NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY V. STEPHEN ADI ODEY & ORS
(2012)LCN/5507(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/C/45/2009
RATIO
WORDS AND PHRASES: MEANING OF A GARNISHEE PROCEEDING
Garnishee proceeding is a means by which judgment is enforced. It denoted that the judgment debtor is himself a creditor to another. Thus, the Judgment creditor has to obtain an order of Court that the debtor pays the judgment creditor by the instrumentality of attaching the debt. In RE: Diamond Bank Ltd. (2002) 17 NWLR Pt.795 page 120; Sokoto State Government vs. Kamolex (Nig.) Ltd. (2004) 9 NWLR Pt.878 page 345. PER UZO I. NDUKWE-ANYANWU, J.C.A.
PROCEEDING: NATURE OF A GARNISHEE PROCEEDING
Garnishee proceeding 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. Thus, a successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for a “garnishes order nisi” attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee.
The following procedure governs garnishee Proceedings, namely: (a) the garnishee must he personally served with the garnishee order nisi (b) upon effecting personal service of the order, the order hinds the debt in the hands of the garnishee and he must therefore pay the debt over to the judgment creditor or such amount that will cover the judgment debt; (c) if the garnishee wishes to dispute the debt or liability by it to the judgment debtors, he must appear before the court; (d) where the garnishee fails to appear in obedience to the court’s order, the court may proceed to make the order nisi absolute.
The judgment debtor indeed should not be a party in this proceeding. Though he is a party he is not the party to show cause. The judgment debtor is not a necessary party in a garnishee proceeding and, therefore, has no right of appeal in this proceeding. Section 243 of the 1999 Constitution provides as follows:
“Any right of appeal to the Court of Appeal from the decision of the Federal High Court or High Court conferred by this constitution shall be:
(a) exercised in the case of civil proceeding at the instance of a party thereto, or with leave of Court of Appeal at the instance of any other person having interest in the matter.”
If the Appellant is not supposed to be a party, can he appeal as of right in the garnishee proceeding? The answer is NO. If the answer is No, the Appellant can only appeal as a party having interest in the matter with the leave of Court. See the case of UBA vs. Ekanem (2009) 40 WRN page 150 where it was held that:
“A judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the judgment creditor in satisfaction of the judgment debt he is owing to the judgment creditor. He is not required to appear before the Court to show cause why the order nisi should be made absolute. It is the garnishee and only the garnishee that is expected to inform the Court if there is any third party’s interest in the said judgment debtor’s money in his custody. So, to all ramifications, it is only the garnishee that is expected to react if the law was not properly followed or observed.”
It has been held severally that the judgment debtor is not supposed to be a party in a garnishee proceeding. It, therefore, follows that the Appellant/judgment debtor in this case does not have any right to question the jurisdiction of the Court nor whether the hearing was fair or not. The only parties that may question the jurisdiction of the Court on whether there was fair hearing are the garnishee banks. See the unreported case of University of Uyo v. Edu Anyawana Uye (supra) where Omokri, JCA (of blessed memory) had this to say:
“It is settled law that a garnishee proceeding, although incidental to the judgment pronouncing the debt owed, the judgment debtor in this case, the appellant is not a necessary party… the order nisi and order to show cause; why the order nisi should not be made absolute was directed to the garnishee and not the appellant who is the judgment debtor. The issue that the appellant was not heard as to whether or not the decree nisi should be made absolute is misconceived, speculative and does not reflect the true position of the law. The correct position of the law is that the present appellant is not a party to the garnishee proceeding, so the question of the appellant being denied of fair hearing does not arise at all.”
This is the position of the law and this case is on all fours with the instant case. See also PPMC Ltd. vs. Delpy Petroleum Inc. (2005) 8 NWLR Pt.928 page 458.
The Appellant is not supposed to be a party in this garnishee proceeding and as such has no right to be heard in Court or any other proceeding whatsoever emanating thereto. The Appellant can only be at best a “party interested and therefore requires leave – a condition precedent to the institution of this appeal.”
Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. Thus failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the Appellate court. Nalsa & Team Associates vs. NNPC (1991) 8 NWLR Pt.212 page 652; Anyansuwa vs. Co-operative Bank Ltd. (1994) 5 NWLR Pt.347 page 742; Shaka vs. Salisu (1996) 2 NWLR Pt. 428 page 22; FBN Plc vs. Bukar (1997) 1 NWLR Pt.483 page 625; SPDC (Nig.) Ltd. vs. Katad (Nig.) Ltd. (2006) 1 NWLR Pt.960 page 198. PER UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
NIGERIAN MARITIME ADMINISTRATION AND SAFETY ACENCY Appellant(s)
AND
1. STEPHEN ADI ODEY
2. DIAMOND BANK PLC
3. OCEANIC BANK PLC
4. ZENITH BANK PLC
5. ECOBANK PLC
6. ACCESS BANK PLC Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered by Federal High Court sitting in Calabar on 14th July, 2009 in which it made a Garnishee order absolute for the payment of N10,117,135.82 to the 1st Respondent. The 1st Respondent as plaintiff recovered judgment against the Appellant in the substantive suit before the court below on 31st October, 2008 wherein the court granted the reliefs of the 1st Respondent as per the claims in the Amended Statement of claim. The trial Judge held:
“An order directing the Defendants to pay the plaintiff forthwith all his emoluments including but not restricted to all his right, privileges, entitlements and promotion which accrued to him (the 1st respondent) during the period of the illegal/unlawful dismissal from service.”
The 1st Respondent by this many letters to the Appellant for the settlement of the judgment debt fell on deaf ears. The Appellant neither responded to these letters nor paid the judgment debt as per the statement of claim.
In frustration, the 1st Respondent instituted Garnishee proceedings. Upon service of an order nisi, the Appellant challenged the competence of the entire proceedings hence this appeal.
The Appellant filed a notice and 3 grounds of appeal. The Appellant also filed his Appellant’s brief on 11th September, 2010. In it, the Appellant articulated 1 issue for determination by the Court as follows:
“Whether considering the entire circumstances of the case, the garnishee proceeding was competent, particularly, without a judgment sum and in breach of Appellant’s right to fair hearing. (Grounds 1, 2 & 3).”
The 1st Respondent filed his brief on 9th February, 2012 and deemed properly filed and served on 12th March, 2012. The 1st Respondent filed a notice of preliminary objection and the grounds upon which it was brought are as follows:
“1. The Appellant (Judgment Debtor) has no right of appeal against a garnishee order made by the trial court.
2. The Appeal as constituted is an abuse of Court process.”
The learned counsel to the 1st Respondent submitted that a judgment debtor/Appellant was not a necessary party in the garnishee proceedings before the trial Court and consequently had no right of appeal. Learned counsel referred the court to section 243 of the 1999 constitution which provided as follows:
“Any right of appeal to the Court of Appeal from the decision of the Federal High Court or High Court conferred by this constitution shall be:
(a) exercised in the case of civil proceeding at the instance of a party thereto, or with leave of Court of Appeal at the instance of any other person having interest in the matter.”
See the unreported case of University of Uyo v. Chief (Mrs) Edu Anyawana Uye and Zenith Bank Plc where Jean Omokri, JCA (of blessed memory) held as follows:
“The right of appeal is not vested simply because the learned trial Judge, through inadvertence and failure of the opposing party to object to the participation of a stranger to the proceeding, with the right of appeal. The right of appeal is statutory; it is not due process for the appellant who has no right of appeal against the garnishee order absolute to bring an appeal. Therefore, the judgment debtor has no right of appeal against the garnishee order made by the trial Court.”
See also FMBN Ltd. v. Desire Gallery Ltd. (2004) 13 NWLR Pt.891 page 522; Nitel Plc vs. ICIC (Directory Publishers) Ltd. (2009) 16 NWLR Pt.1167 page 356.
The judgment debtor/Appellant is not a party in this suit and does not have a right of appeal. See UBA vs. Ekanem (2010) 2 NWLR Pt.1117 page 181. Counsel submitted that the instant appeal was not initiated by the due process of the law upon the fulfillment of a fundamental condition precedent thereto, which robs the Court of the jurisdiction to entertain same. See Mark v. Eke (2004) 15 NMLR pt.865 page 54; Madukolu v. Nkemdilim (1962) All NLR page 587.
Counsel submitted that it is unethical for the same counsel to be appearing for different parties in the same suit. The same Counsel represented the garnishee and thereafter filed an appeal on behalf of the judgment debtor/Appellant who had no locus in the garnishee proceedings as well as this appeal. Counsel referred the Court to pages 26, 28, 52, 69, 104-109 and 120-129 of the Record of Appeal and the endorsement by Counsel on all the processes filed on behalf of the Appellant in the Appellant’s brief filed on 11th day of August, 2011. Learned Counsel called the attention of the Court to the fact that Ekpedeme Nelson-Iyoho represented the Garnishee (Diamond Bank) and is now representing the judgment debtor/Appellant who has no locus in the present appeal. Counsel referred the court to the case of Pere Roberto (Nig.) Ltd. vs. Ani (2009) 13 NWLR Pt.1159 page 522 where it was held:
“It is sharp practice for a legal practitioner to employ delay tactics in frustrating the expeditious determination of a dispute and frustrate the opposing party. In the instant case, the attitude of the appellant’s Counsel, by which he employed a delay tactic to frustrate the respondent from acquiring lawful possession of his premises (the fruit of the judgment in his favour in the instant case) under the guise of preliminary objection and the appeal…, was very appalling and left much to be desired. Such callous and unethical action amounts to sharp practice by Counsel and was condemned by the Court.”
Counsel reiterated that it is against the principles of Equity and Justice for Counsel to allow themselves to be used to play pranks in litigation in Court. See the case of Chief of Air Staff vs. Iyen (2005) 6 NWLR Pt.922 page 496 where the Supreme Court per Niki Tobi held that:
“Litigation is a straight forward legal matter of adjudication which does not, or better, should not admit pretence of tricks. Litigation is not a game of vain rhetoric or insincere polemics but one of reciprocal sincerity of the parties by placing their cards openly before the Court for the adjudication and final decision. The principle of equity and justice will not allow any party to play pranks in litigation in Court.”
Learned Counsel, therefore, finally urged the Court to uphold his preliminary Objection.
In Response, the Appellant filed a Reply to the 1st Respondent’s brief. Learned Counsel to the Appellant submitted that the 1st Respondent has misconceived the Appellant’s case. The Appellant stated that she has never been a “Judgment debtor” and that the judgment sum of N10,117,135.82 never existed in the substantive judgment of 31st October, 2008. Only such a pre-determined sum can give rise to garnishee proceeding under Section 83 of the Sheriff and Civil Process Act and Order 37 rule 1 of the Federal High Court Rules, 2009. See NDIC v. Ifediegwu (2005) 1 NWLR pt.800 page 56; PPMC Ltd. v. Delplu Pet Inc. (2005) 8 NWLR page 458. Counsel submitted that contrary to the contention of the Respondent’s Counsel, the Appellant has a right of appeal under Section 243 of the 1999 Constitution; Akande vs. G.E.C. (1979) 12 NSCC page 51.
Counsel argued that, the Appellant as a judgment debtor is a party named in the processes of this suit. That, the phrase “any other person having an interest in the matter” does not include the Appellant who is named in the process. Williams vs. Mokwe (2005) All FWLR pt.280 page 1453; Attorney-General of the Federation vs. MAN (2008) All FWLR Pt.419 page 524 PDP vs. CPC (2011) 17 NWLR Pt.1277 page 485.
Learned Counsel submitted further that the presence and participation in the garnishee proceedings has made him a party. Further Section 83(2) Sheriff and Civil Process Act, the judgment debtor must be served with the originating order nisi. Also that the person so served may appear and provide a defence or answer to the suit. See Chiazor vs. Tukur (2007) All FWLR Pt.354 page 410; Wema Bank Plc vs. Brashem-Steel Ltd. (2011) 6 NWLR Pt.1 242 page 58. Counsel tried to distinguish the case of University of Uyo vs. Uye (supra); FMBN Ltd. vs. Desire (supra); Nitel v. ICIC (supra) and UBA v. Ekanem stating that in the above cases there was a sum certain from the substantive judgment. Counsel urged the court to discountenance the arguments of the Respondent’s Counsel.
The learned Appellant’s Counsel submitted that the appearance of Counsel in both proceedings is a question of choice of the parties as to who would represent them. Appearance of Counsel neither nor constitutes an abuse of Court process nor robs the Court of its jurisdiction. See Akalonu v. Omokaro (2005) FWLR Pt.175 page 495 where the Court held thus:
“The representation of parties, contrary to Appellant’s contention, does not affect the competence or jurisdiction of the Court. It is not appearance of Counsel or the want of authority that confers on or removes jurisdiction from a Court. Appearance of Counsel may have something to do with adjudication but nothing whatsoever with the competence of the Court.”
Finally, learned Counsel urged the Court to hold that the Preliminary Objection is misplaced and ought to be dismissed.
The learned counsel to the Respondent argued his preliminary objection on garnishee proceedings.
The Respondent filed a garnishee proceeding in the High Court for a debt of N10,117,135.82 owed him by the Appellant/judgment debtor.
Garnishee proceeding is a means by which judgment is enforced. It denoted that the judgment debtor is himself a creditor to another. Thus, the Judgment creditor has to obtain an order of Court that the debtor pays the judgment creditor by the instrumentality of attaching the debt. In RE: Diamond Bank Ltd. (2002) 17 NWLR Pt.795 page 120; Sokoto State Government vs. Kamolex (Nig.) Ltd. (2004) 9 NWLR Pt.878 page 345.
The Respondent after obtaining judgment in the substantive suit now took out a garnishee proceeding against the 1st – 6th Respondents. Inadvertently the judgment debtor was included in the list of Respondents as 1st Respondent.
Garnishee proceeding 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. Thus, a successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for a “garnishes order nisi” attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee.
The following procedure governs garnishee Proceedings, namely: (a) the garnishee must he personally served with the garnishee order nisi (b) upon effecting personal service of the order, the order hinds the debt in the hands of the garnishee and he must therefore pay the debt over to the judgment creditor or such amount that will cover the judgment debt; (c) if the garnishee wishes to dispute the debt or liability by it to the judgment debtors, he must appear before the court; (d) where the garnishee fails to appear in obedience to the court’s order, the court may proceed to make the order nisi absolute.
The judgment debtor indeed should not be a party in this proceeding. Though he is a party he is not the party to show cause. The judgment debtor is not a necessary party in a garnishee proceeding and, therefore, has no right of appeal in this proceeding. Section 243 of the 1999 Constitution provides as follows:
“Any right of appeal to the Court of Appeal from the decision of the Federal High Court or High Court conferred by this constitution shall be:
(a) exercised in the case of civil proceeding at the instance of a party thereto, or with leave of Court of Appeal at the instance of any other person having interest in the matter.”
If the Appellant is not supposed to be a party, can he appeal as of right in the garnishee proceeding? The answer is NO. If the answer is No, the Appellant can only appeal as a party having interest in the matter with the leave of Court. See the case of UBA vs. Ekanem (2009) 40 WRN page 150 where it was held that:
“A judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the judgment creditor in satisfaction of the judgment debt he is owing to the judgment creditor. He is not required to appear before the Court to show cause why the order nisi should be made absolute. It is the garnishee and only the garnishee that is expected to inform the Court if there is any third party’s interest in the said judgment debtor’s money in his custody. So, to all ramifications, it is only the garnishee that is expected to react if the law was not properly followed or observed.”
It has been held severally that the judgment debtor is not supposed to be a party in a garnishee proceeding. It, therefore, follows that the Appellant/judgment debtor in this case does not have any right to question the jurisdiction of the Court nor whether the hearing was fair or not. The only parties that may question the jurisdiction of the Court on whether there was fair hearing are the garnishee banks. See the unreported case of University of Uyo v. Edu Anyawana Uye (supra) where Omokri, JCA (of blessed memory) had this to say:
“It is settled law that a garnishee proceeding, although incidental to the judgment pronouncing the debt owed, the judgment debtor in this case, the appellant is not a necessary party… the order nisi and order to show cause; why the order nisi should not be made absolute was directed to the garnishee and not the appellant who is the judgment debtor. The issue that the appellant was not heard as to whether or not the decree nisi should be made absolute is misconceived, speculative and does not reflect the true position of the law. The correct position of the law is that the present appellant is not a party to the garnishee proceeding, so the question of the appellant being denied of fair hearing does not arise at all.”
This is the position of the law and this case is on all fours with the instant case. See also PPMC Ltd. vs. Delpy Petroleum Inc. (2005) 8 NWLR Pt.928 page 458.
The Appellant is not supposed to be a party in this garnishee proceeding and as such has no right to be heard in Court or any other proceeding whatsoever emanating thereto. The Appellant can only be at best a “party interested and therefore requires leave – a condition precedent to the institution of this appeal.”
Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. Thus failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the Appellate court. Nalsa & Team Associates vs. NNPC (1991) 8 NWLR Pt.212 page 652; Anyansuwa vs. Co-operative Bank Ltd. (1994) 5 NWLR Pt.347 page 742; Shaka vs. Salisu (1996) 2 NWLR Pt. 428 page 22; FBN Plc vs. Bukar (1997) 1 NWLR Pt.483 page 625; SPDC (Nig.) Ltd. vs. Katad (Nig.) Ltd. (2006) 1 NWLR Pt.960 page 198.
The failure of the Appellant to seek leave before appealing on the said judgment of the Court renders this appeal incompetent. This Appeal incompetent, therefore, robs the court of the necessary jurisdiction to hear this appeal. All other issues in this Appeal is now an academic exercise, that does not meet the justice of this case. The preliminary objection by the Respondent is upheld. The Appeal is dismissed. The judgment of the lower Court is affirmed.
Cost to the Respondent is assessed at N50, 000.00.
MOHAMMED LAWAL GARBA, J.C.A.: A draft of the lead judgment written by my learned brother U. I. Ndukwe-Anyanwu, JCA, in this appeal was read by me and I am in total agreement with the view that not being a party to the garnishe proceedings before the Federal High Court, the Appellant lacks the requisite right to appeal against the decision therein without leave of the court. Section 243 of the Constitution does not vest a right of appeal as of right in the Appellant to appeal against a decision in respect of proceedings in which he was not a Party.
Clearly, the notice of appeal filed by the Appellant without the leave of court was and remains invalid and incompetent under the law as laid down in the judicial authorities cited in the lead judgment.
I too find merit in the preliminary objection by the 1st Respondent and uphold same. For being incompetent, the notice of appeal is struck out and the decision of the Federal High Court in the garnishee proceedings against which it was filed, remains in full force and effect.
The Respondent is entitled to costs as assessed and awarded in the lead judgment; I adopt the sum awarded in his favour.
JOSEPH TINE TUR, J.C.A.: I had the privilege of reading an advance copy of the judgment pronounced by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur with the reasoning and conclusions.
The relationship of a bank and customer has always been that of debtor and creditor. See N. Joachimson v. SWISS Bank Corporation (1921) All E.R. Rep. 92. The bank receives the customer’s moneys or drafts etc, subject to payment to the customer on demand. Where the customer is adjudged by a competent Court to be indebted to a third party, the judgment creditor can initiate garnishee proceedings to reach the debtor’s money that is thought to be held by a third party, example a bank, an institution or person. This procedure is called “garnishment” which is defined in Blacks Law Dictionary, 8th edition P.702 as:
“1. Judicial proceeding in which a creditor (or potential creditor) asks the Court to order a third party who is indebted to or is bailee for the dentor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party. A plaintiff initiates a garnishment action as a means of either prejudgment seizure or post judgment collection.”
Stephen Adi Odey (1st Respondent) obtained judgment against the appellant in the sum of N10,117,135.82 kobo on 31st October, 2008. There seemed to have been no effort by the judgment debtor to settle the debt or appeal until garnishee proceedings were commenced and completed in the Federal High Court, the learned Judge making an-order nisi and subsequently, an order absolute on 14th July, 2009. Only then did the appellant wake up from slumber to challenge the garnishee proceedings as being incompetent, failure of which has resulted in this appeal.
The procedure for garnishee proceedings is set out under order 37 of the Federal High court (civil Procedure) Rules, 2009 and reads as follows:
“1(1) where a person (in this order referred to as “the judgment creditor) has obtained a judgment or order for the payment by some other person (in this order referred to as “the judgment debtor”) of a sum of amount in value to at least N20,000.00 not being a judgment or order for the payment of money into Court, and any other person within the jurisdiction (in this order referred to as “the garnishee”) is indebted to the judgment debtor, the Court may, subject to the provisions of this order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.
(2) An order under this rule shall in the first instance be an order to show cause, specifying the time and place for farther consideration of the matter, and in the meantime attaching such debt as is mentioned in sub-rule (1) or so mach therefore as may be specified in the order, to answer the judgment or order mentioned in that and the costs of the garnishee proceedings.
(3) An order under this rule shall not require a payment which would reduce below N5,000.00 the amount standing in the name of the judgment debtor in an account with a building society or a creditor union.
2. An application for an order under rule 1 of this order shall be made ex parte supported by an affidavit:
(a) stating the name and last known address of the judgment debtor;
(b) identifying the judgment or order to be enforced and stating the amount of the judgment or order and the amount remaining unpaid under it as (at) the time of the application.
(c) stating, that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent’s information or the grounds for his belief; and
(d) stating, where the garnishee is a deposit-taking institution having more than one place of business, the name and address of the branch at which the judgment debtor’s account is believed to be held and the number of that account or, if it be the case, that all or part of this information is not Known to the deponent.”
A composite reading of the above provisions will show that the judgment creditor is to initiate proceedings against the garnishee where judgment or an order for payment by the judgment debtor has been obtained from the Court so as to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor, held by the garnishee, example bank(s), person or institution or as much as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings. The application for a garnishee order is to be made on an ex parte application to the court supported by an affidavit setting forth the facts in order 37 rules 2(a)-(d) of the Rules.
For purposes of this appeal, I shall refer to order 37 rule 3(1) (a), (b) and (2) of the Rules supra which reads as follows:
“3(1) Unless the Court otherwise directs, an order under rule 1 of this order to show cause shall be served.
(a) on the garnishee personally, at least, fifteen days before the day appointed thereby for the further consideration of the matter; and
(b) on the judgment debtor, at least seven days after the order has been served on the garnishee and at least seven days before the day appointed for the further consideration of the matter.
2. An order under rule 1 of this order shall bind in the hands of the garnishee as from the service of the order on him any debt specified in the order or so much thereof as may be so specified.”
The order to show cause when made by the judge is directed at the garnishee(s) hence they are to be personally served at least fifteen days before the day appointed thereby for the further consideration of the matter, and on the judgment debtor at least seven days after the order has been served on the garnishee and at least seven days before the day appointed for the further consideration of the matter.
The purport of serving the judgment debtor the garnishee proceedings or order is not for him or her to appear and dispute or challenge the judgment already obtained by the judgment creditor or the garnishee proceedings but that the judgment debtor should be aware of the garnishee proceedings. The judgment debtor may pay the judgment debt for the Court to terminate the garnishee proceedings, to save time and cost of litigation. This is why order 37 rule 3(1) (b) of the Rules supra requires that unless the Court otherwise directs, an order made under rule 1 to show cause must be served on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the time appointed by the order for the further consideration of the matter. Discretion vests in the Court hearing garnishee proceedings to direct that the order be served on the judgment debtor or not by the phrase “Unless the Court otherwise directs…” See Rule 5(1) of the Rules supra.
The equivalent is Order 49 rule 5(1)(b) of the Supreme Court Practice, 1997 Vol. 1 page 797 paragraph 49(3) 1 applicable in England where the learned authors have written that:
“Service of Order nisi on judgment debtor – The service on the judgment debtor should be effected by one of the methods specified in Order 65, rule 5, but there is power to dispense with such service. In practice, the Master will dispense with an affidavit of service if the judgment debtor has had notice by letter of, and has had a reasonable opportunity of attending or of instructing a solicitor to attend, the application to make the order absolute.”
In my humble view not being a party in the garnishee proceedings in the lower Court, the judgment debtor has no right of appeal except as provided under Section 243 of the Constitution of the Federal Republic of Nigeria, 1999 as altered which reads as follows:
“243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be.
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or High Court or the Court of Appeal at the instance of any other person having an interest in the matter…”
Without leave of the Court of Appeal first sought and had, this appeal is incompetent. Furthermore, to entertain this appeal will involve the Court of Appeal rehearing the garnishee proceedings as if it had been instituted before this court. See section 15 of the Court of Appeal Act, 2004.
For these and the fuller reasons given by my Lord, I also strike out the appeal and affirm the judgment of the Federal High court with costs assessed at N50,000.00.
Appearances
EKPEDEME NELSON-IYOHO, ESQFor Appellant
AND
EMMANUEL SANI, ESQ.For Respondent
