UNITED BANK FOR AFRICA v. FRANCE APPRO SAS & ORS
(2015)LCN/7840(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of March, 2015
CA/K/301/2008
RATIO
PRACTICE AND PROCEDURE: GARNISHEE PROCEEDING; THE PROCEDURE OF THE COURT WHERE A GARNISHEE DISPUTES HIS LIABILITY
In a garnishee proceeding, where the garnishee is served with an order nisi, he can either pay the amount of the debt or dispute it. Where disputed as in the instant case, he will appear in Court on the return date and dispute his liability. The Court may then order that any issue or question necessary in determining his liability be determined or tried in any manner or may refer the matter to a referee. It is my respectful opinion that the Appellant has by its 2 affidavits to show cause dated 31/3/2008 and filed same date, and 1/4/2008 and filed on same date contained at pages 11-14 of the records; and particularly the further and better affidavit dated 14/4/2008 and filed on same date; have fully disputed liability and custody of the said judgment debt of the 1st and 2nd Respondents wherein at page 15 of the records, it disputed liability vide. Exhibit “A”, being the statement of account showing only a credit balance of N55,451.98 to the credit balance of the 3rd Respondent. Yet, the order nisi was made absolute by the trial Court. To my humble mind, this is laughable especially in the midst of non-contest of the said fact! The step or procedure at least to have been taken by the trial Court was to direct for the liability of the garnishee to be determined in any manner or refer the matter to a referee. This is so provided by Section 87 of the Sheriffs and Civil Process Act thus: “If the garnishee appear and disputes his liability the Court instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined 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.” The Court in interpreting Section 87 of the Sheriffs and Civil Process Act, in NIGERIA HOTELS LTD v. NZEKWE (1990) 5 NWLR (Pt.149) 187 AT 197 PARAS E-F, amongst other things held that: “…when liability is denied and which the trial Judge should have done instead of making an order that execution shall issue, was either to order that the issue or question necessary for determining liability be tried or determined in any manner in which any issue or question in any proceedings might be tried or determined or to refer the matter to a referee.” Again, in UBA LTD V. SGB LTD (1996) 10 NWLR (PT.478) 381 AT 390, the Court held: “In the case of doubt whether any amount is owing by the garnishee to the judgment debtor, or that any money due or which has accrued to the judgment debtor is in the possession of the garnishee, the proper order under Section 78 of the Law and Order 8, R.8 (2) of the Judgments (Enforcement) Rules, is for the Court to direct an inquiry to establish the said amount.” per. UWANI MUSA ABBA AJI, J.C.A.
PRACTICE AND PROCEDURE: GARNISHEE PROCEEDINGS; THE ROLE OF THE GARNISHEE
The role of the garnishee is simple: The Garnishee disputes liability by denying indebtedness to the Judgment Debtor. See VINALL v. DE PASS (1892) AC 90. Furthermore, it is in records that the affidavits to show cause of the garnishee were never challenged by the Respondents, hence it is deemed admissible. See N.P.A. V. A.I.CO (2010) 3 NWLR (PT.1182) 487 AT 500 PARAS G.H. per. UWANI MUSA ABBA AJI, J.C.A.
PRACTICE AND PROCEDURE: GARNISHEE PROCEEDING; THE NATURE OF A GARNISHEE PROCEEDING
The issue in this appeal is whether the garnishee order absolute made by the Lower Court was proper and justified in the circumstances of this case. A proper starting point for the consideration of the issue is the question – what is the nature of a garnishee proceeding? This question was beautifully answered by this Court in Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt.795) 120, where the Court stated thus: ‘Garnishee proceeding is one of the ways of executing a judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as “attachment of debt.” It is a separate and distinct action between the judgment creditor and the person or body holding custody of the assets of the judgment debtor, although it flows from the judgment that pronounced the debt owing. A successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the Judge will make an order which is technically known as a “garnishee order nisi” attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the judgment creditor the debt owed by it to the judgment debtor. The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 85 of the Sheriffs and Civil Process Act . . . ‘ This Court reiterated these statements in the cases of Sokoto State Government Vs Kamdax (Nig) Ltd (2004) 9 NWLR (Pt 878) 345, Purification Techniques (Nig) Ltd Ys Attorney General of Lagos State (2004) 9 NWLR (Pt 879) 665, Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt 1083) 418, Nigerian Telecommunications Plc Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356 and First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA – Appellant(s)
AND
FRANCE APPRO SAS
MONSIEUR LIONEL MARTIN
(SUING THROUGH HIS ATTORNEY MR. ILIYA RUNKA)
F. APPRO INTERNATIONAL CO. LTD
ALH. MOHAMMED SANI ABDULLAHI
GAMJI FERTILIZER COMPANY LTD.
STANDARD ALLIANCE FINANCIAL SERVICES LTD – Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final Ruling of the Federal High Court No.2 Kano in Suit No.FHC/K/CS/27/05, delivered on 15/4/2008 by Hon. Justice Adeniyi Ademola J., wherein a garnishee order absolute was made against the Appellant.
The 1st and 2nd Respondents by an ex-parte Motion dated 13/12/2007, obtained a garnishee order nisi against the Appellant, compelling the Appellant to show cause why the balance of the judgment debt of N323,671,876.60 (Three Hundred and Twenty Three Million, Six Hundred and Seventy One Thousand, Eight Hundred and Seventy Six Naira, Sixty Kobo) or any sum presently due to the Respondents should not be paid from the funds of the 3rd Respondent in an account domiciled at the Appellant’s Bank.
?The facts of the case are that on 14/3/2008, the 1st and 2nd Respondents by an ex-parte Motion dated 13/12/2007, obtained a garnishee order nisi against the Appellant, compelling the Appellant to show cause why the balance of the judgment debt of N323,671,876.60 (Three Hundred and Twenty Three Million, Six Hundred and Seventy One Thousand, Eight Hundred and
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Seventy Six Naira, Sixty Kobo) or any sum presently due to the 1st and 2nd Respondents should not be paid from the funds of the 3rd Respondent in an account domiciled at the Appellant’s Bank. The Appellant filed an affidavit dated 31/3/2008 and a further and better affidavit dated 14/4/2008 respectively to show cause why the amount claimed is not due to the 1st and 2nd Respondents. The Appellant’s further and better affidavit dated 14/4/2008 denied liability and exhibited the statement of account of the 3rd Respondent showing that as at the 29/2/2008, had a credit balance of N55,451,98k. There was no other evidence before the Court contradicting this fact. Also, the statement of account did not bear the name of the Appellant but Standard Trust Bank. Nevertheless, the trial Court made the order nisi absolute against the Appellant to pay to the 1st and 2nd Respondents the sum of N332,007,506.80 (Three Hundred and Thirty Two Million and seven Thousand Five Hundred and Six Naira Eighty Kobo) making up the sum of N323,671,876.60 as at 10/12/2007 and accrued interest at 10% Court rate from 14/12/2007 to 15/4/2008.
?The Appellant being dissatisfied with the said
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order Absolute appealed vide an Amended Notice of Appeal dated 20/2/2009 and deemed filed on 21/1/2013, wherein 4 Grounds of appeal were raised and are hereunder reproduced without their particulars:
“GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when he ordered the Garnishee to pay the entire judgment sum of N332,007,506.80 kobo.
GROUND TWO
The learned trial Judge erred in law when he assumed jurisdiction to entertain the entire Garnishee proceedings.
GROUND THREE
The learned trial Judge erred in law when he held as follows:
“I have read the Garnishee’s Affidavit of UBA Plc to show cause, which disclose no tenable facts or evidence preventing this Court from making its address (sic) absolute. Accordingly the order nisi of 14th March 2008 is hereby made absolute…The Garnishee is hereby ordered to pay the outstanding judgment debt of N332,007,506,80 kobo forthwith to the Judgment creditor/Applicant i.e France Appro SAS and Monsieur Lionel Martin.”
GROUND FOUR
The learned trial Judge erred in law, when he granted a relief over and beyond what was claimed by the Judgment Creditor.”
?In
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accordance with the Rules of this Court, the Appellant filed its amended brief of argument dated 28/1/2013 and filed on 4/2/2013, settled by Kola Awodein, SAN, FCTI, FSCI Arb, wherein he formulated 3 issues for the determination of the appeal thus:-
“1. Whether in the circumstances of this case the learned Trial judge had jurisdiction to make an order absolute compelling the Appellant to pay to the Judgment Creditors the sum of N332,007,506.80 (Three Hundred and Thirty Two Million and Seven Thousand Five Hundred and Six Naira Eighty Kobo)
2. Whether in the circumstance of this case the Learned Trial Judge had the jurisdiction to entertain the entire Garnishee Proceedings.
3. Whether the Learned Trial Judge was right to have in the circumstances, summarily decided the Garnishee proceedings as he did and in subsequently awarding in favour of the Judgment creditor/Respondent an amount that is over and beyond what was sought by the Judgment Creditors/ Respondents.”
?The 1st and 2nd Respondents jointly filed their amended brief of argument dated 15/4/2014 and filed on 5/5/2014, settled by Bob Omeoga, Esq, wherein he adopted the Appellants Issue 1
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and distilled 2 other issues for the determination of the appeal thus:
“1. Whether in the circumstances of this case the learned trial judge had jurisdiction to make an order absolute compelling the Appellant to pay to the Judgment creditors the sum of N332,007,506.88 (Three Hundred and Thirty Two Million and Seven Thousand Five Hundred and Six Naira Eighty Kobo)”
2. Whether the affidavits of the Appellants to show cause disclosed adequate or sufficient explanation or reason why the order Nisi should not be made absolute.
3. Whether the Lower Court had the jurisdiction to entertain the entire Garnishee proceedings.”
?The 3rd and 4th Respondents jointly filed an undated, amended brief of argument filed on 14/4/2014, settled by Okechukwu Nwaeze, Esq, wherein he distilled a lone issue for the determination of the appeal thus:
“Whether in the circumstances of this case, the learned trial judge had jurisdiction to make an order absolute compelling the Appellant to pay to the 1st and 2nd Respondents the sum of N332,007,506.80 (Three Hundred and Thirty Two Million and Seven Thousand Five Hundred and Six Naira Eighty Kobo) even though the
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Appellant had furnished sufficient explanation in his affidavit why order nisi should not be made absolute.”
The 5th and 6th Respondents jointly filed an amended brief of argument dated 26/2/2013 and filed on same date, settled by R.O. Atabo, Esq, wherein he distilled a single issue for the determination of the appeal thus:
“Whether in the circumstance of this case, the Learned Trial Judge had jurisdiction to make an order absolute compelling the Appellant to pay to the 1st and 2nd Respondents the sum of N332,007,506.80 (Three Hundred and Thirty Two Million and Seven Thousand Five Hundred and Six Naira Eighty Kobo)”
At the hearing of the appeal on 15/2/2015, the learned SAN to the Appellant adopted his brief of argument and the Reply brief dated 4/11/2014 and filed on 5/11/2014 and prayed this Court to allow the appeal while the 1st and 2nd Respondents’ counsel adopted their briefs and urged the Court to dismiss the appeal. The 3rd & 4th and 5th & 6th Respondents’ counsel urged the Court to allow the appeal.
I shall consider this appeal on a single issue as formulated by me.
“ISSUE
“Whether in the circumstance of this
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case, the Learned Trial Judge had jurisdiction to make an order absolute compelling the Appellant to pay to the 1st and 2nd Respondents the sum of N332,007,506.80 (Three Hundred and Thirty Two Million and Seven Thousand Five Hundred and Six Naira Eighty Kobo)”
It is contended by the learned Silk to the Appellant that it is a fundamental requirement of a garnishee proceedings that a debt must be due or accruing from the garnishee to the Judgment/debtor before the liability of the garnishee to the Judgment/creditor can arise. He referred this Court to UBA LTD v. SGB LTD (1996) 10 NWLR (PT.478) AT 390.
He submitted that by the Further and Better Affidavit to show Cause of the Appellant, deposed on 14/4/2008 at pages 15-16 of the records, the debt due or accruing was N55,451.98. Yet, the trial Court held that there were no tenable facts or evidence to prevent the Court from making the order nisi absolute and failed to be guided by the provision of Section 87 of the Sheriffs and Civil Process Act (which provides that where there is a disputation to the liability by the garnishee, the Court instead of making an order of execution, may order that any issue
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or question necessary for determining his liability be tried) and Judicial Precedents. He further submitted that “May” used in the said Section 87 is mandatory and does not allow for discretion. He relied on ADESOLA V. ABIDOYE (1999) 14 NWLR (PT.637) 28 AT 56, UBA LTD V. SGB LTD (1996) 10 NWLR (PT.478) 381 AT 383 and NIGERIA HOTELS LTD. V. NZEKWE (1990) 5 NWLR (PT.149) 187 AT 197 PARAS E-F. Again, that the trial Court had no jurisdiction to make an order attaching an amount not owed or due to the 3rd Respondent by the garnishee. He relied on UBA LTD V. SGB LTD (supra) AT 390. That the Respondents moved the trial Court on 13/12/2007 to order the Garnishee to pay N323,671,876.60 but for inexplicable reason, the trial Court ordered the Garnishee to pay the Respondents the sum of N332,007,506.80. It is trite that a Court cannot grant to a party what he did not ask for. He relied on ODUNZE V. NWOSU (2007) ALL FWLR (PT.379) 1295 AT 1332 PARAS A-B.
On the lack of jurisdiction of the trial Court to make the said order nisi absolute, the learned senior counsel to the Appellant submitted that by Section 83 (1) of the Sheriffs and Civil Process Act, the Ex parte
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application ought to have been deposed to by the Applicant or his Legal practitioner; and by Order 44 of the Federal High Court Civil (Procedure) Rules, 2000, Rule 2; the Garnishee must be within jurisdiction. Nevertheless, the said affidavit was deposed to by the Litigation secretary in the chambers of Bob-Omeoga & Co. contrary to Section 83 (1) of the Sheriffs and Civil Process Act. Also, that there is nothing in the affidavit suggesting that the branch in which the account was held or its address was within Kano State.
That such non-compliance is fatal and goes to the jurisdiction of the Court.
He relied on ODUA’A INVESTMENT CO. LTD V. TALABI (1997) 10 NWLR (PT.523) 1 AT 21 and SOKOTO STATE GOVT. V. KAMDAX NIG. LTD (2004) 9 NWLR (PT.878) 345 AT 381 PARAS B-D.
?Respecting the power of the trial Court to award an amount over and above what was sought by the Respondents, the learned SAN to the Appellant submitted that based on the apparent conflict in the Garnishee’s affidavit of 19/2/2009 indicating that the Garnishee was only indebted to the Judgment Debtor in the sum of N55,451.98k vis-a-vis the earlier affidavit of 15/12/2007,
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indicating a debt of N323,671,876,60k; the proceedings ought to have been guided by the law regulating conflicts in affidavit and oral evidence called. He relied on FALOBI V. FALOBI (1976) 9-10 SC 1, FALOLA V. UBN PLC (2005) 7 NWLR (PT.924) 405 AT 42A AND LAGOS STATE DEVT. & PROPERTY CORP V. ADOL/STAMN INTERNATIONAL NIG LTD & FIRST BANK PLC (2005) 2 NWLR (PT.910) 603 AT 617. He submitted that assuming without conceding that the trial Court resolved the matter properly without trial, he was wrong to make an order absolute in the sum of N332,007,506.80 whereas the evidence showed at best that the Garnishee was indebted to the Judgment/Debtor in the sum of N55,451.98k. He maintained that while a Court may award less than what is claimed, it does not have the power to award beyond what is claimed by the parties. He referred to EKPENYONG V. NYONG (1975) 2 SC 65 AT 73-74, OGUNYADE V. OSHUNKEYE (2007) 12 MJSC 157 AT 163 PARA F and NWANKWO V. NZERIBE (2004) 13 NWLR (PT.890) 422 AT 434 PARAS A-B.
The learned counsel to the 1st and 2nd Respondents submitted that the trial Court had jurisdiction to have made the order absolute compelling the Appellant to
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pay to the Respondents the sum of N332,007,506.80. It is his submission that pursuant to Section 87 of the Sheriffs and Civil Process Act, pari material with Section 78 of the Sheriffs and Civil Process Law, Lagos State, the Court in interpreting the said in GUARANTY TRUST BANK PLC v. UNION BANK OF NIGERIA PLC & ANOR (2007) ALL FWLR (374) 337 AT 351 PARAS C-G, held that the word “May” in the section is discretionary as the Court in determining liability has proceedings ought to have been guided by the law regulating conflicts in affidavit and oral evidence called. He relied on FALOBI V. FALOBI (1976) 9-10 SC 1, FALOLA V. UBN PLC (2005) 7 NWLR (PT.924) 405 AT 420 and LAGOS STATE DEVT. & PROPERTY CORP V. ADOL/STAMN INTERNATIONAL NIG LTD & FIRST BANK PLC (2005) 2 NWLR (PT.910) 603 AT 617. He submitted that assuming without conceding that the trial Court resolved the matter properly without trial, he was wrong to make an order absolute in the sum of N332,007,506.80 whereas the evidence showed at best that the Garnishee was indebted to the Judgment/Debtor in the sum of N55,451.98k. He maintained that while a Court may award less than what is claimed, it
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does not have the power to award beyond what is claimed by the parties. He referred to EKPENYONG V. NYONG (1975) 2 SC 65 AT 73-74, OGUNYADE V. OSHUNKEYE (2007) L2 MJSC 157 AT 163 PARA F and NWANKWO V. NZERIBE (2004) 13 NWLR (PT.890) 422 at 434 PARAS A-B.
?The learned counsel to the 1st and 2nd Respondents submitted that the trial Court had jurisdiction to have made the order absolute compelling the Appellant to pay to the Respondents the sum of N332,007,506.80. It is his submission that pursuant to Section 87 of the Sheriffs and Civil Process Act, pari materia with Section 78 of the Sheriffs and Civil Process Law, Lagos State, the Court in interpreting the said section in GUARANTY TRUST BANK PLC V. UNION BANK OF NIGERIA PLC & ANOR (2007) ALL FWLR (374) 337 AT 351 PARAS C-G; held that the word “May” in the section is discretionary as the Court in determining liability has contended that litigation is not a game of smartness. He relied on UMEANADU V. A.G. ANAMBRA STATE (2008) 3 SCNJ 59 AT 71. Also, he submitted that the Court can make use of the materials in the case file or diary in arriving at its decision. He cited M & B ELECTRICAL COMPANY LTD V.
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GOVERNMENT OF CROSS RIVER STATE (2005) ALL FWLR (pt.284) 350 R.10. It is his submission that by the affidavits to show cause of the Appellant and the annexures thereto, the reason given by the Appellant is not more than the children’s game of hide and seek. Furthermore, he conceded to the fact that though the affidavit of the Judgment Creditors/Respondents was neither sworn by a Legal Practitioner or any of the Judgment Creditors/Respondents; that does not rob the Lower Court of its jurisdiction to entertain the garnishee proceedings in view of Section 113 of the Evidence Act, 1990. Again, that by Section 19 and 20(i) of the Evidence Act, 1990, the Appellant admitted that the account of the 5th Respondent was domiciled in the Garnishee Kano P.O (Post Office) branch. He referred this Court to Exhibit A. Also, that the decisions relied upon by the Appellant in support of their argument were taken prior to the digitalization of the banking system in Nigeria. Finally, he objected at pages 16-17 of his brief that the 3rd to 6th Respondents have no locus standi to file any briefs in this proceedings since a garnishee proceedings is not open to judgment debtors. He
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referred this Court to RE DIAMOND BANK LTD (2002) 17 NWLR (PT.795) 120 AT 133, STANDARD TRUST BANK V’ CONTRACT RESOURCES (NIG) LTD (2001) 6, NWLR (PT.708) 115 AT 123, U.B.A LTD V. S.G.B LTD (1996)10 NWLR (PT.478) 381 AT 383 and SOKOTO STATE GOVT. v. KAMDEX (NIG) LTD (2004) 9 NWLR (PT.878) 345. He prayed this Court to discountenance the briefs of the 3rd to 6th Respondents and dismiss the appeal.
Before the proper consideration of this appeal, I shall touch on the competence of the briefs filed by the 3rd and 4th Respondents on the one hand, and the 5th to 6th Respondents on the other hand; or rather the objection of the learned counsel to the processes filed by the 3rd-6th Respondents in this appeal.
The 3rd and 4th Respondents filed their undated but amended joint brief of argument on 14/4/2014. However, at page 9 of the said brief, the learned Counsel prayed this Court as follows:
“We submit that this appeal has merit and we respectfully urge your Lordships to allow the appeal and set aside the entire ruling and order of the trial Court.”
The 5th and 6th Respondents in another turn, in their brief dated 20/2/2013 and filed on 26/2/2013,
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sought this relief/prayer at page 15 of their brief:
“We finally submit that the decision of the learned trial judge in ordering garnishee absolute was wrong in law having been made without jurisdiction and same having not been based on proper exercise of discretion and facts before the Court. We therefore urge the Court to set aside the decision of the trial Court and allow this appeal.” (The underlined mine for emphasis)
I must observe pitifully that the relief/prayer sought by the 3rd to 6th Respondents is same with the relief/prayer sought by the Appellant at page 18 of its brief dated 28/1/2013 and filed on 4/2/2013, wherein inter alia, it prayed this Court to “… allow this appeal and grant the reliefs sought…”
Connected to this also is the fact that, having read the respective briefs of the said 3rd to 6th Respondents, it is undeniably apparent that their arguments are against the judgment of the trial Court. Moreover, I have not seen any cross-appeal to that effect. In essence, they have pitched their tent with the Appellant in this appeal.
?I am of the humble opinion that an appeal is always a contest between two parties called
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the ” Appellant(s)” and the ” Respondent(s).” Whatever the nature or genre of the proceedings at the trial Court, once it comes up for appeal, it is then crystallized into a battle between the “Appellant” and the “Respondent” as the case may be. This is also agreeable with the Court of Appeal Rules and Act respectively. I am equally inclined to align myself with the submissions’ arguments, objection and the authorities thereto of the learned Counsel to the 1st and 2nd Respondents particularly at pages 16-17 of his brief that the 3rd to 6th Respondents being Judgment Debtors have no locus standi to argue in this appeal. Furthermore, the primary role of the Respondents who have not cross-appealed is to defend the decision of the Lower/trial Court and not to attack it. This was the dictum in LAGOS CITY COUNCIL V. AJAYI (1970) 1 ALL NLR 291, wherein the Court held that:
“The traditional role of a Respondent to an appeal is to defend the judgment appealed against. If he wants to depart from this role by attacking the said judgment in any way, he is obliged by the rules to file a cross-appeal.”
See also, ELOCHIN (NIG) LTD v. MBADIWE (1986)1 NWLR (PT.14)47,
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ADEFULU v. OYESILE (1989) 5 NWLR (PT.122) 377 AT 417 and BUHARI V. OBASANJO (NO.2) 2003 11 SCNJ 40 AT 56-57.
What then is this Court called to do with said briefs filed by the 3rd to 6th Respondents? The Court in YONGBISH V. BULUS (1997) 2 NWLR (PT.489) 621 AT 631, had answered it thus:
“I am persuaded to hold that the brief filed on behalf of the 2nd Respondent which in the main advanced arguments in support of the reversal of the judgment appealed against without cross-appealing against it, is not a Respondents brief stricto sensu and at such will be discountenanced in the consideration of this appeal.”
I also in like manner discountenance the briefs of the 3rd and 4th Respondents filed on 14/4/2014 and that of the 5th and 6th Respondents dated 20/2/2013 and filed on 26/2/2013. I have similarly not seen merit to consider the Reply brief of the Appellant dated 4/11/2014 and filed on 5/11/2014. I see no new issue in the argument of the 1st and 2nd Respondents that necessitated a Reply brief from the Appellant. A Reply brief is not for re-argument or adumbration of issues but for addressing new issues raised in the Respondents brief, if any.
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See NITEL PLC v. OCHOLI (2001) FWLR (PT.74) 254 AT 267. The objection raised by the learned counsel to the 1st and 2nd Respondents was against the briefs filed by the 3rd to 6th Respondents and not against the brief of the Appellant that should trigger a Reply brief.
In a garnishee proceeding, where the garnishee is served with an order nisi, he can either pay the amount of the debt or dispute it. Where disputed as in the instant case, he will appear in Court on the return date and dispute his liability. The Court may then order that any issue or question necessary in determining his liability be determined or tried in any manner or may refer the matter to a referee. It is my respectful opinion that the Appellant has by its 2 affidavits to show cause dated 31/3/2008 and filed same date, and 1/4/2008 and filed on same date contained at pages 11-14 of the records; and particularly the further and better affidavit dated 14/4/2008 and filed on same date; have fully disputed liability and custody of the said judgment debt of the 1st and 2nd Respondents wherein at page 15 of the records, it disputed liability vide. Exhibit “A”, being the statement of account
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showing only a credit balance of N55,451.98 to the credit balance of the 3rd Respondent. Yet, the order nisi was made absolute by the trial Court. To my humble mind, this is laughable especially in the midst of non-contest of the said fact! The step or procedure at least to have been taken by the trial Court was to direct for the liability of the garnishee to be determined in any manner or refer the matter to a referee.
This is so provided by Section 87 of the Sheriffs and Civil Process Act thus:
“If the garnishee appear and disputes his liability the Court instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined 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.”
The Court in interpreting Section 87 of the Sheriffs and Civil Process Act, in NIGERIA HOTELS LTD v. NZEKWE (1990) 5 NWLR (Pt.149) 187 AT 197 PARAS E-F, amongst other things held that:
“…when liability is denied and which the trial Judge should have done instead of making an order that execution shall
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issue, was either to order that the issue or question necessary for determining liability be tried or determined in any manner in which any issue or question in any proceedings might be tried or determined or to refer the matter to a referee.”
Again, in UBA LTD V. SGB LTD (1996) 10 NWLR (PT.478) 381 AT 390, the Court held:
“In the case of doubt whether any amount is owing by the garnishee to the judgment debtor, or that any money due or which has accrued to the judgment debtor is in the possession of the garnishee, the proper order under Section 78 of the Law and Order 8, R.8 (2) of the Judgments (Enforcement) Rules, is for the Court to direct an inquiry to establish the said amount.”
With due respect to the above directive however, the instant case does not even call for that step or procedure. The Appellant has factually, sufficiently and abundantly disputed liability that warranted a discharge of the garnishee rather than the unfounded decision of trial Court at page 22 of the records to the effect that the Appellant “…disclose no tenable facts or evidence preventing this Court from making its address absolute.”
I sincerely cannot stamp or
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give my credence to such an unsupportable decision of the trial Court! Would a Bank or garnishee be made to pay for money of the 3rd Respondent which it is not in custody of or liable to after the efforts it has made to file 3 affidavits to show cause as evidenced at pages 11-17 in the records of appeal? How else or in what manner is a garnishee supposed to show cause or dispute its liability to the judgment debt? I equally cannot see even any reason why this matter should be referred to a referee or even to resolve conflicts in the affidavit as opined and argued by the learned silk to the Appellant. The facts in this appeal are straight and the Appellant has to my satisfied opinion disputed liability and as such ought to have been discharged. The role of the garnishee is simple: The Garnishee disputes liability by denying indebtedness to the Judgment Debtor. See VINALL v. DE PASS (1892) AC 90. Furthermore, it is in records that the affidavits to show cause of the garnishee were never challenged by the Respondents, hence it is deemed admissible. See N.P.A. V. A.I.CO (2010) 3 NWLR (PT.1182) 487 AT 500 PARAS G.H.
Concerning the domiciliation of an account
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of the garnishee within the jurisdiction of the trial Court, I agree with the submission of the 1st and 2nd Respondents’ Counsel at pages 14-15 of their amended brief. Apparently, by the Exhibit “A” at page 17 of the records attached to the Garnishee’s Further and Better Affidavit to Show Cause dated 14/4/2009 and filed on same date, the Appellant’s statement of account of the 5th Respondent emanated and appeared domiciled in Kano, Post Office branch.
Besides, the Lower Court wherein the matter was instituted is the Kano State Federal High Court. It has long been settled and established that the Federal High Court has one and single jurisdiction which is the Federal Republic of Nigeria irrespective of the fact that its division is situate in any particular State.
I agree that the affidavit to the order nisi of the 1st and 2nd Respondents was not deposed to by a Legal practitioner or any of the 1st and 2nd Respondents, I don’t suppose it should rob the trial Court of its jurisdiction to entertain the garnishee proceedings. Besides, this is coming up on appeal and was never an issue at the trial Court. Similarly, it has nothing to do with the
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substantial justice of this case.
There is a difference between debt due and owing with the garnishee and debt due to the Judgment Creditor as per the judgment of the trial Court with interest attracting. In the instant appeal, the debt due and owing to the garnishee was N55,451.98 as at 29/2/2008 as shown at page 17 of the records in Exhibit “A”. I agree with the submission of the learned counsel to the 1st and 2nd Respondents when he opined at page 10 of his brief that in view of the 10% Court rate interest awarded by the trial Court, the judgment debt including the accrued interest came to N332,007,506.80 as at 15/4/2008. This to my humble opinion represents “debt due and accruing to be liable for garnishment.” But I must caution that though this represents debt due and accruing for garnishment, it has been evidently and factually disputed by the Appellant vide Exhibit “A” at page 17 of the records.
The Appellant to my candid and respectful opinion had given factual and evidential reason disputing liability of the judgment debt and therefore deserves to be discharged. I therefore resolve the issue in favour of the Appellant
As a result,
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the Ruling of the trial Court delivered on 15/4/2008 with the garnishee order absolute made against the Appellant in Suit No.FHC/K/CS/27/2005 is hereby set aside as prayed by the Appellant. I order no costs against the 1st and 2nd Respondents.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, UWANI MUSA ABBA AJI JCA gave me the privilege of reading before now the judgment just delivered. I agree with the reasoning and the conclusion that the appeal has merit. The garnishee order absolute by the Lower Court is set aside with no order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uwani Musa Abba Aji, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
The first and second Respondents in this appeal obtained a monetary judgment in the Federal High Court against the third to the sixth Respondents and there was an outstanding balance of the judgment debt in the sum of N323,671,876.60. The first and
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second Respondents commenced garnishee proceedings against the Appellant to attach funds of the third Respondent in the custody of the Appellant towards the satisfaction of the outstanding judgment debt. The Lower Court made a garnishee order nisi directing the Appellant to attend Court to show cause why the garnishee order should not be made absolute and why the Appellant should not be directed to pay the outstanding judgment sum from the funds of the third Respondent in its custody.
?The Appellant attended Court as directed by the Lower Court and it caused to be deposed on its behalf an affidavit and a further affidavit showing cause why the garnishee order should not be made absolute. It denied being in possession of the funds of the third Respondent to the tune of the outstanding judgment debt and it exhibited a statement of account showing that the funds of the third Respondent in its possession as at the date of the garnishee order nisi was N55,451.98. Despite these assertions in the affidavits of the Appellant, and which were not met by any counter affidavit by the first and second Respondents, the Lower Court, without further enquiry, made the
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garnishee order absolute and it directed the Appellant to pay the outstanding judgment sum of N332,007,506.80 comprising of the sum of N322,671,876.60 together with 10% interest that had accrued thereon between the making of the garnishee order nisi and the garnishee order absolute. This appeal is against this order of the Lower Court.
?The issue in this appeal is whether the garnishee order absolute made by the Lower Court was proper and justified in the circumstances of this case. A proper starting point for the consideration of the issue is the question – what is the nature of a garnishee proceeding? This question was beautifully answered by this Court in Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt.795) 120, where the Court stated thus:
‘Garnishee proceeding is one of the ways of executing a judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as “attachment of debt.” It is a separate and distinct action between the judgment creditor
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and the person or body holding custody of the assets of the judgment debtor, although it flows from the judgment that pronounced the debt owing. A successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the Judge will make an order which is technically known as a “garnishee order nisi” attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the judgment creditor the debt owed by it to the judgment debtor. The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 85 of the Sheriffs and Civil Process Act . . . ‘
This Court reiterated these statements in the cases of Sokoto State Government Vs Kamdax (Nig) Ltd (2004) 9 NWLR (Pt 878) 345, Purification
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Techniques (Nig) Ltd Ys Attorney General of Lagos State (2004) 9 NWLR (Pt 879) 665, Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt 1083) 418, Nigerian Telecommunications Plc Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356 and First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199.
What is obvious from the above statements is that the essence of a garnishee order is to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. It is settled that the amount at the judgment debtor’s credit in his bank account is the property of the judgment debtor and it constitutes a debt, with the bank being the person indebted. The credit balance constitutes a debt payable by the bank to the customer on demand and as such it can be attached by garnishee proceedings. It is essential to understand that it is not every debt that is attachable and that for a debt to be attachable by a garnishee proceedings, it must be due or accruing to the judgment debtor at the time of the
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garnishee order nisi – Central Bank of Nigeria Vs Auto Import Export (2013) 2 NWLR (Pt 1337) 80, Guaranty Trust Bank Plc Vs Innoson Nigeria Ltd (2014) LPELR – CA/I/258/2011. The crucial tests for determining whether a debt is due or accruing and thus attachable, are whether the amount of the debt is certain and the judgment debtor has a vested immediate legal right to the money – Osibamowo Vs Shadeko (1967) LLR 7 and Central Bank of Nigeria Vs Auto Import Export supra. Of course, if the judgment debtor could sue the garnishee for the amount and recover it, it is plain that there would be an attachable debt – Greg Vs Bromley (1912) 3 KB 474, Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162 (CA). A judgment creditor cannot by means of attachment, stand in a better position as regards the garnishee than the judgment debtor did; “he can only obtain what the judgment debtor could honestly give him” – Re: General Horticultural Co, ex parte Whitehouse (1886) 32 Ch. D 512. Thus, the question that arises here is whether the sum of N322,671,876.60 was due and owing from the Appellant to the third Respondent as at the date of the garnishee order nisi.
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As stated earlier, the Appellant disputed liability and stated that it did not hold funds of the third Respondent amounting to N322,671,876.60 and that the only attachable debt of the third Respondent in its possession was N55,451.98 and it exhibited the statement of account of the third Respondent. Now, the Sheriffs and Civil Process Act governs garnishee proceedings and it provides in its Section 87 that: “If a garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question it any proceedings may be tried or determined, or may refer the matter to a referee.”
This provision has been interpreted by the Courts as containing the options available to a trial Court in resolving a situation where a garnishee disputes liability – see the cases of Nigeria Hotels Ltd Vs Nzekwe (1990) 5 NWLR (Pt 149) 187, United Bank of Africa Plc Vs Societe Generale Bank Ltd (1996) 10 NWLR (Pt 478) 381, Guaranty Trust Bank Plc Vs Union Bank of Nigeria Plc (2007) All FWLR (Pt 374) 377,
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Fidelity Bank Plc Vs Okwuowulu (2013) 6 NWLR (Pt 1.349) 197.
Counsel to the Appellant argued copiously that compliance with the provisions of Section 87 of the Sheriffs and Civil Process Act by a trial Court was mandatory once a garnishee disputed liability for the garnisheed sum while Counsel to the first and second Respondents canvassed that the provision was discretionary and did not require mandatory compliance by a trial Court because the word used therein was “may”.
It is my candid view that compliance with the provision by a trial Court, where a garnishee disputes liability, cannot be mandatory and neither can non-compliance with the provision be dismissed with a wave of hand as being inconsequential. It must be remembered that the grant or refusal of a garnishee order is purely discretionary A Barzasi Vs B. Visinoni & Anor (1975) NNLR 6, Roberts Petroleum Ltd Vs Bernard Kenny Ltd (in liquidation) (1982) 1 WLR 301. The principles governing exercise of discretion by a Court have been laid down by the Courts over the years. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it
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must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1, Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. In General and Aviation Services Ltd Vs Thahal (2004) 10 NWLR (Pt 880) 50, Uwaifo, JSC stated that:
“It is a 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 discretion… There is always the need for a Court exercising discretion to give reasons in justification of the exercise … There can hardly be any justifiable reasons for exercising discretion upon imprecise facts. It is the nature and strength of facts available to the Court that
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provide the tonic for the proper exercise of discretion.”
Thus, the proper question to ask where a trial Court makes a garnishee order absolute after a garnishee has disputed liability, without having recourse to the provisions of Section 87 of the Sheriffs and Civil Process Act, is whether on the state of the facts before the Court, its exercise of discretion was judicial and judicious; not mala fide, arbitrary or illegal for considering extraneous matters or for failing to consider material issues. The question is whether the exercise of discretion by the trial Court accorded with the dictates of justice – Babatunde Vs Pan Atlantic Shipping and Transport Agencies Ltd (2007) 13 NWLR (Pt 1050) 113, Ado Vs Commissioner for Works, Benue State (2007) 15 NWLR (Pt 1058) 429. Where there are clear and undisputed facts before the Court supporting the grant of the garnishee order absolute despite the disputation of liability by the garnishee, the fact that the Lower Court did not follow the process contained in Section 87 of the Sheriffs and Civil Process Act before making the garnishee order absolute should not, and will not, in my view, affect the exercise of
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discretion to grant the order – Skye Bank Plc Vs Colombara & Anor (2014) LPELR – CA/L/103/2011. Where, however, there are no clear facts or where the facts before the Lower Court are contested or imprecise, the fact that the Lower Court did not follow the process contained in Section 87 of the Act before making the garnishee order absolute, will be a major factor in determining the appropriateness of the discretion exercised by the Lower Court. Thus, where there is conflicting and incompatible affidavit evidence before the Lower Court on the issue of liability of a garnishee, it has been held that it was incumbent on the trial Court to follow the process laid down in Section 87 of the Sheriffs and Civil Process Act before making a garnishee order absolute otherwise, its exercise of discretion will be improper. This was in Central Bank of Nigeria Vs Hydro Air Property Ltd (2014) LPELR-CA/L/235/2012, where the Lagos Division of this Court stated thus:
“Garnishee proceeding is a unique procedure which provides a clear and fair procedure to be followed in resolution of disputed liability. Section 87 of the Sheriffs and Civil Process Act provides …
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Instead of tying to resolve the disputed liability based on conflicting affidavit evidence made by the parties herein and placing reliance on materials not put before the Court in garnishee proceedings, the trial Court should have adopted the procedure provided in Section 87 above to determine the liability of the Appellant. To this end, he should have either allowed the parties call oral evidence to resolve the disputed areas or allowed them to cross-examine the deponents of the respective affidavits of the parties confronting them with whatever documentary evidence that are available which will reveal the true state of facts and enable make up his mind on the liability or otherwise of the Appellant.”
Similarly, where the facts deposed to by a garnishee in support of its case in disputing liability are not challenged or contested and are uncontroverted, it will amount to an arbitrary exercise of discretion to make a garnishee order absolute without utilizing the process stated in Section 87 of the Act. In Mainstreet Bank Ltd Vs United Bank of Africa Plc (2014) LPELR CA/L/641/2012, the Lagos Division of this Court again made the point thus:
“Section
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87 of the Sheriffs and Civil Process Act, Cap 407 , Laws of the Federation of Nigeria 2004 has this to say: … Although the provisions just reproduced say “MAY” thereby giving the Court a discretion in the matter, such discretion must decidedly be exercised, not only judicially, but judiciously. Discretion that is exercised erratically is a pervasion of justice in all its ramifications. In the present case, the Appellant has disputed liability. He filed an affidavit and a further and better affidavit to which he annexed a certified true copy of statement of account which is dormant. There was no counter affidavit to counter the depositions in those affidavits. I am of the view (strongly too) that the Garnishee Order Absolute in the Ruling of the Lower Court, made against the Appellant, was without the consideration of, or regard to, inter alia, the Appellant’s opposition to the claim against it. … 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
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either, to call for trial of the case, or to refer the matter to a referee. No other procedure is implied in the provisions of that statute. The Lower Court was, in my view, wrong to have made the Order Garnishee Nisi Absolute against the Appellant. That order was arbitrary, inequitable and perverse. Indeed, that order made by the Court amounted to an infringement of the fundamental right to fair hearing of the Appellant. He failed to examine in detail the Appellant’s Statement of Account of 18th June, 2012. He also failed to properly consider it. He also failed to take into account the uncontroverted facts deposed to in the affidavit and the further better affidavit of the Appellant at the Lower Court. It was the duty of the Court, in Garnishee Proceedings, to call on parties to show cause as required by law, but it was also his duty to have regard to the provisions of Section 87 … in operating that duty.”
?In the instant case, the records of appeal show that the facts deposed to in the affidavit and further affidavit of the Appellant showing cause why the garnishee order nisi should not be made absolute against it in the sum of N322,671,876.60 were
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not challenged or contested by the first and second Respondents by way of a counter affidavit and neither was the authenticity of the statement of account of third Respondent showing only a credit balance of N55,451.98k and exhibited by the Appellant questioned by the first and second Respondents. There were no clear facts before the Lower Court otherwise asserting that the liability of the Appellant to the third Respondent was in the tune of N322,671,876.60, or even in excess of the sum of N55,451.98k stated by the Appellant, as the date of the garnishee order nisi or at any time before. The Lower Court did not refer to any such facts in the making the order of garnishee absolute against the Appellant and in directing the Appellant to pay the sum of N332,007,506.80 to the first and second Respondents. The Lower Court did nothing to ascertain that there was a debt of N332,007,506.80 due from the Appellant to the third Respondent before it made the order absolute. The exercise of discretion carried out by the Lower Court in making the garnishee order absolute without recourse to the process detailed in the provisions of Section 87 of the Sheriffs and Civil
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Process Act was thus, in the circumstances, reckless, arbitrary, baseless and without any foundation in law. This is a proper case for this Court to interfere with the exercise of discretion by the Lower Court – General and Aviation Services Ltd Vs Thahal supra.
?It is for these reasons, and the fuller exposition of law contained in the lead judgment, that I agree that there is merit in this appeal. I too hereby allow the appeal and set aside Ruling of the Federal High Court sitting in Kano in Suit No FHC/K/CS/27/05 delivered by Honorable Justice Adeniyi Ademola on the 15th of April, 2008 granting a garnishee order absolute against the Appellant. I abide the consequential order on costs in the lead judgment.
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Appearances:
KOLA AWODEIN SAN, FCTI, (FSCIArb) WITH CHIMA OKEREKEFor Appellant(s)
H. SULETMAN, ESQ. FOR THE 1ST & 2ND RESPONDENTS
OKECHUKWU NWAEZE, ESQ. FOR THE 3RD & 4TH RESPONDENTS
DR. R. O. ATABO ESQ. WITH, H. L. HARUNA (MRS), LEVI SHAAPEKE AND UNEKWU ENEGBANI FOR THE 5TH & 6TH RESPONDENTSFor Respondent(s)
Appearances
KOIA AWODEIN SAN, FCTI, (FSCIArb) WITH CHIMA OKEREKEFor Appellant
AND
H. SULETMAN, ESQ. FOR THE 1ST & 2ND RESPONDENTS
OKECHUKWU NWAEZE, ESQ. FOR THE 3RD & 4TH RESPONDENTS
DR. R. O. ATABO ESQ. WITH, H. L. HARUNA (MRS), LEVI SHAAPEKE AND UNEKWU ENEGBANI FOR THE 5TH & 6TH RESPONDENTSFor Respondent
