UNION BANK OF NIGERIA PLC v. BONEY MARCUS INDUSTRIES LIMITED & ORS
(2000)LCN/0914(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of December, 2000
CA/PH/176M/98
JUSTICES
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
MICHAEL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellant(s)
AND
- BONEY MARCUS IND. LIMITED
- NICHIMEN CO. (NIG.) LIMITED
- METCOME (NIG.) LIMITED – Respondent(s)
NSOFOR, J.C.A. (Delivering the Lead Ruling): This is a ruling on the preliminary objection brought by the plaintiff/judgment creditor/respondent (hereinafter to be referred to simply as the objector) to the appeal from the decision on the 17th of February, 1998 by the Abia State High Court, (Mba Uduma, J) holden in Osisioma in suit No. HOS/229/96.
The ground of objection, the notice of which was filed in this court on the 12th of June, 1998, together with its “particulars” is herein under set down.
“Ground of objection”
“The appeal is interlocutory and filed out of time and therefore the Court of Appeal lacks the jurisdiction to entertain it, there being no application made for leave to file the notice of appeal out of time and there being no leave granted to that effect.
Particulars
(i) The ruling made in the court below on the 17th February, 1998 was interlocutory.
(ii) An appeal against that ruling ought to have been filed within 14 days.
(iii) The notice of appeal in this case was filed on the 27th day of March, 1998 and therefore filed out of time and without leave of court.
(iv) The ruling of the court below on the 25th of May, 1998 to the effect that the notice of appeal is void and incompetent stands and has not been appealed against.
(v) By reasons of the foregoing the notice of appeal is void and the Court of Appeal lacks the jurisdiction to entertain any proceeding based on that.”
The “notice of preliminary objection” was accompanied with an affidavit of nine(9) paragraphs sworn by Chief Boniface Ezissi the Managing Director to the respondent/objector.
And verified therein were some exhibits to which I shall refer in the ruling.
The Facts:-
It is now necessary for me to state fairly fully the facts leading to the appeal and the objection thereto. Judgment in the substantive suit No. HOS/229/96 was given in the court below on the 19th of May, 1997 in the sum of $2,781.70 (United States of American dollars) or its equivalent in Naira in favour of the plaintiff against the defendant (Nichimen Co. (Nig.) Ltd.).
The trial Court further awarded costs of N5,000.00 in favour of the plaintiff against the defendant. The certified true copy of the judgment is Exhibit 1 verified in paragraph 2 of the accompanying affidavit. Later, the plaintiff instituted a garnishee proceeding against Metcome (Nig.) Ltd. and Union Bank of Nigeria Plc. to realise the judgment debt and costs. On the 17th of February, 1998, the court allowed the application.
It ordered as follows:-
“It is hereby ordered pursuant to section 85 of the Sheriffs and Civil Process Law Cap. 118 Laws of Eastern Nigeria, 1963 applicable in Abia State that the money belonging to the judgment debtor in the possession of the 1st Garnishee which money is in the 1st Garnishee’s account with the 2nd Garnishee be attached to satisfy the judgment-debt together with the costs of the garnishee proceedings.”
The ruling and order of the trial court is Exhibit 2 verified in paragraph 4 of the affidavit.
The 2nd garnishee (Union Bank of Nigeria Plc.) was not happy with the order. Not satisfied, indeed dissatisfied and aggrieved with the order and ruling, the 2nd Garnishee, has appealed to the Court of Appeal. The notice of appeal therefrom was lodged in the court below on the 27th of March, 1998.
And this is the ‘casus belli’. It is Exhibit 3, verified in paragraph 5 of the affidavit.
The 2nd Garnishee/appellant, on the heels of Exhibit 3, had applied to the court below by way of motion on notice for a stay of the execution of the ruling and order pending the determination by the Court of Appeal of its appeal. But the application for a stay was refused on the 25th of May, 1998.
The order of refusal or dismissal is Exhibit 4, verified in paragraph 6 of the affidavit. Consequently, the appellant applied to the Court of Appeal by way of a motion on notice filed on the 25/5/98 pursuant to Order 3 rule 3(3) of the Court of Appeal Rules, 1981, for reliefs similar to those refused and dismissed by the court below. There was yet another application to the Court of Appeal by way of a motion on notice filed on the 25th of May, 1998, by the 2nd garnishee/ appellant.
These applications together with the “notice of preliminary objection” came before this court on the 29th March, 2000. Rather than hear the counsel orally on the preliminary objection, the court directed both counsel engaged in the preliminary objection to submit their respective arguments thereon in writing by way of briefs of argument. Counsel to the respondent/objector filed a brief of his argument on the 8th of March, 2000, while the counsel to the 2nd garnishee/appellant filed his brief of argument on the 17th of March, 2000.
Surprisingly, counsel each proceeded to formulate in the brief of argument various issues for determination by the Court of Appeal. In view of what comments I may be disposed to make on those issues as formulated, it is desirable to set down the issues as formulated respectively.
Counsel to the respondent/objector had formulated three (3) issues at page 3 of the brief of argument.
They are:-
“(i) Whether the Court of Appeal can reverse the decision of the court below to the effect that the appeal is out of time and incompetent when there has been no appeal against this decision?.
(ii) Whether the ruling made by the court below on the 17th of February, 1998 was interlocutory or final?.
(iii) If the ruling was indeed interlocutory, is the notice of appeal on the 27th of March, 1998, 38 days after the ruling competent?”.
Counsel for the 2nd garnishee/appellant identified four issues to wit:-
“1. Whether the decision (ruling) of the court below dated 17th February, 1998 now appealed against is an interlocutory decision?.
- If the answer to issue No.1 is in the negative in which case the decision would be final, whether the appellant was required to obtain leave before appealing against the decision.
- Whether having regard to the nature of the application before the learned trial Judge namely application for stay of execution pending the determination of the appeal against the said decision of 17th February, 1998 and Order 3 rule 3(3) of the Court of Appeal Rules as amended the appellant ought to have appealed against the refusal of the application instead of making further application to the Court of Appeal for a stay of execution pending the determination of the appeal.
- Whether the notice of preliminary objection is properly before this honourable court?”.
Pausing here for a while for a comment, a cursory look at the briefs of arguments, shows that the counsel were each competing to excel each other in verbosity in formulating the issues and to exceed each other in the number of issues. One is quick to ask: from which “Grounds of Appeal” are the various issues distilled? But this is not an appeal-case-proceeding. No. But does the one ground of the preliminary objection lend itself to splitting or proliferation of issues for determination? The ground of the objection is clear, simple and settled. The singular question raised in or by the objection was: Whether the decision by the court below on the 27th of February, 1998, appealed from by the “Notice of Appeal” filed on the 27th of March, 1998, was an interlocutory decision. And this is important because section 25 of the Court of Appeal Act No. 43 of 1976; which prescribes “time for appealing” makes a distinction between appeal from an interlocutory decision and a final decision. And because by section 25 sub-section (2) of the Act-
“(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are – (a) In an appeal in a civil cause or matter, 14 days where the appeal is against interlocutory decision and three months where the appeal is against a final decision.”
The preliminary objection came on for hearing on the 26th of October, 2000. Mrs. A.C. Akobundu for the respondent/objector in a short speech in amplification of her brief of argument urged us, just as it was argued in the brief, to hold that the decision of the court below on the 17th of February, 1998 was an interlocutory decision and to uphold and sustain the preliminary objection on that account. Mr. Kanu for the 2nd garnishee/appellant on his part in his oral submission urged us to hold that the ruling was a final decision and on that account to over-rule the objection.
Now, who is right?
Contentions:-
The gist of the contentions by counsel in respondent/objector’s brief as far as they are material and relevant for consideration of the objection, is that the garnishee proceeding ruled upon, on the 17th of February, 1998 was not a substantive suit but an interlocutory proceeding in an already existing suit.
The proceeding was a “species of execution” and which is necessarily ancillary to the substantive suit. Reference was made to “Essays on Civil Procedure” vol. 1 at page 65 by Obi-Okoye; White, Son and Pill v. Stenning (1911) 2 K.B. 418, quoted with approval in S. Raccah v. A. Wahab (1958) NNLR 58 at page 60. It was submitted by counsel in the brief that the Supreme Court in Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924 laid down two tests, (namely (1) “the test of the application made” and (2) “the test of the nature of the order made”) for determining whether a decision be an interlocutory or a final decision.
It was further submitted by counsel in the brief that a decision or judgment is “final, if it finally determines the rights of the parties in the suit. Accordingly, as learned Counsel submitted, the judgment of the court below on the 19th of May, 1997, in the substantive suit No. HOS/229/96 was a final decision. It determined the rights of the parties finally.
Thereafter, as counsel further contended in the brief, the ruling on the 17th of February, 1998, determining the issue of the payment of the judgment-debt out of the judgment-debtor’s funds in the possession of the 2nd garnishee was an interlocutory decision, not final decision, and appealable within 14 days.
Learned Counsel for the 2nd garnishee/appellant in his brief of argument, so far relevant to question in hand, contended that the ruling of the court below on the 17th February, 1998 was a final decision. The ruling and order thereon did not leave anything which would make the parties to go back to the trial court. As the counsel further contended, the order disposed of the matter between the 2nd garnishee/appellant and the judgment-creditor/respondent-objector, finally. It was the contention by the counsel in the brief that test for determining whether a decision is a final decision is “the nature of the order made test “. That the courts have adopted the test, counsel cited and relied on M. O. Akinsanya v. United Bank for Africa Ltd. (1986) 4 NWLR (Pt.35) 273; (1986) 7 SC. (Pt.1) 233 and a long line of other cases not necessary for me to reproduce here and now.
Learned counsel submitted at page 9 of the brief of argument that S. Raccah v. Wahab (supra) and the reference to “Essays on Civil Procedure”, vol. 1 at page 60 (supra) by the counsel for the respondent/objector were inapplicable and on that account irrelevant because as the counsel sought to distinguish, the S. Raccah case (supra) dealt with a Decree nisi. The S. Raccah case (supra) was not a final decision. It was an interlocutory decision.
Consideration:- There is no doubt that the question whether a decision of a court is a final or an interlocutory decision is not free from difficulty.
And the Supreme Court, those voices of infallibility, has recognized the difficulty as observed by Karibi-Whyte, J.S.C. in the Omonuwa v. Oshodin (1985) case (supra) at page 932:-
“The question whether a decision of a court is interlocutory or final has been one of perennial difficulty for the courts.
The difficulty stems from lack of precision or certainty in the definition of words or uncertainty in the judicial decisions on the issue……Although s.277 defines the word “decision” in relation to court, as any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation there is no definition of the words “final” or “Interlocutory” either in the rules of the Supreme Court Act, Court of Appeal Act or in the Constitution. In the circumstances resort ought to be had to the judicial decisions” .
It is clear to me that there is no difficulty in agreeing that every judgment on the merits is a final judgment.
Many of the cases dealing with the distinction between interlocutory and final decisions even talk of “determination of rights of the parties”, “final determination of the substantive issues”, enabling the court ultimately to decide upon the rights of the parties. But it ought, however, to be borne in mind that not every final judgment is a judgment on the merits.
When as in a case on an appeal the radical issue is jurisdiction or lack of it or, whether the plaintiff has or lacks the locus standi to prosecute the suit, a final decision can be given which does not affect the rights of the parties or the merits of the case.
It was submitted by counsel, Mrs. A.C. Akobundu, that the decision or judgment in the substantive suit No. HOS/229/96 (see Exhibit 1 (supra)) on the 19th of May, 1997, was a final judgment. No one would ever dispute that. I am in agreement fully with the submission.
It was a judgment on the merits of the case, a “determination of the rights of parties”.
Now, the important question arising becomes this:
After such a “determination of the rights of the parties” would there ever be new rights requiring to be further determined between the parties? And when the plaintiff judgment-creditor (herein the respondent/objector) instituted the garnishee proceedings, was all he did not the working out of the direction contained in the final judgment; an enforcement of the rights already established? I shall decline to record an opinion on either of the above posers here and now. However, in the Omonuwa v. Oshodin case (supra) Karibi-Whyte, J.S.C. observed at page 938, inter alia, as follows:-
“An action is commenced by a writ of summons, originating summons or by any other method provided by the rules of court. It is normally terminated by a judgment of the court determining the rights of the parties which are the issues joined in the case. Any other process determining an issue or issues between the parties or indeed determining the rights of the parties to the action can only be regarded as an interlocutory application”.
I am fortified by the above observation to hold that the garnishee proceedings in the court below were no more than an interlocutory application. Pure and simple. It was a form of execution of the judgment on the 17th May, 1997. Thus, as observed by Farwell, L.J., in White, Son & Pill v. Stennings (1911) K.B. 418 at page 428:-
“The garnishee process in both the High Court and the County Court is, in my opinion, intended to have the effect of process by way of execution of a judgment. It may not be execution in the strict technical sense, but the intention of Order XLV v. 1 of the Supreme Court Rules was, as pointed out in the Annual Practice for 1911 vol. 1 pp. 701, 702, to render property available for the purpose of satisfying a judgment in all Divisions of the High Court which before the Common Law Procedure Act, 1854, was not so available…….”
And per Kennedy, L.J. at page 431:-
“In my opinion, it is in its nature essentially a method of execution. It is one of the kinds of execution which is contemplated in order XLII of the Supreme Court. It is one method of enforcing a judgment for payment of a sum of money”.
Holding, as I do, that the garnishee proceeding on which the court below ruled on the 17th of February, 1998, was an interlocutory proceeding, I now proceed to consider some judicial decisions as to the nature of the ruling in order to guide me in reaching my conclusion. Firstly, Blakey v. Latham (1890) 43 Ch.D. 23.
The Blakey v. Latham case (supra) was an appeal from the order by Kay, J. on an application after final judgments, for liberty to set off against the costs payable to the defendant under that order certain costs payable to the plaintiff by the defendant. On appeal, the only question was whether the order appealed from was interlocutory.
The observation per Cotton, L.J. at pages 25/26 merits my respectful quotation, in extenso:-
“In one sense every order comes to an end when judgment is delivered, but it does not come to an end so far as working out the directions contained in it is concerned. Any order, in my opinion, which does not deal with the final rights of the parties, but merely directs how the declarations of right already given in the final judgment are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute. But merely directs how the parties are to proceed in order to obtain that final decision. In the present case, there have been judgments given, one of which gives costs to the defendant, Lowden, the other two give costs to the plaintiff. The order which was appealed from (I do not enter at all into the question whether it was right or wrong) was an order which directed how those directions in the final judgments were to be worked out. That in my opinion is interlocutory and not final, and therefore this appeal, if brought at all, ought to have been brought within the time limited for interlocutory appeals”.
And Fry, L.J. at page 26 (I beg to respectfully quote him in totality) said:-
“I am of the same opinion. I am glad 1 am not called upon to give anything like an exhaustive definition of the word, “interlocutory” but of this I am clear – that where a final judgment has been pronounced in an action, and subsequently an order has been obtained for the purpose of working out the rights given by the final judgment, that order has always been deemed and rightly deemed, to be interlocutory. This is such an order, and therefore the notice of appeal was given too late.”
I, now, advert to Aminu Akindele Ajayi Ojora v. lasisi Ajibola Odunsi (1964) 1 All NLR 55 where Taylor, J.S.C. at pages 58/59 observed:-
“Now having succeeded in establishing those rights, the plaintiff quite naturally expects the defendants to give effect to them by obeying the order of court. The defendants have failed to do this and their failure amounted to a disobedience of the order of court. It should be borne in mind from the passages in the judgment to which reference has been made, that the disobedience was the failure of the appellants to file an account at the time they should have done so.
The rights of the parties in this respect had already been finally determined by the judgment of the 8th June, 1961. The application, before the High Court, was not seeking the determination of new rights but the enforcement of the rights already established. In our view and for these reasons the judgment or order was an interlocutory one in respect of which the leave of the court is required before an appeal to this court can be entertained”.
(The italics is supplied)
Conclusion:-
My conclusion on the preliminary objection becomes rather obvious. From all I have been trying to say above and guided by the principles above discussed, it is sufficient for me now, to ask:-
Q.( 1):- Was the ruling or order on the 17th February, 1998 appealed from on the 27th March, 1998, an interlocutory decision?
Ans:- The answer, certainly, in my respectful opinion, is a capital YES. Therefore, the appeal, if brought at all, ought to be brought within the time limited for interlocutory appeals. See section 25(2)(a) of the Court of Appeal Act (supra).
Q.(2):- The appeal having been brought or lodged on the 27th March, 1998, was it competent?
Ans:- The answer most certainly is that it was brought too late. Put it rather nakedly, the notice of appeal is not competent. It is incompetent.
In the final result, there is some merit in the preliminary objection. It, therefore, succeeds and is sustained.
The respondent/objector shall be entitled to the costs which are assessed at N5,000.00.
AKPIROROH, J.C.A.: I have read in draft the judgment just delivered by my learned brother Nsofor, J.C.A. and I agree with the reasoning and conclusion. The preliminary objection is sustained and I abide by the order made as to costs.
IKONGBEH, J.C.A. (Dissenting): I had the privilege of reading in the draft the judgment just delivered by my learned brother, Nsofor, J.C.A. I regret to say that I am unable to agree with either his conclusions or the reasoning leading thereto. Accordingly, I have written my own opinion.
This ruling is on the preliminary objection, taken on behalf of Boney Marcus Industries Ltd. (hereinafter referred to as the plaintiff/judgment creditor/objector), challenging the competence of the notice of appeal filed on behalf of the Union Bank of Nigeria Plc. (hereinafter referred to as the 2nd garnishee/appellant). Let me hasten to add that by referring to the Union Bank (Nig.) Ltd. as the appellant, I have not thereby come to a decision one way or the other on whether or not the notice of appeal filed on its behalf is competent. The description is merely for identification purposes.
The notice of appeal under challenge is against the ruling of the Abia State High Court (Mba Uduma, J.), sitting at Osisioma, making a garnishee order absolute against the 2nd garnishee/appellant. The ruling was given on 17/2/98 while the notice of appeal was filed on 27/3/98. There can be no dispute that it was filed more than 14 days from the date of the ruling. The contention on behalf of the plaintiff/judgment creditor/objector is that the ruling in the garnishee proceedings was an interlocutory decision. Based on this contention, it is argued that having been filed more than 14 days without leave of court having been sought and obtained, the notice of appeal is incompetent. Of course, if the ruling embodying the garnishee order absolute was indeed an interlocutory decision, then this argument is unassailable. By section 25(2)(a) of the Court of Appeal Act, appeals to the Court of Appeal against interlocutory decisions of the High Court cannot be brought after 14 days without leave of court.
The central question is therefore, whether the ruling of the Abia State High Court, given on 17/2/98 was an interlocutory or a final decision. Before going into the question, however, I think it pertinent to relate some of the relevant background facts.
This issue has arisen in the following manner. On 19/5/97, the plaintiff/judgment creditor/objector obtained judgment in suit No. HOS/229/96 against Nichemen Co. (Nig.) Ltd. the defendant therein, for certain sums of money. Up to this point the 2nd gamishee/appellant had no involvement whatsoever in the matter. It was not a party to the suit.
Then, sometime prior to 10/12/97, the plaintiff/judgment creditor/objector, desiring to realise the fruits of its judgment in full, moved the court below ex parte for leave to levy execution by way of garnishee proceedings. The court granted leave and on the last mentioned date, issued a garnishee order nisi, citing Metcome (Nig.) Ltd. as the 1st garnishee, and the 2nd garnishee/appellant as the 2nd garnishee. The 1st garnishee never bothered to file any papers in response or appear before the court to show cause why the garnishee order nisi should not be made absolute against it. The 2nd garnishee/appellant, however, filed a counter- affidavit denying that the defendant/judgment debtor was its customer or that it held any amount in its books standing to the credit of the defendant. It however averred that, the 1st garnishee was its customer and maintained an account that was in credit to the tune of N7,746.55. On 17/2/98, the court delivered its ruling rejecting the 2nd garnishee/appellant’s explanations describing it as “a mere ruse”. It then made the garnishee order absolute pursuant to powers under section 85 of the Sheriffs and Civil Process Law Cap. 118, Laws of Eastern Nigeria, 1963, and decreed that-
“…the money belonging to the judgment debtor in possession of the 1st garnishee which money is in the 1st garnishee’s account with the 2nd garnishee be attached to satisfy the judgment debt, together with the costs of the garnishee proceedings.”
Although dissatisfied with the ruling, the 2nd garnishee/appellant promptly complied with the order embodied therein by sending to the registrar of the court below on 25/2/98, a cheque for an amount representing the balance in the 1st garnishee’s account with it. Then on 27/3/98, it caused a notice of appeal to be filed in the court below against the ruling. It is as to the competence of that notice that the plaintiff/judgment-creditor/objector has raised the objection that has given rise to the issue now before us.
After filing its notice of appeal, the 2nd garnishee/appellant applied to the court below for stay of further execution of the order embodied in the ruling pending the hearing and determination of the appeal therefrom. The court dismissed the application on the ground that there was no pending appeal upon which to hinge any order of stay, the 2nd garnishee/appellant’s notice of appeal being incompetent for having been filed out of time without leave. It was the Judge’s view that his ruling of 17/2/98 was an interlocutory one and so an appeal against it should have been brought within 14 days not, as the 2nd garnishee/appellant had done, after that period.
On its application being dismissed by the learned Judge, the 2nd garnishee/appellant came before this court with a fresh application, seeking reliefs identical with the ones refused down below and on identical grounds. The plaintiff/judgment-creditor/objector interposed the preliminary objection in respect of which this ruling is being delivered.
Because of the volume of the mass of papers filed before us and because of their confusing nature, we ordered counsel to streamline matters by filing briefs of argument, addressing only the issue of the competence or otherwise of the notice of appeal filed on behalf of the 2nd garnishee/appellant. The briefs were filed. Rather than confine herself/himself to the sole issue we had called for addresses on, each counsel brought in other irrelevant issues. Mrs. A.C. Akobundu, for the plaintiff/judgment creditor/objector, formulated the following three issues:
“(i) Whether the Court of Appeal can reverse the decision of the court below to the effect that the appeal is out of time and incompetent where there has been no appeal against this decision?.
(ii) Whether the ruling made by the court below on the 17th of February, 1998 was interlocutory.
(iii) If the ruling was indeed interlocutory, is the notice of appeal filed on the 27th day of March, 1998. 38 days after the ruling competent?”
Refusing to be outdone by a lady, Chief I.N. Umezuruike, S.A.N. formulated the following four on behalf of the 2nd garnishee/appellant:
“1. Whether the decision (ruling) of the court below dated 17th February, 1998, now appealed against is an interlocutory decision?.
- If the answer to issue No.1 is in the negative, in which case the decision would be final, whether the appellant was required to obtain leave before appealing against that decision?.
- Whether having regard to the nature of the application before the learned trial Judge, namely, application for stay of execution pending the determination of the appeal against the said decision of 17th February 1998 and Order 3 rule 3(3) of the Court of Appeal Rules, 1981, as amended the appellant ought to have appealed against the refusal of the application instead of making further application to the Court of Appeal for stay of execution pending the determination of the appeal?.
- Whether the notice of preliminary objection is properly before this Honourable court?.”
I shall deal at once with the first issue that Mrs. Akobundu formulated, although it was not one of the issues we called for addresses on. I am doing this as, in my view, it is in, effect, a challenge to the competence of this court to hear the application by the 2nd garnishee/ appellant.
With all due respect to learned Counsel, this issue and her arguments thereon are, in my view, the result of a serious misconception of the applicable law on the point. Her contention, to summarise it in her own words, is that –
“……if the garnishee did not like the decision of the court below made on 17th February, 1998, the proper course is to appeal against it and not ignore it. Untill the decision is reversed on a proper appeal, it stands and by its terms, the ruling appealed against is interlocutory. The appeal against it ought to have been filed within 14 days.” (See para. 7, (p.3) of her brief.)
The argument runs something like this: The only course opened to the 2nd garnishee/appellant, if it had wished to challenge the holding by the learned Judge that his ruling of 17/2/98 was an interlocutory one, was to appeal against it. Since the 2nd garnishee/appellant has not appealed and that holding still stands, the 2nd garnishee/appellant cannot ignore it and contend, as it is now doing, the contrary. Since this contrary contention forms the very basis upon which the 2nd garnishee/appellant has brought its application before this court, and since it has been foreclosed from making that contention by its failure to appeal against that holding, it should follow that it cannot bring this application at all. Since, for as long as the holding subsists, this court cannot entertain the 2nd garnishee/appellant’s contention that the holding was not an interlocutory one, it must follow also that the court cannot reverse the decision of the court below on the point in this application. This is clear from the language of issue (1) as framed. This last point has to be so because, in counsel’s own words,
“There would be confusion in the law if appellate courts will go about nullifying decisions of lower courts for which there was no appeal.”
This argument, with all due respect, is clearly untenable. It completely overlooks the provisions of Order 3, rule 3(1), (3) and (4) of the Court of Appeal Rules, which provide:
“3. (1) Every application to the court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought.
(2) …..
(3) Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.
(4) Whenever under these Rules an application may be made either to the court below or to the court it shall not be made in the first instance to the court except where there are special circumstances which make it impossible or impractical to apply to the court below.”
Paragraph (3) is express and unequivocal in its stipulation. It allows the 2nd garnishee/appellant another chance of achieving its desired goal, which is getting a stay of execution of the order of the court below pending the determination of the appeal against it. For the purpose of achieving this goal, the rule provides the 2nd garnishee/appellant with a course of action alternative to appealing against the ruling of the court dismissing its application. It gives it the right to bring a fresh application before us “for a similar purpose” instead of the long and tortuous appeal process. This provision, read together with paragraphs (1) and (4) to my mind, clearly authorises the 2nd garnishee/appellant to come before this court on the very same grounds on which the court below had refused its application. I see nothing in the language of the provision that restricts the grounds on which the 2nd garnishee/appellant may approach us to only those other than the ones on which the court below had refused the application. I do not think the 2nd garnishee/appellant is precluded from using those same grounds even where the Judge in the court below had made findings of fact against him.
It is, in my view, sheer fallacy to suppose that this court is bound in the circumstances to accept a view expressed by a subordinate court when such view is challenged by any legitimate method other than an appeal. By bringing this application on the same grounds on which the court below had refused a similar application, the 2nd garnishee/appellant is, in effect, challenging the holding of the court below that its ruling of 17/2/1998 was an interlocutory decision. Order 3, rule 3(1), (3) and (4) give it the right to do so. It is perfectly within its legal right to raise that issue before us again, even though he has not appealed against the finding or holding of the court below in it in the application before that court. And we have full powers to consider that point and, if necessary, arrive at the opposite conclusion to that reached by the court below.
The position is the same in England. Our position is even clearer. As we have seen, there are provisions in the rules allowing (a fresh application. In that country, where an application has been dealt with by a Master or Registrar, the aggrieved party has a right of appeal to a Judge in chambers. Such appeal is dealt with by way of actual rehearing of the application that led to the order under appeal. The Judge treats the matter as though it had come before him for the first time, save that the party appealing, even though the original application was not by him but against him, has the right as well as the obligation to open the appeal. See para. 58/1/2 of the Supreme Court Practice, 1988. One of the only caveats is that entered by Lord Atkin in Evans v. Bartlam (1937) AC. 473, @ 478 that the Judge –
“…..will of course give the weight it deserves to the previous decision of the Master; but he is in no way bound by it.” (Italics mine for highlight).
Accordingly, while I will have due regard for the decision of the court below, I must say that this court, in the exercise of its powers under Order 3 rule 3, is not bound by the decision of that court on the application before it. If find that the learned Judge’s holding, that his decision of 17/2/98 was interlocutory, is wrong in law, I see nothing stopping me from saying so. Indeed I see myself as being under a duty to the 2nd garnishee/appellant and to the cause of justice to say so.
This second issue in Mrs. Akobundu’s brief and the first and second ones in the brief by Chief Umezuruike, S .A.N. constitute the real bone of contention before us.
To buttress her contention that the ruling of 17/2/98 was an interlocutory decision, Mrs. Akobundu referred to Obi-Okoye’s Essays on Civil Proceedings, vol. I, p. 65, where the learned author sought to emphasise that –
“Garnishee proceeding is not a substantive action but an interlocutory proceeding – a process of execution in an already existing suit, and that it is directed against a particular type of property of a judgment debtor, to wit, a debt due to him”.
She referred also to a passage from the judgment of Bate, J., in Raccah v. Wahab (1958) NNLR 58, @ 60, where the learned Judge observed and expressed the opinion that:
“The scope of the word ‘suit’ is not clear but I have no reason to suppose that it is wide enough to include garnishee proceedings which were described by Vaughan Williams, L.J. in White, Son and Pill v. Stennings (1911) 2 KB 418 as ‘a specie of execution’ and which are necessarily ancillary to a suit”.
No argument seemed too irrelevant for counsel in her quest.
She referred to the fact that the garnishee proceedings in this cause were given the same case number as the substantive suit, i.e. HOS/229/96. This point can be dealt with right away.
Whatever else may be evidence that garnishee proceedings are interlocutory proceedings in an already existing suit, the fact that the garnishee proceedings bear the same case number as the suit from which they arose is definitely not such evidence. A court numbers causes and matters that are filed in its registry serially as they come in case by case and year by year. HOS/229/96 signifies that the cause or matter to which that number was assigned was the 229th that was filed in the registry of the High court, Osisioma in 1996. Order VIII, rules 1 and 2 of the Judgments (Enforcement) Rules, made under the Sheriffs and Civil Process Law, provide:
- Subject to the next succeeding rule garnishee proceedings may be taken in a magistrate’s court notwithstanding that the debt owing or accruing from the judgment debtor is for an amount exceeding the jurisdiction of that court.
- Garnishee proceedings may be taken –
(a) in any court in which the judgment debtor could, under Order VI1 of the High Court Rule, or Magistrates’ Courts Law, as the case may be, sue the garnishee in respect of the debt; or
(b) where the debt is not yet payable, or is for an amount exceeding the jurisdiction of such court, in any court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable or had not exceeded the jurisdiction.” (Italics mine for highlight.)
The words that I have italicised show clearly that garnishee proceedings are instituted not necessarily in the court by which the judgment sought to be executed by those proceedings was given. The rules just highlighted authorise the institution of garnishee proceedings even in a magistrate’s court in respect of a judgment obtained from the High Court, provided that the judgment debtor could have sued the garnishee in that magistrate’s court for the debt.
Now, suppose the plaintiff/judgment-creditor/objector in the matter before us had taken the garnishee proceedings that have given rise to this appeal in a court other than the court below, is Mrs. Akobundu saying that they would, or should, still have been numbered HOS/229/96? Such a numbering would make no sense and would clearly be flouting the rules of the various courts that require that causes and matters filed in court must be numbered serially and in the year in which they are filed. The court, other than the court below, in which the garnishee proceedings are instituted would, and should, in compliance with this rule, assign its own number, reflecting the court, the serial number and the year in which the proceedings are instituted. Even if the garnishee proceedings in the present matter were the 229th to be filed in the court in which the defendant/judgment debtor could have sued the 2nd garnishee/appellant, they certainly had not been filed in 1996 and that year could, therefore, not meaningfully have been assigned to them. This goes to show that the case number that garnishee proceedings bear is totally irrelevant to a consideration whether or not they are interlocutory proceedings in an existing suit.
Now, what really is the nature of garnishee proceedings?
I do not think that anybody can really quarrel with Obi-Okoye’s view that a garnishee proceeding is not a substantive action, or with that of Bate, J. that the word “suit” is not wide enough to include such a proceeding. Unlike garnishee proceedings, a suit or an action can arise from a variety of causes. A cause of action giving rise to the institution of a suit or an action comes about by the interaction of the parties inter se, either by contract or in tort. Sometimes a statute or statutory instrument creates a right of action in one of the parties. Garnishee proceedings, on the other hand, have but one cause to set them in motion. Before they can arise, a suit or an action must have been prosecuted to judgment in which an order for the payment of money to one of the parties is embodied. It can arise in no other way. This makes the views of Vaughan Williams, J. and Bate, J. that garnishee proceedings are a specie of execution and are necessarily ancillary to an action or a suit unassailable.
Where I have some reservation is the further view expressed by Obi-Okoye that garnishee proceedings are interlocutory proceedings in an existing suit. Mrs. Akobundu’s reliance on it to conclude that any order emanating from them is necessarily an interlocutory decision for the purposes of computing the time for appealing also raises a query in my mind. From the very nature of the proceedings and from the relevant statutes and rules, I do not think that I can, with the dogmatic conviction of Obi-Okoye, say that they are necessarily interlocutory proceedings in a pending suit. I have pointed out the fact that the proceedings do not invariably have to be commenced in the court that made the money order sought to be executed by the proceedings or in the suit that resulted in that judgment. Of course, if the proceedings are before the same court and are between the original parties alone, one could say that they are a continuation of the original suit or action. I am, however, most reluctant to reach that conclusion when the proceedings are directed against a third party who had nothing whatsoever to do with the original suit or action, especially where the proceedings are before a different court. Even if they are, as in this case, before the same court, I still have reservations about reaching such conclusion.
There is, at least, one authority that I know of in support of my view. In Llewellyn v. Carrickford & Ors. (1970) 2 All ER 24, Ungoed-Thomas, J. had to determine the true nature of garnishee proceedings. He had to determine whether they came within the term “cause or matter….. pending in the High court” within the meaning of section 41 of the Supreme Court of Judicature (Consolidation) Act, 1925, or whether they were merely administrative steps in the execution of money judgments, such as the issue of the writ of fieri facias is. He noted the distinction between execution by way of the writ of fieri facias and by way of garnishee proceedings and expressed the view that the latter proceedings are not of an administrative, but of a judicial nature. He then made the following observation and firm conclusion at p. 28 –
“….garnishee proceedings are themselves proceedings within the meaning of s. 41 of the 1925 Act if not by reason of their being proceedings in the action on whose judgment the proceedings are based, yet nevertheless by reason of themselves being, independently of the action, proceedings within its meaning.
There is some support for this view in the way in which garnishee proceedings are dealt with as between the different Divisions. I understand that garnishee proceedings may be taken, for instance, in the Chancery Division in respect of a judgment debt in the Queen’s Bench Division, particularly – although I gather not exclusively – where a charging order is made in the Queen’s Bench Division and it is sought to enforce that charge and take garnishee proceedings. This would rather suggest that the garnishee proceedings should be considered as not being in the action in the Queen’s Bench Division but as independent proceedings.” (All emphasis mine.)
It is for all these reasons that I expressed some reservations about Obi-Okoye’s rather sweeping statement that garnishee proceedings are not substantive but are interlocutory proceedings in an already existing suit. I do not think that the fact that they are merely ancillary to a suit makes them any the less independent proceedings. The word “ancillary” does not necessarily subsume what is said to be ancillary in what it is said to be ancillary to. It simply means that the one provides necessary support to the other. There is nothing in this definition to suggest that the supporting mechanism cannot have an independent existence of its own.
All this, however has not taken us to the end of our inquiry, which is to determine whether the ruling of 17/2/98 was an interlocutory or a final decision, whatever the nature of the proceedings that led up to it. In this regard, Mrs. Akobundu’s heart punch to the 2nd garnishee/appellant appears to be in her reference to the two tests adopted by the Supreme Court for dealing with this question. They are (a) the test of the nature of the application made and (b) the test of the nature of the order made. She drew attention to the observation of Karibi-Whyte, J.S.C. in Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924, at 948 paras A-D:
“An action is commenced by a writ of summons, originating summons or by any other method provided by the rules of court. It is normally terminated by a judgment of the court determining the rights of the parties which are the issues joined in the case. Any other process determining an issue or issues between the parties or indeed determining the right of the parties to the action can only be regarded as an interlocutory application.” (Italics mine for highlight.)
Learned counsel then submitted –
“…..as a corollary that the judgment of the court below given on 19th May, 1997 was a final judgment, which crystalised the rights of the plaintiff to the judgment sum. The ruling of 17th February, 1998 determining the issue of the judgment creditor’s right in the garnishee proceedings to be paid the judgment debt out of the funds of the judgment debtor in the hands of the garnishee is an ancillary proceeding to the judgment being a step in execution and therefore, interlocutory.” (Italics mine for highlight.)
The words that I have italicised clearly show where learned Counsel’s misconception lay. She only has in mind the rights of the plaintiff/judgment creditor/objector. Consequently, she had her attention riveted to the wrong proceedings, i.e. the proceedings in suit No. HOS/229/96 which resulted in the judgment sought to be executed by the garnishee proceedings. As I pointed out at the beginning, the 2nd garnishee/appellant was not a party to those proceedings. After all, it is not the decision in that suit against which the appeal under challenge has been filed. The decision in question, as has been seen, is the decision of 17/2/98 making the garnishee order absolute against 2nd garnishee/appellant. It is the proceedings leading to that decision that it was a party to and in which it had rights and obligations. That, therefore, is the decision to which we should be applying the tests adopted by the Supreme Court.
Now then, when we apply the two test, what do we have? Two of the cases cited by Karibi-Whyte, J.S.C. in Omonuwa’s case, supra, exemplifying each of the two tests, will suffice as guide. The first is Gilbert v. Endean (1878) 9 Ch.D. 259 at pp. 268, at 269, where Cotton, L.J. said,
“Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purposes of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties.”
(Italics mine for highlight).
The second is Blakey v. Latham (1890) 43 Ch. D. at p. 25, where Cotton L.J. said,
Any order, which in my opinion, does not deal with the final rights of the parties, but merely directs how the declarations of rights already given in the final judgments are to be worked out is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision.” (Italics mine for highlight.).
The two that exemplify “the nature of the order made” test are Salaman v. Warner (1891) 1 Q.B. 734, at 736, where Lopes, L.J. said,
“I think a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.”
(Italics mine for highlight.)
and Bozson v. Altrincham Urban District Council (1903) 1 KB. 547, where Lord Alverstone, C.J. agreeing with the Earl of Halbury L.C. said at pp. 549-550 –
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but it does not, it is then, in my opinion an interlocutory order.” (Italics mine for highlight.)
As can be seen, one feature that is common in both tests is the emphasis placed on the rights of the parties to the proceedings leading up to the decision in question. If one looks at it from the “nature of the application made” perspective, one sees that the requirement is that the application should be designed or calculated to settle finally the rights of the parties. If one looks from the perspective of “the nature of the order made” test, one sees the emphasis on question whether or not the issue or issues raised by the parties to the proceedings have been finally settled.
As has been seen, the 2nd garnishee/appellant appeared at the further consideration of the order nisi and disputed the claim that it owed the defendant/judgment debtor any amount that could be garnisheed. It pressed its right not to be made to payout money that it had no obligation to pay. The plaintiff/judgment creditor/objector, on the other hand, pressed its right to make the 2nd garnishee/appellant payout money due from it to the defendant/judgment debtor. An issue thus arose between it and the two. To resolve this issue was the reason why the learned Judge proceeded with the hearing. At the end of the day, he made a firm and final decision resolving this issue. At the same time, he made an order that was in favour of the plaintiff/judgment creditor/objector’s right to have the 2nd garnishee/appellant made to pay money to it. It also finally sealed the 2nd garnishee/appellant’s right not to be forced to pay. If the order made on 17/2/98, in the circumstances, was an interlocutory order for purposes of calculating the period within which to appeal against the order, I can conceive of no other that would qualify as a final order. Whichever test one applies, the order, in my view, was a final order.
There are at least two authorities that I can readily lay my hands on that tend to support the view that for purposes of calculating time for filing appeal, a garnishee order absolute is not an interlocutory but a final decision. Randall v. Lithgow (1884) 12 Q.B.D 525 decided in effect that a garnishee order absolute is in the nature of a final order as it firmly binds the garnishee until reversed. Before Order 58 of the English Rules of the Supreme Court was amended in 1978 and 1982, rule 2(3) thereof read:
“In the case of an appeal in interpleader and garnishee proceedings the time within which notice of appeal must be served shall be the same as in the case of an appeal from an interlocutory order.”
The comments of the learned editors of the 1976 edition of the White Book ran thus:
“The effect of para. (3) is that appeals in interpleader and garnishee proceedings are placed in the same position as appeals from interlocutory orders for the purposes of calculating the time within which the notice of appeal must be served”.
If the italicised words were not clear recognition of the fact that interpleader and garnishee proceedings did not necessarily result in interlocutory orders, I fail to see what else can pass that message clearer. The amendment to Order 58 that I alluded to did not introduce anything that would suggest the contrary message. All that the amendment did was to rearrange the provisions relating to appeals from decisions of Masters and the Admiralty Registrar in a clearer and more logical order. Instead of leaving provisions relating to appeals from these sources scattered all over the rules, it gathered them up in one place and specified the time within which they must be filed. The new provision (Order 58, rule 1) fixed the time within which an appeal must be filed at 5 days after the decision and no longer makes them dependent on whether they were interlocutory or final orders. The old Order 59, rule 4(1) prescribed 14 days for filing appeals from interlocutory appeals.
Under this old provision, an appeal was to be filed from a garnishee order absolute within 14 days not because such order was interlocutory in nature, but because that was the time specifically fixed by the rules for filing such appeals. We have never had, and do not have, the equivalent of this old English provision in relation to garnishee order nisi. So, to calculate the time for filing appeal from it, we still have to proceed accordingly as in an interlocutory or final order.
As has been seen, the result of my application of the tests shows that the order of 17/2/98 was a final order. In the circumstances, I must hold that the notice of appeal filed on behalf of the 2nd garnishee/appellant on 28/2/98 was filed within time, having been filed within three months allowed to it by section 25(2)(a) of the Court of Appeal Act. Accordingly, I must, and do, hold that the appeal, the notice of appeal is competent. In the result, I find no merit in the preliminary objection, which is accordingly overruled. The plaintiff/judgment creditor/objector shall pay costs of these proceedings to the 2nd garnishee/appellant assessed at N5,000.00.
Preliminary objection upheld.
Appeal struck out.
Appearances
J.N. Kanu, Esq.For Appellant
AND
A.C. Akobundu (Mrs.)For Responden
