UBN PLC v. ONIKOYI & ORS
(2022)LCN/16540(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/L/QRE/ROA/CV/1415M/2019(R)
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
UNION BANK OF NIGERIA PLC APPELANT(S)
And
1) OTUNBA ABDULGANIYU KOLAWOLE ONIKOYI 2) AKINOLA OYENIYI FAFUNWA (For Themselves And On Behalf Of The Onikoyi Royal Family) 3) CENTRAL BANK OF NIGERIA 4) STANDARD CHARTERED BANK NIG. LTD 5) STANBIC IBTC BANK PLC 6) CITIBANK NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL HAS JURISDICTION TO ENTERTAIN THE APPELLANT’S/APPLICANT’S MOTION FILED FOR ENLARGEMENT OF TIME FOR LEAVE TO APPEAL AGAINST GARNISHEE ORDER NISI BY AN EX PARTE ORDER
Section 14 (1) of the Court of Appeal Act (as amended) 2005 provides:-
“Where in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter; an appeal by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties or relating only to costs”.
In the instant case, the garnishee order nisi made by the High Court of Lagos State on 15th October 2019 was made ex parte as shown on Exhibit UBN 2 attached to the Affidavit in Support. By the provisions of Section 14 (1) of the Court of Appeal Act the garnishee order nisi made ex parte on 15th October, 2019 is therefore not appealable – See further on this Nigeria Agip Oil Company Limited vs. Peter Ogini & 2 Ors. (2011) NWLR (PT. 1230) 113 at 151 and Oceanic Bank Plc. vs. Oladepo (2012) LPELR-19670. PER BAYERO, J.C.A.
WHETHER OR NOT EXPARTE ORDERS ARE APPEALABLE
It is settled law that Ex parte Orders are not appealable. See Section 14 of the Court of Appeal Act; SPDC VS REGISTRAR OF BUSINESS PREMISES ABIA STATE (2015) LPELR-24285(CA); FCMB VS NIGERIA INSTITUTE OF MEDICAL RESEARCH & ANOR (2008) LPELR-4165(CA); NATIONAL INSURANCE COMMISSION & ORS v. FIDELITY BOND OF (NIG) LTD & ORS (2016) LPELR-41427(CA). PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): By a Motion on Notice filed on 14/12/2019 the Appellant/Applicant prayed for the following:
1. An order enlarging the time within which the Appellant/Applicant may seek leave to appeal against the Garnishee Order nisi contained in the ruling delivered on the 15th October, 2019, by the Honourable Justice S.A. Onigbanjo of the High Court of Lagos State, Lagos, Judicial Division, in Suit No: LD/3367GCM/2019: Otunba Abdul Ganiyu Kolawole Onikoyi & Anor. V Union Bank of Nigeria Plc.
2. An order granting the Appellant/Applicant leave to appeal against the ruling referred to in prayer 1 above.
3. An order enlarging the time within which the Appellant/Applicant may appeal to this Honourable Court against the ruling referred to in prayer 1 above, in the terms stated in the Proposed Notice of Appeal attached to the affidavit in support of this application and marked as exhibit “UBN 5”.
4. Such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application is predicated are as follows:
i. The Appellant/Applicant is dissatisfied with the ruling of the lower Court delivered on 15th October, 2019 and desire to appeal the aforesaid ruling.
ii. As at 15th October, 2019 when the lower Court granted the Motion Ex-parte filed by the 1st and 2nd Respondents in respect of the garnishee proceedings, the Appellant/Applicant had a pending application before this Honourable Court for an order of stay of execution of the judgment sought to be enforced by the 1st and 2nd Respondents.
iii. The Order made by the lower Court on 15th October, 2019 was made without jurisdiction.
iv. The Appellant/Applicant became aware of the ruling on 29th October, 2019, after the 14 days within which the Appellant was entitled to appeal against the said order had elapsed.
v. The grounds of appeal contained in the Appellant’s/Applicant’s proposed Notice of Appeal are grounds of mixed law and fact. The application is supported by a 17 paragraph affidavit with five Exhibits UBN1, UBN2, UBN3, UBN4 and UBN5 duly deposed to by Omotayo Omotaye a Legal Practitioner in the Law Firm of the Appellant/Applicant’s Counsel. The written address in support of the application is attached to the further affidavit in support of the Motion was filed on 18/03/2022. A lone issue is formulated in the written address thus: “Whether the Appellants/ Applicants are entitled to be granted the prayers/reliefs stated on the face of their application?”
Counsel argued that the Appellant is seeking to appeal against the ruling of the lower Court delivered on 15/10/2019. That ordinarily, the Appellant has 14 days within which to appeal against the ruling but which has lapsed in accordance with Section 25(4) of the Court of Appeal Act, that the Appellant has filed this application to file its appeal out of time and to regularize same – F.B.N. Plc vs. Obiechna Ejikeme & Sons (1994) 4 NWLR (Pt. 340) 583. That the reason for the delay which has been amply stated in the affidavit in support is majorly that the Applicant became aware of the garnishee proceedings at the lower Court on 29/10/2019 when a garnishee order nisi made by the lower Court on 15/10/2019 was served on the Applicant and that their new counsel needed time to study the entire case to be fully seized of the matter as shown in Paragraphs 6, 7, 10,11,12 and 14 therein.
According to Counsel, the grounds of appeal in the Proposed Notice of Appeal prima facie show good cause why the appeal should be heard, as they arose from the ruling of the lower Court – Daga zau vs. Bokir Int’I Ltd. (1999) 7 NWLR (Pt. 610) 293; Re-Adewunmi & Ors. (1988) 3 NWLR (Pt. 83) 483. He urged the Court to grant the application. In the written address filed by the 1st and 2nd Respondents on 4/04/2022 a lone issue was formulated for determination thus:
“Whether the Court of Appeal has jurisdiction to entertain the Appellant’s/Applicant’s motion filed on 19th December 2019 for enlargement of time for leave to appeal against Garnishee Order Nisi by an Ex parte Order”.
Learned Counsel referred to Section 14 of the Court of Appeal Act, 2005 (as amended) and submitted that the garnishee order nisi made by the High Court of Lagos State on 15th October 2019 was made ex parte as shown on Exhibit UBN 2 attached to the affidavit in support of the application; that it is not appealable. Counsel submitted that the Appellant’s/Applicant’s motion filed on 19tn December 2019 is incompetent and the Court of Appeal has no jurisdiction to entertain it and he placed reliance on Nigerian Agip Oil Company Ltd vs. Peter Ogini (2011) 2 NWLR (Pt. 1230) 131 at 153 Paras D-F per Owoade, JCA where the Court of Appeal held that by the provision of Section 14 (1) of the Court of Appeal Act LFN 2004 there can be no appeal against garnishee order nisi made ex parte. He urged the Court to strike out the Appellant’s Motion filed on 19th December 2019.
In the Appellant/Applicant’s Reply on point of law, it was submitted that this Court has jurisdiction to entertain the appeal. That this Court has held in several cases that an aggrieved party can appeal against garnishee order nisi and referred to the unreported Appeal No.CA/LAG/245/2011: Stanbic IBTC Bank Plc. vs. Long term Global Capital Limited & Anor delivered on 16th June, 2021 where this Court per Abubakar Sadiq Umar JCA concluded thus:
“I am of the considered view that such cannot deprive them from ventilating their grievance against the decision of the lower Court below in respect of the garnishee order nisi made by the trial Court.” He urged the Court to grant the application.
RESOLUTION OF THE APPLICATION
It is obvious that the proceedings leading to the present appeal is the aftermath of the garnishee order nisi. And the correct position of law is that in garnishee order nisi proceedings, due to the nature of the ex parte application employed in commencing same, the proceedings involves only the Judgment Creditor, with the Garnishee subsequently expected to appear before the Court on a named date to show cause why the funds due, to the judgment debtor in the custody of the Garnishee should not be attached. See Section 83 of the Sheriffs and Civil Process Act. The issue for determination is “Whether the Court of Appeal has jurisdiction to entertain the Appellant’s/Applicant’s motion filed on 19th December 2019 for enlargement of time for leave to appeal against Garnishee Order Nisi by an Ex parte Order”. Section 14 (1) of the Court of Appeal Act (as amended) 2005 provides:-
“Where in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter; an appeal by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties or relating only to costs”.
In the instant case, the garnishee order nisi made by the High Court of Lagos State on 15th October 2019 was made ex parte as shown on Exhibit UBN 2 attached to the Affidavit in Support. By the provisions of Section 14 (1) of the Court of Appeal Act the garnishee order nisi made ex parte on 15th October, 2019 is therefore not appealable – See further on this Nigeria Agip Oil Company Limited vs. Peter Ogini & 2 Ors. (2011) NWLR (PT. 1230) 113 at 151 and Oceanic Bank Plc. vs. Oladepo (2012) LPELR-19670. The application is accordingly dismissed. As regards the unreported Appeal No. CA/LAG/245/2011 Stanbic IBTC Bank Plc. vs. Longterm Global Capital Limited & Anor, delivered on 16th June, 2021 referred to by learned Counsel to the Applicant in the Reply on point of law filed on 14/04/2022 that this Court held that an aggrieved party can appeal against garnishee order nisi; that appeal is distinguishable from the instant in the sense that this Court in that appeal did not consider at all the provisions of Section 14(1) of the Court of Appeal Act 2005 (as amended) which unequivocally stated that no appeal shall lie from any order ex parte.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Abdullahi Mahmud Bayero, JCA, made available to me, a draft copy of the ruling just delivered in which this application was dismissed. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine. I will only make few comments in support.
Section 14(1) of the Court of Appeal Act, 2004 unequivocally states that there is no right of appeal against an ex-parte decision of the High Court, such as the Order Nisi in this appeal, to this Court of Appeal; Oceanic Bank Plc v. Oladepo & Anor (2012) LPELR-19670(CA). An Order Nisi is not a final order. Upon being served, the Garnishee has a duty to obey the Court order by filing the necessary affidavit and documents (if any) to show cause why it should not be made to satisfy the judgment debt; CBN v. Shipping Company Sara B.v. & Ors (2015) LPELR- 24665(CA). At that stage, there is nothing to appeal.
It is for this reason and for the fuller reasons given by my Learned Brother, that I also dismiss this application.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I have carefully perused the draft copy of the judgment delivered by my Learned Brother, ABDULLAHI MAHMUD BAYERO, JCA and found out that he rightly resolved all the Issues in this judgment.
It is settled law that Ex parte Orders are not appealable. See Section 14 of the Court of Appeal Act; SPDC VS REGISTRAR OF BUSINESS PREMISES ABIA STATE (2015) LPELR-24285(CA); FCMB VS NIGERIA INSTITUTE OF MEDICAL RESEARCH & ANOR (2008) LPELR-4165(CA); NATIONAL INSURANCE COMMISSION & ORS v. FIDELITY BOND OF (NIG) LTD & ORS (2016) LPELR-41427(CA). The purpose is to avoid opening a flood gate of appeals from every Interim or urgent Order made by a trial Court and to save the Appellate Courts from the danger of being clogged with such appeals borne out of Ex parte Orders of the trial Courts which if indeed is not controlled may frustrate Litigants and incapacitate our system of Administration of Justice. Therefore this Court does not have the jurisdiction to entertain appeals against Ex parte Orders.
For the above reasons, I abide by the decision of my Learned Brother to dismiss this Application.
Appearances:
F. O. Ogungbemi, For Appellant(s)
P. O. Jimoh Lasisi, (SAN) Esq, with him, A. Ekundayo, For Respondent(s)
