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ZENITH BANK v. AKPABIO & ORS (2021)

ZENITH BANK v. AKPABIO & ORS

(2021)LCN/15849(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, February 16, 2021

CA/C/332/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ZENITH BANK PLC APPELANT(S)

And

1. ANIEKAN CLEMENT AKPABIO 2. NNAH AKPAN SAM 3. S. O. BENSON 4. COMMISSIONER OF POLICE AKWA IBOM STATE RESPONDENT(S)

 

RATIO:

LACK OF SERVICE STRIPS THE COURT OF ITS JURISDICTION TO HEAR A SUIT

It is pertinent to observe for the umpteenth time that the issue of lack of service relates to denial of fair hearing and queries the jurisdictional competence of the adjudicating authority, therefore such an issue of jurisdiction and/or fair hearing can be raised at any time in a proceeding without leave of Court. See ELUGBE v. OMOKHAFE (2004) 18 NWLR (Pt. 905) 319 @ 334; ODOCK v. STATE (2007) 7 NWLR (Pt. 1033) 369; AKINTARO v. EGUNGBOHUN (2007) 9 NWLR (Pt. 1038) 103; MOSES v. STATE (2006) 11 NWLR (Pt. 992) 458 @ 503; I.B.W.A. v. SASEGBON (2007) 16 NWLR (Pt. 1059) 195; UKPONG v. COMM. FOR FINANCE (2006) 19 NWLR (Pt. 1013) 187. PER MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the order absolute of the Akwa Ibom State High Court made by the Honourable Justice Archibong E. Archibong against the Appellant on the 16th day of October, 2017.

The facts of the case are that the 1st and 2nd Respondents were 1st and 2nd Applicants in a fundamental rights enforcement suit which was filed at the Ikot Abasi Division of the Akwa Ibom State High Court. In the said suit, the Applicants complained that their detention at the Police headquarters in Uyo by agents of the Nigeria Police Force for a period of not less than 55 days, without bail and without prompt arraignment in a Court of law of competent jurisdiction, was a violation of their rights to personal liberty and freedom of movement respectively guaranteed under the 1999 Constitution. The application succeeded and judgment was given in favour of the 1st and 2nd Applicant. The sum of N300,000.00 (Three Hundred Thousand Naira) was awarded against the Police and in favour of the Applicants. (page 6 of the Record of Appeal).

​Following the above judgment, the 1st and 2nd Respondents as judgment creditors, filed a motion ex parte for garnishee order nisi for attachment of the judgment sum (N300,000.00) and a further sum of N200,000.00 being cost of the garnishee proceedings.

By an order nisi based on motion ex parte of the 1st and 2nd Respondents/Applicants dated 11/7/2017, the learned trial judge ordered inter alia:
5. That these orders, the motion ex parte, the accompanying processes as well as all other relevant processes in this suit be served on all the parties hereto within the time and in accordance with the manner as prescribed by law.

A total of 10 (ten) commercial banks including the Appellant (as 3rd garnishee) were listed as garnishees. The garnishees were ordered to appear in Court on the next adjourned date to show cause why the total sum of N500,000.00 (Five Hundred Thousand Naira only) should not be paid over to the judgment creditors (1st and 2nd Respondents herein).

​On 16/10/2017, the adjourned day of hearing when the matter came up for the garnishees to show cause why the order nisi earlier granted should not be made absolute, the learned trial judge ordered as prayed by the applicants and ruled on page 51 of the record of appeal thus:
Court: Application granted as prayed and I hereby order that the 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 9th and 10th garnishee be hereby discharged while the order nisi be and is hereby made absolute in respect of the 3rd garnishee – Zenith bank Plc.

Dissatisfied with the order above, the Appellant filed a Notice of Appeal containing three (3) grounds of appeal in this Court on 14/11/2017.

The Appellant’s grounds of appeal devoid of their particulars are as follows:
GROUND ONE
The trial Court erred in law when it failed to ascertain that service of all necessary processes as ordered in the order nisi made on 11/7/2017 were effected on the Appellant before assuming jurisdiction to make the order absolute…
GROUND TWO
The trial Court erred in law when it made the order nisi Absolute against the Appellant when there was no proof by the Judgment Creditors/Respondents that the Appellant is indebted to the Judgement Debtor/Respondent.
GROUND THREE
The trial Court erred in law when it made the order nisi Absolute against the Appellant notwithstanding the Affidavit to show cause filed by the Appellant, which was in the Court’s file and in the absence of Appellant’s counsel.

The relevant briefs for the appeal are:
1. Appellant’s brief of Argument of 14/8/2018. It is settled by David Jonathan, Esq.
2. 1st and 2nd Respondent’s brief of Argument of 14/1/2020 which was deemed filed on 12/1/2021. It is settled by Ekemini Udim, Esq.
3. Appellant’s Reply brief of 19/2/2020 which was deemed filed on 12/1/2021. It is settled by David Jonathan, Esq.

Learned counsel for the Appellant nominated three (3) issues for determination of the appeal. They are:
1. Whether the trial Court was right to have assumed jurisdiction on the 16/10/2017 to make the order nisi Absolute when processes ordered to be served on parties were not served (distilled from Ground 1 of the Notice of Appeal).
2. Whether the trial Court was justified to have made the order nisi Absolute against the Appellant when the Appellant was not a debtor to the 3rd and 4th Respondents (distilled from Ground 2 of the Notice of Appeal).
3. Considering the fact that the Appellant’s affidavit to show cause was in the Court’s file and the Appellant was not heard before making the order nisi Absolute against her whether the trial Court was right to have so ordered (distilled from Ground 3 of the Notice of Appeal).

Learned counsel for the 1st and 2nd Respondents nominated a sole issue for determination. It is:
Whether the learned trial judge was not right and legally justified in making the order nisi absolute against the Appellant considering the fact that the Appellant was the only garnishee that failed to appear before the Court to show cause why the said order nisi should not be made absolute against it? (Distillable from Grounds 1, 2, and 3 of the Notice of Appeal)

On Issue No. 1, learned counsel for the Appellant submitted that on 11/7/2017, when the trial Court granted order nisi to the 1st and 2nd Respondents who were the judgment creditors in the Garnishee Proceeding, the Court ordered in Order 5 thus:
That these orders, the motion exparte, the accompanying processes as well as other relevant processes in this suit be served on all other parties hereto within the time and in accordance with the manner as prescribed by law.

Appellant’s counsel submitted that the above order was not appealed against but that the 1st and 2nd Respondent did not obey the order by serving on the Appellant the motion ex parte, the accompanying processes as well as other relevant processes in the garnishee proceeding which carry addresses for service. They served on the Appellant only the orders as made in the order nisi. This order, said counsel carries no address for service.

Learned counsel for the Appellant submitted that lack of service by the 1st and 2nd Respondents of all the process ordered to be served on the parties including the Appellant affected the jurisdiction of the trial Court as at when the said Court assumed jurisdiction to make the order nisi absolute. The Court lacked the jurisdiction to make the order nisi absolute when service of the processes were not effected. This, he said is because failure to serve Court process where required is fundamental and goes to the root of adjudication.

On this, he referred to the cases of NGERE v. OKORUKET “XIV” (2017) 5 NWLR (Pt. 1559) 440 @ 449; MADUKOLU v. NKEMDILIM (1962) SCNLR 341; WEMA BANK PLC. V. BRASTEM-STEER (NIG.) LTD. (2011) 6 NWLR (Pt. 1242) 58 @ 82.

Appellant’s counsel further referred to the provision of Section 85 of the Sheriffs and Civil Process Act, 2004, which he said insists that in a garnishee matter, service of process must be in the manner as directed by the Court. He submitted that the 1st and 2nd Respondent failed, neglected and or refused to effect service of the processes ordered by the Court in the manner in which they were directed.

After referring to the decision of the Court of Appeal per Nwodo JCA, in the case of WEMA BANK PLC. V. BRASTEM-STEER (NIG.) LTD. (supra) on the purport of Section 85 of the Sheriffs and Civil Process Act, Appellant’s counsel submitted that the only process the 1st and 2nd Respondents served on the Appellant was the order nisi (page 36 of the Record of Appeal) where one Effiong Davies Udoh, a Chief Bailiff of the trial High Court, deposed that:
… on the 17th day of August, 2017, at 10a.m. I served upon Zenith Bank Plc. – Aka Road – Uyo a judgment order in suit No. HU/MISC/196/2017 … He added that the Affidavit of Service as deposed to by the Chief Bailiff of the trial Court never mentioned that “the motion ex parte, the accompanying process” etc. were also served on the Appellant.

This failure, said counsel robbed the trial Court of jurisdiction to make the order nisi absolute. Any judgment, order, or decision made without jurisdiction is null and void.

Learned counsel for the Respondent reacted to Appellant’s Issue No. 1 by saying that for the purpose of garnishee proceedings, service of the order nisi on the garnishee (without more) is sufficient to kick-start the judicial process of recovery of money judgment. That what the law requires is that the said order nisi must be served on the garnishee and the judgment debtor, at least 14 days before the day of hearing. Respondent’s counsel reproduced the provision of Section 83 (2) of the Sheriffs and Civil Process Act 2004 thus:
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.

He submitted that, if a garnishee or judgment debtor is duly served with a copy of the enrolled order nisi of the Court, such service is proper in the eyes of the law for purpose of garnishee proceedings. That it is therefore legally untenable for a garnishee who has been duly served with a copy of the order nisi to turn round on appeal and argue that he was only served with the order nisi shorn of the ex parte processes that gave rise to the order nisi.

Learned counsel for the Respondent further submitted that the argument of the Appellant in its Issue No. 1 that it was not duly served, was never raised at the trial Court. That such issue is therefore a fresh issue on appeal. He argued that a fresh issue cannot be raised on appeal without leave of Court, therefore that the issue is incompetent and liable to be struck out. On this, Respondent’s counsel referred to the cases of RAUPH BELLO OSENI v. CHIEF LASISI BAJULU (2009) 18 NWLR (Pt. 1172) 164; OBI EZE v. ATTORNEY GENERAL OF RIVERS STATE (2001) 12 SC (Pt. 11) 21.

Still on his Issue No. 1, learned counsel for the Appellant submitted in his reply brief that Section 85 of the Sheriffs and Civil Process Act, 2004 provides that in a garnishee matter, service of process must be in the manner as directed or prescribed by the Court. That the 1st and 2nd Respondents argument would have availed them if the Court did not direct them to serve:
a. These orders
b. The motion ex parte
c. The accompanying processes.
d. All other relevant processes.
He referred to the case of AFOLABI v. MUDASHIRU (2010) 3 NWLR (Pt. 1181) 328 @ 326 and once again to the decision of the Court of Appeal per Nwodo JCA in WEMA BANK PLC. v. BRASTEM-STEER (NIG.) LTD. (2011) 6 NWLR (Pt. 1242) 58 @ 77 in coming to the conclusion that it is misleading for the 1st and 2nd Respondents to argue in paragraph 4.02 and 4.03 of their brief or argument that:
For the purpose of garnishee proceedings, service of the order nisi on the garnishee (without more) is sufficient to kick start the judicial process of recovery of money judgment.

On the Respondent’s argument as to Appellant raising a fresh issue on the appeal, learned counsel for the Appellant submitted that he was not heard at all in the proceedings and that denial of his right to fair hearing by lack of service of processes affects the competence of the trial Court to adjudicate on the proceedings leading to the grant of the order absolute. He referred to the cases of TSOKWA MOTORS (NIG.) LTD. v. UBA PLC (2008) 2 NWLR (Pt. 1071) 437; GABRIEL MADUKOLU & ORS. v. JOHNSON NKEMDILIM (1962) 2 SCNLR 341.

What seems to be a subsidiary issue raised by the learned counsel to the Respondent on Appellant’s Issue No. 1 is that the issue of lack of service as ordered by the Court is a fresh issue on appeal which required leave of Court to be legitimately raised by the Appellant.

It is pertinent to observe for the umpteenth time that the issue of lack of service relates to denial of fair hearing and queries the jurisdictional competence of the adjudicating authority, therefore such an issue of jurisdiction and/or fair hearing can be raised at any time in a proceeding without leave of Court. See ELUGBE v. OMOKHAFE (2004) 18 NWLR (Pt. 905) 319 @ 334; ODOCK v. STATE (2007) 7 NWLR (Pt. 1033) 369; AKINTARO v. EGUNGBOHUN (2007) 9 NWLR (Pt. 1038) 103; MOSES v. STATE (2006) 11 NWLR (Pt. 992) 458 @ 503; I.B.W.A. v. SASEGBON (2007) 16 NWLR (Pt. 1059) 195; UKPONG v. COMM. FOR FINANCE (2006) 19 NWLR (Pt. 1013) 187.

The main point in Appellant’s Issue No. 1 between the parties is whether the learned trial judge properly assumed jurisdiction in making the order nisi absolute when in fact the Appellant was only served with the order nisi without being served with other processes as ordered by the Court.
In this respect, it must be noted and acknowledged that the parties are not in dispute that the Court ordered that motion ex parte and other processes shall be served on the Defendants but that only the order nisi was served on the Appellant.
Learned counsel for the Respondent nevertheless argued that the service of the order nisi only on the Appellant is the only requirement for service under the provision Section 83 (2) of the Sheriffs and Civil Process Act 2004. Appellant’s counsel on the other hand referred us to the provision of Section 85 of the same Sheriffs and Civil Process Act to say that service must be effected as directed by the Court.
I must say, quickly too, that the provisions of Section 83 (2) and 85 of the Sheriffs and Civil Process Act are separate but not incompatible with each other. Indeed, the provision of Section 85 of the Act compliments the application of Section 83 (2) of the Act.
Section 83 (2) provides:
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.
Section 85 says:
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.
In effect, while Section 83 (2) provides for the minimum period (14) days by which notice of the order nisi must be given to the garnishee and the judgment debtor, Section 85 mandates service of processes as directed by the Court.
​Clearly, the failure to obey either of the provisions of Section 83 (2) or Section 85 of the Sheriffs and Civil Process Act would be fatal to the fate of the garnishee proceedings. It is therefore not the case as suggested by the learned counsel for the Respondent that the service of the order nisi alone would be sufficient in all cases and/or at all times to fulfil the separate requirements of Section 83 (2) and 85 of the Sheriffs and Civil Process Act, 2004.

I do agree with the learned counsel for the Appellant that the provision of Section 85 of the Sheriff and Civil Process Act is well explained in the judgment of the Court of Appeal per Nwodo, JCA (of blessed memory) in the case of WEMA BANK PLC v. BRASTEM-STEER (NIG.) LTD. (2011) 6 NWLR (Pt. 1242) 58 @ 77 and 82. First at page 77 of the Report that:
The Appellants complaint is that the service is not as ordered by the Court personally and that it was not as provided under the Sheriffs and Civil Process Act. The essence of service of process is to put a party on notice. S-85 of the Sheriffs and Civil process Act stipulates that service shall be in accordance with the directive of the Court.
Further at page 80, the Court held:
Under S. 83 (2) Sheriffs and Civil Process Act, Order Nisi must be served with the originating process or any 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 manner and it is not observed, the jurisdiction of Court against that party has not been invoked. MOHAMMED v. MUSTAPHA (1993) 5 NWLR (Pt. 292) pg. 222. And at page 82 of the same report that:
Failure to serve the order nisi where service is mandatory before order absolute is a fundamental omission which renders the proceedings void because the Court had no jurisdiction to entertain the next stage in the garnishee proceedings. It is settled that any decision based on a process which is not served is liable to be set aside.
In the instant case, the failure to serve the Appellant with motion ex parte and other relevant processes alongside the order nisi as mandated by the Court Order (No. 5) of 11/7/2017 robbed the trial Court of the jurisdiction to proceed to the next stage in the garnishee proceedings and to entertain and order that the order nisi be made absolute.

Issue No. 1 is resolved in favour of the Appellant. Appellant’s Issue No. 1 turns out to be jurisdictional and therefore a determinant issue for this appeal. For this reason, I do not consider it necessary to determine any other issue(s) in the appeal.
By the success of Appellant’s Issue No. 1, this appeal is meritorious and it is accordingly allowed.
The order absolute made in suit No. HU/MISC/196/2017 by Hon. Justice Archibong on 16/10/2017 is hereby set aside.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment delivered by my learned brother, Mojeed Adekunle Owoade, JCA and I agree that the appeal be allowed.
Failure to serve the Appellant was a fundamental defect. It is for this reason that I too allow the appeal and set aside the order absolute.
I abide by all other orders in the judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft, the lead judgment just delivered my learned brother Mojeed A. Owoade, JCA. I agree with him that the appeal must be allowed. The failure to serve the Order nisi where service is mandatory before the order absolute is a fundamental omission which renders the proceedings void and invariably rob the Court of its jurisdiction to entertain the next stage of the garnishee proceedings.
​Appeal is allowed.

Appearances:

DAVID JONATHAN, ESQ. For Appellant(s)

EKEMINI UDIM, ESQ. For Respondent(s)