THE COUNCIL OF KADUNA POLYTECHNIC & ANOR v. SADAU GARBA, ESQ. & ORS
(2018)LCN/12198(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/K/603/2016
RATIO
INTERPRETATION: THE MEANING OF THE TERM ‘CONDITION”
“”Both “condition and “condition precedent” have been defined by Osborn’s Concise Law Dictionary, 7th Edition as follows:- “Condition” – a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to absolute right. A true condition is where the event on which the existence of the right depends is future or uncertain. “A condition precedent” is one which delays the vesting of a right until the happening of an event.” See Per UWAIS, J.S.C in ATOLAGBE & ANOR V. AWUNI & ORS (1997) LPELR-593(SC). A condition precedent must be fulfilled before the effect can flow. All conditions are (a) conditions precedent i.e. the sine qua non to getting the thing; or conditions subsequent, which keep and continue the thing. A condition must be fulfilled before the effect can follow. See Per ONU, J.S.C in TSOKWA OIL MARKETING CO. (NIG) LTD V. BANK OF THE NORTH LTD (2002) LPELR-3268(SC). Where a right is subject to the occurrence of an event or a condition precedent, the right cannot vest until the occurrence of the event. See OWENA BANK (NIG) PLC V. ADEDEJI (2000) 2 NWLR (666) 609 AND FCDA V. KORIPAMO – AGARY (2010) 10 NWLR (1213) 364, 392.” PER IBRAHIM SHATA BDLIYA, J.C.A.
INTERPRETATION: THE MEANING OF ‘GARNISHEE PROCEEDINGS’
“A garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor. It is considered sui generis and is unlike other proceedings for enforcement of judgment. It has its peculiarities. Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due to or accruing to the judgment debtor, which forms part of his property in the hands of a third party for the attachment. By this process, the Court is competent to order the third party in whose hands the property of the judgment debtor is 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 judgment and the costs of the garnishee proceedings. See CITIZENS INT’L BANK V. SCOA (NIG) LTD (2006) LPELR- 5509 (CA). It is settled law that the debt due or accruing to a Judgment Creditor shall be bound in the hands of the garnishee upon service of the garnishee order nisi. This is the clear provision of Section 85 of the Act. See Per OBASEKI-ADEJUMO, J.C.A in ECOBANK (NIG) PLC V. GTB & ORS (2016) LPELR-40574(CA).” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. THE COUNCIL OF KADUNA POLYTECHNIC
2. KADUNA POLYTECHNIC Appellant(s)
AND
1. SADAU GARBA, ESQ.
2. FIDELITY BANK PLC
3. KEYSTONE BANK PLC
4. SKYE BANK PLC
5. UNITED BANK FOR AFRICA PLC
6. UNION BANK OF NIGERIA PLC
7. UNITY BANK PLC Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of Honourable Justice Emeka Nwite of the Federal High Court of Justice, Kaduna Judicial Division in Suit No. FHC/KD/CS/44/2002, delivered on 14/11/2016, wherein the Appellants’ application to set aside the garnishee order nisi was dismissed and made absolute in favour of the 1st Respondent.
By a Motion on Notice dated 30/6/2016 and filed on 1/7/2016 contained at pages 215-217, the Appellants sought for the following reliefs:
a) An order of stay of further proceedings in the garnishee proceedings in Suit No. FHC/KD/CS/44/2002 same having been activated in suppression of material facts pending the determination of this application.
b) An order setting aside the garnishee order nisi made on 09/06/2016 by this Honourable Court, same having been obtained by the Judgment Creditor in the garnishee proceedings of 09/06/2016 in concealment and misrepresentation of material facts.
c) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
THE GROUNDS upon which the application was predicated and based are as narrated below:
a. By virtue of the judgment of this Honourable Court delivered on 24/07/06, the dismissal of the Judgment Creditor from the employment of the Judgment Debtors was set aside with an order of reinstatement into the said employment.
b. The Judgment Debtors’ appeal against the said Judgment of this Honourable Court to the Court of Appeal was withdrawn on 10/04/2012.
c. Subsequent to the withdrawal of the said appeal at the Court of Appeal, the sum of N20,714,550.30 in satisfaction of all outstanding monies due to him from 17/10/2002-October 2013 being the amount computed by the Judgment Creditor without the knowledge of the Judgment Debtors.
d. The garnishee order nisi attaching the said sum of N20,714,550.30 standing to the credit of the Judgment Debtors was made absolute on 10/10/2014.
e. Despite the positive order of this Honourable Court, reinstating the judgment Creditor, the Judgment Creditor has refused to return to and or resume duties as ordered by Court.
f. The Judgment Creditor requested to be paid salary for a period he didn’t render any services to the Applicant and by a letter dated 02/03/2015, the Applicant stated clearly that the Applicant is not entitled to any money; having refused to resume duties as ordered by this Honourable Court and he is deemed to have abandoned his employment.
g. The Judgment Creditor withheld and concealed the foregoing material facts from this Honourable Court as well as the existence of the Applicant’s letter dated 02/03/2015.
h. The suppression and concealment of these material facts have led this Honourable Court into granting a garnishee order nisi in the garnishee proceedings in this suit.
i. The judgment of this Honourable Court is not and ought not to be a vehicle for the Judgment Creditor to refuse to render any service to the Judgment Debtor but continue to receive or draw earnings or salaries for work not done vide garnishee proceedings as in the instant case.
j. An Applicant enmeshed in concealment or suppression of facts into misleading a Court to exercise its discretion in his favour ought to be refused the exercise of such discretion in law and equity.
The facts as gathered from the record are that the 1st Respondent as a lecturer with the Appellants had his employment terminated upon unproven allegations in 2002 prompting him to seek for legal redress in the Federal High Court. After the judgment of the trial Court in favour of the 1st Respondent for reinstatement, the Appellant unsuccessfully sought for stay of execution for about 6 years leading to the withdrawal of the suit on 10/4/2012 for an out of Court settlement.
Meanwhile, the settlement turned out to be deceptive as the Appellants presented false and reduced packages of his entitlements. Consequently, the 1st Respondent came back to the trial Court with the correct computation from October 2002 to October 2013 amounting to N20,714,135.95. Thereafter, the Appellants paid the 1st Respondent the said sum but defiantly refused to reinstate him as ordered by the Court, which caused him to institute a contempt proceeding against the Appellants but due to mass transfer of judges, the contempt proceeding was not heard. Meanwhile, since the Appellants refused his reinstatement, the 1st Respondent computed his salaries and allowances from October 2013 to February 2015 which had accumulated to N11,200,160.00.
On refusal, he went back to the Court which garnished the Appellants’ account for the stated sum. In a considered ruling of the trial Court on 14/11/2016 contained at pages 317-350 of the record, the application was dismissed and the order nisi was made absolute, hence this appeal. Thus, the Appellants vide a Notice of Appeal dated 16/11/2016 and filed on 17/11/2016, formulated 2 Grounds of appeal contained at pages 355-358 with the Grounds reproduced below:
GROUND 1.
The learned trial Judge erred in law when he made the garnishee order nisi absolute attaching the sum of N11,200,160.00 belonging to the Appellants in the custody of the 2nd-7th Respondents (garnishees).
GROUND 2.
The learned trial Judge erred in law when he held that the 1st Respondent was entitled to the grant of a garnishee order absolute despite the fact that the 1st Respondent had prior to the said garnishee proceedings obtained a similar order attaching funds belonging to the Appellants in the custody of the garnishees.
In accordance with the Rules of this Court, the Appellants filed their brief of argument dated 4/1/2017 and filed on 10/1/2017, settled by Kabir Momoh, Esq., wherein he formulated a lone issue for the determination of the appeal thus:-
“Whether the learned trial Judge erred in law when he made the garnishee order nisi of 08/06/2016 absolute in favour of the 1st Respondent by attaching a further sum of N11,200,160.00 belonging to the Appellants in the custody of the 2nd-7th Respondents when the 1st Respondent had prior to the instant garnishee proceedings garnished the Appellants’ bank accounts in July, 2015 to the tune of N20,714,550.03 he claimed to be the judgment sum at the trial Court. (Grounds 1 and 2).”
The 1st Respondent consequently prepared his brief of argument dated 20/2/2017 and filed on 21/2/2017, settled by Ugo Udoji, Esq., and formulated an issue for determination thus:
“Whether in view of the fact that the sum of N20,714,550.03 garnished in July, 2015 was specifically for the period of October, 2013, the Court below wrongly garnished further sum of N11,200,160.00 specifically stated to be for November, 2013 to February, 2015 considering that the Appellants were yet to reinstate the 1st Respondent.”
Consequently, the Appellants filed a 7-page reply brief to the 1st Respondent’s brief dated 19/5/2017 but deemed properly filed on 24/10/2017. At the hearing of the appeal on 1/11/2018, the Counsel to the Appellants adopted their brief of argument and prayed this Court to allow the appeal, whereas the Counsel to the 1st Respondent adopted their brief and urged this Court to dismiss the appeal.
ISSUE FOR DETERMINATION:
Having read the proceedings and the briefs of the parties, I adopt the issue formulated by the learned Counsel to the 1st Respondent for the consideration of this appeal thus:
“Whether in view of the fact that the sum of N20,714,550.03 garnished in July, 2015 was specifically for the period of October, 2013, the Court below wrongly garnished further sum of N11,200,160.00 specifically stated to be for November, 2013 to February, 2015 considering that the Appellants were yet to reinstate the 1st Respondent.”
The Appellants’ learned Counsel has submitted that the 1st Respondent took out a garnishee proceedings on 20/05/2016 against the Appellants to the sum of N20,714,550.30, purported to be the judgment sum for the period between October 2002 till the date of reinstatement. He cannot again seek to garnishee the account of the Appellants for the sum of N11,200,160.00. That the 2nd application was based on suppression and concealment of facts presented to the trial Court. Thus, that where there is misrepresentation or concealment of facts, the Court should decline to exercise its jurisdiction as decided in ADEWALE BELLO CONSTRUCTION COMPANY LTD V. I.B.W.A (1991) 7 NWLR (PT. 204) AT 506.
That having computed that N20,714,550.03 constituted his unpaid emoluments from October till the date of reinstatement, the trial Court ought to have set aside the garnishee order nisi having made the said order or refused same when the application for garnishee order nisi was made. He submitted also that can the execution against the Appellants by the 1st Respondent for the unpaid salaries be done in perpetuity? He submitted that in garnishee proceedings, the Court orders for payment of an amount/debt due or accruing to the judgment debtor. He relied on UBA V. S.G.B. LTD (1996) 10 NWLR (PT. 478) AT 389, NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (PT. N1515) AT 589, SECTION 83 OF THE SHERIFFS & CIVIL PROCESS ACT, LFN 2004.
He finally submitted that by the judgment of the trial Court, there is nothing to portray that the judgment is a monetary judgment. He therefore urged this Court to allow this appeal and set aside the ruling of the trial Court.
The learned Counsel to the 1st Respondent has contended that the order of the trial Court was for the payment of money to be computed from October 2002 to a date uncertain which terminates on the date the Appellants reinstate the 1st Respondent to his employment. He contended that the 1st garnishee for the sum of N20,714,550.30 was for October 2002 till October 2013 while the extant garnished sum of N11,200,160.00 is for November 2013 to February 2015. Thus, that this appeal is not tenable, contemptuous and unlikely to succeed but academic as decided in ODEDO V. INEC (2008) 17 NWLR (PT. 1117) 600. He argued that if the computation by the 1st Respondent did not appeal to the Appellants, they would have done their own, otherwise the computation in Court should be the basis of the order absolute. He placed reliance on REYNOLDS CONSTRUCTION COMPANY (NIG) LTD V. S.I. EDOMWONYI (2003) FWLR (PT.147) AT 1167.
He urged this Court therefore to dismiss this appeal and affirm the order absolute of the trial Court.
I must comment on the Reply brief of the Appellant dated 19/5/2017 but deemed properly filed on 24/10/2017, wherein the Appellants have supposedly tagged it ‘Response to new issues raised in the 1st Respondent’s brief of argument’. This attracted my attention to read the Reply brief but later found out that it was a mirage that disappeared when I approached the scene. I discovered nothing new in the arguments of the Appellants’ learned Counsel.
As it is not the function of a reply brief to repeat arguments in the Appellant’s brief, I shall not take the repeated and repetitive arguments here. The function of a reply brief is to refute; if any, the arguments in the Respondent’s brief and dislodge them. See Per TOBI, J.S.C in ONWUDIWE V. F.R.N (2006) LPELR-2715(SC). In the meantime, this reply brief cannot be considered, as same is superfluous and unnecessary.
The facts and issues in this appeal are intricately connected and enmeshed in the judgment of the trial Court, per Justice A.M. Liman, delivered on 24/7/2006 contained at pages 279-294 wherein he granted reliefs 1 and 2 of the 1st Respondent as follows:
1. A declaration that the purported termination of the plaintiff’s employment as a lecturer by the 2nd Defendant over false, improved and unestablished sexual harassment is null and ineffective being in violation of the plaintiff?s rights against discrimination.
2. An order reinstating the plaintiff to his employment and paying him all his arrears of unpaid salaries, allowances and other perquisites of his office from October 2002 till date of reinstatement.
It is not in doubt that the 1st Respondent received the sum of N20,714,550.30 which has been calculated to be for October 2002 till October 2013. Nevertheless, the Appellants were in unmitigated non-compliance with the order and judgment of the trial in reinstating the 1st Respondent which caused him to institute an action for his outstanding benefits until there is compliance with the Court order.
In the present appeal, the 1st Respondent is standing on the ground that since he was not reinstated into his employment when the sum of N20,714,550.30 was paid him, he will continue to enjoy every right and benefit of the judgment of the trial Court. It must be emphasized herein that the order of the trial Court was ‘An order reinstating the plaintiff to his employment and paying him all his arrears of unpaid salaries, allowances and other perquisites of his office from October 2002 till date of reinstatement.’
It is without ambiguity that the order of the Court was futuristic and predicated upon a condition precedent ’till date of reinstatement.’
Both “condition and “condition precedent” have been defined by Osborn’s Concise Law Dictionary, 7th Edition as follows:- “Condition” – a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to absolute right. A true condition is where the event on which the existence of the right depends is future or uncertain. “A condition precedent” is one which delays the vesting of a right until the happening of an event.” See Per UWAIS, J.S.C in ATOLAGBE & ANOR V. AWUNI & ORS (1997) LPELR-593(SC). A condition precedent must be fulfilled before the effect can flow.
All conditions are (a) conditions precedent i.e. the sine qua non to getting the thing; or conditions subsequent, which keep and continue the thing. A condition must be fulfilled before the effect can follow. See Per ONU, J.S.C in TSOKWA OIL MARKETING CO. (NIG) LTD V. BANK OF THE NORTH LTD (2002) LPELR-3268(SC). Where a right is subject to the occurrence of an event or a condition precedent, the right cannot vest until the occurrence of the event. See OWENA BANK (NIG) PLC V. ADEDEJI (2000) 2 NWLR (666) 609 AND FCDA V. KORIPAMO – AGARY (2010) 10 NWLR (1213) 364, 392.
The condition the trial Court has placed the Appellants has not been met at all. The issue of reinstating the 1st Respondent is not optional for the Appellants and having not fulfilled this, they cannot come to seek for any redress or discretion of this Honourable Court. To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn. If the remedies that the Courts grant to correct wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands.
Loss of respect for the Courts will quickly result into the destruction of our society. See Per WALI, J.S.C in HART V. HART (1990) LPELR-1354(SC). For an Applicant to be entitled to the exercise of discretion, he must bring his conduct within the legitimate scope of the exercise of discretion. Hence, where he is in continuing disobedience of order of Court, I do not conceive it legitimate to consider the exercise of discretion in his favour. The contumacious behaviour is more egregious and censorious where the applicant seeks the discretion of the Court to endorse such a behaviour. See Per WALI, J.S.C inSHUGABA V. U.B.N. PLC (1999) LPELR-3068(SC).
The Appellants are in flagrant disobedience to the order of Court and should not expect or wish that they can be heard even where the remedy they seek is constitutional. Besides, this is not even the case herein. The 1st Respondent having not been reinstated and denied his right of maintaining his employment and livelihood denied him by the Appellants, went back to claim what was his perquisites from the Appellants in the sum of N11,200,160.00 from November 2013 to February 2015. In fact, for as long as they remain disobedient to the Court order, the 1st Respondent reserves the right to continue to demand from them every unpaid perquisite even where he is not working.
I thank the trial Court for dismissing their application because there is no iota of truth and fact in it save for delay and unscrupulous dealing with the 1st Respondent. If the 1st Respondent was reinstated, where is the letter of his reinstatement attached and relied on by the Appellants’ If the sum of N11,200,160.00 from November 2013 to February 2015 is untrue and false, where is the true and correct one they have presented to the trial Court. If facts were suppressed and concealed, where are the expressed, exposed and revealed facts?
The 1st Respondent should go ahead to reignite the contempt proceedings against the Appellants until the Court order is fully obeyed. He must enjoy the status of his employment with statutory flavor and not with the flavor of a whimsical master, boss or slave owner. The well laid down position of the law is that anyone who is served with, or becomes aware of a valid Order of Court should ensure that he obeys it in full. Failure to obey a valid Court order may amount to willful breach of it which could lead to contempt proceedings with serious consequences. See Per RHODES-VIVOUR, J.S.C in UWAZURUIKE & ORS V. AG FEDERATION (2013) LPELR-20392 (SC), MOBIL OIL NIG. LTD. V. ASSAN 1995 8 NWLR PT. 412 P. 129.
A garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor. It is considered sui generis and is unlike other proceedings for enforcement of judgment. It has its peculiarities. Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due to or accruing to the judgment debtor, which forms part of his property in the hands of a third party for the attachment. By this process, the Court is competent to order the third party in whose hands the property of the judgment debtor is 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 judgment and the costs of the garnishee proceedings. See CITIZENS INT’L BANK V. SCOA (NIG) LTD (2006) LPELR- 5509 (CA). It is settled law that the debt due or accruing to a Judgment Creditor shall be bound in the hands of the garnishee upon service of the garnishee order nisi. This is the clear provision of Section 85 of the Act. See Per OBASEKI-ADEJUMO, J.C.A in ECOBANK (NIG) PLC V. GTB & ORS (2016) LPELR-40574(CA).
The demand for and garnishee of the sum of N11,200,160.00 from November 2013 to February 2015 is debt due and owing to the Appellants and for as long as they defiantly refuse to reinstate the 1st Respondent, more debts will be due to the Appellants and keep on accruing until his reinstatement as ordered by the Court. A party seeking the discretion of this Court or any Court for that matter must come with clean hands. See Per OGEBE, J.S.C in IFEKANDU & ANOR V. UZOEGWU (2008) LPELR-1435(SC). Equity acting in personam will not allow a party to benefit from his own iniquity. It insists that whoever comes to it or justice must do justice, and must not come to the temple of justice with dirty hands. See Per EKO, J.S.C in PDP & ORS V. EZEONWUKA & ANOR (2017) LPELR-42563(SC).
I have not seen blemishes in the Ruling of the trial to warrant setting it aside. This issue is therefore resolved against the Appellants. The Appellants’ appeal must fail.
In sum, the Ruling of Honourable Justice Emeka Nwite of the Federal High Court of Justice, Kaduna Judicial Division in Suit No.FHC/KD/CS/44/2002, delivered on 14/11/2016, wherein the Appellants’ application to set aside the garnishee order nisi was dismissed and made absolute in favour of the 1st Respondent, is hereby upheld and stands. I consequentially award costs of N100,000.00 against the Appellants.
UWANI MUSA ABBA AJI, J.C.A.: I was privilege to read in draft the lead judgment of my learned brother Ibrahim Shata Bdliya, JCA, and I agree with the reasoning and conclusion reached therein that the appeal is devoid of any merit. The appeal is also dismissed by me and the Ruling of the lower Court delivered on the 14th November, 2016 is hereby affirmed.
I abide by the order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the judgment of my learned brother, Ibrahim Shata Bdliya, JCA. I adopt the conclusions reached by him that the ruling of the lower Court cannot be faulted.
I agree with him that the said ruling be upheld. I also abide his consequential order as to costs.
Appearances:
Kabir M. Momoh, Esq., With him, Andrew Nwankwo, Esq. and Y.M. Bonett, Esq.For Appellant(s)
Ugo Udoji, Esq. for the 1st Respondent.
No Appearance for the 2nd-7th Respondents.
For Respondent(s)
