. Muiz Banire in a paper titled: “EMERGING ISSUES IN GARNISHEE PROCEEDINGS IN NIGERIA”. Published in the book “COMPENDIUM OF LEGAL ESSAYS IN HONOUR OF CHIEF IDOWU SOFOLA, MON, SAN.”
Senior counsel also cited Wema Bank v. Brastem-Sterr (2011) 6 NWLR (Pt. 1242) Pg.58 at 80; Mohammed v. Mustapha (1993) 5 NWLR (Pt. 292) Pg. 22; Green v. Green (1987) 2 NWLR (Pt. 61) Pg. 480 at 493; Leeds Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (Pt. 570) Pg. 353 at 379; Fidelity Bank v. Okwuowulu (Supra); CBN v. Auto Import Export (Supra); Sokoto State Govt. v. Kamdex Nig. Ltd. (2004) 9 NWLR (Pt. 878) Pg. 3455 at 380; NAOC v. Ogini (2010) 2 NWLR (Pt. 1230) Pg.131 at 152-153; Mobil Producing Nig Ltd. v. Monokpo (2003) 18 NWLR (Pt. 852) Pg. 346 at 412.
Ken Mozia, SAN argued on his part that by the opening clause of S. 83 (1) of the S & CPA, the statute gives to the court before whom a garnishee application is filed, a discretionary power to hear the judgment debtor in oral examination before or after the grant of an Order Nisi. Learned senior Counsel argued that if the court really had the discretion to orally examine the judgment debtor even before the grant of the Order Nisi, then it is beyond doubt that it is within the contemplation of the legislature that the judgment debtor can be made a party in garnishee proceedings. Counsel submitted that by S.83(2), it is mandatory that the judgment debtor and the garnishee be served the Order Nisi at least 14 days before the commencement of hearing of the 2nd stage of the proceeding.
Senior Counsel cited the JER and the S & CPA. He agreed with the ratio on this point in Fidelity Bank v. Okuowulu (Supra) in spite of previous contrary opinion on the point. Senior counsel also referred to Cross River State Forestry Commission & Anor v. Anwan & Ors. (2012) LPELR-9479, Standard Trust Bank Ltd. v. Contract Resources Ltd. (2005) 6 NWLR (Pt. 708) Pg.115. Senior counsel submitted emphatically that the judgment debtor is a necessary party to garnishee proceedings.
Aham Eke Ejelam, SAN opined that S.83 of the S & CPA and Or 8 of the JER makes it clear that the judgment debtor is a proper and necessary party to garnishee proceedings. Anything short of that would be a breach of the judgment debtor’s right to fair hearing in a proceeding where he has an interest being the owner of the money sought to be attached.
Dr. Muiz Banire on this issue submitted that pursuant to S.83 (2) of the S & CPA and the decision of Olagunju, JCA in STB Ltd. v. Contract Resources (2001) 6 NWLR (Pt. 708) Pg. 115 at 123, garnishee proceeding shall be defective where the Order Nisi of the court is not served on the judgment debtor. Counsel referred copiously to the provisions of S.83 of the S & CPA and the JER, particularly Or 8 r 6 & 8 of the latter. Learned counsel submitted that any decision made post Order Nisi without advertence to the provisions above would be per incuriam. Learned Counsel also cited Dawson v. Preston (1955) All ER 314 at 315-316. The mandatory service of the Order Nisi on the judgment debtor presupposes that he is a necessary party to subsequent proceedings. The judgment debtor then has a right of appeal against that decision. He cited Wema Bank v. Brastem-Sterr Nig. (Supra), Leedo Presidential v. B.O.N. (Supra), Fidelity Bank v. Okwuowulu (Supra), N.A.O.C. v. Ogini (Supra), C.B.N. v. Auto Import Export, (Supra), UBA Plc v. Boney Marcus (2005) 13 NWLR (Pt. 943) Pg.654 at 665. Counsel is of the view that in this case, the judgment debtor having participated in the proceedings leading to the grant of the Garnishee Order Absolute had not suffered a miscarriage of justice.
Dr. Olumide Ayeni urged strongly the view that the concomitant interpretation of S.83, 85-88 of the S & CPA is to the effect that by statutory prescription, the judgment debtor, the judgment creditor and the garnishee are necessary parties to the garnishee proceedings. He emphasized that where the interests of a party would be affected by a decision or an order of court, such a party must be heard. Learned counsel cited Okonta v. Phillips (2010) 18 NWLR (Pt. 1225) Pg. 320 at 326. Learned counsel reviewed the judgments of the court both for and against the proposition of the necessity of the judgment debtor being a party to garnishee proceedings. Counsel cited recent authorities of this court already cited by other amicus to argue that even though this court had leaned in recent times towards making the judgment debtor a necessary party to be heard in garnishee proceedings, these decisions seemed to have been based not on the strict adherence to the law on the matter but on the need to do substantial justice in view of the peculiar facts of those cases. Counsel proffered the view that a party can be classified as a proper, necessary or desirable party depending on the circumstances. He submitted that the issue of parties to proceedings in court and their consequential categorization usually arise within the con of misjoinder and/or non-joinder of parties. In other words, where a party who ought not to have been joined was joined and/or where a party who ought to have been joined was not joined. Counsel cited Adefarsin v. Dayekh (2007) 11 NWLR (Pt. 1044) 89 at 117-121, Dominic Akpan & Ors. v. Julius Berger Nigeria Plc (2002) LPELR-11054 at 16-18. Counsel further submitted that with respect to garnishee proceedings, more often than not, the judgment debtor is joined by the judgment creditor. The same judgment creditor who brings the judgment debtor to court then attempts to gag him by describing him as a nominal party or a party who is not necessary. This begs the question, why the judgment debtor was joined in the first place. Counsel submitted that once a party is brought to court, the issue of whether he is a necessary party or otherwise becomes academic.
Dr. Olanipekun cited S.83(2) of the S & CPA and insisted that the inference to be drawn from the requirement to serve the order nisi on the judgment debtor is that the judgment debtor should be joined as a party, being a person affected by the garnishee order nisi. He also cited Uwazurike & 6 Ors v A.G.F. (2013) 53 NSCQLR 908 at 926-927, Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) Pg. 367 at 441-442, FBN Plc & Anor v. FCMB & Anor (2014) 1 BFLR 143. He urged this court not to allow an abridgment of the propriety right of a judgment debtor to protect his interests by fair hearing as enshrined in the Constitution. He cited Edjakpo v. Osia (2007) 29 NSCQLR 842 at 866, Abubakar v. Yar’adua (2008) 4 NWLR (Pt. 1078) Pg.465 at 496, A.G. Abia v. A.G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 381-382, NDP v. INEC (2007) All FWLR (Pt. 358) 1124 at 1147-1148, A.C.B. v. Losade (1995) 7 NWLR (Pt. 405) 26 at 52-53.
Dr. Olanipekun insisted that the right to fair hearing donated to a party with an interest in a matter cannot be taken away. He cited Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628 at 645, Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 at 263, Ariori v. Elemo (1983) 1 SCNLR 1 at 13, A.G. Bendel v. Aideyan (Supra), Idakwo v. Ejiga (2002) 13 NWLR (Pt. 783) 156 at 165-167.
RESOLUTION
This issue for determination is derived from the ratio of the learned trial judge where it was held at page 81 and particularly at page 83 of the record as follows:
“The proceedings is between the Judgment Creditor and the 3rd party, the Garnishee who was never part of the suit for which judgment was given. The garnishee proceedings is separate and distinct from action… I am also of the firm view that the Judgment debtor is not a necessary party to the Garnishee Proceedings. See the case of PPMC LIMITED v. DELPHI PETROLEUM INDUSTRIES INCORPORATED (2005) 8 NWLR (Part. 9228) page 458 at 484”.
One of the methods by which liquidated money judgments can be enforced is by way of garnishee proceedings.
Black’s Law Dictionary in describing Garnishee Proceedings otherwise known as garnishment states thus:
“A judicial proceeding in which a creditor (or potential creditor) ask the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party.”
Let us look at the extant legislation on this issue. Part V- Attachment of debts by Garnishee Order is the appropriate part of the Sheriff and Civil Process Act which regulates this process. I will set out the relevant provisions necessary to determine the issue under consideration. S. 83 provides as follows:
83(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 the 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 there of as may be sufficient to satisfy the judgment or order together with costs aforsesaid.
83(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.
S. 87 also provides as follows:
If the garnishee appears and disputes his liability, the court, instead of making an order that execution shall issue, an order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.
Part VI, S.94 of the Act makes provisions for the appropriate rules of court to guide the various processes enumerated in this Act. Pursuant to that Act, the Judgment Enforcement Rules-JER were made. The relevant provisions of JER germane to the vexed issue under consideration is Or 8 r 8. It provides as follows:
1. If no amount is paid into court, the court instead of making up 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.
2. If an order is made under Section 87 of the Act for the trial or determination of any issue or question it shall direct which of the persons interested, including such third persons as is referred to in Section 88 of the Act, shall be plaintiff and which shall be defendant. (Underlining mine).
It is apt at this juncture to do a review of the superior court’s position on this issue of the nature of the garnishee proceedings and proper parties to garnishee proceedings. I will take us through the old authorities and the new ones.
The word “suit” in Order VII Rule 5 of the Supreme Court (Civil Procedure) Rules is not wide enough to cover garnishee proceedings which are a species of execution and ancillary to a suit. See Raccah v. Wahab (1958) NRNLR 58.
The amount at the judgment debtor’s credit in his savings bank account is the property of the judgment debtor- the bank is the “person indebted” under the Supreme Court Ordinance Schedule II Rules 11, 15, 16, 17 and 20 and the said amount can be attached by garnishee proceedings. See Filone v. Oladipo (1934) 11 NLR 168.
Should the Garnishor wish to proceed to inquire as to ownership of the attached debt, the Garnishee Order Nisi will not be discharged pending the inquiry. See Barclays Bank D.C.O. v. Baderinwa: re L.E. D.B. (1962) 2 All NLR 28.
A Garnishee Order Nisi will not be made absolute where there is doubt as to whether or not the money belongs to the judgment debtor absolutely. See Barclays Bank D.C.O. v. Baderinwa: re L.E. D.B. (Supra).
An inquiry as to ownership of the debt attached will be directed at the request of the garnishor, where doubt as to the ownership of the attached debt exists. See Barclays Bank D.C.O. v. Baderinwa: re L.E. D.B. (Supra).
Section 87 of the S & CPA and some provisions of JER provide that whenever in any proceedings to obtain an attachment of the debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person who has a lien or charge upon it, the court may order such third person to appear and state the nature and particulars of his claim upon such debt. This does not exhaust the powers of the court: if by any means it comes to the knowledge of the court that a third person has reasonable grounds a claim, it is the duty of the Court in equity to withhold a garnishee order absolute and to direct an inquiry. In Idosu v. Abudu Ojikutu (1952) 14 WACA 88 the court held as follows:
“In view of the evidence before the magistrate that there was an arrangement that any contracts given to the judgment debtor should be carried out by Ojikutu, the person who applied to be joined, and that the moneys accruing from the contracts should be paid to him it was necessary to have such an inquiry and for that purpose to admit the respondent (Ojikutu) as a party in the garnishee proceedings by making some suitable order, which the magistrate had power to make under Section 67 of the Magistrates’ Courts (Civil Procedure) Ordinance (Cap. 124) (S67):
“The court may in all cases and matters make any order which it considers necessary for doing justice whether such order has been expressly asked for by the person entitled to the benefit of the order or not.””
See Idosu v. Abudu Ojikutu (1952) 14 WACA 88.
In Osibamowo v. Shodeko (1967) LLR Pg.7, the judgment creditor claimed from the garnishees, the Lagos City College the sum of #724:8s:11d as money due from the garnishees to the judgment debtor. It appeared during the proceedings that there was a dispute between the garnishees and the judgment debtor as to the amount of money due from the garnishee to the judgment debtor. The court held that:
i. Garnishee proceedings should never be made available for the purpose of resolving an issue in dispute between the garnishees and the judgment debtor.
ii. The test to be applied is whether any sum certain is due and payable by the garnishees to the judgment debtor.
In Denton-West v. Muoma, this court per Kekere-Ekun, JCA (as he then was) citing with approval In Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) at 120, Purification Techniques Nig Ltd. v. A.G. Lagos State (Supra) stated categorically that garnishee proceedings are separate proceedings, between the judgment creditor and the person or body who has custody of the asset of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. The court held further that it is only the garnishee being in custody of the assets of the judgment debtor who can appeal against the order absolute as he was the other party to the dispute and not the judgment debtor. In Citizen International Bank v. S.C.O.A. Nig. Ltd. (Supra) at Pg. 1694-1695 this court held per Salami, JCA (as he then was) that after the Order Nisi has been made, it is not open to anyone, not even the garnishee to question the reasons why the order was made or to file a counter affidavit to the affidavit used at the ex-parte stage to obtain Order Nisi since the affidavit had expired. My Lord, Salami JCA (as he then was) in his dissenting opinion on the jurisdiction of the Federal High Court in PPMC Ltd. v. Delphi Petroleum Inc. (Supra) held emphatically that since the appellant (in that case) was not a party to the garnishee proceedings, their not being allowed to participate in a proceedings which my Lord held as being purely and distinctly a matter between the body in custody or possession of the Appellant’s assets and the judgment creditor, they cannot qualify as an aggrieved party entitled to appeal. The Lead opinion and other contributions did not dissect or refer at all to that point. It is therefore an obiter not strictly binding on this court. In U.B.N. v. Boney Marcus Industrial Ltd. (Supra), the Supreme Court was not called upon to answer this question but the Apex Court established the point that while the Order Nisi could be regarded as an interlocutory order, the order absolute is a final order and a review of same can only be done on appeal.
In Star Deepwater Petroleum Ltd. v. ALC Ltd. Jaura, JCA followed PPMC Ltd. v. Delphi to hold that the judgment debtor is not a necessary party to Garnishee proceedings. In Wema Bank Plc v. Brastem Sterr Nig. Ltd, my Lord Nwodo, JCA held that service on the judgment debtor is fundamental.
In UBA Plc v. Hon. Iboro Ekanem (MD Paragon Eng Ltd.) & Anor (2009), this court held per my Lord Omokri, JCA that the judgment debtor is merely a nominal party in the garnishee proceedings and since it is only the garnishee that is required to show cause, it is only the garnishee that can react to an order Nisi and not the judgment debtor. Orji-Abadua JCA in that case gave further flesh to this opinion by stating that because of the distinction between enforcement by writ of execution and enforcement by garnishee proceedings, an application for stay of execution cannot preclude the judgment creditor from commencing garnishee proceedings.
In Nigeria Agip Oil Company Ltd. v. Peter Ogini & Ors. (Supra), Owoade, JCA held emphatically that the right of appeal is exercisable by a party to the proceedings and that it is only the garnishee being the only aggrieved party that can competently appeal against the order.
One of the most recent exhaustive view on this point is the one expressed by Galadima, JCA (as he then was) in Purification Techniques Nig Ltd v. A.G. Lagos State (Supra) where my Lord held as follows on page 678:
“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 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 the 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”
In the case of Fidelity Bank v. Okwuowulu (Supra), this court has adumbrated on this issue at Pg. 213-214 of the NWLR, it was held inter-alia
“A garnishee proceedings can be described in two stages: the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of debt owed to the judgment debtor. This is usually done ex parte and limited to the judgment creditor and the court.
The second stage is where on the return date, the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the court may subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor, the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other”
In C.B.N. v. Auto Import Export (Supra) Saulawa, JCA in the lead judgment held as follows at Pg.127 of the NWLR
“Both the Garnishor and the garnishee as well as the judgment debtor constitute the parties to the proceedings”
In NAOC v. Ogini (Supra), this court explained at Pg 152-153 of the judgment
“If the judgment creditor knows that the judgment debtor has an amount of money with any Bank or institution, he will as Garnishor file for an ex parte application supported by an affidavit in Form 23 of the Judgment Enforcement Rules (JER) for an order that the Garnishee (in this case U.B.A Plc) shall show cause why he should not pay the amount due to the judgment debtor to him. These proceedings are strictly ex parte between the Garnishor (judgment creditor) and the Garnishee (the Bank or institution). Where the court grants the order nisi on the garnishee, the Registrar through the Sheriff of the Court must serve on the garnishee, the judgment creditor and the judgment debtor the Order nisi on form 26 of JER. The registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing. This subsequent hearing envisages a tripartite proceedings in which all interests are represented. That is when the judgment debtor has the opportunity to convince the court to discharge the order nisi by filing affidavits to that effect. After that hearing on notice, the court may discharge the order nisi or make it an order absolute.
Thus, the judgment enforcement rules envisages two proceedings, one ex-parte and the other one on notice. I agree with the learned respondent’s counsel and my learned brother that there can be no appeal against the order nisi made ex-parte. See S.14(1) of the Court of Appeal Act, Cap C36, Laws of the Federation, 2004. On the other hand, the garnishee order absolute being proceedings in which all parties have been heard and the interest of the judgment debtor in the money in custody of the Garnishee determined is one in which an appeal can lie to this court”
Let us consider the facts in Wema Bank v. Auto Import Export, supra, where this court held that any application in any guise made to the court by the garnishee or the judgment debtor during the pendency of the Order Nisi will not find support in the law. In that case, a preliminary objection to the order nisi was raised on the point that the judgment creditor was not a juristic person. The Company had folded up and the Counsel to the judgment creditor wanted the garnishee to pay over the money to his account as Solicitor to the judgment creditor. The argument of the garnishee and the judgment debtor which I agreed with was that the court should consider and make further enquiries to ensure that the judgment debt was paid to the correct persons legally entitled to it before making an order absolute. In departing from the judgment of this Court I humbly explained as follows:
I cannot in the face of the rules governing the interaction between the parties take the position that a judgment debtor as in this instance has no locus standi when on the return date the court is obliged to hear all parties before arriving at the conclusion to make the order ABSOLUTE. If the owner of the money in the hands of the garnishee has no locus or no interest in the matter at hand, then I wonder who would?
The situation at hand here is different from where the judgment debtor has not gone to challenge the judgment creditor before the trial court on the return date after then order nisi to an appellate court, he would have no locus, being not a party to the ex-parte proceedings which led to the order nisi being granted……. This is however not without prejudice to fair hearing afforded all interested parties who have a representation to make to the courts before the order is made absolute. I am of the strong but humble view that an appeal should lie against an order or ruling of the court which impliedly violates the rules of natural justice….
…. I would in the circumstances of this case have granted the judgment debtor all avenues to prove that the judgment creditor is not a legal entity before making garnishee order absolute.
(Underlining for emphasis).
The inclination to the above view is not novel. In Halsbury’s laws of England, 4th edition Pg. 332-333, it is clearly stated in Paragraph 535 on Pg. 333 that the Rules in England state that:
“at least 7 days by the time appointed by a garnishee order nisi for the further consideration of the matter, the order must be served on the garnishee personally and also unless the court otherwise directs, on the judgment debtor.”
In the explanatory notes on Pg.333, it was stated that it follows from the above provision that a judgment debtor has a right to be heard in the proceedings to make the order nisi absolute, and that he is entitled to appeal if an order is made which affects him. In Dawson v. Preston (1955) 3 All ER 314 at 315-316.
Lord Goddard stated thus:
“On Apr. 27, 1955, Master Lawrence in garnishee proceedings made an order absolute in consequence of a garnishee order nisi which had been obtained at an earlier date finding that the sum of #66 14s. 6d. was due from the Law Society to the judgment debtor, one Preston, and ordered that sum of money to be paid to the judgment creditor. Against that order an appeal was entered by the judgment debtor.
Counsel for the judgment creditor first of all took the point that the judgment debtor was not entitled to appeal, and he also took the point that, as the judgment debtor was not a person who could be said to be affected by the order, no appeal could in any case, be entertained. Where garnishee proceedings are taken, the garnishee order nisi has, under R.S.C Or 45, r 1 to be served on the judgment debtor and it would be a mere farce if he were not entitled to appear on the hearing to make the order absolute and to submit any argument which he might have, it might be that the judgment debtor would desire to say: “I do not mind what the garnishee is saying in this case, I want to show that there is no attachable debt here”. Ordinarily the garnishee would probably take this point, but one can well imagine a case in which the garnishee would not take the point and then the judgment debtor would be entitled to take it because, if he could succeed in defeating the order absolute, he might be able to recover the debt. From the mere fact that the rule relating to attachment of debts provides that the judgment debtor should be served not merely with the notice of the proceedings but actually with the order nisi, it must follow that he has a right to be heard, and if he has right to be heard and an order is made which affects him, he has a right of appeal”
The judgment debtor may also appear to give pertinent information by way of affidavit. See Lovely v. White (1883) 12 LR Ir 381.
S.83(2) uses the word “shall” which has been interpreted to mean a command or compulsory mandate which gives no room for discretion. See National Assembly v. C.C.J. Co. Ltd. (2008) 5 NWLR (Pt. 1081) Pg. 519 at 540. It is also the opinion of this Court per Olagunju, JCA in STB Ltd. v. Contract Resources Nig. Ltd. (2001) 6 NWLR (Pt. 708) Pg. 115 at 123 that a garnishee proceedings shall be defective where the Order Nisi is not served on the judgment debtor within the time prescribed by law.
In the case of J. O. Eze & Anor v. A.G. Federation & Anor v. C.B.N. v. Afribank Nig. Plc & Ors. (Unreported Suit No. LD/64/87) as cited by Afe Babalola, Enforcement of Judgments, 2003, 1st Edition, Pages 103-104, Ade Alabi J of the High Court of Lagos State in a ruling delivered on 11 December, 2001, held as follows;
“It is now known that the Garnishee order nisi was not served on the 2nd Judgment Debtor/Applicant. Under Section 83(2) of the Sheriffs and Civil process Act, Cap. 407, Laws of the Federation, 1990: “At least fourteen days before the day of hearing copy (sic) of the order nisi shall be served upon the Garnishee and on the Judgment Debtor.” The service of a process on a party where it should be served, is one of the fundamental conditions precedent to the exercise of the jurisdiction of a court. Therefore, if service of a process is necessary and there is no proof that such service was effected on the appropriate party, any judgment emanating from such proceedings is a nullity. The result is the same where service of a process is ordered to be effected in a particular manner and there is no proof that it was effected in the prescribed manner…. In this case, the failure to serve the Garnishee order nisi on the 2nd defendant/judgment debtor is not a mere irregularity, it is a fundamental defect which renders the proceeding a nullity.”
A comprehensive consideration of the provisions of the Judgment Enforcement Rules will reveal that the judgment debtor is a necessary party to the garnishee proceedings before the Order Absolute is made. Order VIII Rule 4(2) provides that:
subject to subsection (2) of Section 83 of the Act, the interval between service and the hearing shall be fixed by the registrar, having regard to the distance from the court of the place where any person to be served resides.
The provision above is in contemplation of and pursuant to Section 83 (2) of the S & CPA which requires that service of the Order Nisi shall be made upon the judgment debtor as well as the garnishee at least fourteen days before the date fixed for hearing by the Registrar. The clause “any person to be served” in Order VIII Rule 4(2) above is all embracing and includes the judgment debtor.
By Order VIII Rule 5, the Garnishee may within eight days of the service of the summons on him pay into the court the amount alleged to be due from him to the judgment debtor and upon such payment into court, the garnishee proceedings shall be stayed. Where there is such payment by the garnishee into court, according to Order VIII Rules 6,
The registrar may by consent of the judgment debtor order the money to be paid out before the return day, or in the absence of the consent of the judgment debtor the court may on the return day after hearing the judgment creditor and the judgment debtor, if he appears, make such order in the proceedings (including and order as to costs) as may be just.
The implication of the above is that where there is payment by the garnishee into court, consent of the judgment debtor is necessary to pay same to the judgment creditor. Where the garnishee does not pay until the return date, the court shall hear both the judgment creditor and the judgment debtor if the latter appears in court before making such “order in the proceedings (including an order as to costs) as may be just.”
Even in cases where the garnishee disputes liability, the court still has a duty to hear the judgment debtor just like the judgment creditor before determining the liability of the garnishee to pay out the amount to the judgment creditor. See Order VIII Rule 8(1) of the S & CPA. I agree with all amici in this case that any decision made on relevant parties in a garnishee proceedings post Order Nisi without advertence to the provisions referred to above is per incuriam.
I am of the firm view that after the service of the Order Nisi on him, the judgment debtor may convince the court by way of affidavit to discharge the Order Nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the origination process of the main suit or any other vitiating factor based on which the trial court has the power to set aside its own judgment or even payment or liquidation of the judgment sum which is being sought to be realized by way of enforcement where the court refuses to discharge the Order Nisi and make the Order Nisi Absolute, the judgment debtor, being a necessary party, can appeal as of right since the Order Absolute is regarded as a final decision of the court. See U.B.N. Plc v. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654 at 665 paras A-C.
I have to resort finally to the locus classicus in Nigeria on joinder of parties which is Green v. Green (Supra). In (Pt. 61) of the NWLR Pg. 492-433, the Supreme Court held that:
“Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with” (Underlining mine).
The emphasis here is the fairness of the judicial process. The right to fair hearing enshrined in S.36 of the 1999 Constitution only connotes that a party should be given the opportunity to be heard whether or not a party’s submission is accepted is entirely the court’s prerogative. The service of the Order Nisi and all accompanying processes on the judgment debtor is not a matter of justifying righteousness. In my humble but strong view, it is a mandatory provision without which any subsequent judicial action would be rendered a nullity.
In my humble view, the judgment debtor who is the owner of the money in possession of the garnishee has a right to be heard if he wishes before the garnishee order is made absolute. I am also of the strong but humble view that his right to be heard should not be at large. If not a Pandora’s box would be opened to enable the judgment debtor engage in all manner of activities that can abort the process and or make nonsense of the raison d’etre of the provisions and rules of court in garnishee proceedings enacted for the express purpose of oiling the wheels of execution of liquidated money judgment. Therefore, it is my own humble conclusion that a judgment debtor is free to challenge the Order Nisi before the court that made the order and to urge the court to set it aside by and for any of the following reasons:
1. File an application to the same court to set aside the Order Nisi for want of Jurisdiction where the computation of the money sought to be recovered had been done unilaterally and not based on a specific order of court. In other words, when the actual total judgment debt is being challenged. This is because a garnishee order can only be made upon a sum certain-liquidated amount which cannot be varied. See Major Awoyomi v. Chief of Army Staff & Ors. (2013) 4 BFLR 31, Nigeria Customs Service v. Abileowo Investment Ltd. & Anor (2014) 1 BFLR 263.
2. File a motion to vacate the Order Nisi supported by an affidavit to show the court that there had been partial execution of the judgment or that part of the judgment debt had been paid and the process filed by the garnishor are not factually correct.
3. File a motion supported by affidavit to show that proper parties were not before the court.
4. File an affidavit supported by exhibits that there is a motion for stay of execution of the judgment before an appellate Court and an appeal had been lodged by the judgment debtor against the said judgment or ruling.
The choices open to counsel are not exhaustive and would depend on the circumstances of each case. However, it is NOT open to counsel to challenge the merit of the judgment during garnishee proceedings in any guise. The judgment debtor must keep his gunpowder dry to fire his gun during the course of the substantive appeal or any form of review he has chosen.
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.
Let us now consider the facts of this case. In the ruling of the learned trial judge appealed against, it is clear that the learned trial judge did not consider the merit of the case put forward by the judgment debtor because of the resolute mindset that the judgment debtor was an interloper in the proceedings because garnishee proceedings were not the same as the proceedings wherein they emanated and the judgment debtor was not a party thereof. All the arguments of the judgment debtor were defeated on the premise that the judgment debtor is not a party to garnishee proceedings. For example on the serious averments contained in paragraphs 14, 15, 17, 18, 19 and 23 of the judgment debtor’s affidavit filed after Order Nisi was served on it, these facts in the affidavit to the effect that material facts were suppressed by the judgment creditor to wit: partial execution of the judgment and existence of motion for stay etc. the learned trial judge, even though conceding that the judgment creditor made no attempt to rebut these facts held that garnishee proceedings being different from the suit from which it emanated cannot be stopped by the existence of a motion for stay of execution. The learned trial judge being in my view completely misled as to the state of the law by the heavy reliance on PPMC Ltd. v. Delphi Petroleum (Supra). Therefore even though the learned trial judge gave audience to the Appellant, however, the court’s view of the justice of the case was completely blocked by the mindset that the Appellant was not a necessary party to the proceedings and the arguments proffered were not properly considered on the merit. This in my view has caused a gross miscarriage of justice in the circumstances of this case. This issue is resolved in favour of the Appellant.
ISSUE THREE
Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not preclude a judgment creditor from seeking to use Garnishee Proceedings to enforce the judgment.
On this point, learned Appellant’s counsel argued that a Garnishee order absolute by the trial court after a motion for stay of execution had been filed will foist a fait accompli on the court. Counsel argued that in this case, an application for stay had been filed at the appellate court and any order would over reach the decision of the court and render such decision nugatory. He cited Vaswani Trading v. Savalakh & Co. (Supra), Abubakar v. Unipetrol (2002) 8 NWLR (Pt. 769) Pg. 242 at 251. Counsel urged this to hold that the 1st Respondent having misrepresented the facts to the trial court was not entitled to the order absolute.
He cited Abana v. Obi (2005) 6 NWLR (Pt. 920) Pg 183, Igwe v. Kalu (2002) 14 NWLR (Pt. 787) Pg. 435 at 4553.
On this issue, learned Respondents counsel submitted that an application for stay of execution does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment. He relied on Nitel Plc v. I.C.I.C. (Directory Publishers) Ltd. (2009) 16 NWLR (Pt. 1167) Pg. 356 where this court held as follows at pg. 390.
“I dare go further to add that neither interlocutory, prohibitory nor mandatory injunctions can be employed to either stop or undo garnishee proceedings. In the instant case, the contention of the applicant that the 1st respondent was not entitled to enforce the judgment in its favour by a garnishee proceeding but because he, that is, the applicant has purportedly filed an application for stay of execution of judgment of the trial court is untenable. The garnishee proceeding instituted and the enforcement of the consequential order in respect thereof by the 1st Respondent were legitimate and did not amount to abuse of the process of either trial Court or this Court”
Counsel also insisted that garnishee proceedings being a special specie of execution of debts, no motion for stay of execution can stop the proceedings. He relied on Ekiti State Government v. Ashaolu (2012) All FWLR Pt 622 Pg 1800 at 1815-1817, UBA Plc v Ekanem (2010) 2 NWLR (Pt. 1177) Pg. 181 at 194.
Dr. Alex Izinyon SAN, OFR submitted that since the court processes naturally reflect the parties in the suit, the heading will have the Judgment Creditor, Judgment Debtor and the Garnishee. Counsel argued there is no way it will not be so headed in the suit, and this means that the Judgment Debtor is a party on record even though the motion for Order Nisi is usually ex parte. Counsel said that once the judgment debtor is aware and comes to court that there is an appeal against the entire Judgment, he can be heard. However, where there is no appeal against the substantive judgment, the judgment debtor cannot be heard. Senior counsel also on this issue submitted the view that in this case, since there was no appeal against the main judgment, the learned trial judge was right in holding that the existence of an application for stay of execution does not prevent a judgment creditor from seeking to use garnishee proceedings to enforce the judgment.
Counsel cited Green v. Green (Supra) PPMC Ltd v. Delphi Pet Inc. (Supra), RE Diamond Bank (2002) 17 NWLR (Pt. 795) Pg.120 and C.B.N. v. Auto Import Export (Supra).
Dr. Ikpeazu, OON, SAN is of the view that it is incongruous to reconcile a situation where execution of a judgment will be stayed by the appellate court and perhaps in the same week, an order absolute is made by the trial court to attach the funds of the judgment debtor in the hands of the garnishee. Learned silk cited Alawiye v. Ogunsanya (2012) 12 MJSC (Pt. 1) Pg. 145 at 156; City Exp. v. Lagos State Government (2004) 7 NWLR (Pt. 872) Pg.258 at 266-267; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) Pg.12; El-Khalil v. Oredein (1985) 3 NWLR (Pt. 734) Pg.699.
He submitted strongly too, that it cannot be right to continue to hold that the judgment debtor is a stranger to Garnishee proceedings and cannot interfere in proceedings because they are extraneous to his interests. Counsel argued that the premise that the proceedings being described as extraneous to the interest of the judgment debtor was mistakenly derived from the view that garnishee proceedings is not part of the forms of execution of judgment.
Learned senior counsel P. I. N. Ikwueto urged the view that based on the judgments of the Court of Appeal regarding garnishee proceedings to date, the learned trial judge would be right to hold that the existence of an application for stay of execution does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment. However, on the grounds that the above judgments have been given, with respect, based on (i) a misrepresentation of S. 19 of the S & CPA (ii) that the distinction made by the Court of Appeal between “execution” and “enforcement” which formed the basis of the said judgments amounts to a distinction without a difference, given the position of the Supreme Court in the case of Vaswani Trading Company v. Savalakh & Co. (Supra) and (iii) based on the established principle of law on the hierarchy of Courts in Nigeria, the position of the Court of Appeal in the matter of garnishee proceedings cannot be correct and should be reviewed.
Learned senior counsel, Ken Mozia SAN, in his contribution on this issue after decrying a situation in which a distinction is being made between execution and enforcement of judgment submitted that the decisions of the Court of Appeal in Standard Trust Bank Ltd v. Contact Resources Nig. Ltd. (2001) 6 NWLR (Pt. 708) 115, and First Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218) 199 at 207-208, where the court held that a garnishee order nisi granted while motion for stay of execution is pending is a nullity, is more appealing to reason, good conscience and equity.
Learned senior counsel Aham Eke Ejelam SAN also argued that it is the notion that garnishee proceedings or attachment of debt is a method auxiliary to that of execution that has created the confusion as to whether or not a motion for stay should prevent the enforcement of judgment. Senior counsel reviewed some Court of Appeal cases and concluded that “writ of execution” does not exclude other forms of execution.
The trial judge cannot be said to be right in the position that the existence of an application for stay of execution does not preclude a judgment creditor from taking the route of garnishee proceedings to enforce the judgment and that the learned Trial Court could only have been correct if it stated that since there is no appeal against the substantive judgment, the motion for stay of execution cannot preclude the judgment creditor from taking advantage of the window of garnishee proceedings to enforce the judgment.
Dr. Muiz Banire submitted that the current position of the Court of Appeal that there exists a distinction between execution of judgments and other methods of enforcing judgments such as garnishee proceedings is a distinction without a difference especially with respect to the targeted effect and consequence. Counsel argued that it is at best a distinction between six and half a dozen. Counsel insisted that the effort to enable a judgment creditor, by way of garnishee proceedings, still proceed to enforce a judgment against which there is an application for stay of execution cannot be correct in any way because it all boils down to imposing a fait accompli on the appellate court which the law as held by the Supreme court frowns against. He cited Vaswani v. Savalakh (Supra).
He insisted that the law has been consistently followed by the Supreme Court in subsequent cases till date.
Learned counsel argued on this point that the right to apply for stay of execution is contingent upon the filing of an appeal. Counsel submitted in conclusion that as a general proposition of law it cannot be right to say that the existence of an application for stay of proceedings does not preclude a Judgment Creditor from seeking to use garnishee proceedings to enforce the judgment.
He held true to his view that because the application for stay as filed by the Appellant in this case is premised on an appeal challenging the refusal to set aside the default judgment, there being no arguable grounds against the default judgment, the garnishee proceedings cannot be stayed.
Dr. Olumide Ayeni argued that the normal rules of jurisprudence must apply to garnishee proceedings as is applicable to stay of proceedings and other injunctive orders so that the respect for the hierarchy of court must be maintained.
Dr. Dapo Olanipekun urged this court to consider the primacy of the constitutional right of appeal, which might be hampered once a garnishee order is made absolute and executed during the pendency of an appeal against the underlying judgment. In such a situation, both the Appellant and the court will be rendered helpless and hapless, as illustrated by the recent decision of the Supreme Court in Zenith Bank v Chief Arthur John & 2 Ors. (unreported SC/519/2012 delivered on 16th January, 2015. In that case, the Supreme Court could do nothing to help an Appellant, where the Respondent had gone back to the High Court to obtain a garnishee order absolute, in enforcement of the judgment against which an appeal was pending at the Supreme Court.
All learned amici on this point, seem to agree that the judgment debtor is a necessary party to garnishee proceedings. It appears to me that the situation has become confused because of the position hitherto taken that there exists a distinction between various methods of execution of judgment and garnishee proceedings. Also, there appears to be a distinction made between ‘enforcement’ and ‘execution’ of judgment. This confusion has been brought about by some judgments of this court. See Denton-West v Muoma (Supra).
These decisions appear to somewhat give different meanings to the phrase ‘execution of judgment’ and the phrase ‘enforcement of judgment’. From the various decisions of the learned justices, while the word ‘execution’ was given a restricted meaning as those modes contained in the definition of ‘writ of execution’ in S.19 of the S & CPA, the word ‘enforcement’ was given a broader meaning. The decisions further imply that while a pending application for stay of execution will restrain a judgment creditor from ‘executing’ his judgment while using any of the methods of execution included in the definition of ‘writ of execution’ in S.19, an application for stay of execution will not restrain a judgment creditor from enforcing his judgment by using other methods of execution not contained in the definition of ‘writ of execution’ in the said S.19. For instance, it amounts to saying that garnishee proceedings which is not contained in the said definition, cannot be restrained by way of application for stay of execution as garnishee proceedings is not a method of execution of judgment.
In Re: Overseas Aviation Engineering (G.B.) Ltd (1962) 3 All ER 12 at 16. Lord Denning M.R. insisted that the word “execution” itself not being defined in the Act must have the old and general meaning of ‘enforcement’ which means giving effect to the judgment of a court and what constitutes “execution” depends on whether a judgment is sought to be enforced.
I have to agree with learned counsel particularly Dr. Banire and Dr. Olanipekun who wrote exhaustively on this point that garnishee proceedings is just another form of execution of judgment, no more, no less. S.19 of the S& CPA defines writ of execution to “include writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration”. The word “include” means that the modes of execution wherein a writ can be issued is not exhaustive.
Happily I am fortified in this view by the opinion of my Lord Galadima, JSC in P & CHS Co. Ltd. v. Migfo Nig. Ltd. (2012) 18 NWLR (Pt. 1333) Pg.555 where my Lord defined the word “includes” as follows:
“the word ‘includes’ when used in a statute or written enactment can enlarge the scope of the subject matter it qualifies or tend to qualify, only to an extent permitted by law”.
See also Uhunmwangho v. Okojie (1989) 5 NWLR (Pt. 122) Pg. 471 at 490.
My humble conviction as earlier stated that garnishee proceedings is one of the forms of execution of judgment at the end of which a writ of judgment can issue is supported by Or 8 r 7 (1) of the JER which provides as follows;
Execution against the garnishee under Section 86 of the Act shall be by a writ of execution in Form 27.
I agree with the general view that where there is a pending application for stay of execution, especially in a superior court, it will be absurd for a party to execute the same judgment by way of a Garnishee proceeding on the premise that it is an independent proceeding which is not an execution of judgment and does not require the attention of the judgment debtor. If such judgment is executed, will it not impose on the Superior Court a fait accompli? Is this not indeed the situation abhorred and condemned by the Supreme Court in Vaswani v. Savalakh (Supra). See also A.M. & Co. Nig Ltd v. Volkswagen Nig. Ltd. (2012) 11 NWLR (Pt.1312) Pg. 405.
I agree with Dr. Ikpeazu, SAN that, grant of stay of execution of a judgment clearly entails the exercise of equitable jurisdiction by a court. This is not a matter in which the discretion should be fettered. It does not appear that the problem arises from a misapprehension of the essence of the Order Nisi, leading to the Order Absolute. There is no doubt that by virtue of S.83(1) of S & CPA, the Order Nisi results in the attachment of the judgment in the custody of the Garnishee. On that there can be no doubt. At that stage, the judgment debtor’s fund is essentially frozen, if available for the purpose of satisfaction of the judgment debt following the satisfaction of the essential prerequisites. It is at the stage of showing cause that the court as a court equally vested with equitable jurisdiction, will determine what to do with the funds. Where there is an order of stay granted by a superior court, a further order that the money be paid into the court will no doubt satisfy the objective of the Garnishee proceeding. By that resort, the judgment debt is kept safe from dissipation by any of the parties to the proceedings. The pendency of an order for stay of execution, or proceeding thereof, is clearly a special circumstance on which the attached debt can be kept in safe custody, while the controversy between the parties rage. An Order Absolute must not be that the money, the subject matter of the Garnishee proceedings be paid to the judgment creditor where a cause has been shown why such funds should be kept in abeyance at least, until the merit of a validly initiated appeal and application for stay of execution is determined.
In Vaswani v. Savalakh (Supra) which I am of the humble opinion is still good law on this issue, the Supreme Court held as follows at Pg. 81-90 of (1972) 12 SC:
“When the order or judgment of a lower court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the Court of Appeal, and indeed any court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observations of Bowen L.J. in The Annot Lyle (1886) 11 P. 114 at p. 116). We take it that the word “special” in this con is not used in antithesis to the words “common” or “normal” for that would be tantamount to pre-judging the appeal on a determination of an application for a stay of execution.
When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject-matter of the proceedings or foist upon the court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo. All rules governing stay of actions or proceedings, stay of executions of judgments or orders and the like, are but corollaries of this general principle and seek to establish no other criteria than that the court, and in particular the Court of Appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the Court to assume that role. In Sanni v. Otesanya S.C.8/70 in circumstances not dissimilar, this Court ordered the setting aside of the Writ of Possession already executed and returned the parties to the original status quo pending the determination of the substantive Motion for stay of execution. In circumstances which are comparable, the West African Court of Appeal once observed as follows:
“In our opinion there is substance in the point raised by counsel for the Appellants. In view of the fact that there was an appeal pending in a suit involving ownership of the land which is the subject of the present suit the proper course for the learned trial judge to have adopted would have been to adjourn the case pending determination of the appeal, with liberty to either side to apply for the hearing to be continued. To do otherwise would work an injustice to the appellants in the event of their appeal No. 2 of 1949 being successful, as they could not then renew their claim in the present suit.”
See per Foster-Sutton P. in Shekoni v. Ojoko (1954) 14 W.A.C.A. 504).
In the present case, there is no doubt that the writ was executed and possession wrested from the applicants whilst their motion to this court for a stay of execution was pending and awaiting a date to be assigned by this court for the hearing of the application. It is true and correct that the Notice of Appeal filed would not operate as a stay of execution and Section 24 of the Supreme Court Act makes this more clear; but it is equally correct to point out that the section does not prescribe in favour of any execution being carried out during the pendency of an appeal. Indeed, by its provisions it postulates that during the pendency of an appeal the Supreme Court has got the jurisdiction to accede to an application for a stay of execution conditionally or otherwise. The section does not give any license, directly or indirectly, for the issue and execution of any processes which may ultimately be offensive. The section simply de-limits the scope of the statutory position of the parties after the filing of a Notice of Appeal. Clearly therefore to employ this section as a springboard for the issue and process of an inopportune execution would be an abuse of the process of the court. Speaking of the attitude of the courts to an abuse of process, Lord Blackburn said in The Metropolitan Bank Ltd., etc. v. Pooley (1885) 10 A.C. 210 at p. 220
“But from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing the court had the right to protect itself against such an abuse…”
See also Logan v. The Bank of Scotland No 2 (1906) 1 K.B. 141.
We think that in the circumstances of the present case, the action of the respondents constitutes an abuse of the process of the court. We think also that it is idle for the respondents to argue as learned counsel on their behalf has attempted to do, that they were not aware of the pending proceedings in this court. We think that they were so aware and even if that were not so the law clearly makes the Deputy Sheriff their agent in these matters by virtue of Order II Rule 29 of the Judgments (Enforcement) Rules, Cap. 189 which provides as follows:
“29.(1) In every case of execution all steps therein shall be taken on the demand of the party prosecuting the judgment who shall be required to provide means of identification of the party against whom process is issued. The party prosecuting the judgment is responsible for providing all service, execution and mileage fees which may be due and execution shall not be proceeded with until such fees are made available.
(2) The party prosecuting the judgment shall be liable for any damage arising from any illegal or irregular proceeding taken at his instance, but this provision shall not exempt any officer or bailiff from any liability to which he would otherwise be liable.”
More important, however, is the duty of this court, as indeed that of other courts, to ensure that its orders are not nugatory. The applicants are exercising their undoubted right of appeal. The respondents are well aware of this and the applicants are certainly entitled so to exercise that right as long as they do so in accordance with the provisions of the statute conferring the right. If they in transgression of those terms go outside them or any one of them, they are not exercising an undoubted right for all rights of appeal are statutory and no question of abuse can arise. There has been no suggestion before us that the present applicants were acting out with their scope or terms of the statute and it is manifestly the duty of the court to protect the exercise of that right and to ensure that its own orders in that connection at any stage of the lawful and regular proceedings are not rendered useless by the action or conduct of either of the parties. In Wilson v. Church No.2 (1879) 12 Ch.D 454 at 460, Cotton, L.J. stated the principle thus:
“That possibly was rather novel, but it was right, in my opinion, to make that order to prevent the appeal, if successful, from being nugatory. Acting on the same principle, I am of opinion that we ought to take care if the House of Lords should reverse our decision (and we must recognise that it may be reversed), the appeal ought not to be rendered nugatory. I am of the opinion that we ought not to allow this fund to be parted with by the trustees, for this reason: it is to be distributed among a great number of persons, and it is obvious that there would be very great difficulty in getting back the money parted with if the House of lords should be of opinion that it ought not to be divided amongst the bond-holders”
See also per Brett, L.J. ibidem at p.459. The granting of a stay of execution is a matter of discretion for the court and any action or conduct which tends to stifle the exercise of such discretion must be frowned at by the court. (See the observations of Lord Esher, M.R in the Attorney-General v. Emerson & Ors. (1890) 24 Q.B.D 56 at p. 58 also, dicta in The Ratata (1897) P.D.118 at pp131, 132). We are satisfied that in this case the respondents were aware that a motion was pending before this court for a stay of execution duly filed in accordance with law at a time when the respondents might not proceed to execution for Order IV Rule 1 of the Judgments (Enforcement) Rules, Cap 189 prescribes as follows:
“1.(1) No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or if no day has been fixed by the court for giving possession, until after the expiration of fourteen days from the day on which judgment is given.
(2) No other process shall, except by express leave of court, be issued until after the expiration of three days from the day on which judgment is given”
Thus, although Section 24 of the Supreme Court Act states that an appeal shall not operate as a stay of execution it does not interfere with proceedings or an application for a stay of execution and by the same token any action conduct of one or the other of the parties to the action taken whilst an application for a stay of execution is pending in this court, for the obvious or subtle purpose of stultifying the exercise by this court of its jurisdiction, and indeed its duty to consider the application on its merits, must not be countenanced by this court. Section 24 concerns the filing of an appeal and the effect in law of such an act on the execution of the judgment under appeal, the section also concerns the application for a stay of execution of the judgments appealed against for it gives the court the power to grant such an application. But the section, perhaps deliberately, does not say anything concerning the effect on such application to this court for a stay of execution of the judgment. Whilst by virtue of the provisions of the section, an appeal or the filing thereof could not eo ipso operate as a stay of execution, clearly in practice, the position should be different where apart from filing an application in this court, by which a stay of execution of the same judgment is sought. In such circumstances, a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that, at that stage of the proceedings, it is not possible for any party to present it with a fait accompli. We wish to make it clear that our present decision does not in the least whittle down the effect of section 24 of the Supreme Court Act. This court is loath to lay down any hard and fast rule with regard to matters on which other courts are entitled to exercise their discretion. Indeed in another matter it was urged upon this court to do so, we made the following observations:
“The learned counsel for the applicant invited us to make a definitive ruling on the question whether or not notice of appeal from the ruling of a High Court judge should operate as a stay of execution or proceedings arising out of his decision in the absence, apparently, of any contrary direction either by that High court or by the Supreme court. We are of the opinion that it would be clearly undesirable that a judge in the court below who has proper notice of an appeal to this court should nonetheless proceed with the case in disregard of such notice. Indeed, the learned trial judge, in his ruling of March 30, 1972, said
“Even if the application is genuine, there is undoubted authority for the proposition that an appeal does not operate as a stay of execution or of proceedings under the decision of the court below, except in so far as the court below or the court of Appeal may otherwise direct. There is no such directions so far. If there had been any, it would have been most discourteous of me to act in disregard of the order of a competent court of superior jurisdiction, which in this case, is the Supreme Court of Nigeria”.
We therefore think it inappropriate to lay down any general rule that notice of appeal to a superior court, if duly given to a lower court, should be deemed to operate in every case as a stay of execution of the decision of that lower court. Judges are entitled to be trusted not to disregard the existence of such notice. In any case, we are of the view that each case must be considered in the light of its own peculiar facts, and that care must be taken not to lay down a new rule”.
See Ikabala & Ors. v. Ojosipe (1972) 4 S.C. 86 at pg 92.
We still observe, however, that despite this, this court will interfere in a case involving an abuse of the process of the court and we propose to do so here. We will set aside the writ of possession which was executed in this case with such manifestly irregular design and purpose.”
In the book “Enforcement of Judgments” by Aare Afe Babalola OFR, SAN, at pg 98, it was stated thus:
It is important to note at this point that where there is a notice of appeal and a motion for stay of execution in respect of the judgment ought to be enforced by garnishee proceedings, the court will not proceed with the garnishee proceedings. See J.O. Eze& Anor v. A.G. Federation & Anor v. C.B.N. v. Afribank Plc &Ors. (Unreported) SUIT No LD. 64/97, High Court of Lagos State of 11/12/2001.
In the above case, Ade Alabi J. (as he then was) held that none service of the order nisi rendered the subsequent proceedings wherein the order nisi was made a nullity being in conflict with the fundamental conditions precedent to the exercise of the jurisdiction of the court.
I have to also agree with most amici on this point that it will appear incongruous to attempt to reconcile a situation whereby a judgment could be stayed between the parties to the proceedings and then the same judgment could still be realized by way of Garnishee proceedings commenced by one of the parties through a process whereby the successful party in the application for stay is denied the benefit of the Order made in his favour.
I have to say and humbly, too, that the pattern of the decisions to the effect that an Order for stay or an application for such order is not a bar to a Garnishee proceeding is defined and guided by the premise that the judgment debtor is a “total stranger to a Garnishee proceeding” thus, if a stranger, how can he interfere with a proceeding “extraneous to him” and by extension “extraneous to his interest”? I cannot agree with that proposition which deprives a litigant his rights provided by S.6 (b) to prosecute his rights and obligations. Thus my view is that a judgment debtor cannot possibly be a stranger in a case in which he was sued, nor a stranger in a proceeding in which the law specifically requires him to be served with an Order Nisi which can only be to enable him to exercise his constitutional right to be heard.
If he is not a stranger then he can file and argue a motion for stay of execution of the judgment by way of garnishee proceedings. Likewise, he is at liberty to go before the court before whom the garnishee proceeding is pending to pray the court that the proceedings should be vacated because there is a motion for stay of execution before that court or an appellate court. The ratio of the learned trial judge on Pg.82 of the Record already set out above shows clearly that the trial court relied heavily on Purification Techniques v. A.G. Lagos (Supra) and that prevented the court from seeing its way through to considering the fact that a motion for stay was pending at this court and the best course was to abstain from making the Garnishee Order Absolute. If the trial court had held a different view of the law, the outcome would possibly have been different. In the circumstances, the reasoning of the learned trial judge is wrong and must be overturned. The issue is resolved in favour of the Appellant.
ISSUE FOUR
Whether the learned trial judge was right in holding that the garnishee proceedings in this case is an independent action from the judgment sought to be enforced and failure to name other parties to the judgment does not invalidate the garnishee proceedings.
On this issue, learned Appellant’s counsel submitted that in the main suit, there were three judgment debtors, i.e Nigerian Breweries Plc, Manufacturers, Delivery Services and Travellers Rendezvous. In bringing the garnishee proceedings, the judgment debtor exclude the names of the other judgment debtors in his application. Only Nigerian Breweries Plc (the Appellant herein) was named and consequently, the other two judgment debtors were not served with the Order Nisi as required under the S & CPA. Even though the judgment debtor intended to execute the judgment only against the appellant, counsel submitted that failure to include the names of the other judgment debtors in the proceedings goes to the root of the case and affects its competency.
Counsel contended that much as garnishee proceedings is for the enforcement of the judgment of the trial court, it cannot be successfully prosecuted independent of the parties to the main suit, especially as the parties excluded are judgment debtors who are entitled to be served with the Order Nisi.
He cited Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924 at 926, para G; Son & Pill v. Stennings (1911) K.B. 418 at 428; Madukolu v. Nkemdilim (1962) 2 SCNL 341; (2006) 46 WRN, Pg.1 at 13 lines 5-15; Afribank (Nig) Plc v. Akwara (2006) 1 S.C (Pt.11).
On this issue, learned 1st Respondent’s counsel argued that the judgment that was sought to be enforced by way of garnishee proceedings was delivered in Suit No. EHC/236/94. This appeal emanated from the garnishee proceedings in Suit No. EHC/M/20/2009. They are two different actions or suits.
Counsel submitted that since garnishee proceedings is an independent action between a judgment creditor and a third party called the garnishee, other parties to the judgment pronouncing the debt owing, which parties are not needed or relevant to the garnishee proceedings, need not be named in the garnishee proceedings. Therefore, failure to name such other parties, in the judgment sought to be enforced in the garnishee proceedings against the 2nd Respondent herein who is the person in custody of funds for the Appellant in this case. Counsel insisted that only the Respondents herein are the necessary parties to the garnishee proceedings in this case.
Dr Alex Izinyon SAN, OFR is of the view that the necessary parties are the garnishor and the garnishee and the nominal judgment debtor. The judgment creditor can elect to proceed against any of the parties who was a defendant and a co-judgment debtor.
Dr. Ikpeazu on this issue held firmly to the view that a garnishee proceeding is not distinct from the case before the court which led to the judgment sought to be garnisheed. Without the judgment there can be no basis for a garnishee order. Senior counsel is of the view that the processes must in any event relate to the judgment it wishes to enforce being an interlocutory proceeding within a cause of action. Counsel cited UBN Plc v. B.M. Industries (2001) 13 NWLR (Pt. 731) Pg 567, Omonuwa v. Oshodin (1985) NWLR (Pt.10) 924.
Learned senior counsel P. I. N. Ikwueto, SAN submitted that the prerogative as to who to name as the garnishee in a garnishee proceedings is totally that of the judgment creditor whose sole interest is to recover the debt owed it by the judgment debtor. He opined that the learned trial judge was right in holding, in the instant case, that the garnishee proceeding in this case is an independent action from the judgment sought to be enforced and failure to name other parties to the judgment does not invalidate the garnishee proceeding. He cited Dunlop & Rankin Ltd v Hendall Steel Structures (Pitchers Ltd, Garnishees) 1957 3 All ER 344 at 348.
Ken Mozia SAN submitted on this issue that it is not in contention that there were several defendants to the suit which pronounced this debt owed against the said defendants. The holding of the learned trial judge that the garnishee proceedings in this case, being an independent action from the judgment sought to be enforced, failure to name other parties to the judgment does not invalidate the garnishee proceedings as the claim and judgment was expressed to be against the defendants jointly and or severally is correct. Counsel however conceded that the garnishee proceeding is incidental to the judgment pronouncing the debt owed. Senior counsel concluded that the judgment creditor has a right to proceed against a judgment debtor where he is one of the tortfeasor or against whom the judgment of the trial court was delivered.
Learned silk Aham Eke Ejelam SAN expressed the strong opinion that the learned trial judge was wrong in holding that the garnishee proceedings in this case is an independent action from the judgment sought to be enforced and the absence of other parties to the judgment in the garnishee proceedings does not invalidate the garnishee proceedings. Enforcement of a judgment is the final step in realizing the full impact and effect of the proceedings leading to the judgment and all the parties need to be put on notice. Failure to do that ought to invalidate such proceedings.
Dr. Muiz Banire held the view that failure to join other persons who were parties at the trial court but who are not concerned with the garnishee proceedings or against whom no claim could be made as regards garnishee orders cannot in any way be fatal to the garnishee proceedings.
Dr. Olumide Ayeni refused to agree to the proposition and urged upon this court the view that the learned trial court was wrong in holding that garnishee proceedings are separate actions from the judgment sought to be enforced and failure to name other parties to the judgment does not invalidate the garnishee proceedings.
Dr. Oladapo Olanipekun argued that even though Garnishee proceedings are a separate and distinct suit, albeit predicated on the judgment of the original suit, it is indeed impossible that the parties to the original suit are the same parties to the garnishee proceedings.
The learned trial judge reasoned as follows at Pg. 83 of the Record.
“The argument of counsel to the Judgment Debtor that the Judgment Creditor failed to name the 2nd and 3rd Defendants in my humble view do not hold water”
I concede the point that a Garnishee proceeding is a matter within a cause or cause of action, it follows that the parties to the suit ordinarily ought to be stated before the object or parties to the application ex parte prescribed by Section 83(1) of the S & CPA. In the title of the application ex parte, it is the Garnishee that will be named as the respondent, while the appellant shall be the judgment creditor.
I have to agree with Dr. Banire that the S & CPA has determined the necessary parties to garnishee proceedings with variations at different stages, namely, the judgment creditor, the garnishee and the judgment debtor, as the case may be. See S. 83, 109 of the S & CPA, Orders VIII (4), (6) and (8) of the JER. These are the statutory parties to a garnishee proceedings, most importantly, at the stage of making order absolute. The introduction of the garnishee who was not party to the proceedings at trial is a statutory variation of the party composition of the case at trial. Secondly, garnishee proceedings is not an avenue to re-litigate the matter all over. It is just a means of enforcing judgment already given in respect of which the court that gave it has become functus officio save in such circumstances where it could set aside its decision. That explains why the garnishee action is a separate and distinct action between the judgment creditor ad the garnishee with the judgment debtor as a statutory participant.
Some judgments of this court seem to hold to the view expressed in Cross River State Forestry Commission v. Anwan & Ors. (Supra) as follows:
“Garnishee proceedings is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing”
I humbly believe that these sweeping statements are one of the reasons for the seeming contradictions of judicial opinion on this point. I have to stand aloof from that sweeping statement that garnishee proceedings are distinct and separate actions from the judgment from which it emanated, because the former decision (judgment) is the basis of the present proceeding (garnishee). The processes to be filed must indicate the parties viz “In the matter”. A Garnishee proceeding is separate and distinct only to the extent that it is started as a separate process from the judgment it wants to enforce. Then the judgment creditor is only obliged to name the persons he wishes to move against to recover the judgment debt. He is not bound to move against all the judgment debtors. In this case, the 1st Respondent and judgment debtor in the original suit decided to move only against the manufacturer and the 1st Defendant and judgment debtor in the original suit. As I said earlier, the garnishor is only obliged to name the garnishee and the judgment debtor who are made necessary parties by virtue of S.83 of the S & CPA.
Besides, a judgment creditor is at liberty to enforce/execute the judgment against all or any of the joint debtors. See Mucas Hospital Ltd v. Fasuyi (2004) 8 NWLR (Pt. 874) Pg. 67 at 84-85 para. H-A.
This issue is resolved against the Appellant.
-The first, second and third issues having been resolved in favour of the Appellant, this appeal succeeds. It is hereby allowed. The ruling of the learned trial judge in suit EHC/M/20/09 delivered on 21/5/09 is hereby set aside. The garnishee Nisi and Order Absolute are hereby discharged.
The Appellant as the party who propagates the appeal has done so at snail speed. I do not think it is entitled to costs. No order as to costs.
I cannot drop my pen to conclude this judgment without expressing my profound gratitude to the amici curiae who at their own expense gave time and energy to file briefs that were brimming with brilliance, industry and learning which were of immence assistance to me in particular in the preparation of this judgment on a matter that has become in recent times of interest and controversy among members of the legal profession. In the true tradition of our noble profession, they rose up gallantly as officers in the temple of justice to assist in the just dispensation of justice. I reiterate my utmost gratitude to the galaxy of legal giants who assisted us. In particular DR. IKPEAZU, SAN who was able, in spite of the inconvenience of aviation fuel and motor fuel shortage at the time to appear in person before our humble selves. It is not superfluous but highly necessary for me to thank them all. Dr. Alex Izinyon, SAN, OFR; Dr. Onyechi Ikpeazu, SAN, OON; P. I. N. Ikwueto, Esq., SAN; Ken Mozia, Esq, SAN; Aham Eke- Ejelam, Esq., SAN; Dr. Muiz Banire, Esq.; Dr. Olumide Ayeni, Esq.; and Dr. Dapo Olanipekun, Esq. I appreciate them all.
HAMMA AKAWU BARKA, J.C.A.: I had the privilege to have read in draft the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA. Having also read the records of appeal, the arguments articulated in the briefs and the case law examined, I cannot but agree with the lead judgment that the appeal has merit, and it ought to and is hereby allowed. I will however in support comment briefly specifically on the second issue identified in the resolution of this appeal.
The facts generating the present appeal has been lucidly and elaborately set out in the lead judgment. The briefs of the parties and that of the Amicus Curie has equally been identified and analysed. The appellant in this case is the judgment debtor in suit No. E/236/94 between Chief Worhi Dumuje v. Nigerian Breweries Plc.
The simple question herein is, whether the appellant, the judgment debtor is a necessary party to the garnishee proceedings, and whether the failure to accord him the status of a necessary party as in the instant case, occasioned a miscarriage of justice.
In Wema Bank Plc. v. Brastem Sterr (Nig) Ltd. (2011) 6 NWR (Pt. 1242) at pages 80-82, this court per Nwodo JCA (of blessed memory) painstakingly spelt out the procedure for garnishee proceedings as provided for in S.83(1) of the Sheriff and Civil Process Act Cap. 407, Laws of the Federation of Nigeria, 1990, dealing with attachment of debts by garnishee order.
There is no argument to the legal requirement under S. 83(1), that the judgment creditor must commence the garnishee proceedings by way of an ex parte application for the grant of an order nisi together with the originating process or any other order affecting his interest on the judgment debtor. The consequence of such service on the judgment debtor in my view avails the judgment debtor the right to be heard as to whether the order nisi ought to be made absolute. This would be in consonance with the constitutional provision of fair hearing enshrined in Section 36(1). I anchor this view on circumstances as in the instant case, where it was alleged that some material facts were suppressed by the judgment creditor to wit, the partial execution of the judgment debt and the existence of the application for stay before the court. In my view, the service of the order nisi on the judgment debtor cannot and does not shut him up, where evidently the rule has not been conformed with, or where the rule is breached.
I would with humility suggest that the position being held that the judgment creditor is a passive party, but who must of necessity be served, before an order absolute can be made, runs counter to our legal jurisprudence which commands hearing the other side. It is my position that the judgment debtor in the circumstance is a necessary party who ought to be heard, and failing which a miscarriage of justice obviously would be occasioned.
I therefore join my Lord in expressing my gratitude to the learned friends of court, who brilliantly and magnanimously assisted the court. It is therefore for these and the more explicit and better reasons advanced in the lead judgment that I also agree that this appeal succeeds, and it is hereby allowed by me. Hence the ruling of the lower court in suit No. EHC/M/20/09 delivered on the 21/5/09 is hereby set aside. I abide by all orders made in the lead judgment.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had before now had the advantage of reading in draft the leading judgment of my Lady, Helen Morenkeji Ogunwumiju, JCA which has just been delivered. Her Ladyship has meticulously analysed and fully dealt with all the pertinent issues thrust up in this appeal. I entirely agree with the reasoning and conclusions arrived at in the lead judgment, but given the fact that the salient issues raised in the appeal remain of abiding interest in our jurisprudence I will add a brief concurring judgment. I will however not bother to redact the facts and submissions of counsel as doing so will be inutile; the facts and submissions of counsel having been elaborately set out in the lead judgment.
I will preface my short contribution by expressing my gratitude and appreciation for the hard work\and industry put in by counsel in this matter, particularly the amici curiae. Notwithstanding the short period they had as, amici curiae, to prepare and submit briefs of argument, they came up with very enriching and well researched briefs of argument. I hereby place on record the fact that I have been greatly assisted in the course of this matter by the brilliance exhibited by learned counsel. The briefs of argument were a manifestation of obvious industry. The depth of their submissions, and research well nigh made unnecessary the need for any further arduous independent researches in resolving this matter. I therefore commend all the counsel who appeared in this matter especially the amici curiae. Dr. Alex Izinyon, SAN, Dr. Onyechi Ikpeazu, SAN, P. I. N. Ikunieto, Esq., SAN, Ken Mozia, Esq., SAN Aham Eke-Ejeam, Esq. SAN, Dr. Muiz Banire, Dr. Olumide Ayeni and Dr. Dapo Olanikekun. I doff my hat (nay, my wig) to you all. I appreciate you all. Thank you immensely.
My concurring judgment will address three of the four issues of contemporary interest, namely:
1. Whether the application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment.
2. Is the Appellant in this case a necessary party to garnishee proceedings and if so, has it suffered any miscarriage of justice?
3. Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment.
ISSUE NUMBER ONE
Whether the application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment.
In simple terms, the disceptation on this issue is whether in the absence of appeal against the judgment, a stay of execution can be predicated on an appeal challenging the refusal to set aside the judgment. To properly conualize the contention in this regard, the 1st Respondent, obtained judgment against the Appellant herein. The Appellant, contending that it was not served with the requisite hearing notices before judgment was entered against it, applied to have the judgment set aside the judgment, the Appellant appealed against it, applied to have the judgment set aside ex dibito justitiae. The appellant did not appeal against the judgment.
Upon the refusal of the application to set aside the judgment, the Appellant appealed against the said decision and applied for a stay of execution of the judgment pending the determination of the said appeal. The order against the refusal to set aside the judgment was mere declaratory and not executory. It was further posited that a stay of execution of the judgment cannot be made since there was no appeal filed against the judgment.
It seems to me that in order to validly seek a stay of execution of the judgment of a court, the party dissatisfied with the judgment needs to show that he has challenged the judgment. See INTERCONTRACTORS (NIG.) LTD. v. U.A.C. (1988) 2 NWLR (Pt. 76) 303 at 324. It needs to be emphasized that in the instant matter, the stay of execution sought is not in respect of the decision refusing to set aside the judgment, which is merely declaratory and cannot be stayed: see AKIBU v. ODUNTAN (1991) 2 NWR (Pt. 171) 1 and OKOYA v. SANTILI (1990) 2 NWR (Pt. 131) 172. The application for stay of execution relates to the judgment, subject of the application to set aside, which being a money judgment is clearly executory. The argument on whether a stay of execution can be against the refusal to set aside the judgment is therefore non-sequitur as the stay of execution sought is of the judgment. The appeal against the refusal to set aside the judgment is merely the contingency on which the application to stay execution of the judgment is predicated.
The nicely dovetails into a consideration of whether an appeal against a decision to set aside the judgment of the court can afford the contingency on which the judgment can be stayed, even when there has not been an appeal against the judgment itself. It seems to be settled law that a party who is dissatisfied with the judgment of a court has one of two choices open to him, id est, either appeal against the judgment, or if applicable apply to have the judgment set aside for being a nullity. The effect of the success of either choice on the judgment is the same. The judgment will no longer subsist. See OKONIPERE v. THE STATE (2013) 10 NWLR (Pt. 1362) 209 at 220-221, AKPAN v. EFEIONG (2010) 17 NWLR (Pt. 1223) 421 and ADEYEMI-BERO v. LSDPC (2013) 8 NWLR (Pt. 1356) 232. By parity of reasoning or analogous reasoning since the effect of the success of an appeal against a judgment and the success of an application to set aside the judgment are the same, it necessarily implies that if the contingency for stay of execution can be predicated on a pending appeal, then it can equally be predicated on a pending application to set aside the judgment of a court or an appeal arising therefrom. I derive fortification for my view from the stipulations of Order II Rule 14 of the Judgments Enforcement Rules which provides as follows:
“Whenever any proceeding shall be pending in the court against the holder of a previous judgment of the court by the persons against whom the judgment was given, the court may, if it appears just and reasonable to do so, stay execution of the judgment either absolutely or on such terms as it may think just until a judgment shall be given in the pending proceeding.”
It is instructive that the above stipulation employs the phrase any proceeding. This is a phrase which is distensible to accommodate both an appeal against a judgment and an application to set aside the judgment. Accordingly, it cannot but be that an appeal against the refusal to set aside a judgment, the success of which has the same effect as an appeal against the judgment, is a valid contingency on which to predicate an application for stay of execution. It definitely affords the legal occurrence referred to in the case of OLAYINKA v. ELUSANMI (1971) 1 NMLR 277 at 279 on the basis of which a stay of execution can be predicated and anchored. In a summation, this issue number one is resolved in favour of the Appellant.
ISSUE NUMBER TWO
Is the Appellant in this case a necessary party to garnishee proceedings and if so, has it suffered any miscarriage of justice?
The contention herein flows directly from the holding of the lower court at page 83 of the records that the judgment debtor is not a necessary party in garnishee proceedings. The lower court relied on the decision of this court in PIPELINE AND PRODUCTS MARKETING CO. LTD. v. DELPHI PETROLEUM INC. (2005) 8 NWLR (Pt. 928) 458 at 484. My Lady, Ogunwumiju, JCA has in the leading judgment undertaken an odyssey of the judicial authorities in this regard, exhaustively reviewing the same. The odyssey discloses a chasm in the decided authorities on the point.
Howbeit, it is my deferential opinion that even though garnishee proceedings are directed at the garnishee to make over the funds of the judgment debtor in his possession, the brass tacks remain that the funds still belong to the judgment debtor and he is to be affected by whatever decision reached in the garnishee proceedings in relation to his funds which are in possession of the garnishee. The litigation process is not a spectator sport, it does not accommodate of having persons as cheerleaders, whose presence will only be to observe and applaud the torcadors in the litigation.
Section 83(2) of the Sheriffs and Civil Process Act stipulates that a copy of the order nisi made in garnishee proceedings is to be served on the judgment debtor. Now, if as contended that it isn’t necessary to have the judgment debtor as a party in the garnishee proceedings, what is the essence of the provision for the order nisi to be served on him, is it merely for his information or for him to attend court as a spectator to applaud and cheer on the judgment creditor and garnishee in the contention on the destination of funds which belong to him? The Latinism is natura non facit vacuum, nec lex super vacuum – nature does not admit of a vacuum and the law does nothing purposeless: ONYEJEKWE & SONS v. A-G (E.C.S.) (1979) 1 FNLR 37 at 43. It is definitely for a purpose which transcends being a mere onlooker that the law provides that the order nisi be served on the judgment debtor before a hearing on whether the order should be made absolute. This purpose seems to be in tandem with the classification of parties as set out by Oputa, JSC in GREEN v. GREEN (1987) LPELR (1338) 1 at 20 as follows:
“Proper parties are those, who though not interested in the plaintiff’s claim, are made parties for some good reasons… Desirable (parties) are those who may have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings would not be fairly dealt with.”
From the classification of parties, it is effulgent that in garnishee proceedings, the judgment debtor who may be affected by the result of the proceedings is a desirable party. The wisdom of the law in stipulating that the order nisi be served on the judgment debtor is definitely not for idle purposes. It is not floccinaucinihilipilication. It is not worthless, neither is it valueless. It has to be emphasized that in the light of the clear provisions of Order VIII Rules 6 & 8 of the Judgment Enforcement Rules, which make provisions for “hearing the judgment creditor, the garnishee and the judgment debtor…” in a situation where the garnishee either pays the judgment sum into court or disputes his liability; there is no justifiable legal basis for shutting out a judgment debtor from garnishee proceedings subsequent to service of garnishee order nisi or treating him as a stranger thereto, which evidently he is no; the enquiry ought to be on what the judgment debtor should be heard to say in the proceedings and not whether he can be heard at all, on the premise that the garnishes order nisi is not directed at him but at the garnishee. In a decision of the High Court of the Federal Capital Territory, Coram Judice, P. O. Affen, J., in Suit No. FCT/HC/GWA/M/12/2010: MALLAM ABDULKADIR AHMED v. THE COMPTROLLER GENERAL, NIGERIAN IMMIGRATION SERVICE & ANOR (unreported) delivered on 3rd May, 2011, the learned judge expressed the following opinion on this vexed issue:
“It seems to me that whilst the leading decisions on this point have donated the proposition that a judgment debtor is merely a nominal party in garnishee proceedings and has no significant role to play, it would be more appropriate to look at the question from the perspective of what a judgment debtor would be heard to urge in garnishee proceedings rather than that he should not be heard at all. There are valid grounds why a judgment debtor ought to be heard in garnishee proceedings… where a judgment debt had already been fully liquidated, but the judgment creditor, either laboring under a misconception or propelled by sheer mischief, successfully moves the court to grant a garnishee order nisi. Without a doubt, the judgment debtor is entitled exdebito justitiae to have such an order set aside on the return date by producing relevant evidence of payment of the judgment debt which he cannot do if he is not entitled to be heard in the proceedings. It would certainly amount to sheer heresy to deny the judgment debtor the right to be heard in such a situation on the ground that he is not a party to garnishee proceedings.”
I am therefore in complete agreement with the views expressed in the leading judgment on the areas in which the judgment debtor can be heard postulate that the order nisi should not be made absolute, namely:
1. Show cause why the order nisi should be set aside for want or excess of jurisdiction, for instance where the garnisheed amount is not in accordance with the judgment of the court.
2. Show that there has been a partial or full execution of the judgment subject of the garnishee proceedings.
3. Prove that proper parties are not before the court.
4. Show that there has been an order staying execution of the judgment or that there is a pending application for stay of execution of the judgment before a court.
The further point to emphasize is that the judgment debtor by virtue of being a desirable party does not have the unbridled right to challenge the judgment being enforced by the garnishee proceedings. Any challenge to the judgment will be at a different forum, definitely not at the garnishee proceedings.
The lower court after having held that the judgment debtor is not a necessary party to the garnishee proceedings, perfunctorily stated that it had meticulously considered the affidavits to show cause filed by the garnishee and judgment debtor but did not find any cause or reason to satisfy it why the order nisi should not be made absolute. The lower court however did not state why the depositions in the affidavits did not satisfy it. It seems to me that the allusion by the lower court to not being satisfied by the affidavits was merely to fulfil all righteousness since it had already held that the judgment debtor was not a necessary party. In consequence the lower court seemed not to have given a close consideration to the affidavits, which is why it did not state any reasons for its not being satisfied. This therefore occasioned a miscarriages of justice. Miscarriage of justice is a failure of justice. It is failure on the part of the court to do justice. It is justice misplaced, mis-appreciated or misappropriated. See OGUNTAYO v. ADELAJA (2009) 15 NWLR (Pt. 1163) 150 or (2009) LPELR (2353) 1 at 43-44 and ONAGORUWA v. THE STATE (1993) 7 NWLR (Pt. 303) 49. The miscarriage of justice is such that a different outcome may have been arrived at if the lower court gave due consideration of the affidavit filed by the judgment debtor. In such circumstances, an appellate court would interfere. See DAGACI OF DERE v. DAGACI OF EBWE (2006) 7 NWLR (Pt. 979) 382 or (2006) LPELR (911) 1 at 42. From the totality of the foregoing, this issue number two will be resolved against the 1st Respondent.
ISSUE NUMBER THREE
Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not prelude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment.
This issue raises the vexed question of whether garnishee proceedings should be allowed to continue when there is a pending application for stay of execution of the judgment which is being enforced by the garnishee proceedings and the pendency of which has been brought to the notice of the court.
It cannot be disputed that a garnishee proceeding is one of the means by which the judgment of a court is enforced. Any debt owed to a judgment debtor by any other person within the jurisdiction of the court can be recovered by the judgment creditor towards the satisfaction of his judgment by a process known as Attachment of Debts Garnishee Order. See SOKOTO STATE GOVT. v. KAMDAX (NIG.) LTD. (2004) 9 NWLR (Pt. 878) 34 at 375. Consequently, it follows that entire essence of the garnishee proceedings is to realize the fruits of a judgment, whether it be termed enforcement of the judgment or execution of the judgment. It is pertinent to recall the sapient legal position laid down in the case of VASWANI v. SAVALAKH (1972) 12 SC 77, which abhors any situation that will thrust a fait accompli or situation of complete helplessness on a court in its consideration of a matter before it. Where an application for stay of execution is pending and the judgment creditor by means of garnishee proceedings proceeds to enforce and recover the judgment sum, it definitely overreaches the pending application for stay of execution. This is no because enforcement or execution of the judgment having been achieved by the garnishee proceedings, there will be nothing left for the court to consider in the pending application for stay of execution since a fait accompli had thrust upon it. Mark that I have thus far used the words enforce and execute interchangeably, the reason for this will soon become evident.
The lower court at page 83 of the Records concluded as follows:
“The grant of an order absolute will not prejudice the application for stay of further execution now pending at the Court of Appeal.”
Now, how can this be so? What will be left for the Court of Appeal to consider on the application for stay of execution when the judgment sought to be stayed has been executed and enforced by the garnishee order absolute. The thinking that garnishee proceedings can be contained even in the face of a pending application for stay of execution seems to emanate from the decisions of this court to the effect that there is a clear distinction between execution of judgment and other methods of enforcing judgment, such ad garnishee proceedings. See for instance the cases of PURIFICATION TECHNIQUES NIG. LTD. v. A.G. LAGOS STATE (2004) 9 NWLR (Pt. 879) 665 at 678 E-G, N.A.O.C. v. OGINI (2011) 2 NWLR (Pt. 1230) 131 at 147 D-G, UBA v. EKANEM (2010) 6 (Pt. 1190) 207 at 224 C-E and NITEL v. I.C.I.C. (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR (Pt. 1167) 356 at 388 D to mention but a few. The perduring question however is whether indeed there is any distinction. The purpose of executing a judgment is to obtain the fruits of the judgment. The goal of enforcing a judgment by garnishee proceedings is to obtain the fruits of the judgment. So whatever the nomenclature, whether execution of judgment or enforcement of judgment, the aim is the same; reaping the fruits of the judgment. The learned counsel in this matter have argued that the distinction being made is one without a difference. I cast my lot with them. I will demonstrate why I am at one with them on this.
This reasoning behind there being a distinction between execution and garnishee proceeding as stated by Galadinma, J.C.A. (as he then was) in PURIFICATION TECHNIQUES NIG. LTD. v. A.G. LAGOS STATE (supra) at page 678 “is brought out by the definition of ‘writ of execution’ in Section 19 of the Sheriffs and Civil Process Act…”.
The said provision reads:
“writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration.”
Immediately apparent is that this provision employs the word includes in defining a writ of execution. This clearly shows that the definition therein is not exhaustive and does not allow for the operation of the maxim expressio unis est exclusio alterius – the express mention of one thing is to the exclusion of the other. In UHUNMWANGHO v. OKOJIE (1989) 5 NWLR (Pt. 122) 471 at 490, Nnaemeka-Agu, JSC stated:
“The word include is of course used in order to enlarge the meaning of the words and phrases occurring in the body of the statute. It means that the types of orders contemplated must be construed as comprehending not only the tree types orders enumerated in the definition but also other similar orders.”
See also PORTS AND CARGO HANDLING SERVICES CO. LTD. v. MIGFO NIG. LTD. (2010) 18 NWLR (Pt. 1333) 555 at 593 G-H.
It appears to me that it will consequently follow that writ of execution as defined in Section 19 of the Sheriffs and Civil Process Act is not limited to the process therein mentioned, namely, writ of attachment and sale, writ of delivering, writ of possession and writ of sequestration. The definition is expansive and can be enlarged to include garnishee proceedings, since the provision does not expressly exclude it. As already stated, garnishee proceedings is one of the means by which to reap the fruits of a judgment.
It is my deferential opinion that the semantics of the words execute and enforce is really the polemics of the half-full glass and the half-empty glass. The word execute is defined in the Dictionary.com, LLC online dictionary as, inter alia, in respect of law, to give effect or force to (a law, decree, judicial sentence, etc.). It further defines the word enforce as to obtain (payment, obedience etc.) by force or compulsion. From the dictionary meaning of these two English words it does not appear to me that whether it is termed to execute judgment by a writ of execution or to enforce judgment by garnishee proceedings, the execution and enforcement of the judgment is the same thing as they both connote obtaining the fruits of the judgment by coercion, consequent upon the failure by the judgment debtor to willingly and voluntarily comply with the terms of the judgment. In RE: OVERSEAS AVIATION ENGINEERING (G.B.) LTD (1962) 3 ALL E.R. 12 at 16, Lord Denning gave the meaning of execution in the following words:
“Execution means, quite simply, the process for enforcing or giving effect to judgment of the court and it is ‘completed’ when the judgment creditor gets the money or other thing awarded him by the judgment.”
By this dictum, to execute a judgment is to enforce the judgment. Where then is the distinction? I fail to see any. Therefore I once again, most humbly assert my agreement that the distinction between execution of judgment and garnishee proceedings is one without a difference. In so far as recovering the fruits of a judgment are concerned, execution of judgment and garnishee proceedings are two sides of the same coin. They are complementary; being complementary and aimed at the same goal, it will definitely be wrong to allow garnishee proceedings to continue in the face of a pending application for stay of execution.
Accordingly, I would resolve this issue number three in favour of the Appellant.
It is for the above reasons and the more detailed and exhaustive reasoning and conclusion in the leading judgment that I also allow this appeal. The decision of the High Court of Delta State in Suit No. EHC/M/20/99 delivered on 21st May, 2009 is hereby set aside. I abide by the consequential orders, including the orders as to costs made in the lead judgment.
Appeal allowed.
Appearances
Mrs. M. I. Osogbue with her Mr. J.O. AjahFor Appellant
AND
I. Ovwighorienta
AMICI CURIAE
Dr. Alex Izinyon, SAN, OFR;
Dr. Onyechi Ikpeazu, SAN, OON;
P. I. N. Ikwueto Esq, SAN;
Ken Mozia, Esq, SAN;
Aham Eke-Ejelam, Esq., SAN;
Dr. Muiz Banire, Esq.;
Dr. Olumide Ayeni, Esq.;
Dr. Dapo Olanipekun Esq.For Respondent
