STAR DEEPWATER PETROLEUM LIMITED & ORS v. A.I.C LIMITED & ORS
(2015)LCN/7973(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of July, 2015
CA/L/115/2006
RATIO
APPEAL: GROUNDS OF APPEAL; WHETHER GROUNDS OF APPEAL ARE THE REASONS FOR CONSIDERING A DECISION OF A COURT WRONG
It is settled law that grounds of Appeal are the reasons for considering a decision of a court wrong. Thus, the purpose of the grounds is to isolate and expansiate for attack, the basis of the reasoning of the decision being challenged.
It is therefore necessary for a ground of Appeal to be couched in such a way as to attack the judgment of a court on the issue decided by it. This is so given the fact that the purpose of grounds of Appeal is to give notice to the Respondent of the errors complained of. See SARAKI VS KOTOYE (1992) 9 NWLR (PT 264) 156; NGIGE VS OBI (2006) 14 NWLR (PT 999) 1; BHOJSONS PLC VS DARUEL KALIO (2006) 5 NWLR (PT 973) 330; In the same vein, particulars of a ground of Appeal are meant to support, elucidate and explain further, the complaint raised in the ground of Appeal. Particulars on their own therefore do not take the place of grounds of appeal, neither are they classified as such but they must relate or flow from the ground of Appeal. Where the particulars of a ground of appeal are incompetent, it will also affect the competence of the ground of appeal with a resultant effect of being struck out. See OGBONNAYA VS ADA PALM (NIG) LTD (1993) 5 NWLR (PT 292) 147. FMC IDO-EKITI VS OLAJIDE (2011) 11 NWLR (PT 1258) 256; ARIBO VS CBN (2011) 12 NWLR (PT 1260) 133. In EGBIRIKA VS THE STATE (2014) LPELR (22009) SC. It was held by the Supreme Court that the particulars of a ground of Appeal must not be an independent complaint from the ground of Appeal itself but ancillary to it. Where the particulars of a ground are inconsistent with the main complaint in the ground, the particulars must be discountenanced.
In the instant case, I have perused the three grounds of appeal filed by the Appellants and the particulars supplied therein. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
COURT: DUTY OF COURT; WHETHER IT IS THE FUNCTION OF A TRIAL COURT BY ITS OWN EXERCISE AND INGENUITY TO SUPPLY THE EVIDENCE OR CARRY OUT THE MATHEMATICS OF ARRIVING AT THE ANSWER WHICH ONLY THE EVIDENCE ADDUCED CAN SUPPLY
I am therefore totally in agreement with the submission of Counsel for the Appellant that it is not the function of the trial court by its own exercise and ingenuity to supply the evidence or carry out the mathematics of arriving at the answer which only the evidence adduced can supply. See OSADIM VS TAIWO (2009) LPELR (2209) CA where this court held that it is not the function of a trial court by its own exercise to supply or imagine evidence. It is the duty of a court or tribunal or any adjudicating body to limit itself to the evidence before it and not to go fishing for evidence. See also OKOYA VS SANTILLI (1994) 4 NWLR (PT 338) 256 at 303; DORTMUND COMPANY (NIG) LTD VS ELIAS (2013) LPELR (21117) CA. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
COURT: COURT’S DISCRETION; THE NEED FOR PROPER EXERCISE OF A COURT’S DISCRETION AND WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT
In GENERAL AVIATION VS THAHAL (2004) 6 MJSC 120 At 144, THE Supreme Court per UWAIFO JSC in emphasising on the need for proper exercise of a court’s discretion held thus:-
“It is the rule of equity that where the exercise of
discretion plays a part, it is expected that the court will act in conformity with the ordinary principles upon which judicial discretion is exercised otherwise an appellate court will interfere with the decision.” I am not unaware of a long line of authorities on the principle that the Appellant court will not ordinarily interfere with the exercise of discretion by a trial court in the absence of proof that it was wrongly exercised. See ANYAH VS AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47; NGWU VS ONUIGBO (1999) 13 NWLR (PT 636) 512; SARAH VS KOTOYE (1990) 4 NWLR (PT 143) 144; UNIVERSITY OF LAGOS VS AIGORO (1985) 1 NWLR (PT 1) 143. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. STAR DEEPWATER PETROLEUM LIMITED
(An Affiliate of Chevron Corp.)
2. TEXACO NIGERIA OUTER SHELF LIMITED
(An Affiliate of Chevron Corp.)
3. PETROLEO BRASILEIRO NIGERIA LIMITED
4. STATOIL NIGERIA LIMITED
5. FAMFA OIL LIMITED Appellant(s)
AND
1. A.I.C LIMITED
2. MANNESMANN DEMAG KRAUSS-MAFFEI GMBH
3. TECHNIP OF FRANCE
4. TOTAL UPSTREAM NIGERIA LIMITED Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of A. A. ALABI CJ of the High Court of Lagos State delivered on the 4th day of November, 2005 wherein a Garnishee Order Nisi granted by the said court on 1st September, 2005 was made Absolute against the Appellant and four others.
The judgment leading to the Garnishee proceedings was delivered by C.O. SEGUN CJ of the Lagos State High Court on the 25th day of January, 2000. The said judgment was in favour of (AICTD) the Plaintiff (now 1st Respondent) and against the two original Defendants, (MANNESMANN ANLEGENBAU AG and NNPC in the following terms:-
“I will give judgment in favour of the Plaintiff against the 1st and 2nd Defendants jointly and severally as follows as contained in schedule B of their statement of claim:
(1) $ 1,222,185.40. (US Dollars)
(2) ’80 547,105.00 (sterling)
(3) DM 22,270,922.00 (Dutch Mark)
(4) N 2,764,785,40 (Naira)
(5) $ 750,000 being 5% commission of the contract D.
The first and 2nd Defendants shall pay the interest on the above sums at the rate of 13% per annum from 10th April, 1987 until payment thereof of all the sums.
Again an injunction is granted against the 2nd Defendant restraining them from paying over to the 1st Defendant the amount claimed herein until the Plaintiff is fully paid the 5% commission enumerated above.”
A Garnishee proceedings was commenced thereafter by the 1st Respondent to enforce the said judgment via a motion Exparte filed on 26-8-2005 wherein the following orders were sought against the Appellant and other companies.
“1. An Order granting leave to enforce judgment dated 25th January, 2000 in this case.
2. An Order granting leave to issue the enforcement process (Order) against Mannesmann Anlangebau A.G, Mannesmann Demag A.G and TECHNIP of France in the said Judgment of 25th January, 2000.
3. An Order of garnishee of this Court against Total Upstream Nigeria Limited in the sums of:
(1) $1, 220,185,40 40 (US Dollars)
(2) ? 547,185.00 (Sterling)
(3) DM 22,270,922,00 (Dutch marks)
(4) N 2,764,785,40 (Naira)
(5) $750,00.00 or the equivalent of which sums in Naira are as follows:
(1) N1,545,56,484.70
(2) N1,228273771.42
(3) N14,922,828,342.55
(4) N26,349,753.61
(5) N949,808,417.25
================
Total N18,672,516,769.53
================
4. An Order of garnishee of this Court against (1) Star Deep Water Petroleum Limited, (an affiliate of the Chevron Corporation) also (2) Texaco Nigeria Outer Shelf Inc. (an affiliate of Chevron Corporation) (3) Petroleo Brasileiro Nigeria Limited Statoil Nigeria Limited and (5) Famfa Oil Limited in the sums stated in paragraph 3 supra.
AND
5. For such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.
Pursuant thereto Garnishee Order Nisi was made against the Appellant and others to show cause why they should not pay to the Judgment Creditor the judgment debt owed by the judgment debtor and so much thereof as may be sufficient to satisfy the judgment.
The five garnishees (now Appellants) filed a counter affidavit showing cause why the order nisi should not be made Absolute.
The said counter affidavit of 10 paragraph sworn to by one JIROLA ONAMUTI was filed on 12-10-2005 and accompanied by a written address filed on the same date on behalf of the five garnishees. The 1st Respondent herein as the judgment creditor reacted by filing a reply to the counter affidavit of the Five garnishees on 13-10-2005. It was sworn to by one WAHEED KASALI and consists of 7 paragraphs and was also accompanied by a written address.
In a Ruling delivered on 4-11-2005 the Learned Trial Chief Judge held inter alia at page 696 of the Record of Appeal as follows:-
“From the deposition above, it is obvious to me that the second group of Garnishees are debtor liable to Technip or Techip France.
It is therefore my judgment that the sums that has become due to the contractor group is attachable.
Accordingly the Garnishee order nisi made on 1st September, 2005 is hereby made absolute.
In the result, it is hereby ordered that execution shall issue to levy the amount due from the first and second Garnishee or from any of them or so much thereof as may be sufficient to satisfy the judgment of this court delivered on Tuesday 25th January, 2000 as calculated in the table/document attached to the original affidavit in support of motion for garnishee order nisi which table or document is marked Exhibit WK 2-26 (costs assessed at N20, 000.00) is awarded in favour of the judgment creditor.
Aggrieved with the outcome of the said Ruling resulting in a garnishee order Absolute, the Appellants filed a Notice of Appeal dated 7-11-2005 which has 2 grounds of appeal. It was followed by an amended Notice of Appeal with 3 grounds filed on 23-11-2010.
The Appellants also filed a brief of argument dated 7-4-2006 and this was substituted with the Appellant’s Amended brief of Argument filed on 11-10-2011. Wherein three issues were formulated for determination as follows:-
(1) Whether the Learned trial Chief Judge was right in the circumstances of this case when he ordered that the garnishee order nisi made on 1st September, 2005 be made absolute despite the failure of the judgment creditor to establish that any monies was owing from the 1st Appellant to the 2nd subrogating party?
(2) Whether the Learned trial Chief Judge was right when he ignored established legal principles and applicable statutory provisions and ordered that the garnishee order nisi be made absolute?
(3) Whether the order of the Learned trial Chief Judge is capable of being executed in its present form as same is unclear and imprecise as to the exact amount to be levied on the garnishees?
The 1st Respondent’s amended brief of argument is dated and filed on 11-6-2014. Wherein three issues were also formulated for determination to wit:-
(1) Whether there was sufficient evidence before the trial court confirming the indebtedness of the Appellants (as a consortium) to the 3rd Respondent (2nd Subrogating party) before the garnishee order nisi made against the Appellants was made absolute?
(2) Whether under Section 87 and 88 of the Sheriffs and Civil Process Act and under the Judgment (Enforcement) Rules a judge must (automatically) in every case proceed to make enquiries before making an order absolute in a garnishee proceedings?
(3) Whether the Order of the Learned Chief Judge as to the amount payable by the garnishees is clear and capable of being executed?
The 3rd Respondent also filed a brief of argument on 10-11-11 and made its position clear by stating in page I thereof as follows:-
“The 3rd Respondent is not opposing the Appellants’ Appeal howsoever. Indeed, the 3rd respondent joins the Appellants in urging your Lordships to allow this Appeal based on the submissions and arguments contained in the Appellants’ amended brief of argument dated 10 October, 2011 which we wholly adopt and would, for emphasis, merely add a few supporting submissions of our own in this brief of argument.”
In other words, the 3rd Respondent came out fully to support the case of the Appellant who is challenging the judgment of the Lower Court by filing a brief of argument not with a prayer that the appeal be dismissed, but rather that the appeal be allowed. The law is however settled that the role of a Respondent is to defend the judgment appealed against or in the alternative remain nominal by not filing a brief against the said judgment. See N.B.C INTERGRATED GAS (NIG) LTD (2005) ALL FWLR (PT 250) Page 1 ; FEDERAL MORTGAGE FINANCE LTD VS EKPO (2005) ALL FWLR (PT 248) 1667; EMEKA VS OKADIGBO (2012) 18 NWLR (PT 1331) 55 at 97.
The end result therefore is that the 3rd Respondents brief of argument filed on 10-11-2011 is unwarranted and it is hereby discountenanced.
The 1st Respondent however raised a preliminary objection and argument in support as embedded in page 8 to 13 of the Amended brief of argument.
The said objection is directed against the grounds of appeal as contained in the Appellants Notice of Appeal. They are stated to be incompetent and ought to be struck out.
It was contended by Learned Senior Counsel for the 1st Respondent that the particulars of a ground of appeal must relate directly to the complaints contained in that ground as held in the following cases:- FEDERAL HOUSING AUTHORITY VS KALE JAIYE (2010) 19 NWLR (PT 1226) 147 at 165; BRIGGS VS C.L.O.R.S.N (2005) 12 NWLR (PT 938) 65 at 90.; ANAMBRA MOTOR MANUFACTURING CO. VS FIRST MARINA TRUST LTD (2006) 1 NWLR (PT 640) 309; BALONWU VS OBI (2007) 5 NWLR (PT 1028) 488; HONIKA SAWMILL (NIG) LTD VS HOFF (1994) 2 NWLR (PT 326)) 252; IYEN VS FRN (2010) 2 NWLR (PT 11771 at 12-13; STERINGLING ENGINEERING (NIG) LTD VS YAHAYA (2002) 2 NWLR (PT 750) 1 at 15 and NWADIKE VS IBEKWE (1987) 4 NWLR (PT 67) 718 at 747.
Referring to Ground 1 of the Notice of Appeal and the particulars therefore he submitted that there is no correlation between the grounds and the particulars which speak a different language outside the grounds and this offends Order 6 Rule 2(2) of the Court of Appeal Rules, 2011. The same goes for grounds 2 and 3 where some of the particulars are totally at variance with the grounds of Appeal. He urged that the said grounds of appeal should be struck out as the offending particulars cannot be excised from the said grounds vide NWADIKE VS IBEKWE.
As per ground 3, it was further submitted that the aspect of the order as to the calculation of interest rate payable as made by the learned Trial Chief Judge after the Ruling delivered that same day was with the consent of the counsel for the parties. He added therefore that a consent order is not appealable unless leave of court is sought and obtained and this has not been done as such renders the entire ground 3 incompetent for offending Section 241 (2) of the 1999 Constitution.
It was further submitted that ground 3 contains fresh issue not raised or canvassed in the trial court but raised for the first time on appeal without leave. Vide OJIOGU VS OJIOGU (2010) 9 NWLR (PT 1198) 1. Besides, he argued that there is no ground of appeal against the specific order of the Lower Court clarifying the simple interest rate which was made by consent of all the parties and it is not enough to make such an issue a mere particular of error. On the whole it was urged on this court to strike out the Notice of Appeal for being incompetent.
The Appellants’ response to the preliminary objection is contained in their reply brief filed on 24-6-2014 particularly at pages 1 to 5. The summary of the Appellants reply therein is that the purpose of a ground of appeal and its particulars are to ensure that the adverse party is not left in doubt as to what the Appellant’s complaint is. In this case there is no uncertainty as to what the Appellants are complaining about in any of the Appellants’ three grounds of Appeal and their respective particulars.
Furthermore, that the Appeal is competent as there is no disparity of any sort in the grounds of appeal and their particulars thereof, given that they are related to and clearly elucidated the grounds of appeal raised in the notice of appeal.
The following authorities were cited in support:- FEDERAL HOUSING AUTHORITY VS KALE JAIYE (2010) 19 NWLR (PT 1226) 147; MELAYE VS TAJUDEEN (2012) 15 NWLR (PT 1323) 315; FMC IDE EKITI VS OLAJIDE (2011) NWLR (PT 1258) 256 at 280; MONGUNO VS BLUEWHALES & CO. (2011) 2 NWLR (PT 1231) 1275; INEC VS ABUBAKAR (2009) 8 NWLR (PT 1143) 259; JUSTICE PARTY VS INEC (2006) ALL FWLR (PT 339) 907 at 931 and MILITARY ADMINISTRATOR BENUE STATE VS ALEGE (2001) 17 NWLR (PT 741) 194 at 231.
He then urged this court to dismiss the preliminary objection.
It is settled law that grounds of Appeal are the reasons for considering a decision of a court wrong. Thus, the purpose of the grounds is to isolate and expansiate for attack, the basis of the reasoning of the decision being challenged.
It is therefore necessary for a ground of Appeal to be couched in such a way as to attack the judgment of a court on the issue decided by it. This is so given the fact that the purpose of grounds of Appeal is to give notice to the Respondent of the errors complained of. See SARAKI VS KOTOYE (1992) 9 NWLR (PT 264) 156; NGIGE VS OBI (2006) 14 NWLR (PT 999) 1; BHOJSONS PLC VS DARUEL KALIO (2006) 5 NWLR (PT 973) 330;
In the same vein, particulars of a ground of Appeal are meant to support, elucidate and explain further, the complaint raised in the ground of Appeal. Particulars on their own therefore do not take the place of grounds of appeal, neither are they classified as such but they must relate or flow from the ground of Appeal. Where the particulars of a ground of appeal are incompetent, it will also affect the competence of the ground of appeal with a resultant effect of being struck out. See OGBONNAYA VS ADA PALM (NIG) LTD (1993) 5 NWLR (PT 292) 147. FMC IDO-EKITI VS OLAJIDE (2011) 11 NWLR (PT 1258) 256; ARIBO VS CBN (2011) 12 NWLR (PT 1260) 133. In EGBIRIKA VS THE STATE (2014) LPELR (22009) SC. It was held by the Supreme Court that the particulars of a ground of Appeal must not be an independent complaint from the ground of Appeal itself but ancillary to it. Where the particulars of a ground are inconsistent with the main complaint in the ground, the particulars must be discountenanced.
In the instant case, I have perused the three grounds of appeal filed by the Appellants and the particulars supplied therein.
With regards to the particulars of ground 1. I am of the view that the particulars detailed under ground 1 are not out of place except for particular (1) which deals with the decision of the Lower Court as it affects the 2nd subrogating party. In terms of alteration of parties. In the circumstance this court is minded to discountenance same while holding that the remaining three particulars can duly sustain the grounds of Appeal given that the 1st Respondent cannot claim to have been misled or misguided on the intent and purport of the said ground of appeal which he had in fact exhaustively dealt with in the 1st Respondent’s brief of argument by way of submissions. I find support for this stance in the earlier cited case of EGBIRIKA VS THE STATE Supra where the Supreme Court in resolving the issue of one incompetent particular out of the three provided under a ground of appeal held as follows at page 13 of the Record:-
“there is no doubt that particular (b) constitutes an independent complaint which ought to be the subject of separate ground of appeal, as it does not relate to the ground of appeal under which it is formulated, which complains of failure of the court below to consider the defence of accident.
The court continued at page 14 as follows:-
The law is settled that the particulars of a ground of appeal must not be an independent complaint from the ground of appeal itself but should be ancillary to it. Where the particulars of a ground are inconsistent with the main complaint in the ground, the particulars must be discountenanced. See GLOBE FISHING LTD VS COKER (1990) 7 NWLR (PT 162) 265; HONIKA SAWMILL (NIG) LTD VS HOFF (1994) 2 NWLR (PT 326) 252; BRIGGS VS C.L.O.R.S.N (2005) 12 NWLR (PT 938) 59.
Particular (b) under ground I of the Notice of Appeal is hereby struck out for being incompetent.”
Underline for emphasis.
This decision of the Supreme Court which is later in time is to my mind in consonance with the substantial justice given that it amounts to Justice on the platform of technicality to strike out a whole ground of appeal simply because one of many particulars stated therein is found to be incompetent. In humble view, one competent particular is enough to sustain a ground of appeal just like one competent ground of Appeal can adequately sustain an appeal.
Therefore while duly recognizing the authorities cited by the 1st Respondent in support of his position that once a particular ground amongst others is found to be incompetent it affects the competence of the ground of Appeal from which it is derived. I am inclined to go with the more recent 2014 decision of the Supreme Court where one incompetent particular was discountenanced and the competent ones allowed to sustain the ground of appeal.
As per Ground 2. I have no cause to agree with the stance of the 1st Respondent’s counsel that the particulars are irreconcilable with the said ground. To my mind, they provided reasonable and substantially acceptable explanation of the intent and complaint in Ground 2. The same goes with the particulars of Ground 3 which I also find satisfactory except for particular 6 which is also discountenanced. I need add here that particulars of error need not be given to the satisfaction of the opposing party before it can qualify as proper and acceptable because the determining factor is not subjective but objective. That is to say, the particulars in the main should be simple, directly and directly ancillary to the ground of Appeal in question. I therefore hold that except of particular I ground I and 6 of Ground 3 which are hereby discountenanced. See EGBIRIKA VS THE STATE (Supra) I am satisfied that the particulars provided in support of the Appellants three grounds of Appeal are competent enough to sustain them.
The 1st Respondent’s counsel also argued that the parties consented to the award of simple interest by the Lower Court which was made after it had concluded the reading of the Ruling wherein the award made was as to compound interest. He added that by virtue of Section 241(2) of the 1999 Constitution, an appeal against a consent order must be with the leave of the court which the Appellants failed to seek and obtain. The said Section 241 (2) provides that:-
(2) nothing in this section shall confer any right of appeal – – – – – –
– – – – – – – – – –
(c) Without the leave of the Federal High Court or a High Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
Going by the provisions of the Constitution as set out above, what transpired on the 4-11-2005 after the learned trial chief judge had delivered his Ruling and signed same does not constitute a decision obtained by consent of the parties.
From page 696 to 697 of the Record, what transpired after reading of the said Ruling was as follows:-
“Learned Counsel for the Judgment Creditor, Professor S. A. ADESANYA informed the court that the judgment debt was calculated in compound interest instead of simple interest.
Mr. AJU says he reserved his comments. Mr. OWOLABI also said he would reserve his comments.
Chief SOETAN observed that no one complains if he is asked to pay less.
COURT = This court agrees that the interest can only be calculated in simple interest as that is the judgment delivered on 25th January 2000 by this court.
If the judgment is calculated in compound interest, it is wrong.
Signed.
From what transpired in the court on 4-11-2005 as set out above, I find no basis to term the subsequent decision of the court as one based on the consent of the parties. To my mind, the element of a consensus ad idem is lacking in the whole transaction and as such I refuse to agree with the submission of the counsel for the 1st Respondent that it was a consent order for which leave must be obtained before an appeal could be raised on it. I however agree that since there is no appeal against the “post Ruling” decision of the Lower Court that simple interest is charged on the judgment debt, raising it as a particular to ground 3 does not suffice because it constitutes a specific finding of the Lower Court which qualifies it to be raised as a ground of Appeal and when such is not done the said specific decision remains binding and subsisting. See KOYA VS UBA LTD (1997) 1 NWLR (PT 481) 251.
On the whole the preliminary objection succeeds in part but without prejudice to the competence of the grounds of Appeal -which I hold suffices to sustain the appeal.
On the substantive Appeal. The three issues formulated by the Appellants and the 1st Respondent are similar in con. I will however adopt the three issues raised by in the 1st Respondent’s brief in the resolution of this Appeal.
ISSUE ONE: dwelling on the issue Learned Counsel for the Appellants engaged in a review of the findings of the Learned Trial Chief Judge as contained in the Ruling, particularly at pages 680-685 of the Record wherein the Learned Trial Judge concluded that the entity sought to be made liable by the judgment creditor is Technip -after finding that what has happened in the case with the interchangeable use of name “Technip France or Technip was a question of misnomer.
Learned Counsel then referred to the evidence put forward by the five garnishees in the counter affidavits sworn to by JIROLA ONAMUTI and OLUWATOYIN ADENUGBA which is to the effect that the 1st Appellant “Star Deep Waters Petroleum Limited” on behalf of the five garnishees entered into a contract known as a “CONTRACT NO AGB -C- 03-035 with Technip France Organized under the laws of France and Technip Offshore UK Limited organized under the laws of England.
It was then submitted that since the entity intended to be joined as 2nd subrogating party (and in respect of which the prayer by judgment creditor for amendment was granted) was Technip, the law relating to misnomer could only logically be applied if the contract was with Technip and that was the essence of the judgment Creditor’s submission at page 640 of the Record. It follows therefore that it was not open to the Learned Trial Chief Judge to grant what was not asked for because the law is trite that a court should not grant a relief not sought by a party or make a case for such party. He cited the following authorities:- AFROTEC TECHNICAL SERVICES (NIG) LTD VS M.I.A & SONS LTD (2000) 15 NWLR (PT 750) 775; ALHAJI OTARU & SONS LTD VS IDIRIS (1999)6 NWLR (PT 606) 330 and NIGERIA AIRPORT AUTHOTITY VS ORJIAKOR (1998) 6 NWLR (PT 553) 265.
It was submitted that in the course of his oral argument, the judgment creditor strenuously maintained that his case was that the sums owing were due to Technip but the Lower Court in it’s Ruling held that the said sums were owing to Technip or Technip France notwithstanding the evidence before it that Technip and Technip France were separate and distinct entities. He also submitted that it is not the function of a trial court to supply the evidence before it that Technip and Technip France were separate and distinct entities. He added that it is not the function of a trial court to supply the evidence or carry out the mathematics of arriving at the answer which only evidence adduced can supply. Vide ADELEKE VS IYANDA (1994) 9 NWLR (PT 336) 133; UGOCHUWKU VS COOP & COOM. BANK LTD (1996) 6 NWLR (PT 456) 524; KATO VS CBN (1991) 9 NWLR (PT 214) 126; JERIC (NIG) LTD VS UBN PLC (2002) 15 NWLR (PT 2910 447.
He added that, the Learned Trial Chief Judge ought to have accepted the fact that Technip, Technip France and Technip German GmbH are separate entities and not to assume that they are related and even if they are related the law is that holding company and its subsidiaries are each a distinct and separate legal personality with their own individual assets and liabilities. See M .O KANU & SONS CO. LTD VS FBN PLC (1998) 11 NWLR (PT 572) 112 at 129; MUSA V EHIADIAMHEN (1994) 3 NWLR (PT 334) 544; UNION BEVERAGES LTD VS PEPSI COLA INTERNATIONAL LIMITED (1994) 3 NWLR (PT 330) 1 at 16.
In their ISSUE I, Learned Senior Counsel for the 1st Respondent noted that the Appellants grouse in the said issue is that the Learned Trial Chief Judge was wrong in making the Order nisi absolute when the judgment creditor had failed to establish that any sum of money was owed by the garnishees to the 2nd subrogating party. (3rd respondent herein).
It was then pointed out that in paragraph 5 of their affidavit to show cause, the Appellants admitted that the 1st Respondent entered into a contract with “Technip France and Technip offshore U.K. Limited” in respect of “certain subsea facilities in respect of the offshore project known as the AGBAMI PROJECT”, which same project was widely reported to have been awarded to the 2nd subrogating party (3rd Respondent) and the said 3rd Respondent did not deny that the contracts were awarded to “Technip” but only sought to confuse the court by asserting that the said contract was awarded to Technip of France and not Technip.
Learned Senior Counsel then referred to the portion of the Ruling of the Lower Court at page 695, lines 1-19 as it affects the 1st garnishee to submit that the same reasoning therein applies in the case of the 2nd set of garnishees, that is the Appellants therein.
It was further submitted that the trial court’s finding of indebtedness was amply borne out of the documentary evidence before the Lower Court as tendered by the 1st Respondent and the 3rd respondent (Technip) and the only possible documentary evidence which the Appellants would have tendered to counter or controvert the finding of the Lower Court is the AGBAMI CONTRACT with a view to showing that the contract did not include Technip but it was never tendered.
He added that the amendment of the name of the 2nd subrogating party to “Technip simpliciter relates back to the filing of the 1st Respondent’s motion exparte to commence the garnishee proceedings. Vide OLANIRAN VS ADEBAYO (2008) 19 WRN 95 at 106.
Further submission was made that the 1st respondent having established there was a contract between the 3rd Respondent herein (Technip and its Affiliates) and the Appellants, they ought to produce any evidence which contradicted that of the 1st Respondent. Also that the burden imposed under Section 83 (1) of the Sheriff and Civil Process Act to show cause is not discharged by mere bland denial in the face of overwhelming documentary evidence placed before the court and by their mere denial that debt was due, they lost the chance to suggest to the court that a third party had a claim or lien on the debt and also leaves the court with no option but to discountenance the denial as bland. Vide Halsbury’s Laws of England, 4th Edition Vol. 17 paragraph 537 at page 335.
Learned Senior Counsel further submitted that the very act of making a garnishee order nisi absolute presupposes a finding by the trial court that indeed there was a contract between subrogated party (3rd respondent) and the second set of garnishees (Appellants) in which certain sums of money were or would become payable as shown by Exhibit WK 7A.
He then urged this court to hold that once a judgment creditor had established that the judgment debtor (or its subrogee) was a Creditor to a garnishee and the garnishee has failed to show cause why the garnishee order nisi made against it ought not to be made absolute, it was proper for the trial court to make the garnishee order absolute.
In the Appellants’ reply brief, their response inter alia is that the maxim remains that “he who asserts must prove.” The 1st Respondent asserted that Techip was the Creditor under certain contracts with the 1st Respondent and relied on Newspaper clippings. The Appellants denied that they entered into any contract with Technip but stated categorically that their contract was with Technip France and Technip offshore UK. Limited.
It was further submitted that the burden of proof still lies on the 1st Respondent who cannot expect the Appellants to prove the 1st Respondent’s allegations before the Lower Court and unfortunately the said Lower Court failed to carry out the necessary inquiry as required by law and ended up lumping Technip together with Technip France and Technip Offshore UK. Limited.
The crux of the complaint by the Appellants is that there was not enough evidence presented before the Lower Court to justify the garnishee order absolute made by the learned trial Chief Judge on the 4 -11-2005.
In the finding result in the said Garnishee Order Absolute, the learned trial judge reasoned at page 695 to 696 of the Records as follows:-
“In the affidavit to show cause deposed to on behalf of the second Garnishee by one Jirola Onamuti, an attorney in the Legal department of Chevron Nigeria Ltd., which affidavit was confirmed by another affidavit deposed to by one Oluwatoyin Adenugba, it was deposed as follows:
3. Star Deepwater Petroleum Limited (“Star Deepwater”) is the operator of a joint venture between it. Texaco Nigeria outer Shelf Limited, (Texaco”) Petroloe Brasileiro Nigeria Limited (“Petrobras”) Statoil Nigeria Limited (“Statoil”) Famfa Oil Limited (“Famfa”) and the Nigerain National Petroleum Corporation (NNPC).
4. the companies and other entities mentioned in paragraph 3 herein are all engaged wholly or predominantly in the upstream sector of the petroleum industry and have varying interests in an Oil Minining Lease covering an area offshore of Nigeria within which is being undertaken the project referred to in paragraph 5 below.
5. in response to paragraph 14 (ii) of the affidavit of Waheed Kasali sworn to on 26th August, 2005, I say that on behalf of the joint venture referred to in paragraph 3 herein. Star Deepwater on or about 8th July, 2005
Entered into contract known as contract No AGB-C-03-035 (“the contract”) with Technip France organized under the laws of France and Technip Offshore U.K. Limited organized under the laws of the England for “Engineering, Procurement, Fabrication, Transportation, Installation, Testing, Commissioning and Start Up” of certain offshore facilities in respect of the offshore project known as the Agbami Project.
6. Technip France and Technip Offshore UK Limited are both individually and collectively designated as “contractor” under the contract and the contract provides for periodic milestone payments to the contractor or “contract group” which latter expression is defined thereunder as “the contractor and their parents, subsidiaries, affiliates and sub contractors of any tier.”
7. As at 5th September, 2005 when the order nisi herein was served on Star Deepwater, Texaco, Petrobras and Statoil, no sum was owing or accrued payable to the contractor or contractor group, that is, including sub-contractors under the contract.
From the deposition above, it is obvious to me that the second group of Garnishees are debtor liable to Technip or Techip France.
It is therefore my judgment that the sums that has become due to the contractor group is attachable.
Accordingly the Garnishee order nisi made on 1st September, 2005 is hereby made absolute.
In the result, it is hereby ordered that execution shall issue to levy the amount due from the first and second Garnishee or from any of them or so much thereof as may be sufficient to satisfy the judgment of this court delivered on Tuesday, 25th January, 2000 as calculated in the table/document attached to the original affidavit in support of motion for garnishee order nisi which table or document is marked Exhibit WK 2-26 (costs assessed at N20, 000.00) is awarded in favour of the judgment creditor.
The 1st Respondent/judgment creditor had in response to the counter affidavit to show cause above set out, deposed to a reply affidavit of 7 paragraphs of which paragraph 3 to 6 are relevant and reads thus:-
4. that the Plaintiff/Judgment creditor denies paragraphs 4, 5, 6, 7 and 9 of the affidavit of Star deepwater Petroleum Limited and others filed on the 12th October, 2005.
5. The Plaintiff avers that the release of the amount admittedly available now does not cancel the $800 Million contract.
6. The judgment/creditor avers that further payments are due upon performance.
Given the above set out depositions in the reply affidavit, it is my view that nothing of substance or of evidential value emerged from it save the mere assertion that further payments are due upon performance without any proof of such as to the actual amount outstanding on the contract debt owed by the Appellants to the 3rd Respondent if any. This brings to the fore the necessity for an order for inquiries to have been made by the Lower Court to expose the true and correct financial standing of the Appellants in their contractual relationship with the 3rd Respondent with a view to ascertaining whether there are sums of money available for the purpose of the garnishee which ought not to be made in vain or based or speculation or blind conclusion.
The 1st Respondent’s affidavit in support of the motion exparte for a garnishee order nisi states in paragraphs 14 (ii) to 18 as follows:
(ii) There is also another Nigerian contract awarded in the sum of $800,000.00 to Technip, France by:-
(a) STAR DEEP WATER PETROLEUM LTD (AN AFFILIATE OF CHEVRON CORPS) of 36, Gerard Road, Ikoyi, Lagos.
(b) TEXACO NIGERIA OUTER SHELF IN (AN AFFILIATE OF CHEVRON CORPORATION) OF 2, Chevron Drive, Lekki, Lagos State.
(c) PETRLEO BRASILEIRO NIGERIA LIMITED of Moloney Street, Lagos.
(d) STATOIL NIGERIA LIMITED OF 1A Bourdillon Road, Falomo, Lagos.
(e) FAMFA OIL LIMITED OF 290a Ajose Adegun Street, Victoria Island, Lagos.
15. there are now produced, shown to me and marked as exhibit WK6, WK7 and WK7A respectively (i) statement by the Chairman of Technip admitting the takeover of Mannesmann Anlagenbau A.G (ii) Technip Press release on the $1.08 billion Nigeria contract (iii) Certified true copy of “The Punch Newspaper of Thursday, 14th July, 2005 confirming the award of the $800Milliom Nigerian contract.
16. that I know a fact on the award of the two contracts stated above a percentage of the contract fee for each is payable and is due for payment to Technip, France as mobilization fee either alone or in conjunction with its other contracting parties.
17. that apart from the initial payment by way of mobilization fee, further sums of money are payable to Technip, France depending on the stage and level of performance.
18. that the judgment -creditor believe that a garnishee order of this court would affect and bind the monies payable to Technip, France and the garnishee would be obliged to obey the Order of this Court.
Non of the paragraphs above set out deposed to the actual or estimated amount owed by the Appellants or due for payment to the 1st Respondent as at the time the order nisi was made, which means that the said Order nisi was based on speculation.
What is more, the Appellant clearly deposed in paragraph 8 of the affidavit to show cause that:-
“As at 29th September, 2005 the following sums had under the contract become due to the contract or contractor group, that is including sub-contractors:-
(i) USD 16, 184, 687.14
(ii) EUR 17, 946, 411, 61
(iii) GBP 15, 256, 594, 04.
This was not challenged or countered by the 1st Respondent in it’s reply affidavit but was rather acknowledged in paragraph 5 thereof by stating that the release of the said sums of money admittedly available now does not cancel the $800 Million contract.
Yet the Learned Trial Chief Judge went beyond the affidavit evidence of the parties to make a garnishee Order Absolute against unspecified, unascertained and yet to be determined debt owed by the Appellants to the 3rd Respondents if any.
I am therefore totally in agreement with the submission of Counsel for the Appellant that it is not the function of the trial court by its own exercise and ingenuity to supply the evidence or carry out the mathematics of arriving at the answer which only the evidence adduced can supply. See OSADIM VS TAIWO (2009) LPELR (2209) CA where this court held that it is not the function of a trial court by its own exercise to supply or imagine evidence. It is the duty of a court or tribunal or any adjudicating body to limit itself to the evidence before it and not to go fishing for evidence. See also OKOYA VS SANTILLI (1994) 4 NWLR (PT 338) 256 at 303; DORTMUND COMPANY (NIG) LTD VS ELIAS (2013) LPELR (21117) CA.
In the circumstance I hold that the finding of learned trial Chief leading to the making of the Garnishee Order Absolute lacks proper evaluation and borders on perverseness. I will therefore answer issue No 1 in the negative.
ISSUE TWO
Learned Counsel for the Appellants herein noted the opposition of the Appellants to the garnishee Order Absolute both on the question of liability and the issue of exclusivity of the debt even as against Technip France. While the 1st Respondent Judgment Creditor on the other hand held the posture that the sums owed were being owed Technip. He added that in such a situation the two conflicting positions are required to be resolved as provided by Section 87 of the Sheriffs and Civil Process Act. He referred to the English case of MACDONALD VS TACQUAH GOLDMINES COMPANY (1884) 13 QBD 535 and HIRSCHORN VS EVANS (1938) 2 KB. 801 to submit that the Court will decline to order attachment where as in the present case, there is evidence that the debt is not owing to the judgment debtor exclusively. He added that the Learned Trial Chief Judge refused to accept the said proposition of the English law on the ground that it is against the spirit and intendment of the law in this country.
Learned Counsel then submitted that the express words used in Section 87 of the Act suggests further enquiry where a garnishee denies liability and there can be no better occasion to resort to further inquiry than the instant case, to determine liability either wholly or in part and where evidence before the court is inconclusive.
He further referred to the Dictum of Chukwuma-Eneh JCA (as he then was) in SOKOTO STATE GOVERNMENT VS KAMDAX NIG) LTD (2004) 9 NWLR (PT 878) 345 at 380 and BARCLAYS BANK DCO VS BOLARINWA (1962) ALL NLR 731 where the court refused to make an Order absolute nor discharged the order nisi but ordered that the money involved be paid into court pending the result of an enquiry whether it belongs solely to Bolarinwa or jointly with other members of his family.
It was further submitted that the word “may” can be interpreted by the courts as mandatory whenever it is used to impose a duty upon a public functionary, the benefit of which was to a private citizen.
Vide UDE VS NWARA (1993) 2 NWLR (PT 278) 638.
It was argued that in the instant case while the court appears to have recognized the interest of Technip UK Offshore Limited, the interest of the subcontractors was overlooked which might not have happened if an inquiry was ordered as per Section 87 of the Act. Learned Counsel also referred to paragraph 9 of the Appellants counter affidavit to show cause as well as the English case of MARTIN VS NADAL (1906) 2 KB 26 to submit that working injustice is a factor that ought to have been considered in the exercise of the discretionary powers of the court under Section 83 and 87 of the Act before a court will decide whether or not to make an order nisi absolute.
Responding on this issue in page 17 to 21 of the 1st Respondent’s Amended brief of argument, learned Senior counsel thereof referred to Section 87 of the Sheriff and Civil Process Act to submit that the words “may order that” gives the court several options or choices hence the further option of reference to a referee but the said Section does not apply in the instant case because there must be an issue or a question which the court has identified to be necessary for resolution by trial and such is lacking in this case. He cited the case of NIGERIA HOTELS LTD VS NZEKWE (1990) 5 NWLR (PT 149) 187 at 197 and NDIC VS IFEDIEGWU (2003) 1 NWLR (PT 800) 62 at 78-79.
Also relying on the case of MAGNUSSON VS KOIKI (1991) 4 NWLR (PT 183) 119 and SHUGABA VS UBN PLC (1997) 4 NWLR (PT 500) 481 he contended that the law does not require the calling of oral evidence to resolve conflicting affidavit if there is sufficient documentary evidence to resolve same.
Learned Senior Counsel submitted that in this case, the documents supplied by all the parties supported the finding of the court that the 3rd Respondent (2nd subrogating party) had receivables in the sum of $800 Million in the Agbami Contract from the Appellant and there was nothing before the Lower Court to support the claim that a 3rd party was entitled to any sum under the contract separately from the amount due to the judgment debtor, neither was there any evidence that the amount due to the judgment debtor was not up to the judgment debt for which the Lower Court made garnishee order absolute and as such the need for any special trial does not arise.
It was also submitted that Section 88 of the Act has no application in the instant case as it only applies where it is suggested by the garnishee that the debt sought to be attached belongs to a third party or that a third party has a lien over the debt in which case the third party will be invited to state the nature and particulars of his claim upon such debt.
As regards Order 8 rule 12 of the Judgment (Enforcement) Rules, it was submitted that the purport of the provision is to extend the provision of the Sheriffs and Civil Process Act to an incorporated body, i.e a firm carrying on business in Nigeria and it never suggested that the Act do not apply to Corporate bodies.
The Appellants’ response to the 1st Respondent’s argument is at pages 5 to 8 of their reply breif of argument. I have carefully perused and will address same as the need arises in the course of this judgment.
The question that demands answer here is whether the affidavit evidence as presented before the Lower Court provided fertile ground for the Learned trial Chief Judge to make an order directing further enquiries to determine the proper liability of the garnishee in accordance with the provisions of Section 87 of the Sheriffs and Civil Process Act.
The said 87 of the Act provides that:-
“If the garnishee appear and dispute his liability, the court instead of making an order that execution shall issue, any order that any issue or question necessary for determining in any manner in which any issue or question in any proceedings may be tried or determined or may refer the matter to a referee.”
There is no doubt that the Appellants herein at the Lower Court appeared and disputed their liability by way of a “counter-affidavit” to show cause and even went further to file a further affidavit and written address.
The Learned Trial Chief Judge consequently made the following findings and conclusion at pages 695 to 696 of the record.
In the affidavit to show cause deposed to on behalf of the second garnishee by one Jirola Onamuti an attoneney in the Legal Department of Chevron Nigeria Ltd., which affidavit was confirmed by another affidavit deposed to by one Oluwatoyin Adenugba, it was deposed as follows;
3. Star Deepwater Petroleum Limited (“Star Deepwater”) is the operator of a joint venture between it. Texaco Nigeria Outer Shelf Limited, (“Texaco”) Petroleo Brasileiro Nigeria Limited (“Petrbras”) Statoil Nigeria Limited (“Statoil”) Famfa Oil Limited (“Famfa”) and the Nigeria National Petroleum Corporation (NNPC).
4. The companies and other entities mentioned in paragraph 3 herein are all engaged wholly or predominantly in the upstream sector of the petroleum industry and have varying interests in an Oil Mining Lease covering an area offshore of Nigeria within is being undertaken the project referred to in paragraph 5 below.
5. In response to paragraph 14 (ii) of the affidavit of Waheed Kasali sworn to on 26th August, 2005, I say that on behalf of the joint venture referred to in paragraph 3 herein. Star Deepwater on or about 8th July, 2005
Entered into contract known as contract No AGB-C-03-035 (“the contract”) with Technip France organized under the laws of France and Technip Offshore U.K. Limited organized under the laws of the England for “Engineering, Procurement, Fabrication, Transportation, Installation, Testing, Commissioning and Start up” of certain offshore facilities in respect of the offshore project known as the Agbami Project.
6. Technip France and Technip Offshore UK Limited are both individually and collectively designated as “contractor” under the contract and the contract provides for periodic milestone payments to the contractor or “contract group” which latter expression is defined thereunder as “the contractor and their parents, subsidiaries, affiliates and sub contractors of any tier.”
7. As at 5th September, 2005 when the order nisi herein was served on Star Deepwater, Texaco, Petrobras and Statoil, no sum was owing or accrued payable to the contractor or contractor group, that is, including sub-contractors under the contract.
From the deposition above, it is obvious to me that the second groups of Garnishees are debtor liable to Technip or Techip France.
It is therefore my judgment that the sum that has become due to the contractor group is attachable.
Accordingly the Garnishee order nisi made on 1st September, 2005 is hereby made absolute.
In the result, it is hereby ordered that execution shall issue to levy the amount due from the first and second Garnishee or from any of them or so much thereof as may be sufficient to satisfy the judgment of this court delivered on Tuesday, 25th January, 2000 as calculated in the table/document attached to the original affidavit in support of motion for garnishee order nisi which table or document is marked Exhibit WK 2-26 (costs assessed at N20, 000.00) is awarded in favour of the judgment creditor.
The 1st Respondent in its reply to the Appellants counter affidavit deposed to by one Waheed Kasali deposed in paragraphs 4 to 6 as follows:-
4. that the Plaintiff/Judgment creditor denies paragraphs 4, 5, 6, 7 and 9 of the affidavit of Star Deepwater Petroleum Limited and others filed on the 12th October, 2005.
5. The Plaintiff avers that the release of the amount admittedly available now does not cancel the $800 Million contract.
6. The judgment/creditor avers that further payments are due upon performance.
The above averments no doubt contradicts one another in terms of the Appellants’ liability to the 2nd subrogating party (3rd Respondent) either in monetary terms or whether such debt is owed solely to the latter or to other contractors.
The Learned Senior Counsel had contended that the documentary evidence made available by both parties suffices to resolve any conflict in the parties affidavit and does not require the calling of oral evidence.
As much as I agree with the authorities cited in support, that where there is sufficient documentary evidence to resolve conflicts in parties affidavits the need for oral evidence is dispensed with, I am however minded to state that it is not so in the instant case because there are no documentary evidence showing the level of the Appellants liability to the 3rd Respondent if any, neither is there any such documentary evidence on the scope or extent of execution of the said Agbami contract, the amount already paid and the sum outstanding.
In fact the 1st Respondent made it a point of argument that the Appellants ought to have attached the documents relating to the Agbami contract in order to show the actual parties concerned therein, this to my mind justifies the necessity for further enquiries either oral or documentary to clarify the issue of liability of the Appellants to the 3rd Respondent given the huge sum of money involved in the judgment debt sought to be garnisheed.
The Learned Trial Judge seemed to have ignored this reality particularly as it relates to the deposition in paragraphs 6 and 7 of the Appellants’ counter affidavit to show cause when he held thus at page 696 of the record.
“From the deposition above, it is obvious to me that the second group of Garnishees are debtors liable to Technip or Technip France. It is therefore my judgment that the sum that has become due to the contract group is attachable. Accordingly, the Garnishee Order nisi made on 1st September, 2005 is hereby made Absolute.”
The Learned Trial Chief Judge also made a passing reference to Section 87 of the Act to state that it was not applicable in the Appellants’ case. I however believe that if His Lordship had taken a careful and cursory look at the earlier set out paragraphs of the Appellant’s counter affidavit to show cause filed on 12-10-2005 vis-a-vis the 1st Respondent’s reply affidavit filed on 13-10 2005, the need to invoke the provisions of Section 87 of the Act would have become more apparent, more so, given that the amount of the judgment debt sought to be garnisheed runs into millions of Dollars, Pound sterling and Nigerian Naira. Also given the technical nature of the Alleged Agbami contract involving a consortium of companies it may well go beyond mere inquiries but also involvement of a referee which the court has overwhelming powers to direct, provided that the ends of true justice is met.
The bottom-line here is that the Learned trial Judge acted hastily in proceeding to make an order Absolute when there was every good reason for the issue of the Appellant’s liability to the 3rd respondent to be tried or determined.
Although Section 87 of the Act used the word “may” to prima facie impute the element of discretion on the part of the Learned Trial Chief Judge, it is however imperative that such exercise of discretion must be done judiciously and judicially. A discretion irrationally or perversely exercised will definitely engender injustice and lacks element of fairness inherent in the powers of a judge.
In the instant case, the Appellants have shown in their affidavit to show cause that they are disputing their liability to the 3rd respondent and based on the colossal sum of money involved, that dispute so raised deserve invoking the provisions of Section 87 of the Act to resolve same.
In GENERAL AVIATION VS THAHAL (2004) 6 MJSC 120 At 144, THE Supreme Court per UWAIFO JSC in emphasising on the need for proper exercise of a court’s discretion held thus:-
“It is the rule of equity that where the exercise of
discretion plays a part, it is expected that the court will act in conformity with the ordinary principles upon which judicial discretion is exercised otherwise an appellate court will interfere with the decision.”
I am not unaware of a long line of authorities on the principle that the Appellant court will not ordinarily interfere with the exercise of discretion by a trial court in the absence of proof that it was wrongly exercised. See ANYAH VS AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47; NGWU VS ONUIGBO (1999) 13 NWLR (PT 636) 512; SARAH VS KOTOYE (1990) 4 NWLR (PT 143) 144; UNIVERSITY OF LAGOS VS AIGORO (1985) 1 NWLR (PT 1) 143.
However, in the instant case there is every need for this court to interfere having regard to the fact that the Learned Trial Judge acted on the wrong premise and improper appreciation of the affidavit evidence before him in failing or neglecting to order that the issue of the liability the Appellants to the 3rd respondent be tried or determined pursuant to the provision of Section 87 of the Sheriffs and Civil Process Act.
See also the case of MAINSTREET BANK LTD V UNITED BANK FOR AFRICA PLC (2014) LPELR (24118) CA, where this court held clearly at page 26 to 27″ that the provisions of Section 87 of the Sheriffs and Civil Process Act which stipulates what procedure to be adopted by the trial court, where liability for the judgment debt is disputed by the garnishee, indeed limits the exercise of the court’s discretion to either call for trial of the case, or to refer the matter to a referee.”
On the whole it is my humble view that the failure of the Learned Trial Chief Judge to apply the provision of Section 87 is a fundamental flaw that cannot be ignored given the nature of the transaction leading to the involvement of the Appellants as garnishees and the clear necessity for the determination of the Appellants’ liability to the 3rd respondent. There is need for the ends of Justice to be properly served and this case deserves same.
The Garnishee Order Absolute made against the Appellants cannot therefore stand.
This issue is accordingly resolved in favour of the Appellants.
The Resolution of this issue weakens the need to further consider issue No 3. It will amount to an unnecessary academic exercise.
Where the Appellate court is of the view that consideration of an issue is enough to dispose of the appeal, it is under no obligation to consider all other issues formulated by the parties. See OKOTIE EBOH VS MANAGER (2004) 18 NWLR (PT 905) 242; OKONJI VS NJOKANMA (1991) 7 NWLR (PT 202) 131; EBBA VS OGODO (1984) 1 SCNLR 372.
In the final result, I hold that this appeal has merit and it is accordingly allowed.
The Garnishee Order Absolute made by the Lower Court against the Appellant on the 4th November, 2005 is hereby set aside.
Parties to bear their costs.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
I too join my learned brother in holding that the appeal is meritorious and it is accordingly hereby allowed by me.
The Garnishee order Absolute made by the lower court against the Appellant on the 4th November, 2005 is also hereby set aside.
Parties to bear their costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother Samuel Chukwudumebi Oseji JCA. I agree with the reasoning and conclusion arrived at with nothing useful to add.
Appearances
Ladipo Soetan with A. Afademe, Suzie Momoh (Miss) and E. EmesiobumFor Appellant
AND
Prof. A.B Kasunmu SAN with A.J Owonikoko SAN D. Abolanle; T.B.P Olatunde and V.C Mbaeze for the 1st Respondent.
Prof. Usoro SAN for the 3rd Respondent (with Sixtus Onuka; Chuwkudi Eze, Yetunde Olufayo (Miss) Temitope Kuti )
O. Omolodun for the 4th Respondent with C. EzediaroFor Respondent
