UNITY BANK PLC v. DAVID
(2021)LCN/15803(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, June 23, 2021
CA/AK/205/2018
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
UNITY BANK PLC APPELANT(S)
And
GIDEON DAVID RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT HAS THE INHERENT POWER OF COMBINING THE HEARING OF ANY INTERLOCUTORY APPLICATION WITH THE SUBSTANTIVE ACTION
Considering the latter issue first, the law is certain that a Court of law has the inherent power of combining the hearing of any interlocutory application with the substantive action. Of paramount consideration arising there from is that once the application poses a challenge to the jurisdiction of the Court, that issue must first be determined one way or the other. It has been so, on the basis that where the Court eventually is found to be lacking in jurisdiction at the end of the day, all that has been done amounts to a nullity. See the cases of Senate President vs. Nzeribe (2004) 9 NWLR (pt. 878) 251 (CA) per Oguntade JCA, as he then was, African Petroleum Plc vs. Albert Adeniyi & ors (2011) LPELR–3642 (CA) per Nwodo, JCA (of blessed memory). An application is an application, whether termed preliminary objection or an application brought by way of motion on notice. The prime difference being that in preliminary objections as in the instant case seeks to terminate the action in limine.
On the question whether the lower Court having granted an order absolute, being a final decision on the matter, can still entertain an application seeking to vary the order granted? The obvious answer is that, an application can still be entertained on proper grounds where the occasion so demands. The answer to the question is not farfetched. In the case of Anatogu vs. Iweka II (1995) NWLR (pt. 415) 547 per Ogundare, JSC, the Apex Court in that decision held that:
“The general rule is that the Court has no power under any application in the action to vary a judgment or order after it has been uttered or drawn up, except so far as is necessary to correct errors in expressing the intention of the Court or under the slip rule” … there are however exceptions to this rule some of which are:
i. A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process, can be set aside by the Court which gave the judgment or made the order. See Skenconsult (Nig.) Ltd vs. Ukey (1981) 1 SC 6, Craig vs. Kannsen (1943) KB 256, Forfie vs. Seifah (1958) 1 ALL ER 219 (PC).
ii. A judgment or order made against a party in default may be set aside and the matter reopened see E.G. Order XLI Rule 5 of the High Court Rules of Eastern Nigeria.
iii. There is jurisdiction to make upon proof of new facts an order supplemental to an original order e.g. a supplemental order to an order for specific performance that there is an inquiry as to damages sustained by reason of the agreement, at any rate from the date of the original order for specific performance. See Ford-Hunt vs. Singh (1973) 2 ALL ER 700.
iv. If a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment.
v. A judgment may be set aside on the ground that fresh evidence has been discovered which if tendered at the trial, will have an opposite effect on the judgment.
See also, the cases of Bassey Ene vs. Asuquo Asikpo & anor (2009) LPELR-8723 (CA) per Abadua, JCA, Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR–22708 (CA). PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal emanating from the decision of the High Court of Justice, Osun State, Ede Judicial Division quorum; A.O. Oyebiyi J, in suit No. HED/NRJ/6/2017 delivered on the 12th of April, 2018. By the said ruling, the lower Court considered the preliminary objection filed on the 7/3/2018, by the respondent seeking for order of Court dismissing respondent’s motion on notice filed on the 26th of February, 2018 wherein it was held that:
“The preliminary objection succeeds. Same is upheld. The motion dated 22nd February, 2018 filed on 26th day of February, 2018, is accordingly hereby struck out for being incompetent and a gross abuse of the processes of this Honourable Court. I award ₦100,000.00 (One Hundred Thousand Naira) cost against the Respondent herein i.e. Unity Bank Plc.”,
It should be recalled that the judgment creditor/applicant (Gideon David) had on the 27/10/17 by way of motion exparte sought to be heard on the following reliefs:-
1. A GARNISHEE ORDER NISI directing the above named garnishees to appear before the honorable Court to show cause why an order should not be made against them for payment to the judgment creditor/applicant the sum of N362,590,942.00k (Three Hundred and Sixty-two Million, Five Hundred and Ninety Thousand, Nine Hundred and Forty-Two Naira only) being debt due and owing and/or accruing from garnishee to the judgment debtor or so much thereof as will satisfy the judgment sum due to the judgment creditor/applicant under the judgment delivered in this case on the 1st day of July, 2009.
2. Pursuant to relief (1) above, an ORDER of the honorable Court directing that upon the service of the Garnishee Order Nisi on the above named garnishees, the money due and owing and/or accruing from the 2nd, 3rd, and 4th garnishee to the judgment debtor which the money is hidden in the 2nd, 3rd and 4th garnishee’s account number 0000533047 and 0000202349 and 0000202349 respectively with the 1st garnishee shall be attached to answer the judgment debt in this case.
The Appellant, Unity Bank Plc was the first garnishee, and consequent upon the application made by the judgment creditors, a garnishee order nisi was made on 27th day of October, 2017 as prayed, and subsequently made absolute on the 12th of February, 2018, against the 3rd and 4th garnishees therein.
On the 26th of February, 2019, Appellant filed a motion on notice for order of Court setting aside the garnishee order absolute made by the lower Court on the 12th of February, 2018, on the grounds that:
I. The 3rd and 4th Garnishee are not proper parties and there is no reasonable cause of action against the 3rd and 4th Garnishees. That the 3rd and 4th Garnishees/Respondents have no business or contractual relationship with the judgment debtors/respondents.
II. The 3rd Garnishee i.e. Visa Investment & Securities Bank account 0000202349 domiciled with the 1st Garnishee/Applicant is not linked to Bank Verification Number (BVN).
III. Furthermore, the 4th Garnishee i.e. Gusau Oil Mill Ltd Bank Account 0000201689 domiciled with the 1st Garnishee/Applicant is also not linked to Bank Verification Number (BVN).
IV. All financial institutions including the Central Bank of Nigeria has been directed by an interim order of this Court, that no outward payments, operations or outward transactions (including any bill of exchange) should be made in respect of any account(s) pending the linking of the accounts to a Bank Verification Number.
V. The 1st Garnishee/Applicant cannot pay out any money held in the accounts of the 3rd and 4th Garnishee/Respondents to the Judgment Creditor/Respondent since there is no Bank Verification Number (BVN) linked to the said accounts.
The respondent (judgment creditor) responded to the said motion brought on notice by filing a preliminary objection to the application, supported by an affidavit, a counter-affidavit and written addresses.
On the 12th of April, 2018, the lower Court duly considered arguments on the preliminary objection filed, and upheld the said respondent’s preliminary objection thereby striking out the appellant’s motion on notice filed on 26th February, 2018, in the following words:
“I have carefully considered the preliminary objection. I am of the firm view that the garnishee-respondent herein has a duty to pay money in its bank to the judgment debtor in obedience to the order of Garnishee Absolute. The bank has no right and no business protecting the respondent on behalf of the judgment debtor. See Zenith Bank vs. Igbokwe (2013) LPELR-21975. I agree with the submissions of the learned counsel for the applicant herein that the motion dated 22/2/18 praying the Court for an order setting aside the order absolute made by this Court on the 12/2/18 is an abuse of the processes of this Court. Indeed, it is like the garnishee bank poking its fingers in the eyes of the Court. This must be resisted as the order absolute is a final order”.
Appellant was dissatisfied by the said ruling and consequently filed a notice of appeal on the 24th day of April, 2018, predicated on 3 grounds of appeal. On the 2nd of July, 2018, the records of appeal in respect of the appeal, were compiled and transmitted to this Court, consequent upon which appellant filed a brief of argument on the 11th of July, 2018. Appellants also filed a reply brief to the respondent’s brief on the 18th of April, 2019, and on the 23rd of March, 2021, being the date scheduled for the hearing of the appeal, the learned counsel who appeared for the appellant identified the processes filed, adopted the same and urged the Court to allow the appeal.
The Respondent in opposing the appeal, filed the respondent’s brief of argument incorporating a preliminary objection on the 21st of November, 2018, but deemed filed on the 12th of April, 2019, with the leave of Court. On the same 23rd of March, 2021, the respondent’s counsel duly identified the process filed in opposing the appeal and urged the Court to dismiss the appeal.
In the appellant’s brief settled by Oluwole Aluko the learned counsel representing the appellant and specifically at pages 2 and 3 of the said brief, isolated four issues for the resolution of the Court as follows:-
1. Whether the decision of the Court below on application to set aside the garnishee order absolute aside that is based on the Notice of Preliminary Objection of the respondent on the issue that the 3rd garnishee and the 4th garnishee Visa investments and Securities Ltd. And Gusau Oil Mill Ltd’s accounts have no BVN Number and that the accounts cannot be garnisheed is perverse having regard to the fact that (i) the issue was never contested by the respondent in the notice of the preliminary that the accounts of the 3rd garnishee and the 4th garnishee with the appellant have no BVN number. (ii) there is no provision in High Court Rules Osun State for Notice of Preliminary Objection. (iii) By the decision of the Supreme Court in Psychiatric Hospital Management Board vs. Ejitagha (2000) 6 SC part 11 page 1 in the Court below cannot import into the High Court Rules Osun State Notice of Preliminary Objection that is not there.
2. Whether the cost of one hundred thousand naira (N100,000) that the Court below awarded in favour of the respondent in favour of the respondent is punitive and liable to be set aside by the Court of Appeal having regard to the fact that there is no evidence that the respondent incurred the sum of one hundred thousand naira (N100,000) in filing the Notice of Preliminary Objection.
3. Whether the decision of the Court below that the application of the appellant of February, 22nd, 2018, to set aside the garnishee order absolute is an abuse of the process of the Court is perverse having regard to the judicial power of the Court under Section 6(6) (a)(b) of the 1999 Nigeria Constitution and decision of the Supreme Court in Adigun vs. A.G Oyo State (1987) 4 SC page 271 @ 288-289, Sodipo vs. Lamminkainen (1985) 7 SC part 1 page 482 by which the Court can entertain the application even after the delivery of the judgment.
4. Whether the garnishee order absolute that was made by the Court below against the appellant in favour of the respondent in respect of the account of the 3rd garnishee Visa Investments Securities Ltd. and 4th garnishee Gusau Oil Mill Ltd. is a nullity ab-initio having regard to the undisputed fact that (i) the 3rd garnishee Visa Investments Securities Ltd. and 4th garnishee Gusau Oil Mill Ltd. are not the judgment debtors and the respondent did not obtain judgment against the 3rd garnishee and 4th garnishee in any Court of superior record in Nigeria for payment of any amount of money to the respondent. (ii) the judgment debtors Nospecto Joint Ventures Services, Nospecto Gas Ltd, Nospecto Joint Ventures that the respondent obtained judgment against at the High Court Ibadan have no account with the Appellant. (iii) In the garnishee proceedings only the account of the judgment debtor with the garnishee can be attached.
Also, in the brief of the respondent, settled by J.P Jones and at page 7 thereof, two issues were indicated therein for the resolution of the appeal as follows:
1. Whether the lower Court was not right to have struck out the Appellant’s motion on notice filed on 26th February, 2018.
2. Whether or not the cost of N100,000.00 (Hundred Thousand Naira) only awarded against the appellant is proper in the circumstances.
Before the consideration of the issues tabled for resolution however, I consider it proper to consider and to determine the preliminary objection raised in the respondents brief to the hearing of this appeal, which was premised on the following grounds:-
a. The decision appealed against is an interlocutory decision and thus an appeal must be filed within 14 days thereof.
b. The notice of appeal filed on 8th of May, 2018, is beyond 14 days after the decision was made by the lower Court contrary to S. 25 of the Court of Appeal Act.
c. All the grounds are grounds of facts or at best mixed law and fact.
d. The appellant did not obtain leave of Court to appeal contrary to S. 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
e. The notice of appeal is in breach of the mandatory provisions of Order 7 Rule 2 because it omitted and/or didn’t state the names and addresses of all parties directly affected by the appeal.
f. By virtue of Order 2 Rule 6 of the Court of Appeal Rules, 2016, the notice of appeal is deemed not to have been properly filed.
The preliminary objection was argued from page 4–6 of the brief, stating that the decision of the lower Court being an interlocutory decision, ought to have been filed within 14 days of the decision as demanded by Section 25(2) (a) of the Court of Appeal Act, 2004, and the case of Ribadu vs. Dalhatu (2012) LPELR–19729 (CA). Learned counsel also referred to the case of Omonuwa vs. Oshodin & anor (1985) LPELR–2654 (SC), on what constitutes an interlocutory decision, contending that the garnishee order absolute which the appellant sought to be set aside was a final judgment on the merit: Union Bank of Nigeria Plc vs. Boney Marcus Ind. Ltd & ors (2005) LPELR-3394 (SC). He thus contended that the ruling of the lower Court striking out appellant’s motion on notice seeking to set aside the order for a garnishee absolute was an interlocutory decision. He drew the Court’s attention to the fact that the notice of appeal was filed on the 8th of May, 2018, while the interlocutory decision was filed on the 12th of April, 2018 more than the 14 days allowed by the Act, and thereby incurable defective, the consequence of which is that the appeal is incompetent and liable to be struck out.
Further to that counsel argued, all the grounds of appeal are grounds of facts or at most mixed law and facts. He contended that in such a situation the law demands that appellant obtain leave before filling, the absence of which rendered the grounds filed incompetent. The cases of NJC vs. Agumagu (2015) LPELR–24503 (CA) and African Petroleum Plc vs. Jerry and Kos Enterprises Ltd (2013) LPELR–20801 (CA) were alluded to.
Further still, counsel posited that the appeal was incompetent having failed to comply with the provisions of Order 7 Rule 2(1) of the Court of Appeal Rules, 2016. On this, counsel relied on Pepple vs. Princewill (2011) LPELR–4487 (CA) and Nestoil Ltd & anor vs. Onuoha (2011) LPELR–4590(CA). This failure, counsel posited was fatal to the appellant’s appeal.
Further, counsel faulted the notice of appeal for not complying with Order 2 Rule 6 of the Court of Appeal Rules as to the provision for address for service, and the appeal should in the circumstance be deemed as not having been filed. He finally urged the Court from the foregoing to uphold the preliminary objection and to dismiss/strike out the appeal.
The response by the appellant is in the reply brief filed on the 18th of April, 2019. It was stated therein by the learned counsel that the preliminary objection itself is incompetent for the following reasons.
i. At paragraph 1.14 page 5 of the respondent’s brief, it stated as follows “it is submitted that the garnishee order absolute which the appellant sought to set aside at the lower Court is a final judgment on the merit”. Final judgment on the merit by the literal interpretation of statute and golden rule interpretation on statute cannot encompass ruling at interlocutory stage of the proceeding and garnishee order absolute is a final decision of Court and right of appeal is of right and exercisable within the period of three months.
ii. Respondent at paragraph 1.33 and 1.34 of the respondent’s brief of argument stated as follows: “My Lords, the garnishee order absolute made on the 12th of February, 2018 is a final judgment on the merit and the lower Court having delivered the said order, has become functus officio in respect of that matter and lacks the jurisdiction to review, re-open or reverse its decision or set it aside”. Final judgment as emphasized in the respondents’ brief that encompasses the garnishee order absolute is distinct from interlocutory decision in the course of proceeding where can still be heard on other issues not yet resolved and ruling and judgment delivered after hearing the parties on the pending issues. This is not the position in the garnishee order absolute where there is no issue to be resolved again and the right of appeal under Section 241(1)(a)(b) of the 1999 Nigeria Constitution is 3 months and leave of the Court to appeal is not required.
iii. The issue of mixed law and facts in grounds of appeal is not applicable to the grounds of appeal in the notice of appeal that is of right after the final decision of the Court under Section 241 (1)(a)(b) of the 1999 Nigeria Constitution
The right of the appellant to appeal against the garnishee order absolute of the Court below is not subject to the leave of the Court under Section 241 (1)(a)(b) of the 1999 Nigeria Constitution.
Learned counsel argued that the grounds of appeal in the notice of appeal raise issues of law alone that the respondent in his brief of argument never disputed that (i) The accounts of the Gusau Oil Mill Ltd and Visa Investment and Securities Ltd have no BVN number and by the regulation of the Central Bank of Nigeria, the accounts cannot be tempered with. (ii) That the judgment debtors (i) Nospetco joint venture services unit (ii) Nospetco Oil and Gas Ltd (iii) Nospetco joint ventures services have no account with the appellant or any of the garnishees that can be attached. He posits that in law, any ground of appeal that is based on undisputed facts is a ground of law as indicated in Nwadike vs. Ibekwe (1987) 12 SC 14 @ 53. He urged the Court to dismiss the preliminary objection raised.
Let me start by saying that the law does not permit of a preliminary objection to a preliminary objection. All that is required is for the respondent to the preliminary objection to answer to the preliminary objection raised. I will on that premise discountenance the preliminary objection to the preliminary objection.
Let me first consider whether appellant’s application by way of motion on notice filed on the 26/2/2018 is against an interlocutory decision or a final decision of the lower Court. Now, Section 24 (2) of the Court of Appeal Act, 2004, makes provision as to the time frame in filing of appeals against final and interlocutory decisions. This periods by virtue of Order 7 Rule 10(2) of the Court of Appeal Rules are subject to extension on good grounds shown. Also, in Ngene vs. Alor, Tobi, JSC, defined Final Decision to mean that decision given by the Court and which by the decision given, nothing else or nothing more remains to be done by that Court. In other words, what the Judge has been empowered to do has been accomplished, and the Judge has no further authority or legal competence to revisit the matter. As to whether the order granted by the lower Court was final or interlocutory appeared to have been settled by the lower Court in its judgment, having stated that the order absolute was a final order or decision. The apex Court on specifically laid the issue to rest in Union Bank of Nigeria Plc vs. Marcus Ind. Ltd & ors (2005) LPELR – 3394 (SC), through the mouth of Kutigi, JSC thus:
“… it was an order absolute. It was a final decision of the Court. A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution… clearly by the order of the Court above, the trial Court had determined the rights of the parties before it.”
I need not say from the foregoing that appellant needed not to have filed its notice of appeal within 14 days as contended in the preliminary objection in view of the sacrosanct provisions of Section 24 of the Court of Appeal Act, 2004.
Learned counsel yet again complained that Order 2 Rule 6 of the rules of this Court dealing with the requirement of having an address for service endorsed on the process has not been complied with. I wonder if learned counsel for the respondent herein actually examined the process being complained about. This is because, his complaint is not supported by the record. Yet still, counsel alluded to Order 6 Rule 2 in vain as the order does not have any bearing to the application at hand. Lastly, can we say that the grounds of appeal in the instant case are grounds of fact, mixed law and facts as contended by the objectors?
I have therefore with that contention in view examined the four grounds of appeal upon which the appeal is predicated and my humble view is that all the grounds of appeal are grounds of law, for which by virtue of the constitutional provisions of Section 241(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria, of right, therefore requiring no leave of Court. In the instance, there is no merit in the preliminary objection raised, and same is hereby dismissed. I now proceed to the merit of the appeal proper.
MAIN APPEAL.
Mr. Oluwole Aluko for the appellant identified four issues, the resolution of which determines the appeal. With regards to the first issue identified, learned counsel submitted that the main issue in the appellant’s application seeking for order to set aside the order of garnishee absolute made against the 3rd and 4th garnishee before the lower Court was that the accounts of the said garnishees have no BVN numbers and that by the regulation of the Central Bank, appellant cannot touch those accounts. He argued that respondent by his preliminary objection did not contest that issue, and further that the issue having been raised to the effect that the 3rd and 4th garnishees had no contractual relationship with the respondent, and that the judgment debtors had no money with the 3rd and 4th garnishees, was not contested by the respondent. He went further in submitting that there is no provision in the rules of Court enabling the respondent raising a preliminary objection, in the absence of which the Court’s decision amounted to a nullity. He cited the case of Psychiatric Hospitality Management Board vs. Ejitagha (2000) 6SC (pt. ii) 1 in support of his contention.
With respect to his second issue, on the award of N100,000.00 in favor of the respondent, learned counsel complained that the respondent did not incur that sum in the filing of the preliminary objection, and further that the sums awarded were excessive and punitive. He also cited Ladega vs. Akinliyi (1975) 2 SC 9, on the point.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
On the third issue also identified by appellant, relating to the holding of the lower Court to the effect that the application was an abuse of Court process, and perverse, pointed out that:
i. By virtue of the provision of Section 6 (6) (a) and Section 6(6)(b) of the Nigeria Constitution and the decision of the Supreme Court in Adigun vs. A.G Oyo State (1987) 4 SC Page 271 @ 288-289; Sodipo vs Lemminkainen (1985) 7 SC Part 1 Page 482 the Court can still entertain the application even after delivery of judgment.
ii. The Court below and even this honourable Court can still invite counsel to the parties to address the Court on the following issues of law that have rendered not only the garnishee proceeding a nullity but the judgment of the High Court Ibadan on which it is based. (I) The parties in the judgment of the High Court Ibadan from which the garnishee proceeding has its origin are (1) Gideon David’s judgment creditor as plaintiff there and (1) Nospecto Joint Ventures Services Unit (2) Nospecto and Gas Nig. Ltd. (3) Nospetco Joint Ventures Services. The judgment debtors as defendants there.
He then argued that by virtue of the decision in Okeke vs. A.G Anambra State & ors (1992) 1 NWLR (pt. 215) 60 @ 80 the 1st judgment debtors had no legal personality and cannot sue or be sued. While the 3rd judgment debtor likewise has no legal personality, the 3rd garnishee, Visa Investment and Securities Ltd. is not a judgment debtor, while the judgment debtors have no account with any of the garnishees, thereby rendering the entire proceedings a nullity. Lastly on the fourth issue distilled, counsel argued that the garnishee order absolute was based on the common mistake that the accounts of the 3rd and 4th garnishees with the appellant can be garnished. He urged the Court to resolve all the issues in favor of the appellant, and to declare that the entire proceedings were a nullity as parties therein have no legal personality and cannot sue or be sued.
Mr. N. Onuoha for the respondent on the other hand, isolated two issues for the Court’s determination. On issue one, it was posited that the lower Court was right to have struck out the application in limine filed on the 26th of February, 2018. He argued that the order of garnishee absolute made on the 12th February, 2018, amounted to a final judgment on the merit and the lower Court functus officio. Union Bank of Nigeria Plc vs. Boney Marcus Ind. Ltd & anor (supra). He contended that, once an order absolute is made, the Court lacks the jurisdiction to review, reverse or reopen that decision. He contended also that although the lower Court has an inherent jurisdiction to set aside its decision in proper circumstances, appellant in the present circumstance failed to exhibit any good reasons to warrant the lower Court setting aside its final decision. He contended still that the garnishee order absolute was directed against the 3rd and 4th garnishees who though served refused to attend Court, and that it amounted to an abuse of Court process for the appellant whose legal interest was not affected by the decision to have filed an application seeking to set same aside. He cited Ziklagsis Networks Ltd vs. Adebiyi & ors (2017) LPELR–42899 (CA) and Mobil Producing (Nig.) Unltd vs. Monokpor (2003) 18 NWLR (pt. 552) 346 @ 399 (SC). He submitted that filing a Court process/application when there is no law supporting such an application is an abuse of Court process; R-Benkay Nig. Ltd vs. Cadbury Nig. Ltd (2012) LPELR–7820 (SC). He concluded by asserting that since the appellant had no locus to have filed the application, the lower Court lacked the vires to entertain the said application, and was therefore right in striking it out.
On the 2nd issue distilled, counsel submitted that the sums of One Hundred Thousand naira awarded by the lower Court against the appellant was a proper exercise of the Court’s discretion, as same is not measured by out of pocket expenses of the successful parties. He relied on Ero & anor vs. Tinubu (2012) LPELR–7869 (CA) to contend that it is common knowledge that litigants incur expenses in terms of filing fees and money for service of processes as well as lawyer’s fees. He urged the Court to take into account the peculiar nature of the case hand, and to be mindful of the falling value of the national currency and to hold that the award of N100,000.00 only was not excessive.
Replying on points of law, it was contended that since the respondent failed to answer any of the material points in the appellant’s brief, then there is no brief by the respondent as required by Order 19 Rule 4(2) of the Court of Appeal Rules, 2016. He referred to Aromolaran vs. Oladele (1990) 7 NWLR (pt. 162) 359 @ 371.
I have accordingly accorded the arguments of the learned counsel a sober but dispassionate consideration. I see the facts leading to the ruling before the lower Court that gave birth to the instant appeal as being straightforward. The question that is derivable from the entire scenario is whether the lower Court, having granted an order absolute against named garnishees, can still be called upon to revisit the case by way of an application, and whether the rules of the lower Court can be relied upon to support the raising of a preliminary objection as was the case before the lower Court.
Considering the latter issue first, the law is certain that a Court of law has the inherent power of combining the hearing of any interlocutory application with the substantive action. Of paramount consideration arising there from is that once the application poses a challenge to the jurisdiction of the Court, that issue must first be determined one way or the other. It has been so, on the basis that where the Court eventually is found to be lacking in jurisdiction at the end of the day, all that has been done amounts to a nullity. See the cases of Senate President vs. Nzeribe (2004) 9 NWLR (pt. 878) 251 (CA) per Oguntade JCA, as he then was, African Petroleum Plc vs. Albert Adeniyi & ors (2011) LPELR–3642 (CA) per Nwodo, JCA (of blessed memory). An application is an application, whether termed preliminary objection or an application brought by way of motion on notice. The prime difference being that in preliminary objections as in the instant case seeks to terminate the action in limine.
On the question whether the lower Court having granted an order absolute, being a final decision on the matter, can still entertain an application seeking to vary the order granted? The obvious answer is that, an application can still be entertained on proper grounds where the occasion so demands. The answer to the question is not farfetched. In the case of Anatogu vs. Iweka II (1995) NWLR (pt. 415) 547 per Ogundare, JSC, the Apex Court in that decision held that:
“The general rule is that the Court has no power under any application in the action to vary a judgment or order after it has been uttered or drawn up, except so far as is necessary to correct errors in expressing the intention of the Court or under the slip rule” … there are however exceptions to this rule some of which are:
i. A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process, can be set aside by the Court which gave the judgment or made the order. See Skenconsult (Nig.) Ltd vs. Ukey (1981) 1 SC 6, Craig vs. Kannsen (1943) KB 256, Forfie vs. Seifah (1958) 1 ALL ER 219 (PC).
ii. A judgment or order made against a party in default may be set aside and the matter reopened see E.G. Order XLI Rule 5 of the High Court Rules of Eastern Nigeria.
iii. There is jurisdiction to make upon proof of new facts an order supplemental to an original order e.g. a supplemental order to an order for specific performance that there is an inquiry as to damages sustained by reason of the agreement, at any rate from the date of the original order for specific performance. See Ford-Hunt vs. Singh (1973) 2 ALL ER 700.
iv. If a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment.
v. A judgment may be set aside on the ground that fresh evidence has been discovered which if tendered at the trial, will have an opposite effect on the judgment.
See also, the cases of Bassey Ene vs. Asuquo Asikpo & anor (2009) LPELR-8723 (CA) per Abadua, JCA, Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR–22708 (CA).
There is the argument by the respondent’s counsel that appellant lacked the locus standing to have filed the instant appeal as his legal interest was not affected by the decision of the lower Court, and couldn’t have filed the application seeking to set aside the decision. The two cases of Ziklagsis Networks Ltd vs. Adebiyi & ors (2017) LPELR–42899 (CA) and Mobil Producing (Nig.) Ltd vs. Monokpor (2003) 18 NWLR (pt. 552) 346 @ 399 were cited on the legal proposition. The pertinent holding in the cases cited is to the effect that it is inutile for a person who is not affected by the decision rendered by the Court to file an appeal against the said decision. This is on the premise that he has no grievance to ventilate. I am unable to hold in the present situation that appellants have no grievance to ventilate. The reason for saying so can be deduced from the final order of the lower Court which is to the effect that:
“Court- Order as prayed.
The money(ies) due, owing and/or accruing from the 3rd and 4th garnishees in account Numbers 0000202349 and 0000201689 operated by the 3rd and 4th garnishees respectively with the 1st garnishee bank or any part thereof sufficient to offset the judgment debt in suit No. 1/706/2009 in the judgment delivered by M. O. Bolaji – Yusuf on the 1st of July, 2009, is hereby ordered to be paid over to the judgment creditor/applicant herein.
It is obvious from the foregoing that the holding of the lower Court to the effect that appellant’s application made was an abuse of the Court process, cannot be correct. This issue is accordingly resolved in favor of the appellant.
Now, issues 1 and 4 raises the issue whether the grant of the order absolute by the lower Court can be justified in view of the facts stated by the appellant. Appellant now states that he was not served the process leading to the Court granting the order absolute, and referred to pages 62, 72 and 73 being affidavit of non-service on the garnishees, appellant inclusive. This Court had occasion in Vitachem Nigeria Ltd vs. DSM Sinochem Pharmaceuticals Indi Private Ltd (2017) LPELR–43200 (CA) per Garba, JCA, as he then was to state that:
“Section 83(2) of the Civil Process Act (SCPA) provides that at least fourteen days before the hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor. Apparently, the requirement of these simple and unambiguous provisions is that a garnishee order nisi made by a Court in garnishee proceedings brought by a judgment creditor to enforce a judgment entered in its favour, against a debt owed or money standing to the credit of the party against who the judgment was entered; called the judgment debtor, shall be served on the party owing the debt or holding the money in the credit of the judgment debtor, called the garnishee, and the judgment debtor, at least fourteen (14) days before the hearing, for the purpose of the order nisi. The order nisi is simply an order, instruction or directive to the named garnishee(s) to come to the Court to show good cause why the debt owed or money of the judgment debtor in their possession/custody, should not be ordered absolutely to be used for the settlement of the judgment debt. The provisions require that the order nisi be served on both the garnishee(s) and the judgment debtor at least fourteen days (14) before the date the garnishee(s) is/are appear before the Court for hearing to show cause. Although, in law practice, garnishee proceedings are strictly between the judgment creditor and the named garnishees and the judgment debtor is not considered a party, who has any right of appearance therein, the above provisions of Section 83(2) of the Sheriffs and Civil Processes Act unequivocally require that the judgment debtor be served with the order nisi along with the garnishees who are parties, before the return date for hearing to show cause to the Court why the order should not be made absolute. As statutory provision and requirement, a Court of law has the judicial duty and obligation to comply and ensure compliance therewith in the conduct of proceedings of cases before it. See C.C.C.T.C.S Ltd v. Ekpo (2008) 6 NWLR (1083) 362; Mako v. Umoh (2010) 8 NWLR (1195) 58 @ 107-8.
In the case of Wema Bank Plc. V. Brastem-Sterr Nig. Ltd (supra) this Court held that the provisions of Sections 83 of the Sheriffs and Civil Processes Act are mandatory and failure to comply with them would render an order absolute in garnishee proceedings, void. That is the law on the effect and consequence of failure to comply with the provisions”
See also, Ecobank Nigeria Plc vs. Guaranty Trust Bank Plc & ors (2016) LPELR–40574 (CA), Onjewu vs. KSMCI (2002) LPELR–5507 (CA).
Evidently, there is no proof of service on either the judgment debtor nor the garnishees before the order nisi was made absolute, and thus, vitiated the order absolute made, and rendered it void. The first and 4th issue are likewise resolved in favor of the appellant.
The resolution of the 3rd issue is consequent upon the resolution of the other issues. The other issues having been resolved in favor of the appellant, the 3rd issue cannot be maintained and also resolved against the respondent.
Hence, having resolved all the issues in favor of the appellant, the appeal succeeds. The order of the lower Court granting an order absolute against the appellant is hereby vacated.
I make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment of my borther HAMMA AKAWU BARKA, JCA.
I agree with his reasoning and conclusion.
The order of the Court below granting an order absolute against the appellant is hereby vacated.
I abide by the consequential order made as to costs that there shall be no order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: After reading the draft of the judgment delivered by my learned brother, Hamma Akawu Barka, JCA, I find the reasoning and conclusion reached therein to be without fault, and I adopt it as mine. In the result, there is merit in the appeal and I too allow it, and in consequence, set aside the order absolute made by the lower Court.
I abide by the order of no cost to either of the parties.
Appearances:
C. O. FALANA holding the brief of OLUWOLE ALUKO For Appellant(s)
N. ONUOHA For Respondent(s)
