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ZENITH BANK v. ABAZU & ORS (2021)

ZENITH BANK v. ABAZU & ORS

(2021)LCN/15848(CA)

In The Court of Appeal

(JOS JUDICIAL DIVISION)

On Monday, September 06, 2021

CA/J/78/2020

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Between

ZENITH BANK PLC APPELANT(S)

And

1. PAUL ABAZU 2. EKENE NWANNA 3. CHIDI NWANNA 4. OBINNA LINUS 5. ABDULLAHI BABA SHERIFF RESPONDENT(S)

 

RATIO:

THE ESSENCE OF A REPLY BRIEF

The function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of the appellant – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

AN APPEAL MUST FLOW FROM WHAT TRANSPIRED AT THE LOWER COURT

It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court – Ashakacem Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR 46541(SC), Governor of Imo State Vs E.F. Network (Nig) Ltd (2019) LPELR 46938(SC). PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. 

PARTIES MUST RAISE OBJECTIONS AT THE EARLIEST POSSIBLE TIME AT THE TRIAL COURT

Further, it is settled law that where a party objects to the competence of an affidavit or a deposition made on oath by his adversary either by reason of its form or otherwise, he must take the objection at the time the affidavit or deposition is being put to use in the trial Court by filing a formal objection or orally. Where he fails to do so and the affidavit or deposition is put to use and relied upon by the trial Court in making its findings, he cannot be heard to complain on appeal about the competence of the affidavit or deposition – Majekodunmi Vs Ogunseye (2017) LPELR 42547(CA), Maigadaje Vs Sulei (2018) LPELR 46504(CA), Pam Vs Incorporated Trustees, The Assemblies of God, Nigeria (2020) 14 NWLR (Pt 1745) 393 at 411 F-G, Obanigba Vs Abibu (2021) 3 NWLR (Pt 1762) 84. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

WHAT IS A GARNISHEE PROCEEDING?
The nature of and procedure for garnishee proceedings has been stated and reiterated by the Courts in several cases. 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 86  of the Sheriffs and Civil Process Act –Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120, 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, First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199, Oboh Vs Nigeria Football League Limited (2021) 4 NWLR (Pt 1766) 305. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

THE DUTY OF COURT TO ACT JUDICIALLY AND JUDICIOUSLY

It is trite law 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 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 not no extraneous considerations – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the ruling of the High Court of Plateau State delivered in Suit No PLD/J/172/2019 by Honorable Justice N. L. Musa on the 22nd of November, 2019.

The ruling was in respect of a post judgment garnishee proceedings. The first to the fourth Respondents commenced garnishee proceedings against fourteen banks, including the Appellant as the first Garnishee, to enforce the judgment they obtained against the fifth Respondent in the total sum of N3,213,600.00, judgment sum plus costs. The lower Court granted the order of garnishee nisi on the 6th of May, 2019 and directed the fourteen banks to show cause why the order should not be made absolute against them and the matter was adjourned to the 8th of July, 2019. The garnishee order nisi was served on the Appellant on the 28th of May, 2019. The Appellant filed an affidavit to show cause on the 7th of June, 2019 and to which it attached a one page summary of the account maintained with it by the judgment debtor showing number of credits and debts in the account for the period 20th of May, 2019 to 28th of May, 2019 and stating that the credit balance in the account as at 28th of May, 2019 was N103.53k. The first to the fourth Respondents filed a counter-affidavit on the 2nd of July, 2019 contesting the accuracy of the statement of account attached by the Appellant and saying that it was not a detailed and comprehensive statement of account. This compelled the Appellant to file a further and better affidavit to show cause on the 5th of July, 2019 and it attached a comprehensive statement of account of the fifth Respondent for the period commencing from 1st of March, 2019 to the 28th of May, 2019 also showing a credit balance of N103.53 in the account as at the 28th of May, 2019.

The lower Court discharged the other thirteen banks on the application of Counsel to the first to the fourth Respondents and upon the hearing, the substantive application to make the garnishee order absolute, the lower Court delivered a considered ruling wherein it found that the Appellant did not make a full, frank and comprehensive disclosure of the state of the account of the fifth Respondent and it consequently made the garnishee order absolute against the Appellant and ordered it to pay to the first to the fourth Respondents the judgment sum plus costs obtained against the fifth Respondent.

The Appellant was dissatisfied with the ruling and it caused its Counsel to file a notice of appeal dated 21st of January, 2020 and containing three grounds of appeal against it. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 24th of March, 2020 on the same day and Counsel to the first to the fourth Respondents responded by a brief of arguments dated 30th of March, 2020 and filed on 17th of April, 2020. The fifth Respondent did not file any process in the appeal. Counsel to the Appellant filed a Reply brief of arguments dated the 4th of May, 2020 on the same date. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal.

​Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether the learned trial Judge had the jurisdiction to entertain the garnishee proceedings when the ex-parte application that initiated same violated the provisions of Section 83(1) of the Sheriffs and Civil Process Act and Order VIII Rule (3) of the Judgment Enforcement Rules.
ii. Whether, in view of the Appellant’s affidavits to show cause particularly the Appellants further and better affidavit to show cause with Exhibit A attached thereto, and filed on 5th July, 2019, the learned trial Judge was right in making the order absolute against the Appellant.

Counsel to the first to the fourth Respondents adopted the two issues for determination as formulated by Counsel to the Appellants. This Court agrees with the two issues for determination and this appeal will be resolved thereon. The two issues for determination will be considered seriatim.

​Before proceeding to deliberate on the issues for determination, this Court considers it pertinent to comment on the Reply brief filed by Counsel to the Appellant. Reading through the Reply brief, the Court noticed that while some of the arguments therein responded to a new point raised by the Counsel to the Respondents under the first issue for determination, the bulk of the arguments were largely a rehash and embellishment of the arguments on the appeal contained in the Appellant’s brief of arguments. The function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of the appellant – Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221.
In National Revenue Mobilization Allocation and Fiscal Commission Vs Johnson (2019) 2 NWLR (Pt 1656) 247, the Supreme Court at page 269 B-D made the point thus:
“A reply brief is to deal with a new issue of law or argument raised in an objection in the respondent’s brief, which was not covered by the appellant’s brief of argument. A reply brief of argument is filed only in response to new argument of the respondent on law that has newly been raised by the respondent, but was not touched or covered by the appellant in the appellant’s brief. But, where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to be discountenanced or ignored by the Court. A reply brief is not to be a repair kit to put right any lacuna or correct any error in the appellant’s brief of argument.”

This Court will thus ignore and discountenance the said re-arguments and refer only to the relevant portion of the Reply brief.

Issue One
Whether the learned trial Judge had the jurisdiction to entertain the garnishee proceedings when the ex-parte application that initiated same violated the provisions of Section 83(1) of the Sheriffs and Civil Process Act and Order VIII Rule (3) of the Judgment Enforcement Rules?
In arguing the first issue for determination, Counsel to the Appellant stated that by the combined provisions of Section 83(1) of the Sheriffs and Civil Process Act and Order VIII Rule (3) of the Judgment Enforcement Rules a judgment creditor who desires to commence garnishee proceedings, as in the present case, shall file in the Registry of the Court an affidavit in terms of Form 25 in the First Schedule to the Sheriffs and Civil Process Act in support of the motion ex-parte and the affidavit must be deposed to by either the judgment creditor in person or his legal practitioner, and not otherwise. Counsel reproduced the two provisions and stated that the affidavit in support of the motion ex-parte filed by the first to the fourth Respondents in commencing the present garnishee proceedings was not in the terms of the said Form 25 and it was sworn to by one Nimdul Shankat, a litigation secretary in the law firm of the Counsel to the first to the fourth Respondents.

Counsel stated that it is elementary law that where a statute confers specific duties or powers on any person for the performance of any act, it is only that person and no other that is allowed to perform such duties or exercise such powers and he referred to the case of Anyah Vs Iyayi (1993) 9 SCNJ (Pt 1) 53. Counsel stated that it is also trite law that when a law provides a particular way/method of doing a thing and unless such law is altered or amended by a legitimate authority, then whatever is done in contravention of the statutory provision is wrongful and of no effect whatsoever and he referred to the case of Mobil Oil (Nig) Unlimited Vs Johnson (2018) 14 NWLR (Pt 1639) 329. Counsel stated that the failure of the first to the fourth Respondents to support their originating motion ex-parte with an affidavit deposed in the terms of Form 25 in the First Schedule to the Sheriffs and Civil Process Act and which affidavit was sworn to by a litigation secretary, instead of by one of the first to the fourth Respondents or their legal practitioner was an obvious non-compliance with the mandatory provisions of the law which rendered the affidavit, and consequently the originating motion ex-parte, incompetent.

​Counsel stated that it is settled law that for a Court to entertain a matter before it, the matter must, inter alia, have been initiated by the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction; i.e. that the originating processes of an action before a Court must be competent, otherwise the Court will not be vested with the requisite jurisdiction to entertain the action and he referred to the cases of Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1 and Ehindero Vs FRN (2014) 10 NWLR (Pt 1415) 281. Counsel urged the Court to hold that the incompetence of the affidavit used by the first to the fourth Respondent to support their originating motion ex-parte robbed the lower Court of the requisite jurisdiction to entertain the garnishee proceedings and to make the orders of garnishee nisi and garnishee absolute. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.

​Counsel to the first to the fourth Respondents prefaced his arguments on the first issue for determination with a preliminary objection; contending that it was a fresh issue that was never canvassed or argued before the lower Court. Counsel stated that it is settled law that a party must be consistent in pursuing his case and he is not allowed to change the course of his case on appeal and that this is to ensure that justice is applied even handedly to all the parties and that a party desiring to raise such a fresh issue must first obtain the leave of Court to do so, otherwise the issue will be incompetent and the appellate Court will be without jurisdiction to entertain it and he referred to the cases of Odom Vs PDP (2015) 6 NWLR (Pt 1456) 527 and Ajide Vs Kelani (1985) 3 NWLR (Pt 12) 248. Counsel stated that the Appellant did not seek for and obtain the leave of Court before raising the first issue for determination and that the issue had nothing to do with the jurisdiction of the lower Court to hear the garnishee proceedings as the first to the fourth Respondents fulfilled all the requisite conditions precedent to the proceedings. Counsel urged the Court to strike out the first issue for determination.

​Counsel proceeded thereafter to argue the merits of the first issue for determination. Counsel stated that the provisions of Section 83(1) of the Sheriffs and Civil Process Act and of the Judgment Enforcement Rules empower a judgment creditor to commence garnishee proceedings where (i) judgment has been obtained against a judgment debtor; (ii) the judgment is unsatisfied and to what amount; (iii) that a person is indebted to the judgment debtor and has possession of money belonging to the judgment debtor; and (iv) that the person so indebted to the judgment debtor is within the jurisdiction of the Court where the proceedings are being taken and he referred to the cases of Wema Bank Plc Vs Brastem-Sterr Nig. Ltd (2011) 6 NWLR (Pt 1242) 58 and Union Bank of Nigeria Plc Vs Boney Marcus Ind. Ltd (2005) 7 SC (Pt II) 70. Counsel stated that the first to the fourth Respondents fulfilled the four conditions in commencing the present proceedings before the lower Court and that the Appellant is not challenging the fulfillment of these conditions, and it is only querying the affidavit deposed to in support of the originating motion ex-parte; that it was deposed to by a litigation secretary in law firm of the legal practitioner to the first to fourth Respondents.

​Counsel stated that nowhere is it stipulated that the deposition of the affidavit in support of the originating motion ex-parte by one of the first to the fourth Respondents or their legal practitioner personally was a condition precedent to the lower Court assuming jurisdiction in garnishee proceedings. Counsel stated further that a perusal of the said affidavit shows that the litigation secretary deposed to same on the authority of the first to the fourth Respondents and of the legal practitioner and that the litigation secretary thus acted in an official capacity in deposing the affidavit and that such an act is permitted by law and it is protected by the presumption of regularity provided for in Section 168(1) of the Evidence Act. Counsel stated that the whole essence of the first issue for determination is to subvert substantial justice on the altar of technicalities and that it is trite that the aim of Courts is to do substantial justice between the parties and to, in the process, quash any technicality that rears its ugly head to seek to defeat the cause of justice and he referred to the case ofWassah Vs Kara (2015) 4 NWLR (Pt 1449) 374. Counsel urged the Court to resolve the first issue for determination in favour of the Respondents.

​In the Reply brief, Counsel to the Appellant stated that the preliminary objection taken by Counsel to the Respondents to the first issue for determination was inappropriate as it neither challenged the ground of appeal from which the issue for determination was distilled nor did it challenge the competence of the entire appeal as stipulated by Order 10 (1) of the Rules of Court of Appeal 2016 and he referred to the cases of KLM Royal Dutch Airlines Vs Aloma (2018) 1 NWLR (Pt 1601) 473 and Adejumo Vs Olawaiye (2014) 12 NWLR (Pt 421) 252. Counsel stated that the proper process for the first to the fourth Respondents to have filed to challenge the competence of an issue for determination was a motion on notice and not a notice of preliminary objection and he referred to the case of Compact Manifold & Energy Services Ltd Vs Pazan Service Nigeria Ltd (2020) 1 NWLR (Pt 1704) 70.

Counsel stated that the question raised by the Appellant in the first issue for determination was one of jurisdiction and that the Appellant did not thus need the leave of the Court to raise same and that the law is settled on the point and a jurisdictional issue can be raised at anytime, even in the apex Court for the first time, and in any manner, including orally and he referred to the cases of Alioke Vs Oye (2018) 18 NWLR (Pt 1651) 247, Okorocha Vs United Bank for Africa Plc (2018) 17 NWLR (Pt 1649) 441 and All Progressives Congress Vs Nduul (2018) 2 NWLR (Pt 1602) 1. Counsel urged the Court to dismiss the objection raised by the first to the fourth Respondents to the competence of the first issue for determination.

It is clear from the above arguments that it was not in contest between the parties that the question raised by the Appellant in the first issue for determination on the competence of the affidavit filed by the first to the fourth Respondents in support of the originating motion ex-parte used to commence the garnishee proceedings in the lower Court was not raised and/or canvassed before the lower Court and it was not pronounced upon by the lower Court. It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court – Ashakacem Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR 46541(SC), Governor of Imo State Vs E.F. Network (Nig) Ltd (2019) LPELR 46938(SC).

It is a firmly established principle of appellate Court practice that a party must be consistent in the case he presents and he is not allowed to improve on his case on appeal or to present a case different from what he placed before the trial Court – Igboke Oroke Vs Chuku Ede (1964) N.N.L.R. 118 at 119-120, Nwokoro Vs Onuma (1999) 12 NWLR (Pt 631) 342, Asaboro Vs Pan Ocean Oil Corporation (Nig) Ltd (2017) 7 NWLR (Pt 1563) 42, Nyame Vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1772) 289, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511. Thus, parties are not allowed to canvass on appeal an issue that was not raised by the party on his case before the lower Court –Adeleke Vs Oyetola (2020) 6 NWLR (Pt 1721) 440, Eweje Vs O.M. Oil Limited (2021) 4 NWLR (Pt 1765) 117. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be  validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”

Counsel to the Appellant sought to sidetrack this principle by contending that the question raised and argued in the first issue for determination was one of jurisdiction and that it could be raised without leave because a jurisdictional issue can be raised at anytime, even in the apex Court for the first time, and in any manner, including orally. With respect to Counsel, his postulation overlooked the distinction between matters of procedural jurisdiction and those of substantive jurisdiction. There is a whole world of difference between procedural jurisdiction and the substantive jurisdiction of a Court to hear a matter and a matter of procedural jurisdiction does not qualify as “a jurisdictional challenge to the competence of the Court” that can be raised at anytime.
Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the Court. A matter that impugns the presumed competence of the action should be raised by the opponent – Gafari Vs Johnson (1986) 5 NWLR (Pt 39) 66 at 71, Atolagbe Vs Awuni (1997) 9 NWLR (Pt 522) 536, Mobil Producing Nigeria Unlimited Vs Lagos State Environment Protection Agency (2002) 18 NWLR (Pt. 798) 1, Nigeria National Petroleum Corporation Vs Idi Zaria (2014) LPELR 22362(CA), The Vessel MT Sea Tiger Vs Accord Ship Management (HK) Ltd (2020) 14 NWLR (Pt 1745) 418, Ihim Vs Maduagwu (2021) 5 NWLR (Pt 1770) 584.
It is matters of substantive jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural jurisdiction – Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udoh Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488, Bureau for Public Enterprises Vs Dangote Cement Plc (2020) 5 NWLR (Pt 1717) 322,. Matters of procedural jurisdiction can be waived by a party –Kossen (Nig) Ltd Vs Savannah Bank (Nig) Ltd (1995) 9 NWLR (Pt 420) 439, Mawo Vs Tsintuwa (2020) 2 NWLR (Pt 1708) 306 Belgore Vs Federal Republic of Nigeria (2021) 3 NWLR (Pt 1764) 503. In Zakirai Vs Muhammad (2017) 17 NWLR (Pt 1594) 181, the Supreme Court made the point at pages 229-230 thus:
“That aside, the Appellant also contends that he had every right to challenge the validity of the Originating Summons because non-compliance with that provision of the Sheriffs and Civil Process Act is not waivable as it touches on the substantive jurisdiction of a Court, which brings to question its distinction with procedural jurisdiction.
A litigant may submit to a procedural jurisdiction of the Court, but no litigant can confer jurisdiction on the Court where a Statute or the Constitution says that the Court does not have jurisdiction. Thus, while substantive jurisdiction of the Court cannot be waived, a party can waive a matter relating to procedural jurisdiction of the Court, and this is usually determined from reliefs sought in the process … In other words, irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction …
In this case, there is no question that contrary to his vehement stand, the Appellant’s Objection was basically a challenge to the procedural jurisdiction of the Court rather than a challenge to its substantive constitutional or statutory jurisdiction to entertain the said suit … His objection was a complaint against the competence of the trial Court to entertain the Suit because the Originating Summons was not endorsed or marked as required by the said Act and Rules, which touches on the procedural rules that got Parties to the Court, and nothing whatsoever on the facts that led to the cause of action or substance of the suit filed by the first Respondent. Any defect amounted to a mere irregularity that can be waived by the parties”

It is the very obvious that the question of the competence of the affidavit filed by the first to the fourth Respondents in support of the originating motion ex-parte used to commence the garnishee proceedings for non-conformity with the format prescribed by the provisions of Section 83(1) of the Sheriffs and Civil Process Act and Order VIII Rule (3) of the Judgment Enforcement Rules is a matter of procedural jurisdiction, and not one of substantive jurisdiction. The law is that such an issue must be first be canvassed and considered by the lower Court, before it can be raised on appeal, otherwise it will be deemed to have been waived by the party. Matters of procedural jurisdiction cannot be raised for the first time in the appellate Court – Katsina Local Authority Vs Makudawa (1971) 7 NSCC 119 at 124, Mobil Producing Nigeria Unlimited Vs Lagos State Environment Protection Agency supra, Owoseni Vs Faloye (2005) 14 NWLR (Pt 946) 719, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Attorney General of Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Akahall & Sons Ltd Vs Nigeria Deposit Insurance Corporation (2017) 7 NWLR (Pt 1564) 194, Price Water House Vs Momoh (2020) 18 NWLR (Pt 1755) 32.

Further, it is settled law that where a party objects to the competence of an affidavit or a deposition made on oath by his adversary either by reason of its form or otherwise, he must take the objection at the time the affidavit or deposition is being put to use in the trial Court by filing a formal objection or orally. Where he fails to do so and the affidavit or deposition is put to use and relied upon by the trial Court in making its findings, he cannot be heard to complain on appeal about the competence of the affidavit or deposition – Majekodunmi Vs Ogunseye (2017) LPELR 42547(CA), Maigadaje Vs Sulei (2018) LPELR 46504(CA), Pam Vs Incorporated Trustees, The Assemblies of God, Nigeria (2020) 14 NWLR (Pt 1745) 393 at 411 F-G, Obanigba Vs Abibu (2021) 3 NWLR (Pt 1762) 84.

​The issue of the competence of the affidavit filed by the first to the fourth Respondents in support of the originating motion ex-parte used to commence the garnishee proceedings not having been raised in the lower Court, the Appellant cannot raise it in this appeal, even with the leave of Court. The first issue for determination formulated by Counsel to the Appellant is incompetent and it is hereby struck out along with the arguments canvassed thereon by Counsel to the parties.

Issue Two
Whether, in view of the Appellant’s affidavits to show cause particularly the Appellant’s further and better affidavit to show cause with Exhibit A attached thereto, and filed on 5th July, 2019, the learned trial Judge was right in making the order absolute against the Appellant?
In granting the Garnishee Order Absolute, the lower Court deliberated in the ruling appealed against thus:
“…There is no doubt that the garnishee proceedings was initiated by the applicants and an order nisi was made on the 6th of May, 2019. The said order was served on 28th of May, 2019 … Upon service of the order on the 1st garnishee, she is expected to make a frank and comprehensive disclosure of the funds in the account of the judgment debtor domiciled with the garnishee bank. The 1st garnishee made an affidavit to show cause dated and filed on 7th June, 2019 and attached as ‘Exhibit A’ the statement of account of the judgment debtor which was purported to be prepared 28th May, 2018 a year after the order was served on the garnishee. The period of disclosure is from 20th May, 2018 to 28th May, 2018. This shows that the statement was prepared to cover a period of a year ahead of the order nisi was made. Then the applicants filed their counter-affidavit to the garnishee’s affidavit to show cause. In reaction, the garnishee then filed a further and better affidavit when counsel claims that it was supposed to correct errors, mistakes and irregularities in their affidavit to show cause. The further affidavit is dated and filed on 5th of July, 2019. Another Exhibit A has been attached which is a more comprehensive statement of account of the judgment debtor unlike the Exhibit A attached to the affidavit to show cause which is a summary of the transactions of the judgment debtor on the account in the garnishee bank. The opening statement is 1st March, 2019 through April to May and ending on 27th May, 2019. Taking that this is the correct timing and disclosure, but unfortunately it ends on a day prior to the service of the order nisi on the garnishee which is 28th May, 2019 … Also the statement was prepared by the legal officer on the same day the garnishee order was served being the 28th of May, 2019. The disclosure having not been made to extend up to the date of service and a little beyond shows that something is fishy as contended by the counsel to the applicants. I absolutely agree with the submission and more so, the statement has not shown that the account had been closed or dormant. It means the account is still active beyond the 27th of May and 28th of May, 2019. The said irregularities, mistakes and errors are all geared towards suppressing or hiding facts from the Court. There is no sincere, frank and comprehensive disclosure. The disclosure has been very selective. Consequent upon this finding, the order nisi is hereby made absolute against the 1st garnishee – Zenith Bank Plc. …”

​In arguing the second issue for determination, Counsel to the Appellant traversed through these deliberations of the lower Court and stated that the reasons given by the lower Court for making the garnishee order absolute were (i) that the statement of account ended on the 27th of May, 2019 and did not extend to 28th of May 2019, when the garnishee order nisi was served, and a little beyond; and (ii) that the statement of account was prepared by the Appellant’s legal officer on the same day the garnishee order nisi was served, the 28th of May, 2019. Counsel stated that contrary to the assertion of the lower Court, the statement of account of the fifth Respondent attached as Exhibit A to the further and better affidavit to show cause indicated on its face that it was for the period 1st of March, 2019 to 28th of May, 2019 and that the fact that there was no entry in the account for the 28th of May, 2019 simply meant that no activity took place in the account on that day, and not that the Appellant was hiding facts.

​Counsel stated that the finding of the lower Court that because Exhibit A did not reflect entries for the 28th of May, 2019 and a little beyond meant that there was something fishy going was speculative as it was not supported by the evidence on the record and/or by law. Counsel stated that the finding of the lower Court that the Appellant suppressed or hid facts from the Court and did not make a sincere, frank and comprehensive disclosure was also speculative and unfounded as it was not supported by evidence on the record as there was nothing before the lower Court suggesting that there were other transactions that took place in the account of the fifth Respondent beyond those disclosed in the statement of account. Counsel referred to the case of Olalomi Industries Ltd Vs Nigeria Industrial Dev. Bank Ltd (2009) 16 NWLR (Pt 1167) for the definition of speculation and the case of Mbata Vs Amanze (2018) 15 NWLR (Pt 1643) 570 in asserting that Courts of law are forbidden from indulging in speculation as it is injurious to the law.

​Counsel stated that the finding of the lower Court that the Appellant ought to have made disclosures of transactions in the statement of account a little beyond the 28th of May, 2019 was baseless because the obligation on the Appellant upon being served with a garnishee order nisi was to furnish the statement of account of the debtor up to the date of service of the order and not beyond. Counsel stated that the law is that it is only the money standing to the credit of the judgment debtor as at the time the garnishee order is served on the garnishee that is attachable, and nothing more and he referred to the case of Sokoto State Government Vs Kamdax (Nig) Ltd (2004) 9 NWLR (Pt 878) 345. Counsel stated that the Appellant made a full disclosure of the state of the account of the judgment debtor up to the 28th of May, 2019 when it was served with the garnishee order nisi in Exhibit A and that the credit balance in the account as that date, N103.53, was the attachable funds in the hands of the Appellant. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.

​In his response on the second issue for determination, Counsel to the first to the fourth Respondents stated that lower Court acted rightly according to the law, facts and evidence before it in making the garnishee order absolute against the Appellant who was busy making a case and advocating for the judgment debtor, and who in the process lied on oath and disobeyed the order of Court in a bid to mislead the Court and subvert the course of justice. Counsel stated that the garnishee order nisi served on the Appellant required it to file before the lower Court an accurate, detailed and comprehensive statement of account of the fifth Respondent till date, and that this meant that the statement of account was to cover between the date of service of the order, 28th of May, 2019, and the return date, 8th of July, 2019, as envisaged under Section 83(2) of the Sheriffs and Civil Process Act. Counsel stated that the statement of account filed by the Appellant covered the period of 1st of March, 2019 to the 28th of May, 2019 and that this was in complete disobedience of the garnishee order nisi as it excluded the activities and transactions in the account from the date of service of the order.

Counsel referred to the cases of Oguebego Vs PDP (2016) 4 NWLR (Pt 1503) 446 and Mobil Oil (Nig) Ltd Vs Assan (1995) 8 NWLR (Pt 412) 129 in reiterating the law that an order of Court must be obeyed by parties to an action and the case of Citizen International Bank Ltd Vs SCOA Nig. Lab. Plc (2006) All FWLR (Pt 323) 1680 in asserting that the role a garnishee is expected to play upon being served with an order nisi is to respond to the substance of the order served on it and he stated that the Appellant, in the instant case, did not comply with the substance of the order served on it. Counsel thereafter proceeded to point out other anomalies contained the affidavit to show cause filed by the Appellant outside of the statement of account attached to the affidavit and stated that the attitude and conduct of the Appellant in the processes it filed were aimed at misleading the lower Court and portrayed the Appellant as playing the role of advocate for the fifth Respondent. Counsel stated that a garnishee has no business playing the role of an advocate for a judgment debtor and that where a garnishee embarks on such a role, it will be treated as having something to hide and he referred to the cases of Oceanic Bank Plc Vs Oladepo (2012) LPELR 19670(CA), GTB Vs Innoson Nig Ltd (2017) LPELR 42368(SC) and CBN Vs Interstella Comms Ltd (2015) 8 NWLR (Pt 1462) 456. Counsel stated that the lower Court was correct in making the order of garnishee absolute against the Appellant and it prayed the Court to resolve the second issue for determination in favour of the Respondents.

​The complaint of the Appellant under this issue for determination is against the order of the lower Court making a Garnishee Order Absolute against it. Now, garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed strictly by the provisions of the Sheriffs and Civil Process Act – United Bank for Africa Plc Vs Ubokulo (2009) LPELR 8923(CA), Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801(CA). Thus, resolution of this appeal will turn largely on the issue of whether the steps taken by lower Court in the conduct of the garnishee proceedings before it were in accord with the provisions of the Sheriffs and Civil Process Act.

​The nature of and procedure for garnishee proceedings has been stated and reiterated by the Courts in several cases. 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 86  of the Sheriffs and Civil Process Act –Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120, 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, First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199, Oboh Vs Nigeria Football League Limited (2021) 4 NWLR (Pt 1766) 305.
Where a garnishee appears in Court in obedience to the garnishee order nisi and files an affidavit to show cause disputing liability, the Sheriffs and Civil Process Act provides what should happen. It says 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 in 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, Fidelity Bank Plc Vs Okwuowulu (2013) 6 NWLR (Pt 1349) 197.
The position of case law puts forward three different scenarios. Firstly, that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability does not condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, there is no dispute of liability warranting further enquiry under Section 87 of the Sheriffs and Civil Process Act, and the Court can make an order of garnishee absolute –Skye Bank Plc Vs Colombara & Anor (2014) LPELR 22641(CA), Governor of Imo State Vs Ogoh (2015) LPELR 25949(CA), Access Bank Plc Vs Adewusi (2017) LPELR 43495(CA), First Bank of Nigeria Plc Vs Okon (2017) LPELR 43530(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801(CA), First Bank of Nigeria Plc Vs Yegwa (2018) LPELR 45997(CA). In other words, the garnishee must make out a prima facie case warranting an order for an issue to be tried – Central Bank of Nigeria Vs Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA).
Secondly, that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars and conflict with the facts deposed by the judgment creditor, there is a dispute of liability warranting the use of Section 87 of the Sheriffs and Civil Process Act – Central Bank of Nigeria Vs Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, Mainstreet Bank Ltd Vs United Bank for Africa Plc (2014) LPELR 24118(CA), Eco Bank (Nig) Plc Vs Mbanefo & Bros Ltd (2014) LPELR 41106(CA), Total Upstream Nigeria Ltd Vs A.I.C. Limited (2015) LPELR 25388(CA).
The third scenario is where a garnishee order nisi is granted on the basis of a general statement of a judgment creditor that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars showing that it has no such funds, a dispute as to liability warranting the use of Section 87 of the Sheriffs and Civil Process Act will only arise where the judgment creditor deposes to a further affidavit contesting the assertions of the garnishee, otherwise the garnishee would be discharged on the basis of its deposition – Zenith Bank Plc Vs Kano (2016) LPELR 40335(CA), Eco Bank Nigeria Limited Vs Udofia (2018) LPELR 45164(CA), All Works Commercial Company Ltd Vs Central Bank of Nigeria (2018) LPELR 45991(CA). This is in furtherance of the principle that where specific facts in a response affidavit are not covered by the depositions in the original affidavit, the party must file a further affidavit to counter those specific facts, otherwise they will be deemed admitted – Badejo Vs Federal Ministry of Education (1996) 8 NWLR (Pt 464) 15, Dana Airlines Ltd Vs Yusuf (2017) LPELR 43051(CA), Yandy Vs Alhaji Umar Na Alhaji Lawan & Sons Ltd (2018) LPELR 45634(CA), Akiti Vs Oyekunle (2018) LPELR 43721(SC).

In the instant case, the first to the fourth Respondents commenced the garnishee proceedings against fourteen banks, the Appellant was the first of the fourteen listed banks, and they made a general assertion against the fourteen banks; that the judgment debtor maintained accounts with the fourteen banks and that they knew that the judgment debtor had enough money in his accounts with the fourteen banks to satisfy the judgment debt. The first to the fourth Respondents did not give the particulars of the account that the judgment debtor maintained with the Appellant and neither did they give details of the account. Upon being served with the Garnishee Order Nisi on the 28th of May, 2019, the Appellant filed an affidavit to show cause on the 7th of June, 2019 and to which it attached a one page summary of the account maintained with it by the judgment debtor showing number of credits and debts in the account for the period 20th of May, 2019 to 28th of May, 2019 and stating that the credit balance in the account as at 28th of May, 2019 was N103.53k.

​The first to the fourth Respondents filed a counter-affidavit to the affidavit to show cause on the 2nd of July, 2019 wherein they deposed that the summary of the account of the judgment debtor attached by the Appellant was not the detailed and comprehensive statement of account that the Appellant was required to file by the Garnishee Order Nisi. Counsel to the first to the fourth Respondents added in his written arguments on the counter-affidavit that the statement of account ought to give details of activities in the account over and beyond the 28th of May, 2019. The records of appeal shows that on the 5th of July, 2019, the Appellant filed a further a better and affidavit to show cause and to which it attached a detailed and comprehensive statement of account of the judgment debtor for the period of 1st March, 2019 to 28th of May, 2019 and still confirming that the credit balance in the account as at 28th of May, 2019 was N103.53k.

The first to the fourth Respondents did not file a further counter-affidavit to contradict the contents of the detailed and comprehensive statement of account attached to the further and better affidavit to show cause. This failure placed the facts of this case squarely within the third scenario stated above, but the lower Court did not discharge the Appellant. The lower Court made the Garnishee Order Absolute and in its deliberations, which is reproduced above, it did not find or state that the detailed and comprehensive statement of account attached to the further affidavit to show cause did not truly reflect the activities that took place in the account of the judgment debtor between 1st March, 2019 and 28th of May, 2019 and/or that the credit balance in the account as at 28th of May, 2019 was not N103.53k.

​The reasoning of the lower Court was that since the Appellant did not state that the account was closed or rendered dormant on the 28th of May, 2019, it meant that the account was still active and that as such the statement of account ought to have shown entries beyond the date of 28th of May, 2019. The lower Court reasoned that failure to disclose the entries in the account beyond the 28th of May, 2019 meant that something fishy was going on and that the Appellant was suppressing and hiding facts and that the disclosure was selective and it proceeded, for these reasons, to make the Garnishee Order Absolute against the Appellant.

With respect to the lower Court, its reasoning on the making of the Garnishee Order Absolute showed a lack of understanding of the effect and essence of a Garnishee Order Nisi. Section 85 of the Sheriffs and Civil Process Act provides that “service of an order that a debt due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the Court may direct, shall bind such debt in his hands.” This means that from the day a Garnishee Order Nisi is served, the garnishee has no power to either release the money of the judgment debtor in its custody to the judgment debtor or deal with it by itself. The money becomes frozen or crystallized and it is no longer available to be dealt with either for payment or for any use whatsoever, except by the order of Court which issued the order (nisi) to attach it in the first place. This is the reason the money is said to be attached and from that stage it is no longer available for use –Ecobank (Nigeria) Plc Vs GT Bank Plc (2016) LPELR 40574(CA), First Bank of Nigeria Plc Vs Jacob Agidi (Nig) Ltd (2018) LPELR 44997(CA), Polaris Bank Ltd Vs Gumau (2019) LPELR 47006(CA), First City Monument Bank Plc Vs Liquid Africa Holdings Ltd (2019) LPELR 47623(CA).
In other words, from the date of service of a Garnishee Order Nisi, a garnishee must stop all activities in the account of a judgment debtor and maintain the account in an inactive state to await the further order or orders of the Court that made the order Nisi. Thus, it is pure commonsense that there would not, and should not, be any entry or activity in the statement of account of a judgment debtor beyond the date of service of the order of Garnishee Nisi. The Garnishee Order Nisi in the instant case was served on the Appellant on the 28th of May, 2019. The detailed statement of account of the judgment debtor attached to the further affidavit to show cause contained the activities and entries in the account up till that date and the credit balance in the account was stated as at that date. It was not the case of the first to the fourth Respondents either in their counter-affidavit or in the arguments of their Counsel that the Appellant continued to allow activities in the account beyond the date. There was thus no entry that the Appellant could have shown beyond the 28th of May, 2019 and there was nothing fishy about the failure of the Appellant to disclose entries beyond the date and the failure did not amount to suppression and hiding of facts, as erroneously found by the lower Court.

It is trite law 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 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 not 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 provide the tonic for the proper exercise of discretion.”

​It is obvious from the above deliberations that the lower Court did not exercise its discretion to grant the Garnishee Order Absolute against the Appellant judicially and judiciously and on the basis of the materials placed before it, but whimsically and arbitrarily and on extraneous and irrelevant considerations. The reasons given by the lower Court for the exercise of discretion were not justifiable on the facts presented on the face of the records. It is settled law that an appellate Court has a duty to interfere with the exercise of discretion by a lower Court in such circumstances –University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (Pt 1084) 612, Ehinle Vs Ikorodu Local Government (2021) 1 NWLR (Pt 1757) 279, Umar Vs Federal Republic of Nigeria (2021) 4 NWLR (Pt 1766) 291. This Court must thus impugn the exercise of discretion by the lower Court and it must set aside the Garnishee Order Absolute. The second issue for determination in the appeal is resolved in favour of the Appellant.

Conclusion
In conclusion, this Court finds some merit in the appeal and it is hereby allowed. The decision contained in the ruling of the High Court of Plateau State delivered in Suit No PLD/J/172/2019 by Honorable Justice N. L. Musa on the 22nd of November, 2019 granting a Garnishee Order Absolute against the Appellant is set aside. The Appellant is discharged from the garnishee proceedings. The parties shall bear their respective costs of this appeal. These shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment of my learned brother Abiru, JCA just delivered. I agree entirely with the reasoning and the conclusion reached therein. I too find merit in the appeal and I allow it. I set aside the garnishee proceedings and Order absolute granted.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA just delivered. I agree entirely with the reasoning and conclusion reached thereat. That the appeal is meritorious. I do not have anything useful to add. Garnishee proceeding is a proceeding between the judgment creditor and a 3rd party who is in custody of the assets of a judgment debtor. Garnishee Orders usually come in two steps. The first is a garnishee Order Nisi and the second garnishee Order absolute.

Though, the grant or refusal of a garnishee Order is purely at the discretion of the Court, the exercise of such discretion must be judicially and judiciously exercised and on the basis of the credible evidence placed before the Court.

Attached to the Appellant’s further and better affidavit, was a detailed statement of account of the judgment debtor for the period of 1st March, 2019 to 28th May, 2019 which the defendants did not contradict by filing further counter to challenge same. It was shown that, as at the time the garnishee Order absolute was made by the trial Court, there were no sufficient funds of the judgment debtor available to the appellant to meet the judgment debt of the judgment debtor as established by the statement of account. It was not shown that the appellant after the service of the garnishee Order Nisi, continued to allow activities in the account beyond that date. I am equally of the firm view that there was nothing fishy about the failure of the Appellant to disclose entries beyond that date because there was none. The lower Court was wrong to have reasoned that failure to disclose the entries in the account beyond the 28th May, 2019 means that something fishy was going on.

For this reason, and the more detailed one contained in the lead judgment, I, too, allow the appeal and set aside the decision of the lower Court contained in its ruling delivered on 22nd November, 2019.

Appearances:

S.D. Eggah For Appellant(s)

W.L. Egbune – for 1st to 4th Respondents.
Mahmud Usman – for 5th Respondent For Respondent(s)