WEMA BANK PLC v. BRASTEM-STERR NIGERIA LTD. & ANOR.
(2010)LCN/3766(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of May, 2010
CA/L/29/05
RATIO
PROCEDURE: WHETHER AFFIDAVIT OF SERVICE IS A PROOF OF SERVICE
It is trite that Affidavit of Service is prima-facie proof of service on a party unless there is evidence to contradict same, where there is an affidavit of service on a person denying service that person has to swear to an Affidavit to counter the deposition. Ethiopian Airlines v. Onu (2005) 11 N.W.L.R. (pt.936) 214 C.A. PER REGINA OBIAGELI NWODO, J.C.A.
PROCEEDING: WHAT IS A NATURE OF A GARNISHEE PROCEEDING
Garnishee Proceedings is a means by which Judgment is enforced. It denotes that the Judgment-Creditor has to obtain an order of court that the debtor pays the Judgment-Creditor by the process of attaching the debt once order nisi is served on the garnishee. See Sokoto State Govt. v. Kamdex (Nig.) Ltd. (2004) 9 N.W.L.R. (pt.878) 345 CA. In Re: Diamond Bank Ltd. (2002) 17 N.W.L.R. (pt.795) 120 CA. Therefore service on the Judgment debtor is fundamental.
Garnishing proceeding is a separate and distinct action between the Judgment-Creditor and the person holding in custody the assets of the Judgment-Debtor. The statute enjoins service on the Judgment debtor whose asset is to be attached from the moment of making an order nisi the essence is to put him on notice. The garnishee proceedings will certainly affect him as per his assets as a Judgment debtor. The appearance of the counsel in court cannot override the mandatory statutory provision. PER REGINA OBIAGELI NWODO, J.C.A.
PROCEDURE: SERVICE OF PROCESS; IMPORTANCE OF SERVICE OF MANDATORY PROCESS
Service of mandatory process is fundamental to the Jurisdiction of the court, when there is a specific provision that a party is to be served in a specific manner and it is not observed the Jurisdiction of court against that party has not been invoked. Mohammed v. Mustapha (1993) 5 N.W.L.R. (pt.292) pg. 222. PER REGINA OBIAGELI NWODO, J.C.A.
APPEAL: WHAT CONSTITUTES A GROUND OF APPEAL
A Ground of Appeal consist of the error of law or fact alleged by an Appellant as the defect in a Judgment appealed against and relied upon to set the Judgment aside. Metal Construction (W.A.) Ltd. v. Migvore (1990) 1 N.W.L.R. (pt.126) 299 S.C. The ground should arise from the Ruling of the court. PER REGINA OBIAGELI NWODO, J.C.A.
JUSTICES
HON. JUSTICE PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
HON. JUSTICE IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HON. JUSTICE REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
WEMA BANK PLC – Appellant(s)
AND
1. BRASTEM-STERR NIGERIA LTD.
2. KOSOFE LOCAL GOVT. COUNCIL – Respondent(s)
REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Lagos State made on the 2nd November, 2004. Briefly the facts that lead to the decision are as follows:
The 1st Respondent as Claimant in the High Court commenced a suit by Writ of Summons and Statement of Claim against the 2nd Respondent who was then the Defendant claiming the sum of N7,304,795 (seven million, three hundred and four thousand, seven hundred and ninety five naira) as damages for Breach of Contract together with interest at 35% per annum from 31st of July, 2002 until Judgment. Judgment was entered in the suit on the 8th of December, 2003 as per the terms of settlement dated 15th of May, 2003.
The 1st Respondent subsequently filed an ex-parte application for garnishee proceedings dated 23rd September, 2004. The application was granted and a garnishee order nisi made. On the 2nd of November, 2004 the learned Trial Judge making an order absolute held:
“Upon hearing the Applicant/judgment Creditors’ Counsel on his request that the garnishee order Nisi made in this suit on 4th November, 2004 be made absolute as he had served the judgment Debtor/Respondent whose Counsel has always appeared in Court in respect of the proceedings and the garnishee vide affidavit of service of Sola Oladipo- a senior bailiff of this Court dated 18th November, 2004. The garnishee having had 14 days to file their return but failed to do so. This Court is vested with discretionary powers to order that the writ of garnishee do issue against Wema Bank Ojota branch Lagos. The order Nisi made in this suit on 18th November, 2004 in the circumstance can only be made absolute as I have no reason to believe that the garnishee is not in legal custody of monies of the judgment Debtor to the tune of N3,651,700.00 (three million six hundred and fifty one, seven hundred naira). The writ of garnishee shall issue to the garnishee in the said sum which sum shall be made payable to the Judgment Creditor/Applicant within 30 days of today hereof. If the garnishee fails to show no other just cause why the order absolute should not have been made. The complaint of non-service of the proceeding on the Judgment Debtor is unmeritorious as Counsel for that party has been attending the proceedings since the order Nisi was made. The proceedings however is one between the judgment Creditor/Applicant and garnishee strictly”.
Dissatisfied with the decision of the court, the Appellant filed a Notice of Appeal on 6/1/05 containing 3 Grounds of Appeal. At the hearing of the Appeal on 18-02-10 the learned counsel for the Appellant Chief Wale Taiwo adopted the Brief of Argument filed on 28/4/06 deemed filed with leave of court on 17/10/06.
Learned counsel for the 2nd Respondent Mr. Rotimi Seriki adopted the 2nd Respondent’s Brief filed 17/11/08 deemed properly filed and served on 19/3/09. The 1st Respondent counsel was not in court though served. The 1st Respondents’ Brief of Argument settled by Aaron Nwachukwu was taken as argued. The Appellant in his Brief formulated 3 issues for determination which reads as follows:
“Whether the learned trial judge was right when she pronounced an Order Absolute against the Garnishee on 2nd November, 2004 when there was on record no issuance and service of the Order Nisi on both the Garnishee and the judgment Debtor.
Whether the learned trial judge was right when she pronounced a conditional Order Absolute against the Garnishee in contravention of the provisions of S.86 of the Sheriff & Civil Process Act Cap 407 Laws of the Federation of Nigeria.
Whether the learned trial Judge was right in continuing with the Garnishee proceedings, the Garnishee having shown a just cause pursuant to the conditional Order Absolute made by her”.
The 1st Respondent in his Brief distilled the following 3 Issues for determination which are not tied to the Grounds of Appeal.
“Whether the Garnishee Order absolute was made without proof of service.
Whether the Garnishee Order absolute as made by Hon. justice D. T. Okuwobi warrants the Appellant/Applicant’s disobedience of not showing cause.
Whether the format of Garnishee Order Nisi and Absolute used by the Hon. justice D. T. Okuwobi (Mrs.) is a nullity for not conforming with Form 26 & 27 of the Sheriff and Civil Procedure Act, Cap. 470 LFN 1990”.
The 2nd Respondent in his Brief formulated the following 3 Issues:
“Whether the learned trial judge was right in making the garnishee order nisi absolute, in the absence of evidence of service of the garnishee order nisi on both the Garnishee (Appellant) and the judgment Debtor (the 2nd Respondent)?
(Ground 1 of the Notice of Appeal).
Whether non-compliance of the garnishee order nisi and garnishee order absolute with the prescribed statutory forms (Forms 26 and 27 of the First Schedule to the Sheriff and Civil Process Act) vitiates the garnishee proceedings? (Ground 2 of the Notice of Appeal).
Whether the Garnishee showed cause before the garnishee order nisi was made absolute by the learned trial judge?
(Ground 3 of the Notice of Appeal)”.
The Issues distilled from the 3 grounds in the Appellant’s Brief and the 2 Respondent are similar except for the phrase adopted. I will therefore consider this appeal on the Issues distilled for determination in the Appellant’s Brief.
Under Issue One: whether the learned Trial Judge was right when she made an order absolute when there was no record of issuance and service of the order nisi on both the Garnishee and the Judgment Debtor.
It is the submission of Chief Taiwo that the order of the lower court on 4th October, 2004 is that an order nisi be issued. It is his contention that the order nisi was never issued by the court. That the alleged order nisi was not in compliance with Form 26 of the Sheriff and Civil Process Act. Chief Taiwo further submitted that the order of the court that the garnishee and the Judgment Debtor be personally served was never carried out. He contended that proper approach for service of court process on a company or corporation is to serve the process at the head office of the company or corporation where the Directors, Principal Officers and Company Secretaries have their seats. It is his submission that where service of a process is ordered to be effected in a particular manner and there is no proof that it was effected in the prescribed manner the proceedings is a nullity. It is his submission that since the order nisi was not served on the Judgment Debtor and the Garnishee in this instant case, the learned Trial Judge was wrong when she pronounced an order absolute against the Garnishee on 2nd November, 2004 .
Learned counsel for the 1st Respondent contended that the presence throughout the Garnishee proceedings of the 2nd Respondent counsel and the affidavit of the Appellant admitting service makes the process proper and confer Jurisdiction on the Hon. Judge to determine the proceeding.
Learned counsel for the Respondent Mr. Seriki contends that the Appellant having admitted that the Garnishee order nisi was served on the Appellant needs no further proof. See Olagunyi v. Oyeniran (1996) 6 N.W.L.R. (pt,453) pg.127; Akpan v. Umoh (1999) 11 N.W.L.R. (pt.627) pg.349.
It is his submission that by virtue of S.83(2) of the Sheriffs and Civil Process Act, Service of the Garnishee order nisi on both the Appellant and the 2nd Respondent at least 14 days before the Garnishee order nisi was made absolute is a condition precedent to the exercise of the trial court’s jurisdiction to make the Garnishee order nisi, absolute.
He submits that non service of the Garnishee order nisi on the 2nd Respondent robbed the trial court of Jurisdiction to grant the Garnishee order absolute and such order is a nullity.
The learned counsel for the Appellant under Issue One made submissions on the nature of order nisi ordered by the court contending it was not issued and did not comply with Form 26 of the Sheriff and Civil Process Act. This argument must arise from Issue One distilled from Ground One.
I have looked at Ground One of the Notice of Appeal and the particulars therein and note that the point of non issuance of order nisi was raised in the ground and under the particulars. However when I scrutinized the Ruling of the court delivered on 2/11/2004 (supra) (seen at pages 75-76) I found that the learned Trial Judge did not make any pronouncement on the issue of issuance of order nisi nor was the court below addressed on that point. it is trite law that an appeal is usually against the ratio decidendi of the Judgment of a lower court except where the Orbiter dicta is so clearly linked with the ratio decidendi as to be deemed to have radically influenced the ratio decidendi. See Saude v. Abdullahi (1989) 4 N.W.L.R. (pt.116) 387 S.C.; Okpeji v. Minister of Agriculture (1997) 9 N.W.L.R. (pt.522) 693 CA. The contention of Chief Taiwo under Issue One is that the order of the court below made on 4th October, 2004 that an order nisi be issued was not issued as ordered. The argument is that the court did not make an order nisi but ordered the Issuance of the order nisi. The contention is on the word ‘issuance’,
I have looked at the Record of Proceedings of the 4th November, 2004 and will reproduce the order of the court for purposes of emphasis. (See pg.7 4 of Record of Appeal).
“An Order Nisi is hereby ordered to be served on the garnishee. The return date for the garnishee to show cause is hereby adjourned to 19th November, 2004”.
On the 19th of November, the learned counsel for the Judgment debtor informed the court that the order nisi was not served on the garnishee until the 15th of November, 2004 and the 14 days period had not lapsed at the return date and the proceedings was further adjourned to 2nd November, 2004. It was on the 2nd of November, that an order absolute was made. The determinant of what transpired in court is the Record of Proceedings of the court. This record is binding on the courts. The proceeding of the court below did not reflect any order of the court on issuance of order nisi. The order was clear that order nisi is ordered to be served. It is clear and explicit.
I however note that the Enrolment order in respect of the proceedings of the same date, the 4th of October, 2004 read as follows:
“An Order Nisi is hereby ordered to be issued in favour of the claimant/Judgment/Creditor/ Applicant to the Garnishee to appear before this Honourable Court within 14 days to show cause why the debt claimed to be due or accruing due from him to the Judgment debtors account should not be attached to answer, the Judgment sum of N3,651,100.00 (three million, six hundred and fifty one thousand, seven hundred naira only) should not be paid by the garnishee to the Judgment creditor”.
This enrolment order introduced the point on issuance of nisi order.
Nevertheless, a party is enjoined to collect the Certified ‘Copy of the Ruling of the court’. Any appeal against a decision of the court must be lifted from the proceeding in court signed by the learned Trial Judge. An order is drawn by a Registrar of the court. A Ruling of the court containing the decision must always be the determinant of what was the exact decision of the court below. From the Record of Appeal and the Ruling therein it is my view that an order nisi was made on 4th October, 2004. The format used in the enrolment order should not affect the substance of the order. S.83(2)of Sheriffs and Civil Process Act stipulates that a copy of the Nisi shall be served upon the garnishee and on the Judgment debtor. On whether it was served personally on the Appellant and the 2nd Respondent as ordered by the court below one reverts to the proof of service.
The Affidavit of Service on page 41 of the Record reflects that a Senior Bailiff of the High Court of Ikeja Mr. Sola Oladipo served an enrolment order of court on Wema Bank Ojota through the Secretary V. O Adediji on the 15th of October, 2004. It is trite that Affidavit of Service is prima-facie proof of service on a party unless there is evidence to contradict same, where there is an affidavit of service on a person denying service that person has to swear to an Affidavit to counter the deposition. Ethiopian Airlines v. Onu (2005) 11 N.W.L.R. (pt.936) 214 C.A.
The Appellants’ complaint is that the service is not as ordered by the court personally and that it was not as provided under the Sheriff and civil Process Act. The essence of service of process is to put a party on notice.
S.85 of the Sheriff and Civil Process Act stipulates that service shall be in accordance with the directive of the court. In this case the court directed personal service on the Garnishee and the Judgment debtor. S.78 of the Companies and Allied Matters Act provides that a court process shall be served on a company in the manner provided by the Rules of Court. Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules 2004 stipulates that personal service of a process on a registered company or corporation may be served on the organization by delivery to a Director, Secretary, Trustee or Senior or responsible Officer of the Organisation. The Affidavit of Service deposed to by the deponent reflects that the order nisi was served on the Appellant by giving the process to the Secretary in the Ojota branch of the garnishee. The Ojota branch from the proceedings is where the debt in issue is domiciled from the facts. I hold the order nisi was properly served on the Appellant in accordance with the Rules of Court and the Order of the court. In respect of the 2nd Respondent, that is the Judgment debtor. The court made an order that they be served personally.
The court ordered on 4-10-2004 that the Judgment debtor be served with the order nisi personally, there is no evidence that the order nisi was served on the Judgment debtor. On the 2nd of November, 2004 when the order, absolute was made the Record of Appeal on page 75 reflects that the learned counsel for the Judgment Debtor Mr. T. A. Dauda was in court and informed the learned Trial Judge that they have not been served with the garnishee proceedings and stated that they ought to be served so that they can respond to the proceedings as well. The learned Trial Judge held:
“the complaint of non-service of the proceeding on the Judgment debtor is unmeritorious as counsel for that party has been attending the proceedings since the Order Nisi was made.
The proceedings however is one between the Judgment creditor Applicant and garnishee strictly”.
The fundamental point is whether the non-service of the Judgment debtor who was in court on the date the order absolute was made is a mandatory precondition which non compliance will vitiate the proceedings.
In effect will the absence of any statutory role placed on the Judgment debtor during the garnishee proceedings waive the requirement that he be served with the process which is original in nature as it relates to garnishee proceedings. The garnishee proceedings is set out in the Sheriffs and Civil Process Act Cap 407 Laws of the Federation 1990.
S. 83 ( 1) of the Law stipulates as follows:
“The court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the cost of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid”
S.83(2) of the rules stipulates as follows:
“At least fourteen days before the day of hearing a copy of the order nisi shall be served upon the garnishee and on the judgment debtor”.
The phrase ‘shall’ under S.83 (2) connotes that service is mandatory.
It is indisputable from the nature of Garnishee Proceedings that the Judgment Debtor is just a passive Respondent as the provision under S.83(1) refers specifically to the garnishee appearing before the court to show cause. The garnishee is the main party under the statute and should be the one reacting to the proceedings, nevertheless the Judgment debtor must be put on notice of what happens to money due to him in the possession of the garnishee.
This service is fundamental in the light of the principle of being heard in a matter touching on his right.
Garnishee Proceedings is a means by which Judgment is enforced. It denotes that the Judgment-Creditor has to obtain an order of court that the debtor pays the Judgment-Creditor by the process of attaching the debt once order nisi is served on the garnishee. See Sokoto State Govt. v. Kamdex (Nig.) Ltd. (2004) 9 N.W.L.R. (pt.878) 345 CA. In Re: Diamond Bank Ltd. (2002) 17 N.W.L.R. (pt.795) 120 CA. Therefore service on the Judgment debtor is fundamental.
Garnishing proceeding is a separate and distinct action between the Judgment-Creditor and the person holding in custody the assets of the Judgment-Debtor. The statute enjoins service on the Judgment debtor whose asset is to be attached from the moment of making an order nisi the essence is to put him on notice. The garnishee proceedings will certainly affect him as per his assets as a Judgment debtor. The appearance of the counsel in court cannot override the mandatory statutory provision.
Under S.83(2) Sheriff and Civil Process Act order nisi must be served with the originating process or any other order affecting the interest of the Judgment debtor on him. Service of mandatory process is fundamental to the Jurisdiction of the court, when there is a specific provision that a party is to be served in a specific manner and it is not observed the Jurisdiction of court against that party has not been invoked. Mohammed v. Mustapha (1993) 5 N.W.L.R. (pt.292) pg. 222.
The learned Trial Judge erred when she held that the complaint of non service is unmeritorious. The statutory provision on service is mandatory.
Service of the order nisi on Judgment debtor is a condition precedent to the Jurisdiction of the court to make an order absolute. Consequently Issue 1 is resolved in favour of the Appellant.
Under Issue No.2: Whether the learned Trial Judge was right when she pronounced a conditional order absolute against the Garnishee in contravention of the provisions of S.86 of the Sheriff and Civil Process Act Cap 407 Laws of the Federation of Nigeria. It is the submission of Chief Taiwo that the order of 2/11/04 is not an order absolute but a conditional order absolute. He argued that a conditional order absolute is unknown to our laws. He contended that the effect of the conditional order absolute is that the garnishee was still at liberty to show cause against the order that was made within the condition provided in the order and same was complied with. He argued further that order nisi and absolute were not drawn up in the way and manner provided for in Forms 26 and 27 of the schedule as to inform the Garnishee of the seriousness of the order.
It is learned counsel’s contention that the order nisi was ordered to be issued in favour of the Judgment-Creditor to the garnishee to appear within 14 days in contravention of S.83(2) of Sheriffs’ and Civil Process Act Cap 407 LFN 1990 which provides that the order nisi be served on the garnishee and the Judgment debtor. He cited Edmonds v. Edmonds (1965) 1 All ER 379.
He submitted that the learned Trial Judge was wrong to pronounce a conditional order absolute against the garnishee in contravention of the provisions of S.89 of the Sheriffs & Civil Process Act Cap 407 Laws of the Federation of Nigeria.
Learned counsel for the 1st Respondent in response submitted that non-conformity with Form 26 & 27 of the Sheriff & Civil Process Act cannot vitiate the proceedings. It is his contention that forms are produced in laws as precedent to users of the law. He cited Egolvn v. Obasanjo (1997) 7 N.W.L.R.661-355.
Learned counsel Mr. Nwachukwu argued that a letter to the registrar of court and to the 2nd Respondent’s counsel after the expiration of 30 days is not showing cause within the meaning of S.83 of the Sheriff and Civil Process Act Cap 407 LFN 1990 as a Garnishee is expected to show cause on receipt of service to notify the court of the balance of account of the Judgment Debtor in its custody to determine whether such account should be attached or not. Learned counsel for the 2nd Respondent Mr. Seriki contended that the complaint of the Appellant as regards the form of the garnishee order nisi and garnishee order absolute to the extent of their non compliance with S.83 and S.86 of the Sheriffs and Civil Process Act as well as Forms 26 and 27 of the first schedule of the Sheriffs and Civil Process Act amounts to technicality. It is his submission that in so far as there is substantial compliance with the statutory provisions and in the prescribed forms, this court is entitled to do substantial justice by affirming the validity of the garnishee order nisi absolute.
S.83( 1) of the Sheriffs and Civil Process Act is explicit on attachment of Debts by Garnishee Order. The first stage in obtaining an order nisi by a Judgment Creditor is to file a motion ex-parte seeking for order nisi. The order is directed to the garnishee attaching the debt claimed to be due from him to judgment debt. S.T.B. Ltd. v. Contract Resources (Nig.) Ltd. (2001) 6 N.W.L.R. (Pt.708) p. 115.
In the instant Appeal, the garnishee was served with the order nisi in Ojota Branch of the garnishee where the debt claimed to be due from him to the Judgment debtor is held. The order specified that the return date for the garnishee to show cause is the 19th November, 2004. The order was made on 4th November, 2004. The return date given is not less than 14 days. The requirement of S.83(1) is that the service of the order be effected at least 14 days before the hearing. He is also to show cause why he should not pay the debt.
The Record of Appeal on pages 74 and 75 reflects that the learned counsel reported that service of the order nisi on the garnishee was on the 15th November, 2004 and that the 14 days is yet to lapse. The proceeding was then adjourned to 2nd November, 2004. As at that date the 14 days given to the garnishee had lapsed. Therefore the order nisi is in compliance with the provision under S.83 of the Act. In respect of order absolute which is the next stage after order nisi the provision under S.86 of the Sheriffs and Civil Process Act is relevant and for purpose of emphasis I reproduce S.86:
“If the garnishee does not within the prescribed time pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the costs of the garnishee proceedings, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear upon summons, the court upon proof of service may order execution to issue, and it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.”
By this provision once a garnishee does not within the prescribed time given in the order nisi, pay into court the amount due from him to the Judgment debtor, or an amount equal to the Judgment debt and he does not dispute the debt claimed to be due from him to the debtor or he does not appeal upon summons the court upon proof of service may order execution in effect order absolute.The Judgment debtor was not served. Failure to serve the order nisi where service is mandatory before order absolute was made is a fundamental omission which renders the proceedings void because the court had no jurisdiction to entertain the next stage in the garnishee. Tubonemi v. Dikibo (2006) 5 N.W.L.R. (pt.974) 565; Mark v. Eke (2004) 5 N.W.L.R. (pt.865) 54 S.C.
It is settled that, any decision based on a process which is not served is liable to be set aside. Hyppolite v. Eghareuba (1998) 11 N.W.L.R. (pt.575) 598 C.A; Wema Bank Nig. Ltd. v. Odulaja (2000) 3 S.C. 83.
Issue 3 on whether the Trial Judge was right in continuing with the Garnishee.
S.93 (1) of the Sheriffs and Civil process Act stipulates as follows:
“Subject to the express provisions, if any, of the Rules, the forms contained in the First Schedule to this Act may, in accordance with any instructions contained in the said forms and with such variations as the circumstances of the particular case may require, be used in the cases to which they apply and when so used, shall be good and sufficient in law.”
By the provision in S.93(1) Forms 26 and 27 of the first schedule of the Act, it allows for variations in the forms as to the circumstance a particular case may require. The deviation from the prescribed Forms 26 and 27 does not vitiate the said orders when the vital contents of the order is in consonant with the requirements under the forms. I agree with the submissions of the learned counsel for the 2nd Respondent that deviation from the prescribed Forms 26 does not invalidate the order nisi. S.23 of the Interpretation Act stipulates that where a form is prescribed by an enactment and the form adopted differs from the prescribed form same shall not be invalid for purposes of the enactment if the difference is not in material particular and calculated to mislead. Appellant did not complain he was mislead and the order nisi contains the requisite particulars in the form. Issue 2 as it relates to order nisi fails. Order nisi is in substantial compliance to Form 26.
Issue 3 is whether the learned Trial Judge was right in continuing with the garnishee proceedings, the garnishee having shown a just cause pursuant to conditional order absolute made by her. This Issue 3 is distilled from Ground 3 of the Notice of Appeal. This ground 3 is not based on the Ruling of 2nd November, 2004. Any event that arose after the Ruling of 2nd November, 2004 which is the basis of this appeal is not relevant unless leave of court was sought and obtained to raise same as a fresh Issue.
A Ground of Appeal consist of the error of law or fact alleged by an Appellant as the defect in a Judgment appealed against and relied upon to set the Judgment aside. Metal Construction (W.A.) Ltd. v. Migvore (1990) 1 N.W.L.R. (pt.126) 299 S.C. The ground should arise from the Ruling of the court.
Ground 3 of the Notice of Appeal is defective having not arisen from the decision appealed against. Consequently Ground 3 is struck out, and Issue 3 distilled therefrom becomes unarguable and is also struck out. Thor Ltd. v. F. C. M. B. Ltd. (2002) 4 N.W.L.R. (pt.757) 427 S.C.
This appeal succeeds partially. I hereby set aside the order absolute made on 2 November, 2004, and order that the order nisi made on 4/10/04 be served on the Judgment debtor and evidence of service filed in the court below before continuation of proceeding. Each party to bear its own cost.
PAUL ADAMU GALINJE, J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Nwodo JCA. I agree with the reasoning contained therein and the conclusion arrived thereat.
The failure to serve the order nisi on the judgment debtor has, certainly vitiated the order absolute made on the 2nd November, 2004. I therefore set aside the order absolute and direct that the order nisi made on the 4/10/04 be served on the judgment debtor forthwith.
There shall be no order as to cost
IBRAHIM MOHAMMED MUSA SAULAWA, JCA: I had read, before now, the lead judgment in draft prepared and just delivered by my learned brother, Nwodo, JCA. Having perused the briefs of the learned counsel to the respective parties vis-a-vis the record of appeal as a whole, I cannot but concur with the reasoning and conclusion reached in the lead judgment, to the effect that the appeal succeeds in part, and same is hereby allowed by me.
The order absolute, made by the court below on 2/11/04, is hereby set aside by me. I abide by the consequential order directing that the order nisi made on 04/10/04 be served on the judgment debtor before the court below should continue with the proceeding.
No order as to costs.
Appearances
Chief Wale TaiwoFor Appellant
AND
Rotimi SerikiFor Respondent
