ZENITH BANK v. GEORGE C. IGBOKWE & ANOR
(2013)LCN/6619(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/B/36/2010
RATIO
WHETHER AN ISSUE FOR DETERMINATION MUST BE DERIVED FROM GROUNDS OF APPEAL
There is no doubt that an issue for determination not derived from any ground of appeal is incompetent and liable to be struck out. See Unity Bank Plc & Anor. V. Mr. Edward Bouari (2008) 8 SCNJ 116; Milard Ekiti State & Ors. v. Prince Benjamine Adeniyi Aladeyelu & Ors. (2007) 2 SCNJ 1; Jimoh Garuba v. Isiaka Yahaya (2007) 1 SCNJ 352. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MUSA MOHAMMED SAULAWA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
ZENITH BANK (Ikpoba Hill Branch, Benin City) – Appellant(s)
AND
1. GEORGE C. IGBOKWE
2. MARTINS ONWEMEZINA (Trading under the name & style of Demartins & Brothers Enterprises – Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: (Delivering the Leading Judgment): This is an appeal filed by the Appellant against an Order of Garnishee Absolute given by the learned trial judge Hon. Justice J.A. Oyakhirome of the High Court of Justice, Benin City, on the 28th day of September, 2009.
In the said Order, the learned trial judge ordered the Appellant who was the Garnishee in the proceedings before it to pay the sum of N7,000,000 (Seven Million Naira) being the judgment debtors’ funds kept in Current Account Numbers 6014704681 and the fixed deposit Account 2173701278 maintained by the judgment debtor with the Appellant. The facts that led to this appeal are as follows:
The Respondent herein as a plaintiff in the main suit commenced by way of the undefended list procedure had obtained judgment in his favor for the sum of N7,000,000.00 (Seven Million Naira) against the judgment debtor. The said judgment was based on the Respondent’s claim for his professional fees as a legal practitioner for his representation and settlement of a judgment award of the sum N27,000,000.00 (Twenty Seven Million Naira) against Guinness Nigeria Plc.
Armed with this judgment, the respondent traced the judgment debtor’s funds to the appellant herein. He identified two accounts, specifically the current account number 6014704631 and the fixed deposit account number 2173701278 where he claimed the judgment debtor had over N7 million naira. The respondent herein commenced garnishee proceedings against the appellant herein to attach the funds in the said accounts.
On the 18th day of June 2009, the learned trial judge granted the Garnishee Order Nisi and the appellant herein was ordered to show cause within 14 days why the Order Nisi should not be made absolute. However, the appellant took no steps to appear in court and show cause why the Order Nisi should not be made absolute within the time given by the trial court. The matter was adjourned to 18th June, 2009.
The enrolled Order was served on the garnishee on 17th of June 2009. The garnishee did not appear in court on the 18th of June and the learned trial court adjourned the matter further to the 9th day of July 2009 to enable the garnishee have more time to respond. Fresh hearing notice was also ordered.
On the 9th of July 2009, the garnishee did not appear apparently because of non-service of the hearing notice and the learned trial judge further adjourned the matter to the 27th day of July 2009 and ordered another hearing notice to issue. The hearing notice was duly served but again, the garnishee failed, refused and/or neglected to file any process showing cause or even appear in court. Accordingly on the 28th of September, 2009, the learned trial court judge made the order of garnishee absolute.
The appellant admitted that due to administrative lapses it failed to show cause but claimed that it tried to obey the order absolute thereafter. However, after a look at its banker’s books, it discovered that the judgment debtor did not have up to the N7,000,000.00 (Seven million naira) in the Current and Fixed Deposit Accounts of the judgment debtor. The Appellant filed stay of execution at the trial court which was heard and refused. Having no other recourse, the appellant filed this appeal against the Garnishee Order Absolute.
The sole issue identified for determination by the appellant in the Appellant’s brief settled by Mr. J.O. Odion and filed on 11/4/2012 which was deemed filed by this court on 18/2/2013 is set out below:
Whether the Garnishee Order absolute can be enforced against the Appellant herein (the Garnishee) when the judgment debtor does not have funds in the accounts attached by the said Order?
The Respondent’s brief settled by G.C. Igbokwe was filed on 2/4/2013. Therein learned counsel also identified a sole issue for determination couched as follows:
Whether the learned trial judge has the duty of satisfying himself that there was sufficient funds in the judgment debtors account before making the garnishee Order nisi absolute.
At the hearing of this appeal on 5/11/2013, the appellant’s counsel, Mr. Igbokwe raised a preliminary objection to the hearing of the appeal. The said objections and the hearing in respect of which were embodied in the respondent’s brief which was adopted. While counsel withdrew the first leg of objection, in the best practice of the Bar having realized it was misconceived, he relied on the second leg of objection and urged this court to uphold the second leg of objection, and to dismiss this appeal.
The Appellant replied to the objection in the Appellant’s reply brief filed on 15/4/2013.
I will take the objection to the competence of this appeal first. The Respondent having abandoned the first head of objection, we are left to consider the second leg of objection. Learned Respondent’s counsel insisted that ground 1 of the notice of appeal had been abandoned as no issue was formulated there from and should therefore be struck out. He cited (1) Olaiya v. State (2010) 1 KLR 357; (2) Baker v. L.S.C.S.C. (1992) 8 NWLR Pt. 262 Pg. 641. He urged us to peruse the sole issue formulated by the appellant and claimed that same does not arise from Ground 2 of the Grounds of Appeal. He argued that this ground clearly questions the propriety of the learned trial judge making the order nisi absolute without finding out if there was sufficient fund in the account.
Learned respondent’s counsel argued that the issue as couched attacks the post garnishee enforcement of the Order while the ground of appeal attacks the pre-garnishee right of the trial judge to make same. He insisted that the issue is not consistent with any of the grounds of appeal and should be struck out as the appeal is inchoate and cannot be sustained.
1. Ebo v. NTA (1996) 4 NWLR Pt. 442 Pg. 314;
2. Ekunola v. CBN (2006) 14 NWLR Pt. 1000 Pg. 292;
3. Ajar v. Kokon (1991) 7 NWLR Pt. 203 Pg. 260;
4. Unity Bank v. Bouari (2008) 7 NWLR Pt. 1086 Pg. 372;
5. S.B.N. v. M.P.I.C. (2004) 6 NWLR Pt. 868 Pg. 146.
Learned Appellant’s counsel in response reminded us that the respondent did not join issues in respect of ground one of the notice of appeal but only complained that the sole issue did not flow directly from issue two. Learned appellant’ counsel is of the view that the arguments of learned respondent’s counsel is an exercise in semantics which we ought to ignore. Counsel argued that the sole issue flows directly from the said ground 2 and neither the respondent nor this court had been misled as to the nature of the appellant’s complaint or grievance with the trial court’s decision.
Learned appellant counsel further argued that there is no legal requirement that the issue formulated must be a verbatim or conterminous version of the ground of appeal. He cited Nze v. Nwaeze (1993) 13 NWLR Pt. 635 Pg. 396 at 406.
Counsel submitted that this court is quite entitled, if the issue did not quite capture the complaint in the ground of appeal, to utilize its powers to formulate issues that would address the complaints in the grounds of appeal.
According to pages 68-69 of the records, the grounds of appeal are stated thus:
(1) That the learned trial judge lacked the jurisdiction to entertain the garnishee proceeding against the garnishee/appellant.
(2) That the learned trial judge erred in law when he made the garnishee order nisi absolute without satisfying himself that there was enough funds in the judgment debtor’s accounts with the garnishee.
Now, I have set out above the sole issue formulated by the appellant. For clarity, I will set it out again.
Whether the Garnishee Order absolute can be enforced against the appellant herein (the Garnishee) when the judgment debtor does not have funds in the accounts attached by the said Order.
There is no doubt that an issue for determination not derived from any ground of appeal is incompetent and liable to be struck out. See Unity Bank Plc & Anor. V. Mr. Edward Bouari (2008) 8 SCNJ 116; Milard Ekiti State & Ors. v. Prince Benjamine Adeniyi Aladeyelu & Ors. (2007) 2 SCNJ 1; Jimoh Garuba v. Isiaka Yahaya (2007) 1 SCNJ 352.
I have to agree with learned appellant’s counsel that the complaint in ground 2 is the alleged failure of the trial court to make the correct finding of fact in relation to the funds of the judgment debtor with the garnishee before making the garnishee order absolute, and the consequential unenforceability of said order.
A composite reading of the grounds set out above and the sole issue distilled for determination shows clearly that the issue flows directly from the grounds of appeal.
In the circumstances, I am of the humble view that the preliminary objection is completely misconceived and it should be dismissed.
On the sole issue set before this court for determination, learned appellant’s counsel argued that the learned trial judge erred in law when he proceeded to make the Garnishee Order Nisi, absolute, without satisfying himself that the judgment debtor had enough funds in the said accounts. He urged the court to hold that the order absolute being incapable of being enforced, is “empty and barren” as that court should not have made orders in vain.
Counsel submitted that there being no money in the accounts attached, the order becomes automatically extinguished as there exists no money of the judgment debtor in the hands of the garnishee. He insisted that the garnishee cannot be compelled to off-set the debt of the judgment debtor by recourse to its (Appellant/Garnishee’s) personal funds or the funds of other depositors or customers in its custody which is what the garnishee order absolute portends for the Appellant. He cited NACB v. Achagwa (2010) 11 NWLR Pt. 1205 Pg. 339 and Ukpo v. Ngagi (2010) 1 NWLR Pt. 1174 Pg. 175; UBA v. Ekanem (2010) 2 NWLR Pt. 1177 Pg. 181 at 197.
Learned appellant’s counsel argued that the condition precedent for the decree of a Garnishee Order absolute is that the judgment debtor must have funds in account or in the hands of the garnishee. It was therefore submitted that where the garnishee has no funds of the judgment debtor in his possession or custody, the order absolute is a fruitless venture. Counsel cited NITEL Plc v. ICIC (Directory Publishers Ltd (2009) 16 NWLR Pt. 1167 Pg. 356 at 387; First Inland Bank Plc v. Effiong (2010) 16 NWLR Pt. 1218 Pg. 199.
Learned appellant’s counsel is of the view that even though the appellant had conceded that it failed to avail itself of the opportunity of showing cause why the order nisi should not be made absolute, it is not enough reason why the appellant should be compelled to satisfy the judgment debtor’s liabilities by the use of the Appellant’s or depositor’s funds. Counsel also submitted that the implication of the appellant’s failure to show cause only meant that the order nisi became absolute and enforceable against the accounts so attached (if there were funds therein) and that the appellant’s failure to show cause at the material time is immaterial as it only shows that from the onset there was no funds to be attached in the first place, therefore the order nisi was foisted on the basis of misapprehension of facts.
Learned appellant’s counsel further argued that the failure of the Respondent to carry out a thorough investigation of the status of the account, of the judgment debtor with the garnishee was a deliberate ploy to mislead the court into granting the garnishee order Nisi and subsequently to make it absolute. He argued that the order Nisi and Absolute was obtained on the basis of deliberate fraud and misrepresentation by the failure of the respondent to find out the credit balance of the judgment debtor before applying for the order nisi. The exparte order for a decree nisi was speculative. Counsel submitted that such an order obtained through misrepresentation should be set aside as being null and void ab initio. He cited Eke v. Ogbonda (2006) 18 NWLR Pt. 1012 Pg. 506 at 523-524; Abana v. Obi (2005) 6 NWLR Pt. 920 Pg. 183 at 203 and Oyeyemi v. Irewole Local Government (1993) 1 NWLR Pt. 270 Pg. 462 at 483.
Appellant’s counsel urged this court to utilize its inherent jurisdiction to set aside the garnishee order absolute. He cited In Re Diamond Bank (2002) 17 NWLR Pt. 795 Pg. 120 and Attorney General, Oyo State v. Akinyemi (2003) 1 NWLR Pt. 800.
Learned Respondent’s counsel replied and insisted that under the garnishee procedure the learned trial judge is under no statutory duty to find out and/or satisfy himself that there was enough funds in the judgment debtor’s account with the garnishee. Counsel argued that by S.83 of the Sheriff and Civil Process Act, it is the garnishee that is expected to show cause why execution should not be levied against the account of the judgment debtor in its custody.
Learned counsel referred to the fact that the learned trial judge in this case had performed his only duty in the circumstances by ensuring that the garnishee was properly served with the order nisi and order to show cause and the hearing notice of the return date. Learned appellant’s counsel said that there was no appeal against the finding of the trial court that the appellant was properly served with all relevant processes. Counsel further insisted that it was not the duty of the trial judge or the respondent who was judgment creditor, to carry out any investigation on the state of the judgment debtor’s account.
Learned respondent’s counsel argued that none of the cases cited by the appellant in its brief is applicable to the peculiar circumstances of this case as they only state and restate the general principles of garnishee proceedings.
Learned respondent’s counsel submitted that the appellant must bear the legal consequences of its tardiness, domestic lapses and willful disobedience to a harmless court summons to show cause. Counsel concluded that it would be acceptance of a dangerous proposition to allow a garnishee to destroy the authority of the courts by willfully failing to show cause.
Let me first of all dispose of the cases cited by learned appellant’s counsel. In UBA Plc v. Ekanem supra, this court per Akaahs, JCA (as he then was) insisted that the garnishee had a duty to pay money in its bank to the judgment creditor in obedience to an order garnishee absolute as it had no business protecting the res on behalf of the judgment debtor even if an appeal were pending against the judgment. In First Inland Bank Plc v. Effiong supra, the circumstances were quite different from the circumstances of this case. In that case, the garnishee did not ignore the order to show cause, but filed processes to show cause which showed clearly that the judgment debtor did not have any credit standing in its favour with the garnishee but was in fact owing the bank money which he had secured. This court held that the order of garnishee absolute could only be enforced against liquidated cash credit in the hands of a garnishee and that the judgment creditor could not claim a lien over the securities deposited by the judgment debtor in possession of the garnishee.
In Re Diamond Bank Ltd. supra, Aderemi JCA (as he then was) reasoned as follows at Pg. 133 of the NWLR:
“It behoves a successful plaintiff who does not want to lose the fruits of his victory to move fast against the assets of the judgment debtor to realize the fruits. One of such methods is to obtain 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”. And it is a separate and distinct action between the plaintiff/judgment creditor and the person or body holding in custody the assets of the judgment debt, although it flows from the judgment that pronounces the debt owing. A successful plaintiff, in his quest to move fast against the assets usually makes an application ex-parte for an order in that direction. If the application brought ex-parte is adjudged to be meritorious, a judge will make an order which is technically known as a “garnishee order nisi” attaching the debt due or accruing due 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 or so much of it as may suffice to satisfy his claim. However, the order must be served personally on the garnishee. Upon personal service, that order binds the debt in his hands and he must therefore pay the debt to the judgment creditor. However, if the garnishee wishes to dispute the debt or liability by it to the judgment debtor he must appear before the court. If the garnishee does not appear in obedience to the order nisi or does not dispute the liability, the court may then make the order nisi, absolute pursuant to the provisions of S.86 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990, which provides.”
This court then proceeded to conclude that the various applications by the garnishee were unmeritorious and to dismiss them.
It is obvious that the references made by learned appellant’s counsel to the various authorities were made out of con in an attempt to confuse the issue.
I have looked at the record of proceedings and I agree with learned respondent’s counsel that the only duty upon the learned trial judge is to ensure that the garnishee was properly served with the order nisi and hearing notices. In due regard to this duty, the learned trial judge in this case persisted on service, adjourned several times to make sure that the garnishee was served.
At Pg. 44 of the record the learned trial judge held as follows:
“From the records of court which I take judicial notice of, service was effected on the garnishee, Zenith Bank on the 9th of July 2009, it is my view that in spite of service of court processes on them including hearing notice, they neglected, failed and refused to respond. They filed no defence and they failed to appear in court…”
At paragraph 4.9 of the Appellant’s brief, the appellant conceded as follows:
Whilst it is conceded that the appellant herein failed to avail itself the opportunity of showing cause why the order nisi should not be made absolute, it is however submitted that it is not enough reason why it (appellant) should be compelled to satisfy the judgment debtor liabilities by the use of its (appellant’s) or depositor’s funds. It is submitted that the implication of the appellant’s failure to show cause only meant that the order nisi became absolute and enforceable against the accounts so attached (if there were funds therein).
I cannot agree with the presumptuous and self serving argument that the learned trial judge erred in law to have made the order absolute after the court had given every opportunity to the appellant to show cause.
I find extremely preposterous the argument of learned appellant’s counsel that the order absolute is null and void because at the time it was made the judgment debtor had no money in the custody of the garnishee. It is obvious that the appellant’s counsel completely misconceived the procedure and the law relating to garnishee. S.86 and S.87 of the Sheriffs and Civil Process Act provides as follows:
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.
S.87: If the 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.
Where, as in this case a garnishee who had been duly served with the garnishee order nisi to show cause and hearing notice he cannot turn around to say that the trial judge erred or that the court did not do its duty. I find it particularly disrespectful of lawful and constituted authority, the suggestion by learned appellant’s counsel that the appellant should be excused for ignoring court summons and that the trial judge and the respondent were in the wrong. I have to agree with the argument of learned respondent’s counsel that once the garnishee fails to respond to the summons, and the order absolute is made against it, the issue of whether or not there is fund in the judgment debtor’s account becomes irrelevant as the garnishee automatically becomes the debtor and execution can levy against it in the normal way of executing judgments without any particular reference to the state of the judgment debtors account. The garnishee by its silence and refusal to appear and/or show cause becomes estopped from raising the issue of lack of funds in the judgment debtor’s account subsequently. I have read and I totally agree with the lead judgment of my learned brother, Mbaba, JCA in Oceanic Bank Plc v. Oladepo delivered on 11/12/2012 reported in (2013) 8 WRN 157. His Lordship was very emphatic, and I agree with him, that where a garnishee order Nisi had been made and served on the garnishee, the onus is no longer on the garnisher (as judgment creditor) to place material before the court to enable the court make the garnishee order absolute. The onus is on the garnishee to show cause why the order nisi should not be made absolute.
I must reiterate the law that the only reasons whereby an order absolute can be set aside is if there is evidence on record that the garnishee was not properly personally served with the garnishee order nisi to show cause. The only other reason is if in the consideration of the processes filed by the garnishee to show cause, the trial judge used wrong legal consideration to arrive at the decision to make the order absolute as the situation which occurred in first Inland Bank Plc v. Effiong supra.
In the circumstances of this case, the garnishee’s willful failure and neglect to respond to lawful and competent summons on the admitted grounds of domestic administrative lapses cannot be allowed to defeat the garnishee order absolute. It would be a sad day indeed when litigants would be given for sentimental reasons the licence to avoid the consequences of their failure to respond to court summons. In this case the order nisi was given on 18th June, 2009 while the order absolute was given on 28th September, 2009 after several adjournments and opportunity for the garnishee to show cause. The courts will protect its dignity, sanctity and integrity. The courts are not toothless bulldogs and will resist any attempt to treat lawful orders with disdain, hoping that it can be set aside with any flimsy excuse. The ruling of the learned trial judge in Suit No. B/668/08 delivered on 28th day of September 2009 is hereby affirmed. This appeal is hereby dismissed. I award N50,000.00 costs to the Respondent against the appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the judgment delivered by my learned brother H.M. Ogunwumiju JCA, I have no hesitation whatsoever in concurring with the reasoning and conclusion reached therein, to the effect that the instant appeal is grossly lacking in merits.
Instructively, the sole issue formulated by the Appellant at page 4 of the brief thereof raises the vexed question of-
Whether the Garnishee order absolute can be enforced against the Appellant herein the Garnishee) when the Judgment debtor does not have funds in the accounts attached by the said order?
In the instant case, it’s on record that the lower court had made the Garnishee order Nisi pursuant to Section 83 of the Sheriffs and Civil Process Act on 01/06/09. The Appellant was thereby ordered to show within 14 days why the order Nisi should not be made absolute (See page 37 of the Record of Appeal). Undoubtedly, it’s so obvious on the face of the records, that the lower court had diligently taken the pains to see to it that the Appellant was duly served with the necessary judicial processes, including the order Nisi and hearing notices relating thereto. The lower court was so persistent on service, to the extent that it had to adjourn the case several times to ensure that the Appellant’s right to fair hearing was not in any way compromised. See page 44 lines 17 – 23 of the Record, wherein the lower court aptly observed thus:
From the records of court which take judicial notice of service was effected on the garnishee, Zenith Bank on the 9th of July, 2000, it is my view that inspite of service of court processes on them including hearing notice, they neglected, failed and refused to respond. They filed no defence and they failed to appear in court.
Yet, it’s a trite fundamental principle, that in the absence of any appeal against the finding of the court, copiously alluded to above, that finding remains subsisting and binding upon the party against whom it was made. See UWAZUIKE VS. NWACHUKWU (2013) 3 NWLR (Pt.1342) 503; CPC VS. INEC (2001) 18 NWLR (Pt.1279) 493.
As aptly observed by my learned brother in the said judgment:-
In the circumstances of this case, the garnishee’s willful failure and neglect to respond to lawful and competent summons on the admitted grounds of administrative lapses cannot be allowed to defeat the garnishee order absolute …The courts are not toothless bulldogs and will resist any attempt to treat lawful orders with disdain hoping that it can be set aside with any flimsy excuse.
I have deemed it compelling to reiterate the trite axiom, that a blatant disrespect to a court of law, in whatever ramification, is antithetical to the rule of law; the fundamental objectives of democracy, and the well cherished independence of the Judiciary. It was aptly observed by this court not too long ago that-
The importance of a competent, independent and impartial judiciary in preserving and upholding the rule of law cannot be over emphasized. There is no doubt, that public confidence in the courts, in the integrity of Judges that man such courts, and in the impartiality and efficiency of the administration of justice as a whole, play a great role in sustaining the judicial system of a (democratic) nation. I think it was Mr. Justice Frankfurter, the eminent and fearless US Jurist who once remarked that:
“The courts’ authority… possessed of neither the purse nor the sword…ultimately rests on sustained public confidence in its moral sanction.” See Baker v. Carr Supreme Court of USA (1962) 369 US 186.” (brackets added).
See DENTONWEST VS. MUOMA (2008) 6 NWLR (Pt.1083) 418 @ 451 paragraph H; 452 paragraphs A – C, per Saulawa, JCA.
Hence, having concurred with the reasoning and conclusion ably reached in the lead judgment, to the effect that the appeal lacks merit, I have no hesitation any longer in dismissing the appeal. And I so hold. I abide by the consequential order awarding costs of N50,000.00 in favour of the Respondent, against the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: I had the advantage of reading the draft of the judgment prepared and just delivered by the Hon. Justice H.M. OGUNWUMIJU, JCA. I am in complete agreement with the reasoning and conclusion therein, to the effect that the appeal be dismissed. I, so dismiss it.
I also award N50,000.00 costs to the respondent, against the appellant.
Appearances
J.O. OdionFor Appellant
AND
G.C. IgbokweFor Respondent
