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SKYE BANK v. GTB (2020)

SKYE BANK v. GTB

(2020)LCN/15545(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, June 17, 2020

CA/AK/62/2016

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

SKYE BANK PLC APPELANT(S)

And

GUARANTY TRUST BANK PLC RESPONDENT(S)

RATIO:

WHETHER ISSUES FOR DETERMINATION IN A BRIEF MUST BE DISTILLED FROM THE GROUND(S) OF APPEAL

An issue for determination in an appeal is a substantial question of law or of fact or both arising from the grounds of appeal which when resolved one way or the other, will affect the result of the appeal. AG & PT, DELTA STATE V OGOGO (2006) NWLR, PT 964, 366. The settled principle of law is that issues for determination in a brief must be distilled or distillable from the ground(s) of appeal, otherwise they become irrelevant and go to no issue and will be discountenanced. See again AG & PT, DELTA STATE V OGOGO (SUPRA); IBATOR V BARAKURO (2007) 9 NWLR, PT 1040, 475; IDIKA & ORS V ERISI & ORS (1988) 2 NWLR, PT 78, 563 and SHEMA & ORS V FRN (2018) LPELR – 43723 (SC). PATRICIA AJUMA MAHMOUD, J.C.A.

DUTY OF COURT TOWARDS A PARTY WHO DID NOT CROSS APPEAL OR DID NOT ADDUCE EVIDENCE

Thus, an Appellant as in this case who did not adduce evidence at the hearing of a suit cannot avail himself of a general or omnibus ground of appeal. SCOA (NIG) PLC V MOHAMMED (2004) 3 NWLR, PT 862, 20. Conversely, a Respondent who also did not cross appeal and did not adduce evidence cannot avail himself or itself of this general/omnibus ground. PATRICIA AJUMA MAHMOUD, J.C.A.

POSITION OF LAW WHEN PARTY FAILS TO RESPOND TO ISSUES OR ARGUMENTS

This is indeed the position of the law as amplified by the Supreme Court in the case of MAERSK LINE & ANOR V ADDIDE (2002) 11 NWLR, PT 778, 317 where Ogundare, JSC quoted Nnaemeka Agu, JSC in OKONGWU V NNPC (1989) 4 NWLR, PT 115, 309 as follows:
“For, every material point canvassed in an appellant’s brief which is not countered in the respondent’s in deemed to have been conceded to the appellant.”
​See also NWANA & ANOR V OKOYEOCHA & ORS (2016) LPELR – 40927 (CA). PATRICIA AJUMA MAHMOUD, J.C.A.

MEANING AND PROCESS OF GANISHEE PROCEEDING

 A garnishee order nisi by Section 85 of the Sheriff and Civil Process Act is an attachment on the money of the judgment debtor in the hands of the garnishee until it shows cause why the order should not be made absolute. By Section 86 of the Act, a garnishee can react to the garnishee order nisi in any of the following three ways:
(1) Pay into Court the amount due from him to the Judgment Debtor;
(2) By an affidavit show cause or;
(3) Appear in Court, failing which the order nisi is made absolute. See CITIZENS INTERNATIONAL BANK LTD V SCOA (2006) 19 NWLR PT 1102 333. PATRICIA AJUMA MAHMOUD, J.C.A.

GARNISHEE ORDER ABSOLUTE IS A FINAL DECISION OF THE COURT, INSTANCE WHEN IT CAN BE SET ASIDE

I am well aware that a garnishee order absolute is a final decision of the Court which like all final decisions cannot be set aside by the trial Court. This was the decision of this Court in the cases of SKYE BANK PLC V DAVID & ORS (2014) LPELR – 23731 (CA); ECO BANK PLC V AKAEHOMEN (2017) LPELR – 43058 (CA) and FIRST BANK OF NIG PLC V AGIDI NIG LTD (2018) LPELR – 44997 (CA). However in the case of SUNNET SYSTEMS LTD V NERC & ANOR (2014) LPELR – 23967 (CA) this Court held that a garnishee order absolute can be set aside where same was made without jurisdiction. PATRICIA AJUMA MAHMOUD, J.C.A.

INSTANCES WHEN COURT WILL SET ASIDE ITS OWN JUGDMENT  

Every Court has inherent power to set aside its own judgment on grounds of fraud, misrepresentation or by reason of mistake or incompetence… See AGUNBIADE V OKUNOGA & CO (1961) 1 ANLR, 110; MOMODU V MOMOH (1986) 5 NWLR, PT 43, 649; IBRAHIM & ORS V GWANDU (2015) 5 NWLR, PT 1451, 1 and ALAYA V ISAAC (2019) LPELR – 46881 (CA). PATRICIA AJUMA MAHMOUD, J.C.A.

 

 

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice A. O. Odusola of the Ondo State High Court sitting at Akure delivered on the 17/12/2015. The Respondent, GTB PLC had instituted an action against one, Olu Falolu (Trading under the business name of MR Plastic Ventures) claiming N13,166,123.36 being the balance of the facility granted to them by the Respondent at its branch at Alagbaka Branch Akure. This matter came up before Hon. Justice I. A. Adegbenro of the Ondo State High Court sitting at Akure. At the conclusion of trial, the learned trial judge on the 13/03/2014 gave judgment in favour of the respondent against the said Olu Falolu in the claimed sum of N13,166,123.36 plus interest and cost. The Respondent in its desire to enjoy the fruits of its judgment commenced garnished proceedings against 19 banks inclusive of the appellant before his Lordship, Hon Justice Adegbenro. A garnishee order nisi was made against the said banks. Before the return date for the order nisi to be made absolute, his lordship Adegbenro J, retired from the Ondo State High Court bench. The matter was then eventually transferred to Hon. Justice Odusola on the 18th Nov. 2014. Before this date, on the 03/11/2014 the 9th garnishee was acquired by the 11th garnishee. There is however nothing on record to show that this change in status was communicated to the Court or formally effected by the Respondent to show the new status and hence capacity of the 9th garnishee. The Appellant along with some of the other garnishees had filed an affidavit to show cause. On its part, the appellant’s affidavit showed that the judgment debtor, Olu Falolu did not operate any account with them. Based on this and the application of the respondent’s counsel, the learned trial judge discharged the order nisi against the 11th garnishee (appellant herein) and thirteen other garnishees and thereby discontinued the garnishee proceedings against them. The trial judge however made the garnishee order absolute against the three remaining garnishees that either refused to show up or file an affidavit to show cause. The learned trial Judge surprisingly and inexplicably included the 11th garnishee as a 4th garnishee for failure to show up in Court or file an affidavit to show cause. His lordship relied on Section 86 of the Sheriff & Civil Process Act and the case of DIAMOND BANK V NDUBUSI (2002) FWLR, PT 105, 727 in declaring the garnishee order absolute against these four garnishees in the judgment sum of N13,166,123.36k plus the awarded cost of N20,000 but excluding interest.

The Appellant dissatisfied with this decision has on a notice of motion dated and filed on the 10/02/2016 appealed to this Court on two grounds. The original notice containing two grounds of appeal was filed on the 10/02/2016. By an order of Court sought and obtained on the 15/01/2018 the appellant amended its Notice of Appeal filed on the 25/04/2017 but deemed as properly filed and served on the 15/01/2018. This amended Notice upon which the appeal was heard contained the following two grounds with their particulars:-
1. The learned trial judge erred in law in making the Garnishee order absolute against the Appellant and ordering the Appellant, alongside some other Garnishees, to pay the judgment sum owed by the Judgment Debtor to the Respondent.
PARTICULARS OF ERROR
i. The appellant was served with a garnishee Nisi Order to show cause why the order should not be made absolute in the quest of the Respondent to enforce a monetary judgment obtained against the Judgment Debtor.
ii. The Appellant filed an affidavit showing cause why the Order should not be made absolute against it, to the effect that the judgment Debtor had no account with her.
iii. Sequel to the said affidavit filed by the appellant, the learned Counsel to the 1st Respondent applied to the trial Court that the garnishee proceedings be discharged against the Appellant.
iv. The learned trial Judge acknowledged in the judgment appealed against that the 11th Garnishee/Appellant filed affidavit showing cause why the order nisi should not be made absolute and thereupon discharged the Appellant from the garnishee.
v. The learned trial Judge subsequently turned round to make the garnishee order nisi absolute against the appellant, presumably on the basis that the Appellant, as 11th Garnishee, did not show up in Court.
vi. There was no proof that the Respondent as Judgment Debtor had any money in the custody of the Appellant before the garnishee order was made absolute.
vii. The judgment was not attached to any particular account in the database of the 11th Garnishee/Appellant.
viii. The 11th Garnishee/Appellant was not primarily indebted to the Judgment Creditor/Respondent.
1. The judgment is against the weight of evidence

Whereof the appellant sought an order of this Court allowing this appeal, setting aside the decision of the lower Court for the Appellant to pay the judgment sum in this case ordering the Respondent to refund to the Appellant forthwith the sum of seven million, two hundred and forty thousand, eight hundred and fifty three naira and thirty-four kobo (N7,240,853.34k) paid by the Appellant to the Respondent pursuant to execution of the judgment appealed against.

In prosecuting the appeal, the Appellant filed its amended brief of argument on the 01/07/2017. In arguing the appeal, MR. Dayo Akinlaja, SAN of counsel for Appellant adopted the brief as his legal argument in support of the appeal. In it the learned Silk formulated a sole issue for determination of the Court:-
“Whether the lower Court was not wrong in making the garnishee order nisi absolute against the Appellant and ordering the Appellant alongside some other garnishees to pay the judgment sum to the Respondent having regard to all the circumstances of this case.” (Grounds 1&2).

In answering this issue in the negative, counsel submitted that when the Appellant was served with the garnishee order nisi to show cause why the order should not be made absolute, the Appellant filed an affidavit showing cause, to the effect that the judgment debtor had no account with her. As a result of this affidavit, the Respondent’s Counsel applied to the trial Court that the garnishee proceedings be discharged against the Appellant and thirteen others. That the learned trial judge acknowledged that the 11th garnishee i.e. the Appellant was among the fourteen garnishees who had filed an affidavit to show cause and therefore discharged the Appellant from the garnishee. Counsel contended that strangely, the learned trial judge turned round without any basis to make the garnishee order nisi absolute against the Appellant. That the trial judge in essence was granting to the Respondent what he did not ask for against the settled principle of law that a Court is not a ‘Father Christmas’ or a charity organization and should not grant a relief not asked for by a party. Counsel referred to the case of NWAOGU V ATUMA (2013) AFWLR, PT 693, 1893 AT 1910-1911, PARAS H-A.

​Mr. Akinlaja SAN, further submitted that from the tenor of the order Nisi made, the expectation was that the order absolute was made against a garnishee on proof that the judgment debtor had an account with the garnishee. That the assertion of the Appellant that the judgment debtor had no account with her was not challenged, contradicted or controverted in any way. That it is indisputable that the essence of garnishee proceedings is to make a garnishee satisfy a judgment debt in it custody. Counsel placed reliance for this position on Section 83 of the Sheriffs and Civil Process Act, CAP S6 LFN, 2004. Counsel contended that in the circumstances mandating the appellant to pay for a judgment sum that was not owed by her is unjust, unwarranted and unjustified. Counsel urged the Court to resolve this sole issue in favour of the appellant, allow this appeal and order the Respondent to forthwith refund the sum of N7,240, 853.34k forcefully paid by the Appellant to the Respondent.

In opposing the appeal, the Respondent filed its brief of argument on the 10/06/2019. Same was deemed properly filed on the 17/03/2020. In opposing the appeal, MR. Femi Sarumi, of counsel for the Appellant adopted the brief as their legal arguments in opposition to the appeal. In it counsel also raised a sole issue for determination:-
“Whether the lower Court was not right to have the order absolute against the Appellant who after acquiring the 9th Garnishee (Mainstreet Bank PLC) failed to show cause on its behalf.” (Ground 1)

While conceding that the Appellant filed an affidavit to show cause before the lower Court, Counsel submitted that from the records, that affidavit was defective and therefore incompetent. That this is because the affidavit was not signed by the Commissioner for Oaths contrary to Section 56 of the Oaths Act, 1963, CAP 01, Laws of the Federation, 2004. Counsel referred to the case of DR MUHAMMED IBRAHIM ONUJABE & ORS V FATIMAH IDRIS (2011) LPELR – 4059 (CA).

​Counsel further submitted that the lower Court was right to have made the garnishee order absolute against the Appellant upon the defective and incompetent affidavit filed by it. Counsel urged the Court to resolve this sole issue in their favour and to dismiss this appeal and uphold the decision of the lower Court.

The Appellant filed a reply brief on the 26/02/2020 which was deemed on the 17/03/2020. The reply of the Appellant as I understand it is premised on two issues. The first is that the issue of Mainstreet Bank, the 9th garnishee metamorphosing to the Appellant bank not having featured at the trial Court, it is grossly misleading for the Respondent to present same as facts of this case. The second and fundamental issue is that the competence of the Appellant’s affidavit to show cause was never an issue before the trial Court or in its judgment. That that issue could not and did not form part of the grounds of this appeal. Counsel referred to the case ofLAU V PDP & ORS (2018) 4 NWLR, PT 1608, 60 AT 93-94 to submit that since this argument is not distilled from the grounds of appeal and is unrelated to the issue raised by the Appellant it must be discountenanced.

​Counsel further submitted that assuming without conceding that the said affidavit was defective as alleged and the point could be entertained in this suit, on the authority of KANO SUGAR PROCESSING CO. LTD & ANOR V ACCESS BANK PLC & ORS (2014) LPELR – 24590 (CA) and OGWE & ANOR V IGP & ANOR (2015) 7 NWLR PT 1459, 505 the errors of an officer of the Court cannot be visited on the litigant. That the Appellant filed an affidavit to show cause with the receipt of payment clearly exhibited in the records and it was on the basis of the said affidavit that the Respondent’s Counsel made an application to Court to discharge the Appellant from the garnishee proceedings. Counsel argued that the Respondent cannot be allowed to approbate and reprobate at the same time. Counsel referred to the case of OSUJI V EKEOCHA (2009) 16 NWLR, PT 1966, 81 AT 111-112, PARAS H-B. Counsel finally submitted that the respondent’s brief did not respond to the issues raised in the appellant’s brief. Counsel referred to the cases of OKONGWU V NNPC (1989) 7 SC (PT 1), 127 and MAERSK LINE V ADDIE LTD (2002) 4 SCNJ, 433 to contend that where a party fails to respond to issues raised in the brief of the opponent, he is deemed to have no answer to and has conceded to the submissions therein.

The sole issue raised by the Appellant will be used to determine this appeal. Before then I wish to look at the reply brief of the Appellant and by implication at the Respondent’s sole issue raised for determination. The Appellant has challenged this sole issue on two grounds. Firstly, that it is not distilled from either of the two grounds of appeal filed by the Appellant and secondly that it did not even arise in the trial Court. It is perhaps important to reproduce the grounds of appeal for emphasis and clarity:-
“1) The learned trial judge erred in law in making the garnishee order absolute against the appellant, alongside some other garnishees, to pay the judgment sum owed by the judgment Debtor to the Respondent.
2) The judgment is against the weight of evidence.”
For the avoidance of doubt and even at the risk of being repetitive, the sole issue raised by the Respondent is:-
“Whether the lower Court was not right to have (sic) the order absolute against the appellant who after acquiring the 9th garnishee (Mainstreet Bank PLC) failed to show cause on its behalf.” If the Respondent had stopped the formulated issue after ‘Appellant’ thus:-
“Whether the lower Court was right to have (sic) the order absolute against the appellant;” there will be no hairs raised. But the issue as formulated focuses on the acquisition of the 9th garnishee (Mainstreet Bank PLC) and the failure of the Appellant to show cause on its behalf. This issue clearly cannot be distilled from either or both of the two grounds of appeal upon which this appeal was premised. An issue for determination in an appeal is a substantial question of law or of fact or both arising from the grounds of appeal which when resolved one way or the other, will affect the result of the appeal. AG & PT, DELTA STATE V OGOGO (2006) NWLR, PT 964, 366. The settled principle of law is that issues for determination in a brief must be distilled or distillable from the ground(s) of appeal, otherwise they become irrelevant and go to no issue and will be discountenanced. See again AG & PT, DELTA STATE V OGOGO (SUPRA); IBATOR V BARAKURO (2007) 9 NWLR, PT 1040, 475; IDIKA & ORS V ERISI & ORS (1988) 2 NWLR, PT 78, 563 and SHEMA & ORS V FRN (2018) LPELR – 43723 (SC). Even from a cursory look at the respondent’s sole issue as reproduced, it is evident that the issue is not derived from ground one of the two grounds of appeal, ground 2 being the omnibus ground of appeal. An omnibus ground of appeal essentially deals with evaluation of evidence led before a trial Court. It always alleges that the decision of the trial Court is against the weight of evidence. Thus an Appellant as in this case who did not adduce evidence at the hearing of a suit cannot avail himself of a general or omnibus ground of appeal. SCOA (NIG) PLC V MOHAMMED (2004) 3 NWLR, PT 862, 20. Conversely, a Respondent who also did not cross appeal and did not adduce evidence cannot avail himself or itself of this general/omnibus ground.
​There is the ancillary issue of the effect of the respondent’s sole issue for determination not flowing from the judgment. Indeed this is a very strange brief. While the sole issue challenges the failure of the Appellant to show cause on behalf of the 9th garnishee, the body of the argument challenges the validity of the affidavit to show cause filed by the Appellant as the 11th garnishee. No mention at all was made of the 9th garnishee and its alleged metamorphosis to the 11th garnishee. Neither of these issues arises from the decision of the Court against which this appeal is filed. In the case of OSAREREN V FRN (2018) LPELR – 43839 (SC) the Supreme Court held that an issue for determination in an appeal which does not arise from the decision appealed against is incompetent. See also GWEDE V INEC & ORS (2014) LPELR – 23763 (SC) and AG & PT, DELTA STATE V OGOGO (SUPRA).
Having found that the respondent’s sole issue is not covered by ground 1, the only ground so to speak, I take a cue from the authorities referred to on this issue and I hold that the respondent’s sole issue is incompetent and it is accordingly struck out.

This leaves the sole issue as raised by the Appellant. The Learned Counsel to the Appellant has rightly submitted in my view in the reply brief that since the learned counsel to the Respondent failed to respond to any of the issues or arguments of the appellant’s counsel, he is deemed to have conceded to all the submissions therein. This is indeed the position of the law as amplified by the Supreme Court in the case of MAERSK LINE & ANOR V ADDIDE (2002) 11 NWLR, PT 778, 317 where Ogundare, JSC quoted Nnaemeka Agu, JSC in OKONGWU V NNPC (1989) 4 NWLR, PT 115, 309 as follows:
“For, every material point canvassed in an appellant’s brief which is not countered in the respondent’s in deemed to have been conceded to the appellant.”
​See also NWANA & ANOR V OKOYEOCHA & ORS (2016) LPELR – 40927 (CA).
From the findings in the above case what remains is for this Court to determine whether the submissions are correct in law and on facts before the lower Court.

This case to me is rather straight forward and there is no need to add any complications. There is no doubt that the lower Court made a garnishee order nisi against 19 banks including the Appellant who was the 11th garnishee in the proceedings. A garnishee order nisi by Section 85 of the Sheriff and Civil Process Act is an attachment on the money of the judgment debtor in the hands of the garnishee until it shows cause why the order should not be made absolute. By Section 86 of the Act, a garnishee can react to the garnishee order nisi in any of the following three ways:
(1) Pay into Court the amount due from him to the Judgment Debtor;
(2) By an affidavit show cause or;
(3) Appear in Court, failing which the order nisi is made absolute. See CITIZENS INTERNATIONAL BANK LTD V SCOA (2006) 19 NWLR PT 1102 333.

In the instant case, the Appellant filed an affidavit to show cause on the 10/04/2014 as confirmed by the receipt on page 22 of the records.
In the affidavit, the Appellant averred that the Judgment Debtor did not have any account with them. On the return date 18/11/2014, Counsel to the Judgment Creditor/Respondent who incidentally is also the Respondent’s Counsel in this matter applied to the Court to discharge the Appellant. For a better clarity I quote him:
“Mr. Sarumi: may I seek the leave of the Court to discharge the 1st, 2nd, 6th, 7th, 10th, 11th, 12th, 13th, 14th, 15th and 18th garnishees for the garnishee proceedings be discharged against them.
I also apply that the garnishee proceeding be struck out against the 19th Garnishee; while the order shall be made absolute against the others who have refused to show cause. Why the order shall not be made absolute. Says that of today that 4th, 5th, 9th and 16th garnishees have failed to file an affidavit to show cause why the order should not be made absolute. I submit that on a return date like this the only order which the Court can make in the circumstance is to make the order Nisi absolute cites U.B.A PLC VS. HON. IBORO EKENEM & OR (2009) LPELR – 8428 RATIO 6. RE-DIAMOND BANK LTD. (2002) 17 NWLR (PT. 795) AT 120.”
The learned trial judge did not give a bench ruling but adjourned the matter for ruling. In the ruling delivered on the 17/12/2015, the learned trial judge held as follows:-
“As to the 8th, 9th, 11th and 17th garnishee who refused to show up in Court or file an affidavit to show cause, the law is trite that failure of the garnishee to show cause the garnishee order Nisi becomes absolute. See Section 86 of the Sheriff and Civil Process Act; Diamond Bank v. Ndubusi (2002) F. W. L. R (pt 105) p. 727.
In the circumstance the order Nisi is hereby made absolute against the 8th, 9th, 11th and 17th garnishees. In otherwise, the 8th, 9th, 11th and 17th garnishees, First City Monument Bank, Mainstreet Bank PLC, Wema Bank PLC and Skye Bank PLC all in Akure are hereby ordered or directed to pay the judgment sum of N13, 166, 123.36k (thirteen million, one hundred and sixty-six thousand one hundred and twenty three naira thirty-six kobo) being the judgment sum and costs but excluding interest as per the judgment of this Court delivered on 13th March, 2014 together with the cost of garnishee proceedings to the judgment creditor herein.”
In my humble view, it is obviously a mistake for the learned trial Court to have discharged the Appellant in one breath and in another make it a garnishee order absolute against them. My expectation is that the Respondent’s Counsel who was also in the matter in the Court below should have conceded to this apparent mistake of the learned trial judge and saved us all the waste of this ample judicial hours and tax payers’ money since 2016 when this matter was first filed in Court. ​A Counsel is first and foremost an officer of the Court and should always see himself in that light. This duty is far above his obligation to his client. This duty is even higher when the Counsel involved is a senior counsel like the Respondent. Perhaps if Counsel had applied himself as he ought to, he could have been saved the embarrassment of the confused brief that he put up as a response. And if this was a mistake as it surely appears to be, it is my opinion that the Appellant rather than an appeal, ought to have filed an application before the lower Court to have the garnishee order nisi set aside.
I am well aware that a garnishee order absolute is a final decision of the Court which like all final decisions cannot be set aside by the trial Court. This was the decision of this Court in the cases of SKYE BANK PLC V DAVID & ORS (2014) LPELR – 23731 (CA); ECO BANK PLC V AKAEHOMEN (2017) LPELR – 43058 (CA) and FIRST BANK OF NIG PLC V AGIDI NIG LTD (2018) LPELR – 44997 (CA). However in the case of SUNNET SYSTEMS LTD V NERC & ANOR (2014) LPELR – 23967 (CA) this Court held that a garnishee order absolute can be set aside where same was made without jurisdiction. I dare say that the learned trial judge having discontinued/terminated the garnishee proceedings against the Appellant became functus officio and had no jurisdiction to make any further decisions/orders or take any more step in respect of the Appellant.
The subsequent garnishee order absolute made was therefore made without jurisdiction and could have been set aside by the trial Court on application. Every Court has inherent power to set aside its own judgment on grounds of fraud, misrepresentation or by reason of mistake or incompetence.. See AGUNBIADE V OKUNOGA & CO (1961) 1 ANLR, 110; MOMODU V MOMOH (1986) 5 NWLR, PT 43, 649; IBRAHIM & ORS V GWANDU (2015) 5 NWLR, PT 1451, 1 and ALAYA V ISAAC (2019) LPELR – 46881 (CA).
I have harped on the jurisdiction of the trial Court because it is extremely disturbing that at this time and age when state budgets are made in billions, the Court of Appeal entertains matters below N10 million. The process that allows for this should be overhauled or thrown overboard.
​This Court in my view cannot continue to spend its valuable judicial time on these kinds of matters at the expense of matters that deserve its proper and adequate attention.
In sum, I resolve the sole issue in favour of the Appellant. This appeal succeeds and it is hereby allowed. Consequently, the decision of the lower Court making the garnishee order nisi absolute against the Appellant is hereby set aside. The Respondent is hereby ordered to refund the sum of N7,240,853.34k paid to them by the Appellant forthwith as the Appellant remained discharged from the garnishee proceedings. The trial judge made a mistake in making the garnishee order nisi absolute and/or had no jurisdiction to do so.
I assess costs at N200,000 against the Respondent in favour of the Appellant.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Patricia Ajuma Mahmoud, JCA.

I agree “in toto” with His Lordship’s line of reasoning and the conclusion reached by him that the appeal is imbued with merit. I accordingly allow the appeal, set aside the judgment of the trial Court the subject of the appeal and abide by the consequential orders made in the said leading judgment including that for costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having read the lead judgment delivered by my learned brother, Patricia Ajuma Mahmoud, JCA, agreed with the reasoning and conclusion of my lord in the lead judgment.

I too found the sole issue formulated by the Respondent as incompetent and out of context of the grounds of appeal. It is therefore struck out. The sole issue distilled by the Appellant in argument of the appeal is resolved in favour of the Appellant. Consequent upon which the appeal succeeds and therefore allowed.
I abide by the order as to costs of N200,000.00 in favour of the Appellant against the Respondent.

Appearances:

Mr. Dayo Akinlaja, SAN, with him, Mrs G. Okoye, Mr. Ayobami Oladimeji and Miss Abisoye Edungbola. For Appellant(s)

Mr. Femi Sarumi For Respondent(s)