OCEANIC BANK PLC. V. MICHAEL OLUSEGUN OLADEPO & ANOR
(2012)LCN/5749(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/IL/M.64/2011
RATIO
APPEAL: WHETHER THERE IS RIGHT OF APPEAL AGAINST AN EX-PARTE
It must also be stated that there is no right of appeal against an ex-parte decision of the high court, such as the order nisi in this appeal, to the Court of Appeal – see section 14 (1) of the Court of Appeal Act, 2004. PER ITA G. MBABA, J.C.A
EVIDENCE: ON WHOM LIES THE ONUS OF PROOF WHERE A GARNISHEE ORDER NISI IS MADE AGAINST A GARNISHEE
It must be stated also that where as in this case a garnishee order nisi is made against a Garnishee and served as established in this appeal, the onus is no longer on Garnishor to place materials before the court to enable the court make the Garnishee order absolute. The onus is on the Garnishee to show cause why the order nisi should not be made absolute. If the Garnishee raised points of law or disputes militating against the attachment of monies of the judgment debtor in the Garnishee’s possession then a dispute worthy of trial or investigation in the Garnishee proceeding will arise for trial or investigation by trial Judge. See Section 87 of the Sheriff and Civil process Act. PER PETER OLABISI IGE, J.C.A
PROCEDURE: IMPORT OF GARNISHEE PROCEEDING
The import of garnishee proceeding has been eloquently explained by AKINTAN JSC in the case of Union Bank of Nigeria Plc. V. Boney Marcus Ind. Ltd. & ors. (2005) 13 NWLR (pt 943) 654 at 666 E-H where His Lordship said:
“Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which, form part of his property available in execution. It is therefore a specie of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the court has power to order a third party to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings. See Words & Phrases Legally defined 3rd edition Vol. 2, pages 313-314.
Applications for garnishee proceedings are made to the court by the judgment creditor and the order of the court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment order should not be made. If no sufficient reasons appear, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor.” PER PETER OLABISI IGE, J.C.A
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
OCEANIC BANK PLC. Appellant(s)
AND
1. MICHAEL OLUSEGUN OLADEPO
(Trading under the name and style of All-Band Company)
2. MAFOG ENGINEERING LTD.
(Magrola Arcade) Respondent(s)
ITA G. MBABA, J.C.A (Delivering the Leading Judgment): Appellant who was the Garnishee at the Kwara State High Court, brought this appeal against the decision of Honourable Justice S. D. Kawu (Acting Chief Judge) delivered on 9/2/2011, wherein the learned trial court made an earlier Garnishee Order Nisi Absolute, against the Appellant. The 1st Respondent (Judgment creditor) had obtained Judgment in suit No. KWS/129/09 in the N4, 920,000.00 (Four Million Nine Hundred and Twenty Thousand Naira) with 10% interest thereon from the date of judgment (30/9/2010), against the 2nd Respondent (judgment Debtor). The judgment was also delivered by S. D. Kawu J. The 1st Respondent, as Judgment Creditor, initiated the Garnishee proceeding against 3 banks, including the Appellant and the 2nd Respondent in Suit No. KWS/60M/2010 to recover the judgment debt from the Appellant (as one of the Garnishees) being one of the 2nd Respondent’s Bankers, in custody of the 2nd Respondents money.
The learned trial Court made the Order Nisi on 30/11/2010 against the Appellant. On the assumption that the Appellant had been served with the order Nisi to show cause, why it should not pay the judgment sum, the learned trial judge made the order Nisi, absolute, against the Appellant based on the failure of the Appellant to appear before the lower Court to show cause.
Appellant, being displeased with the Order Absolute, obtained the leave of this Court, on 17/4/2012, to appeal against the Garnishee Order Absolute. Appellant filed Notice of Appeal on 10/4/2012, pursuant to the leave granted, and disclosed 3 Grounds of Appeal, namely:
“(1) The Honourable Court erred in law by making the Garnishee Order Nisi Absolute, when it had no jurisdiction for doing so.
PARTICULARS
(a) The Respondent did not establish his entitlement to the Garnishee Order Absolute.
(b) There the is no material before the trial court showing that the garnishee is indebted to the judgment Debtor/Respondent in any way.
(c) Necessary materials for the making of the Order Absolute were not before the Court.
(d) The decision of the trial court has occasioned miscarriage of justice on the Appellant.
The Honourable trial judge erred the (sic) law by holding that the Garnishee Appellant has not shown any cause as to why the order Nisi should not be made Absolute against her thereby coming to a wrong decision which has occasioned a grave miscarriage of justice.
PARTICULARS
(a) The 1st Respondent/Judgment creditor was the Claimant in the Garnishee proceedings.
(b) The burden of proof squarely rests on the 1st Respondent/judgment creditor to establish his claim even in the garnishee proceedings.
(c) The 1st Respondent/Judgment/Creditor did not produce any material evidence before the trial court to support his claim.
(d) The decision of the trial court to the effect that the Garnishee/Appellant, did not show cause is perverse and has occasioned miscarriage of justice against the Appellant”
3. The decision is against the weight of evidence.”
For Reliefs, Appellant prayed that the Appeal be allowed and for upturning of the decision of the lower Court and dismissal of the Garnishee proceedings against the Appellant.
Appellant filed her Brief of Argument on 8/6/2012 and distilled a lone issue for determination from the three grounds, as follows:
“Whether the 1st Respondent/Garnishor/judgment Creditor placed enough materials before the trial Court to imbue that court with jurisdiction to make Garnishee order Absolute”
The 1st Respondent filed its Brief on 12/11/2012 and distilled a lone issue too for determination from grounds 1 and 2 of the Appeal that is.
“Whether the trial Court, was in making the Order Nisi, Absolute”
Upon being served with the Respondent’s Brief of argument, the Appellant filed a Reply Brief on 14/11/2012, and served same on the Respondent.
The 2nd Respondent did not file any process and obviously did not contest this appeal, which was heard on 22/11/2012, together with Appeal No CA/IL/M64A/2011, as consolidated appeals. There was evidence that hearing notice of the hearing of the appeal on 22/11/2012 had been served on the 2nd Respondent on 6/11/2012.
At the hearing, counsel adopted their Briefs and urged us accordingly, as per their Briefs.
Arguing the appeal learned Counsel for the Appellant, K. K. Eleja Esq. submitted that the Garnishee Order Nisi, upon which the Order Absolute was founded, was faulty; as such the Order Absolute cannot stand as it had nothing to stand on; that that is the whole essence of jurisdiction. He relied on the case of Madukolu v. Nkemdilim (1962) 2 ALL NLR 581 and Macfoy v. UAC Ltd (1901) 3 WLR 1405; (1962) A.C. 153.
Counsel submitted that on page 1 of the Record of Appeal, the 1st Respondent had sought an order to garnishee (sic) the said sum of N4, 920,000.00 against the Appellant and 2 other Banks (Zenith Bank PLC and Intercontinental Bank PLC), but that in none of the processes (affidavit in support) on pages 3 and 4 of the Record did the 1st Respondent furnish requisite information on the crucial requirement for making a Garnishee Order; that in particular, there was no information on
“(i) The type or nature of account maintained by the Judgment Debtor;
(ii) The account particulars i.e. the account name and number;
(iii) The amount purportedly standing to the credit of the Judgment Debtor in the account;
(iv) There is no deposition that the Appellant was/is indebted to the Judgment Debtor in any sum;
(v) Whether there is liquidity/money in the account which is accrue and payable.”
Counsel submitted that the application was therefore based on speculation and generalized statement contrary to the requirement of the law for making of a garnishee order; that the judgment creditor simply engaged in a ‘fishing expedition’ (and) ‘wild goose chase’ instead of supplying concrete materials as required by law guiding the Garnishee proceedings. He relied on section 83 of the Sherriff and Civil Process Act 2004 on the facts the judgment creditor has to disclose to support his application for Garnishee order. He also relied on the case of General Oil (Nig.) Ltd. V. Oduntan (1990) 7 NWLR (Pt.163) 423, to say that it is trite that a court will only make an order in favour of a party who has donated sufficient facts in support of his application.
Counsel further submitted that where a party is conducting his case in the absence of the other party, there must be strict compliance with the rules governing the procedure being adopted; that where there is violation of the procedural rules, such violation will not be treated as mere irregularity but rather as fatal omission upon which the order or decision made thereform will be a nullity. He relied on the English case of Hamp-Adam v. Hall (1911) K. B. 942.
Counsel said that apart from the failure to disclose the requisite facts, that the application for garnishee order was also silent on the source and grounds of the judgment creditor’s knowledge or belief of the matters required to be placed before the trial Court. He relied on The White Book Service, 2009 Sweet and Maxwell (Civil Procedure Vol. 1) page 1854, paragraph 72.3.4, where it is stated:
“The court will not grant speculative application as applications must be informative and supported by evidence.”
Counsel added that a Garnishee order can only be made in respect of a debt that is accrue and pabable. He relied on the English case of Lumley v. Orsborne (1910) 1 KB 532; Union Bank of Nigeria PLC v. Boney Marcus Industries Ltd. (2005) ALL FWLR (pt.278) 1037 at 1046.
Counsel submitted that the mere fact that the judgment creditor stated that the judgment Debtor has money that is far and above the judgment sum is not weighty and cogent enough to grant the garnishee Order.
He urged us to resolve the issue in Appellants favour and allow the appeal.
The 1st Respondent’s counsel, Ismail Abdul-Azeez Esq. submitted that the corner stone of Garnishee proceeding is section 83(1) of the Sherriff and civil Process Act, 2004. He reproduced the said section and submitted that the 1st Respondent had met the basic requirements enunciated therein before the lower court made the Garnishee order. He asserted that all the necessary facts showing that the judgment debt accrued and was subsisting and that the Appellant had custody of the judgment/debtor’s money were clearly disclosed in the supporting affidavit of the 1st Respondent. He referred us to pages 3 and 4 of the Record of Appeal and relied on the case of NITEL PLC v. I.C.I.C (D for Publishers) Ltd. (2000) 16 NWLR (pt. 1167) 356 at 388.
Counsel submitted that whereas the other 2 Garnishees filed affidavits and stated the status of the Judgment Creditor’s of accounts, to show cause at the lower Court, the defence of the Appellant at the Lower Court was that the information in respect of the 2nd Respondent could not be divulged as same was privileged, and that position later metamorphosed into non-service of the said garnishee proceedings on her!
Counsel submitted that such argument cannot avail the Appellant; that the Appellant is not correct to say that the source of the 1st Respondent information on the account was not stated or that same should be stated in the affidavit leading to the grant of the order Nisi; Counsel submitted that Section 83(1) of the Sherriff and Civil Process Act does not state that the source of information to be deposed in the accompanying affidavit for grant of the order Nisi. He relied on the case of UBA PLC V. EKANEM (2010) 6 NWLR (Pt.1190) 207 at 220.
Counsel added that the attitude of the Appellant at the lower court smacked of some hidden agenda. He urged us to resolve the issue against the Appellant and dismiss the Appeal. Appellant’s Reply Brief, filed on 14/11/12, was more of a furtherance of the Appellant’s argument in his brief. On the contention by the 1st Respondent that she had no duty to disclose her source of information in the affidavit in support of motion the ex parte on the account of the 2nd Respondent in the Appellant, Appellant’s Counsel submitted that the 1st Respondent had the duty, under Section 115 of the evidence Act, 2011 to disclose fully, necessary information, including facts and circumstances to which she deposed, forming the grounds of her belief.
RESOLUTION OF ISSUE:
It is interesting to note, from the onset, that whereas Appellants contention at the lower Court, as per her application to set aside the Garnishee Order Absolute filed, on 18/3/2011, was predicated, mainly on the complaint that the Garnishee Order Nisi was not served on the Appellant (See the grounds for the motion and the affidavit in support pages 19 – 22 of the Record of Appeal), the grounds of this Appeal and the issue therefrom rather complained that the 1st Respondent did not place enough materials before the trial court to imbue that Court with jurisdiction to make the Garnishee Order Absolute. Specifically, Counsel for the Appellant submitted that the decision of the trial judge relying on the Garnishee Order Nisi, as foundation for the order Absolute was like putting something on nothing and expecting it to stand, which is not possible; that the Order Nisi had a faulty foundation, since the 1st Respondent did not supply the requisite information as contained in Section 83 (1) of the Sherriff and Civil Process Act to enable the Court base its decision (Order Nisi). It is, therefore, obvious that, Appellant has abandoned her earlier position of non service of the process.
As per the issue for determination distilled by the Appellant, did the 1st Respondent\Judgment Creditor place enough materials before the trial Court to justify the Garnishee Order Nisi made by the trial Court on the 30/11/2010 for the Garnishee to show cause?
A peep into what transpired in the lower Court, culminating in the Garnishee Order Nisi, and later the Order Absolute, is necessary at this point. The 1st Respondents affidavit in support of the motion ex-parte filed on 25/11/2010, paragraphs 2 to 7 states, as follows:
“(2) A judgment sum of N4, 920,000.00 was entered in against the judgment debtor on 30/9/2010. A copy judgment is attached herewith as Exhibit M001.
(3) Following the said judgment, the judgment debtor has not paid any sum at all out of the judgment sum
(4) The judgment debtor currently maintains account with the Garnishee to the value far above the judgment sum with the Garnishee.
(5) The said judgment sum could only be realized via an order Nisi of this Court to that effect.
(6) The Garnishee have their offices on Wahab Folawiyo Road, Ilorin and Muritala Mohammed way, Ilorin, respectively, within the jurisdiction of this honourable Court.
(7) The judgment sum, as it were, could only be realized through these garnishee proceedings.” (See pages 3 and 4 of the Record).
It was based on those clear facts that the learned trial Court made the Order Nisi pursuant to Section 83(1) of the Sherriff and Civil process Act Cap 56, Laws of the Federation 2004, upon which the motion ex-parte was founded.
The Respondent had reproduced the relevant provision of the Section 83(1) of the Sherriff and Civil Process Act as follows:
“The Court may upon ex – parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the state order that debts owing from such third person herein after called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order, together with costs aforesaid.”
A simple juxtapositioning of the 1st Respondent’s affidavit (earlier reproduced) in this judgment with the clear provisions of the Section 83(1) of the Sherriff and Civil Process Act, can show that the requirements of the law, with regard to necessary information to sustain application for order nisi, were adequately satisfied, by the 1st Respondent, to justify the Garnishee Order Nisi, made by the learned trial Court, calling on the Appellant to show cause, why she should not pay the 2nd Respondent’s money (alleged to be in her (1st Respondent’s) custody) to satisfy the judgment debt.
Of course, the other 2 Garnishees (Zenith Bank Plc and Intercontinental Bank plc) had, in obedience to the court Order, filed affidavits and disclosed the accounts of the 2nd Respondent with them, to show cause why they should not satisfy the judgment debt. Appellant did not respond, but rather resorted what I consider to be some legal games, after the order nisi had been made.
From the further affidavit filed by the Appellant on 25/5/2011 (in support of her application to set aside the Garnishee order Absolute), it is obvious that the Appellant had been served with the Order Nisi and that she held the money of the 2nd Respondent, as it admitted that the 2nd Respondent had some account with her. See paragraphs 11 and 12 thereof (page 81 of the Record):
“(11) That I know as a fact that the judgment debtor’s account has gone dormant since the year 2009 when the last transaction took place on same.
(12) That I know as a fact that as at the commencement of the proceedings there was nothing in the judgment debtors account kept with the applicant.” (Emphasis mine).
Why did the Appellant fail or refuse to depose to affidavit to show cause and state the above facts, together with the 2nd Respondent’s account status with her before the trial Court as done by the other Garnishees? It is apparent that the Appellant had something to hide and so resorted to play for time, by waiting for the Court to make the order absolute for her to strike!. It cannot even be; factually, correct to say that there was nothing in the judgment debtor’s account with the applicant! Even if the 2nd Respondent did not have sufficient money to satisfy the judgment debt, it, certainly, cannot be true that it had nothing in the account, as the 2nd Respondent, certainly, had some money therein, either as credit or debit account!
We have stated, several times, that it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst!, It can therefore be made to pay the debt of the judgment debtor, if the court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody.
In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt.
Therefore, while alleging that the judgment Debtor does not have sufficient money in his account with the Garnishee to satisfy the judgment debt, the Garnishee has a duty to disclose the true status of the account of the judgment debtor, by exhibiting the account statement of the judgment debtor, as at the relevant date indicated on the Garnishee Order Nisi. This is to enable the trial Court to form an independent opinion as to the ability of the Garnishee to satisfy the judgment debt, either in full or in part. Failure to disclose account detail of a judgment debtor by a garnishee (where insufficient money to settle the debt is alleged) readily raises a presumption that the garnishee has something to hide, and that may be presumed against the garnishee, under-section 167 (d) of the Evidence Act, 2011.
Appellant had argued that the 1st Respondent had a duty to disclose that the Garnishee was indebted to the judgment debtor and the amount standing to the credit of the judgment debtor in the account kept by the Appellant, the account particulars etc., I have already stated in this judgment that the relevant particulars required by section 83(1) of the Sherriff and Civil Process Act, for the purpose of garnishee proceedings, had been satisfied by the 1st Respondent and that the Application at the lower Court was not speculative, simply because the account number and the exact amount to the credit of the judgment Debtor were not stated by the 1st Respondent. Of course, the information as to the account number and the exact amount in the account, were information within the exclusive knowledge of the Appellant and the 2nd Respondent, and by banking confidentialities, division of such information is not permitted to a 3rd party. The 1st Respondent was therefore not expected to have such detail.
Upon the learned trial judge being satisfied with the motion ex-parte and making the Garnishee Order Nisi, the Garnishee had a duty to obey the Court order by filing the necessary affidavit and documents (if any) to show cause why it should not be made to satisfy the judgment debt. It must also be stated that there is no right of appeal against an ex-parte decision of the high court, such as the order nisi in this appeal, to the Court of Appeal – see section 14 (1) of the Court of Appeal Act, 2004.
Thus, by engaging in the needless battle of wit/strength, as appellant did, which tantamounted to asking the trial court to review itself and/or reverse its earlier order nisi, Appellant’s application at the lower Court, became an appeal against the ex-parte order for the Garnishee to show cause. All the troubles and effort expended to prosecute the motion and this appeal would have been absolutely unnecessary, had the Appellant appeared before the lower Court to show cause.
I therefore resolve this issue against the Appellant, and hold that the appeal is devoid of merit and should be dismissed. It is accordingly dismissed with cost against the Appellant, payable to the 1st Respondent, assessed at thirty thousand naira (N30, 000.00), only.
OBANDE OGBUINYA, J.C.A: I had read, in advance, the Judgment delivered by my learned brother, Ita Mbaba, JCA, and I agree in toto with his reasons and conclusions.
It admits of no argument that the first respondent’s ex-parte application before the lower court for garnishee proceedings involved an exercise of its discretionary power. To this end, it is incumbent on him to furnish it with the enabling material facts that will serve as the launch pad for a judicial and judicious exercise of its discretion, see Menakaya v. Menakaya (2001) 16 NWLR (pt. 738) 203; Gen & Aviation Serv. Ltd. v. Tahal (2004) 10 NWLR (pt. 880) 50; Ifekandu v. Uzoegwu (2008) 15 NWLR (pt. 1111) 508.
Nevertheless, it is my considered view that the first respondent fulfilled that herculean burden, laden on him by law, vis-a-vis the provision of section 83(1) of the Sheriffs and Civil Process Act. On this score, the lower court was clothed with the requisite jurisdiction to entertain the first respondent’s application before it. The appellant’s inviting submissions to the contrary are a far cry from the law.
For this reason, added to the detailed ones assembled in the leading judgment, I, too, dismiss the appeal and abide by the consequential orders made therein.
PETER OLABISI IGE, J.C.A: This appeal is against the decision of the Kwara State High Court coram Honourable Justice S.D. Kawu (Acting Chief Judge) delivered on 9th day of February, 2011.
The facts leading to the appeal are not in dispute. The garnishor, the 1st Respondent herein obtained judgment in the sum of N4, 920,000 (four million nine hundred and twenty thousand naira) with 10% interest on it from the date of judgment which was 30th September, 2010. In his bid to enforce the judgment against the 2nd Respondent, the judgment creditor/1st Respondent approached the lower court for Garnishee order Nisi against three Banks including the 3rd Garnishee now Appellant herein.
The two other banks namely Zenith Bank and Intercontinental Bank Plc filed Affidavit showing cause and the lower court discharged the two Banks on upon their said Affidavit showing cause. They were discharged upon the application of the Garnishor’s learned counsel on 8/12/2010. The lower court believed then that the 14 days to which the Appellant was entitled from the date of service of Garnishee order Nisi has not lapsed. Though the lower court found that the 3rd Garnishee/Appellant was served on 2nd December, 2010 with the Order Nisi, it adjourned the matter till 26/1/2011.
On 26th January, 2011, the Appellant was not represented but the proof of service of hearing Notice for that date was admitted as Exhibit CTI showing that one Adeoye Bukola (secretary) of Oceanic Bank, Muritala Muhammed Road was served. The lower Court adjourned its Ruling on the application of learned counsel to the Garnishor that the Garnishee order Nisi against the Appellant be made absolute till 3/2/2011. The Ruling was eventually delivered on 9th January, 2011 wherein Kawu-J held:
“In view of the failure of the 3rd Garnishee to appear before this court to show cause upon being property served with garnishee order nisi and hearing Notice, I hereby make the garnishee order nisi absolute as prayed by the learned counsel to the garnishor”.
The content of the Notice of Appeal filed on 10th April, 2012 pursuant to the leave of this court has been copiously reproduced in the leading judgment of my Lord; (MBABA, JCA).
The only Issue formulated by the Appellant is:
“Whether the 1st Respondent/Garnishor/Judgment creditor placed enough materials before the trial Court to imbue that court with jurisdiction to make the Garnishee order absolute” while the 1st Respondent put it thus:
“Whether the trial Court was right in making the order nisi absolute”
My Lord has succinctly reviewed the arguments of learned counsel to the Appellant and the 1st Respondent. The mainstay of the argument of the learned counsel to the Appellant, K.K. Eleja Esq. is to the effect that the lower court had no materials necessary to enable him make the garnishee order nisi on 25th November, 2010 and that the order nisi was faulty. To learned counsel for the Appellant since the garnishee order nisi was faulty no garnishee order absolute could be made on it as the lower court has done, that it has nothing to stand on. The net effect of his submission was that the garnishee order absolute made on 9th February, 2011 was made without jurisdiction.
I am of the firm view that the submissions of learned counsel on the issue raised was turned into argument against the motion Ex parte made to the lower court to obtain the order nisi and against the order nisi made by the learned trial Judge. This I believe the learned counsel to the Appellant cannot do. The reason is not farfetched. This is because the Appellant did not challenge the garnishee order nisi made by the learned trial Judge by either asking or applying to the learned trial Judge to vacate or set aside the order nisi upon good cause shown for it. Rather than concentrate his argument on the issues formulated from the grounds of appeal filed, the Appellant opted to attack the rationale behind the grant of the order nisi. The submissions of learned counsel to the Appellant are therefore grossly misplaced.
It must be stated also that where as in this case a garnishee order nisi is made against a Garnishee and served as established in this appeal, the onus is no longer on Garnishor to place materials before the court to enable the court make the Garnishee order absolute. The onus is on the Garnishee to show cause why the order nisi should not be made absolute. If the Garnishee raised points of law or disputes militating against the attachment of monies of the judgment debtor in the Garnishee’s possession then a dispute worthy of trial or investigation in the Garnishee proceeding will arise for trial or investigation by trial Judge. See Section 87 of the Sheriff and Civil process Act.
The import of garnishee proceeding has been eloquently explained by AKINTAN JSC in the case of Union Bank of Nigeria Plc. V. Boney Marcus Ind. Ltd. & ors. (2005) 13 NWLR (pt 943) 654 at 666 E-H where His Lordship said:
“Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which, form part of his property available in execution. It is therefore a specie of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the court has power to order a third party to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings. See Words & Phrases Legally defined 3rd edition Vol. 2, pages 313-314.
Applications for garnishee proceedings are made to the court by the judgment creditor and the order of the court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment order should not be made. If no sufficient reasons appear, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor.”
It is for the above reasons and the fuller reasons given in the leading judgment written by my learned brother, MBABA, JCA, which I read before now I agree that the lone issue raised for determination be resolved against the Appellant. I agree with the order of dismissal of the appeal herein as made by my learned brother and the cost awarded against the Appellant in favour of the 1st Respondent.
Appearances
K. K. Eleja Esq. with him A. O. Abdulkadir Esq., Tahir Aduagba Esq. and G.O. Adigun – Ajiboye (Mrs.)For Appellant
AND
I.A. Abdul Azeez Esq. for 1st RespondentFor Respondent
