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Meaning of ‘Garnishee’ “The word garnishee is derived from the French word “GARNISH” which simply connotes “to warn”. Put in another way, it is the process by which execution or enforcement of monetary judgment whereby the money belonging to a judgment debtor in the possession of a third party called the Garnishee is attached or seized by a judgment creditor. See also the Black Law Dictionary 8th edition at page 703. ” Per Oniyangi, J.C.A. in ABURIME v. UBA & ORS (2018) LPELR-44769(CA) at P. 12, Paras. B-F. |
Meaning of ‘Garnishee’: “Hence, the term ‘garnishee’ denotes a person or an institution (e.g. a bank) that is either indebted to, or is bailed for another, whose property has been subjected to garnishment. Also termed ‘garnishee defendant’. See Black’s Law Dictionary 8th edition 2004, at 703 thus: Garnishment is an inquisitorial proceeding, affording a harsh and extraordinary remedy. It is an anomaly, a statutory invention sui generis, with no affinity to any action known to the common law … It is a method of seizure; but it is not a ‘levy’ in the usual acceptation of that term. It is a proceeding by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hands of his debtor.” Per Saulawa, J.C.A in CBN V. AUTO IMPORT EXPORT & ANOR (2012) LPELR-7858(CA) at Pp. 40-41, Paras. D-A. |
Who can be a Garnishee: “The third party envisaged as a prospective garnishee under section 83 of the said Sheriff and Civil Procedure Act must be a person, who holds sums amounting to debts due or accruing to the judgment debtor. Thus, banks/bankers are the typical garnishee given the nature of the banker-customer relationship, which is a contractual relationship.” Per Augie, J.S.C. in BARBEDOS VENTURES LTD. V. F.B.N. PLC. (2018) 4 NWLR (Pt. 1609) 241 @ Pp. 271 – 272, Paras. H – A. |
Meaning of Garnishee Proceeding: “Garnishee proceeding is a means by which judgment is enforced. It denoted that the judgment debtor is himself a creditor to another. Thus, the Judgment creditor has to obtain an order of Court that the debtor pays the judgment creditor by the instrumentality of attaching the debt.” Per Ndukwe-Anyanwu, J.C.A. in GTB PLC v. INNOSON NIGERIA LTD (2014) LPELR-22605(CA) at P.20, Paras. B-C. |
Meaning of Garnishee Proceeding: “Garnishee proceeding in Black’s Law Dictionary, 5th Edition, page 612 has been defined as follows: “A statutory proceeding whereby a person’s property, money, or credit in possession or under control of, or owing by, another are applied to payment of former debt to third person by proper statutory process against debtor and garnishee.” This Court in STB Ltd. v. Contract Resources (Nig.) Ltd. (2001) 6 NWLR (Pt. 708) P. 115 at p. 123, His Lordship Olagunju, JCA defined a ‘garnishee’ as follows: “…a garnishee is a third party who is indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the creditor of the judgment debtor in his account with the third party.” Per Uwa, J.C.A. in GTB PLC v. INNOSON NIGERIA LTD (2014) LPELR-22605(CA) at P. 30, Paras. B-F. |
Meaning of Garnishee Proceeding: “Garnishee proceeding is a means by which a judgment is enforced. It denotes that the judgment creditor has to obtain an order of court that the debtor pays the judgment creditor by the process of attaching the debt once order nisi is served. Per Nwodo, J.C.A. in WEMA BANK PLC. V. BRASTEM STERR (NIG) LTD (2011) 6 NWLR (PT. 1242) 58 at P. 79, paras. F-G. |
Meaning of “Debt”, “Debtor” and “Indebtedness”: “The Black’s Law Dictionary, 7th Edition 1999 at page 410 defines “Debt; as liability on a claim, a specific sum of money due by agreement or otherwise; the aggregate of all existing claims against a person, entity or State. A non-monetary thing that one person owes another, such as goods or services”. “Debtor is defined as “One who owes an obligation to another, especially an obligation to pay money; Indebtedness is defined as “The condition or state of owing money, something owed, a debt.” Per Peter-Odili, J.S.C. in BARBEDOS VENTURES LTD. V. F.B.N. PLC. (2018) 4 NWLR (Pt. 1609) 241 @ P. 296, paras. F-H. |
Steps in Garnishee Proceedings: “There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay money to the judgment creditor or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See Pritchard v. Westminister (1969) 1 ALL ER 999 and Rainbow v. Moorgate Properties Ltd. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it.” I did this detour for a purpose. That is, to show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to.” Per Eko, J.S.C. in GTB v. INNOSON NIGERIA LTD (2017) LPELR-42368(SC) at Pp. 8-11, Paras. F-C. |
Distinctiveness of Garnishee Proceedings: “Without much ado, the position of the law is that, Garnishee Proceeding is a separate and distinct action between the Judgment Creditor and the person or body known as the Garnishee, holding in custody the assets of the Judgment Debtor. Garnishee proceeding is “sui generis”, although it flows from the judgment that pronounced the debt.” Per Omoleye, J.C.A. in CBN V. OKEFE (2015) LPELR-24825(CA) @ P. 43, paras. F-G. |
Nature of Garnishee Proceedings: “For the sake of clarity, Section 83(1) of the Sheriff and Civil Process Act, Cap S6 of 2004, provides: 83 (1), The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid”. In the case of UBN Plc vs Boney Marcus Ind. Ltd (2005) 13 NWLR (pt. 943) 654 @ 666, Akintan, JSC stated thus: “Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which form part of his property available in execution… by this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due from him to the judgment debtor or as much of it as may be sufficient to satisfy the amount of the judgment and the cost of the garnishee proceedings”. The import of garnishee proceedings is that a judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the judgment creditor in satisfaction of the judgment debt he is owing to the judgment creditor. Thus as held in the case of Fidelity Bank Plc vs. Okwuolu and Anor, (2012) LPELR-8497 (CA) per Ogunwumiju, JCA, garnishee proceedings are sui generis, distinct from other proceedings for enforcement of judgment.” Per Barka, J.C.A. in NUHU v. DSS KWARA STATE COMMAND (2017) LPELR-42351(CA) at Pp. 8-10, Paras. D-C. |
Purpose of Garnishee Proceedings: “The purpose of garnishee proceedings is to order a third party to pay direct to the judgment creditor the debt due or accruing from him to the judgment debtor or so much as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceeding.” Per Uwa, J.C.A. in GTB PLC v. INNOSON NIGERIA LTD (2014) LPELR-22605(CA) at P. 31, Paras. A-B. |
Essence of Enforcement of Judgment by Garnishee Proceeding: “The purpose of executing a judgment by garnishee proceedings is to obtain the fruits of the judgment. So whatever the nomenclature, whether execution of judgment or enforcement of judgment, the aim is the same; reaping the fruits of the judgment.” Per Ogakwu, J.C.A. in NIGERIAN BREWERIES PLC. V. DUMUJE (2016) 8 NWLR (Pt. 1515) 536 @ P. 631, Paras. D-E. |
Parties to Garnishee Proceedings : “ … at the stage of the ex-parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would say in NAOC Ltd v Ogini (supra) , the subsequent hearing envisage a tripartite proceedings in which the three parties are represented. I am persuaded to agree with the learned counsel for the 1st respondent herein that at this stage of the proceedings, the three parties can be heard by the Court before an order absolute is made depending on the facts and circumstance of the case.” Per Okoro, J.S.C. in GWEDE V. D.S.H.A. (2019) 8 NWLR (Pt. 1673) 30 at P. 53, Paras. G – H. |
Parties to Garnishee Proceedings: “The law is long settled that a Garnishee proceeding is strictly between the judgment creditor and the Garnishee who is indebted to the judgment debtor. See the persuasive decision of UBA Plc V. Ekanem (2010) 6 NWLR (Pt 1190) 207 of 226. The proper parties herein are those present in the Garnishee Proceedings which seek to enforce the consent judgment of the trial Court wherein the 3rd and 4th Defendants before that Court had subrogated NITEL and held themselves out as guarantors to offset the debt of NITEL. They cannot now be heard to get out of their commitment.” Per Ogunbiyi, J.S.C. (as he then was) in CBN v. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940(SC) at P. 60, Paras. C-F; (2018) 7 NWLR (Pt. 1618) 294 @ Pp. 339 340, Paras. H – A. |
Parties to Garnishee Proceedings: “It is settled that garnishee proceedings are separate and distinct proceedings. See: Nigeria Agip Oil Co. Ltd. vs. Ogini (2010) LPELR-9141(CA). The primary parties in the garnishee proceedings are the judgment creditor and the garnishee; though the judgment debtor is usually served in case he intends to challenge the amount on the order nisi. See: Cross River State Forestry Commission vs. Anwan (supra) ; Wema Bank vs. Brastem-Sterr Nigeria Ltd. (2010) LPELR-9166(CA).” Per Otisi, J.C.A. in UBN PLC v. UWA PRINTERS NIGERIA LTD & ORS (2014) LPELR-22682(CA) at P. 31, Paras. B-E. |
Parties to Garnishee Proceedings: “Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. Thus, a successful party, in his quest to move fast against the assets of the judgment debtor, usually makes an application ex – parte for a garnishee order nisi attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called a garnishee. In Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) page 120. In a garnishee proceedings, the garnishee must be served with the garnishee order nisi. Upon service of the order nisi, on the garnishee he may file an affidavit to show cause and attend court on the return date. Where the garnishee fails to appear in court on the return date, the court may make the order nisi absolute. Likewise the judgment debtor is to be served the order nisi, in case he intends to challenge the amount on the order. See In Re: Diamond Bank (supra) . In the instant case, the judgment debtors filed a motion stating that they were not served. Neither the court nor the judgment creditor verified this assertion of the judgment debtors. The judgment creditor and the court glossed over the issue, even though it was vital to the jurisdiction of the court.” Per Ndukwe-Anyanwu, J.C.A in CROSS RIVER STATE FORESTRY COMMISSION & ANOR v. ANWAN & ORS (2012) LPELR-9479(CA) at Pp.8-9, Paras. G-F. |
Parties to Garnishee Proceedings: “I concede the point that a Garnishee proceeding is a matter within a cause or cause of action, it follows that the parties to the suit ordinarily ought to be stated before the object or parties to the application ex parte prescribed by Section 83(1) of the S & CPA. In the title of the application ex – parte, it is the Garnishee that will be named as the respondent, while the appellant shall be the judgment creditor. I have to agree with Dr. Banire that the S & CPA has determined the necessary parties to garnishee proceedings with variations at different stages, namely, the judgment creditor, the garnishee and the judgment debtor, as the case may be. See S. 83, 109 of the S & CPA, Orders VIII (4), (6) and (8) of the JER. These are the statutory parties to a garnishee proceedings, most importantly, at the stage of making order absolute. The introduction of the garnishee who was not party to the proceedings at trial is a statutory variation of the party composition of the case at trial. Secondly, garnishee proceedings is not an avenue to re-litigate the matter all over. It is just a means of enforcing judgment already given in respect of which the court that gave it has become functus officio save in such circumstances where it could set aside its decision. That explains why the garnishee action is a separate and distinct action between the judgment creditor and the garnishee with the judgment debtor as a statutory participant. Some judgments of this court seem to hold to the view expressed in Cross River State Forestry Commission v. Anwan & Ors. (Supra) as follows: “Garnishee proceedings is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing” I humbly believe that these sweeping statements are one of the reasons for the seeming contradictions of judicial opinion on this point. I have to stand aloof from that sweeping statement that garnishee proceedings are distinct and separate actions from the judgment from which it emanated, because the former decision (judgment) is the basis of the present proceeding (garnishee). The processes to be filed must indicate the parties viz “In the matter”. A Garnishee proceeding is separate and distinct only to the extent that it is started as a separate process from the judgment it wants to enforce. Then the judgment creditor is only obliged to name the persons he wishes to move against to recover the judgment debt. He is not bound to move against all the judgment debtors. ” Per Ogunwumiju, J.C.A. in NIGERIAN BREWERIES PLC v. DUMUJE & ANOR (2015) LPELR-25583(CA) at Pp. 145-147, Paras. F-F. |
Right of Judgment Debtor to be Heard in Garnishee Proceedings: “… It is not cast in stone that a judgment debtor cannot be heard in garnishee proceedings. It is the court that will determine whether he should be heard or not. If the application of the judgment debtor before the court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard.” Per Okoro, J.S.C. in GWEDE V. D.S.H.A. (2019) 8 NWLR (Pt. 1673) 30 at P. 55, Paras. A – B. |
Right of Judgment Debtor to be Heard in Garnishee Proceedings: “The wisdom of the law in stipulating that the order nisi be served on the judgment debtor is definitely not for idle purposes. It is no floccinaucinihilipilification. It is not worthless, neither is it valueless. It has to be emphasized that in the light of the clear provisions of Order III Rules 6 & 8 of the Judgment Enforcement Rules, which make provisions for “hearing the judgment creditor, the garnishee and the judgment debtor … ” in a situation where the garnishee either pays the judgment sum into court or disputes his liability; there is no justifiable legal basis for shutting out a judgment debtor from garnishee proceedings subsequent to service of garnishee order nisi or treating him as a stranger thereto, which evidently he is not; the enquiry ought to be on what the judgment debtor should be heard to say in the proceedings and not whether he can be heard at all, on the premise that the garnishee order nisi is not directed at him but at the garnishee.” Per Ogakwu, J.C.A. in NIGERIAN BREWERIES PLC. V. DUMUJE (2016) 8 NWLR (Pt. 1515) 536 @ Pp. 627 – 628, Paras. G – A. |
Re-opening of Decided Matters in Garnishee Proceedings: “I say so advisedly bearing in mind that garnishee proceedings is in the nature of enforcement of the judgment of a court of law and does not permit the re-opening of hearing in a matter which has been settled in the judgment sought to be enforced.” Per Okoro, J.S.C. in GWEDE V. D.S.H.A. (2019) 8 NWLR (Pt. 1673) 30 at P. 53, Para. H. |
Conditions for a Valid Garnishee Proceeding: ”Hence, for a garnishee proceeding to be valid, it’s incumbent upon the court to ensure that the following conditions have been duly satisfied. (i) That, the garnishee must be indebted to the judgment creditor within the state and be resident in the state in which the proceedings are to be brought. As such, if the debt is owed by someone outside the state, the proceedings are inapplicable. See section 83(1) of the Sheriffs & Civil Process Act (supra ); (ii) The proceedings should be filed in any court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in magistrate’s courts, as the case may be, sue the garnishee in respect of the debt. Thus, the court may not necessarily have to be the one that gave the judgment. It could be a magistrate’; and the fact that the debt exceeds the jurisdiction thereof notwithstanding. See order 8 rule 2 (a) (b) of the Sheriffs And Civil Process Act (supra); (iii) the application for the garnishee order shall be made ex parte. The court, if satisfied that the judgment creditor is entitled to attach the debt, shall make a garnishee order nisi. See order 8 Rule 3(2). (iv) The service of the order nisi thereon binds or attaches the debt in hands of the garnishee. Section 85 of the Sheriffs And Civil Process Act (supra) .” Per Saulawa, J.C.A in CBN v. AUTO IMPORT EXPORT & ANOR (2012) LPELR-7858(CA) at Pp. 43-44, Paras. C-B. |
Conditions for a Valid Garnishee Proceeding: “The law has spelt out the procedure for garnishee proceedings in Sections 83 and 84 of the Sheriff and Civil Process Act. The requirements stipulated in the Act are: (a) An applicant must satisfy that Judgment has been delivered; (b) An applicant must satisfy the Court that the judgment is still unsatisfied; (c) An applicant must satisfy the Court as to the amount of the still unsatisfied; and (d) An applicant must satisfy the Court that a debt owes from the third party. See UBA v. SGB Ltd (1996) 10 NWLR (PT. 478) 381; See also CBN v. Auto Import Export (2013) 2 NWLR (PT 1337) 80 wherein a variant of the conditions to a valid garnishee proceedings were given as follows: “For a garnishee proceeding to be valid, it is in incumbent upon the trial Court to ensure that the following conditions have been duly satisfied:- i. That the garnishee must be indebted to the judgment creditor within the State and be resident in the State in which the proceedings are to be brought. As such, if the debt is owed by someone outside the State, the proceeding are inapplicable. ii. The proceedings should be filed in any Court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate Section or Rule governing civil procedure in Magistrates Courts, as the case may be, sue the garnishee in respect of the debt. Thus, the Court may not necessarily have to be the one that gave the judgment. It could be a Magistrate’s Court and the fact that the debt exceeds the jurisdiction thereof notwithstanding. iii. The application for the garnishee order shall be made ex – parte. The Court if satisfied that the judgment creditor is entitled to attach the debt, shall make a garnishee order nisi. See Order 8 Rule 3 (2). iv. The service of the order nisi thereon binds or attaches the debt in the hands of the garnishee. Section 85 of the Sheriff and Civil Process Act (supra).” Per Nimpar, J.C.A. in SCOA (NIG) PLC & ANOR v. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIG & ANOR (2016) LPELR-40192(CA) @ Pp. 8-9, Paras. A-E. |
Laws Governing Garnishee Proceedings: “Garnishee proceedings are governed by the Sheriffs and Civil Process Act. It does not seem that the Court below adverted its mind to the relevant provisions of the Act and or case Law.” Per Ngwuta, J.C.A (as he then was) in UBA PLC v. UBOKULO & ORS (2009) LPELR-8923(CA) @ P. 14, Paras. D-E. |
Principles Governing Garnishee Proceedings: “The nature of Garnishee proceedings must be clearly understood to avoid any misapprehension. It is well settled that Garnishee proceeding is a mode of enforcement of judgment of a court. Its nature was unmasked in the case of UBN Plc. vs. Boney Marcus Ind. Ltd. (2005) 13 NWLR (PT. 943) 654. In that case the Supreme Court per Akintan, J.S.C. held that: “Applications for Garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is Garnishee order nisi. Nisi is a Norman-French word and it means “unless”. It is therefore an order made at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the Garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor.” It follows on established authorities that an order nisi is made to await if there is any sufficient and credible cause shown by the Garnishee why the order given temporarily will not be made absolute. Once a Garnishee files an affidavit evidence showing cause the cause shown must be carefully considered in the interest of justice to see if the cause is sufficient or not. If the cause shown from the evidence is sufficient the repercussion is a discharge of the order nisi and the Garnishee. If however the cause shown is not found sufficient or credible then the Court will go further and make the order nisi absolute. It is all about the evidence made available to the Lower Court and the evaluation of that evidence by the Lower Court. The Appellate Court can only interfere with the evaluation of the evidence if the finding of the Lower Court is perverse.” Per Adah, J.C.A. in ACCESS BANK PLC v. BASSEY & ANOR (2017) LPELR-42628(CA) at Pp. 9-11, Paras. E-E. |
Stages of Garnishee Proceedings: ”A garnishee proceeding can be described in two stages; the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed to the judgment debtor. This is usually done ex – parte and limited to the judgment creditor and the Court. The second stage is where on the return date the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the court may subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor, judgment creditor and the Garnishee. This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other. The garnishee may dispute his liability to pay the debt; as in this case. He will appear in court on the return date and dispute his liability by denying indebtedness to the judgment debtor. He must make out a prima facie case in favour of an order for an issue to be tried.” Per Ogunwumiju, J.C.A. in FIDELITY BANK PLC v. OKWUOWULU & ANOR (2012) LPELR-8497(CA) at P. 17, Paras. A-G. |
Stages of Garnishee Proceedings: “A garnishee proceedings is usually commenced by an ex-parte application made to the court having jurisdiction to hear the matter by the judgment creditor and the orders of the court usually come in two steps. The first is a garnishee order nisi. Simply, nisi is a Norman- French word which means “unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into court or to the judgment creditor within a stated time unless there is sufficient reason given by the party on whom the order is directed why the payment ordered should not be made. Such reasons could be that he does not hold any money belonging to the judgment debtor or that such money belonging to the judgment debtor in his possession is a subject of litigation or has been assigned to a third party or any other legal and reasonable excuse. If no sufficient reason is given, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor.” Per Okoro, J.S.C. in GWEDE V. D.S.H.A. (2019) 8 NWLR (Pt. 1673) 30 at P. 49, Paras. D – G. |
Nature of Garnishee Order Nisi: “The bank was perfectly right even as a garnishee to have protected its right (which enjoyed priority in creation, and equity) to the sums in the account that was said to be on credit. This is necessarily so, because an order nisi only created an equitable charge over fund in favour of the judgment creditor. Being an equitable charge, it necessarily means that in competition with the banker’s equity, the first in time must prevail. The word “nisi” means unless. Hence a garnishee order nisi accordingly takes effect at a stated date and time unless something happens to prove that the court order should not be enforced .“ Per Augie, J.S.C. in BARBEDOS VENTURES LTD. V. F.B.N. PLC. (2018) 4 NWLR (Pt. 1609) 241 @ P. 277, paras. E-H. |
Order Absolute must Predicate Upon a Subsisting Order Nisi: ”It’s a trite principle, that a garnishee order absolute must be predicated upon a subsisting garnishee order nisi.” Per Saulawa, J.C.A in CBN v. AUTO IMPORT EXPORT & ANOR (2012) LPELR-7858(CA) @ P. 56, para. G. |
When Garnishee Proceeding will Arise in a Suit or an Action: “A garnishee proceeding arises in a suit or an action, when it has been prosecuted to judgment, and an order for the payment of money to one of the parties is embodied. Garnishee proceedings are a form of execution of judgment.” Per Adekeye, J.C.A. (as he then was) in GOVERNOR OF OYO STATE & ANOR. v. AKINYEMI (2002) LPELR-5681(CA) at P. 19, Paras F-G; (2003) 1 NWLR (Pt 800) 1. |
Circumstances under which Garnishee Proceedings become Applicable: “The learned counsel to the Appellant has adequately given the circumstances under which the garnishee proceedings are applicable. The money must be due or have accrued to the judgment debtor for it to be liable to garnishment.” Per Uwa, J.C.A. in GTB PLC v. INNOSON NIGERIA LTD (2014) LPELR-22605(CA) at P. 31, Paras. B-C. |
Proper Venue to Commence Garnishee Proceedings: “The provisions of Section 83 of the Sheriffs and Civil Process Act Laws of Federation of Nigeria 2004 are relevant. The words of that provisions are: “… any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment ……” In other words, it is a precondition to a proper garnishee proceeding that the garnishee be resident in the very State where the order is sought: see Central Bank of Nigeria v. Auto Import Export (2013) 2 NWLR (PT 1337) 80 @ 128. In this case, by first respondent’s own showing in his application of 20/2/2015, appellants were resident in Oyo State, outside the jurisdiction of the lower Court, hence his application for them to be served there. They were thus beyond the reach of a garnishee proceedings from the High Court of Kwara State.” Per Ugo, J.C.A. in DARSEY DIGITAL PRESS LTD & ANOR v. AYO & ANOR (2019) 1 NWLR (Pt. 1654) 379 @ P. 393, Paras. G-H; (2018) LPELR-44488(CA) (Pp. 28-29, Paras. C-B. |
Functus Officio of the Court after making Order Absolute: ”During the period between when the order nisi and the order absolute are made, the matter would still be pending before the court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the court in the matter. The court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The court would be functus officio. There would then be nothing left to be determined by the court. The question of the proceedings, at that stage, being interlocutory would therefore not arise.” Per Akintan, J.S.C in UBN V. BONEY MARCUS IND. LTD. & ORS. (2005) LPELR-3394(SC) at P. 15, Paras. D-G; (2005) 13 NWLR (Pt.943) 654; (2005) 7 S.C (Pt II) 70. |
Functus Officio of the Court after making Order Absolute: “I wish to add that Garnishee proceedings commences with an ex parte application for an order nisi and terminates with an order absolute after all the necessary parties were put on notice. Once an order absolute is granted, the Court becomes functus officio in respect of that matter and thus lacks jurisdiction to review, reopen or reverse its decision.” Per Shuaibu, J.C.A. in BARBEDOS VENTURES LTD v. ZAMFARA STATE GOVT & ANOR (2017) LPELR-42499(CA) at P. 35, Paras. D-F. |
Duty of Registrar after Order Nisi has been Granted: “The law has provided that where the court grants a garnishee order nisi the Registrar of the court through the Sheriff must serve on the garnishee, the judgment creditor and the judgment debtor. That provision precludes creditors or their counsel any opportunity to tamper with the court orders. Moreover, it is only upon failure to serve any of the aforementioned that is fatal to the success of the judgment creditor in the proceedings .” Per Peter-Odili, J.S.C. in C.B.N. V. INTERSTELLA COMM. LTD (2018) 7 NWLR (Pt. 1618) 294 @ P, 356, paras. B-C. |
Duty of Registrar after Order Nisi has been Granted: “Where the court grants the order nisi on the garnishee; the Registrar through the Sheriff of the court must serve on the garnishee, the judgment creditor and the judgment debtor the Order Nisi on Form 26 of J ER. The registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment debtor and the garnishee for hearing.” Per Ogunwumiju, J.C.A. in N.A.O.C. LTD V. OGINI (2011) 2 NWLR (Pt. 1230) 131 at P. 152, Paras. G-H. |
Effect of Order Absolute in Garnishee Proceedings: “The Apex Court in the case of Union Bank of Nigeria Plc v. Boney Marcus Ind. Ltd. & Ors (2005) 13 NWLR (Pt. 943) p. 654 unequivocally held that a Garnishee order absolute seals the proceedings before the trial Court and thereby renders the Court funtus officio on the said matter. It was Katsina-Alu J.S.C. (AHTW) who rendered the order as follows: “…The above was the final garnishee order. In other words, it was an order absolute. It was a final decision of the Court. A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication. Clearly, by the order of the Court above, the trial Court had determined the rights of the parties before it. I must state again that the Appellant promptly complied with the order of the Court. This Court, in Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) 574 re-stated the position of the law in this respect. The Court, per Kutigi, JSC held: “An order or decision is final when it finally disposes of the rights of the parties, that is to say, the decision or order given by the Court is such that the matter would not be further brought back to the Court itself, as in this case.” Per Dongban-Mensem, J.C.A. in ECO BANK v. TEAK NATURALE INVESTMENT LTD & ORS (2017) LPELR-42389(CA) at Pp. 11-12, Paras. A-B. |
Discharging the Onus Placed on a Garnishee: “In law, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if it exists, it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer…” Per Aboki, J.C.A. in HERITAGE BANK LTD v. INTERLAGOS OIL LTD & ANOR (2018) LPELR-44801(CA) at Pp. 13-14, Paras. E-E. |
Discharging the Onus Placed on a Garnishee: “A Garnishee proceeding is thus a procedure legally approved by law for enforcing a money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor which forms part of his money in the hands of a third party for attachment. Therefore in law, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if exist, it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer. See UBN Plc. v. Boney Marcus Industries Ltd. (2005) All FWLR (Pt. 278) 1037 @ pp. 1046-1047.” Per Georgewill, J.C.A. in ZENITH BANK PLC v. OMENAKA & ANOR (2016) LPELR-40327(CA) (Pp. 24-26, Paras. F-A. |
Garnishee’s right of ‘Set Off’ or ‘Lien’ over the Judgment Debtor’s Money: “In law, it is now well settled beyond any dispute that a Garnishee is entitled to the defense of lien or set off as rightly recognized even by the Court below. A lien is a legal right reserved in a person to retain another’s property which is rightly and continuously in his possession until present and accrued claims of the person in possession are satisfied .” Per Georgewill, J.C.A. in ZENITH BANK PLC v. OMENAKA & ANOR (2016) LPELR-40327(CA) (Pp. 24-26, Paras. F-A. |
Failure of a Garnishee to Respond to a Competent Summons: “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.” Per Ogunwumiju, J.C.A. in ZENITH BANK v. IGBOKWE & ANOR (2013) LPELR-21975(CA) at P. 24, Paras. A-F. |
Competence of Garnishee Proceedings in view of Pending Motion for Stay of Execution: “The garnishee proceedings are legitimate exercise of his right to employ auxiliary methods to enforce the judgment obtained in his favour and they are competent notwithstanding the pendency of a motion for stay of execution.” Per Galadima, J.C.A. in DENTON-WEST v. MUOMA (2007) LPELR-8172(CA) at P.30, Paras. D-F. |
Garnishee Proceedings, whether amount to Abuse of Court Process: “A Garnishee proceeding is therefore not the kind of action that can qualify to be adjudged for abuse of Court process. In any case, it is a process for execution of judgment debt. I do not see how taking such a step can amount to abuse of Court process.” Per Nimpar, J.C.A. in SCOA (NIG) PLC & ANOR v. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIG & ANOR (2016) LPELR-40192(CA) at Pp. 15-16, Paras. F-E. |
Duty of the Garnishee: Whether can Fight the Cause of Judgment Debtor in a Garnishee Proceeding: “It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor. It is for this reason that I consider or view this aspect of the instant application an abuse of Court process.” Per Eko, J.S.C. in GTB v. INNOSON NIGERIA LTD (2017) LPELR-42368(SC) at Pp. 19-20, Paras. F-D. |
Duty of the Garnishee can: Whether can Fight the Cause of Judgment Debtor in a Garnishee Proceeding: “The role of a Garnishee in any Garnishee Proceeding is delimited. As rightly argued by the counsel for the 1st and 2nd respondents, it is not envisaged that after a judgment creditor has gone through the rigours to establish his rights through the legal system, that the garnishee, who is asked to surrender the Judgment Debtor’s money in its Possession should engage the Judgment Creditor in another bout of Legal battle. See Order VIII Part II of the Judgments (Enforcement) Rules. Basically, the restrictive role and legal duty of a Garnishee in a Judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the Judgment Debtor’s state of account in its custody. It is no wonder therefore that the lower Court while quoting the Court of Appeal case of Oceanic Bank Plc v. Oladepo & Another (2012) LPELR- 19670 held the view that “it is not the business of a Garnishee to undertake to play the role of an advocate for a Judgment Debtor by trying to shield and protect the money of the Judgment Debtor” page 470 of the record of Appeal.” Per Ogunbiyi, J.S.C. (as he then was) in CBN v. INTERSTELLA COMMUNICATIONS LTD (2018) 7 NWLR (Pt. 1618) 294 @ P. 350, Paras. E-G; (2017) LPELR-43940(SC) at Pp. 91-92, Paras. A-E. |
Duty of the Garnishee: Whether can Fight the Cause of Judgment Debtor in a Garnishee Proceeding: “In Oceanic Bank Plc v. Oladepo (2012) LPELR-19670 (CA) this Court held inter alia that it is not the business of a garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. In Skye Bank Plc v. David & Ors (2014) LPELR-23731(CA) this Court reaffirmed its decision in Oceanic Bank’s case. In the circumstances it needs be emphasized that it is not the duty of a Garnishee to defend the judgment debt sought to be enforced against the judgment debtor. The duty of the Garnishee upon receipt of Garnishee order nisi is to file before the Court an affidavit to show cause why the judgment debtor’s money in his custody should not be attached to satisfy the judgment debt. It then behoves (sic) a garnishee to present the true state of affairs regarding the monies before the Court. Either there is no or sufficient fund in his custody or that the available fund is under lien or assigned to a third party in which case the Court instead of proceeding to make the order for garnishee absolute may order that any issue or question necessary for determining his liability be tried or determined as provided for in Section 87 of the Sheriff and Civil Process Act.” Per Nimpar, J.C.A. in IHEAKAM v. FBN (2017) LPELR-43545(CA) at Pp. 17-18, Paras. A – C. |
Options Available to a Garnishee when Served with an Order Nisi: “In a garnishee proceeding, where the garnishee is served with an order nisi, he can either pay the amount of the debt or dispute it. Where disputed as in the instant case, he will appear in Court on the return date and dispute his liability. The Court may then order that any issue or question necessary in determining his liability be determined or tried in any manner or may refer the matter to a referee.” Per Abba Aji, J.C.A. (as he then was) in UBA v. SAS & ORS (2015) LPELR-40394(CA) at P. 18, Paras. B-D. |
Proper Step to take where a Garnishee Disputes Liability: “By virtue of section 87 , if the garnishee appears and disputes his liability, the trial court, rather than ordering execution to 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.” Per Otisi, J.C.A. in C.B.N. v. EDET (2015) ALL FWLR (Pt. 768) 879 at P. 897, Paras. B. |
Proper Step to take where a Garnishee Disputes Liability: ”The position of the law as stipulated in section 87 Sheriffs and Civil Process Act, CAP 407 LFN 1990 is that: “Where a garnishee disputes liability, the court may then order that any issue or question necessary for determining his liability be determined or tried in any manner in which any issue or question in any proceedings may be tried or determined and may refer the matter to a referee.” This position was also applied by this Honourable Court in the case of Nigeria Hotels Ltd v. Nzekwe (1990) 5 NWLR Pt.149 Pg.187 at 197 where Adio, JCA (as he then was) held that: “In view of the matters deposed to in the said affidavit filed on behalf of the Appellant which was before the learned trial judge on the 24th July 1987, when he heard and granted the application and which contain a denial of liability. What section 87 of Sheriffs and Civil Process Act, CAP 123 of the Laws of Northern Nigeria requires a court to do, when liability is denied and which the learned trial judge should have done instead of making an order that execution shall issue, was either to order that the issue or question necessary for determining liability be tried or determined in any manner in which any issue or question in any proceedings might be tried or determined or to refer the matter to a referee.” Per Ogunwumiju, J.C.A. in FIDELITY BANK PLC v. OKWUOWULU & ANOR (2012) LPELR-8497(CA) at P. 18, Paras. A-G. |
Requirements of Order Nisi: ”Indeed, it’s equally a trite principle, that the garnishee order nisi must clearly show that the judgment debtor is the garnishee’s creditor, otherwise it will not bind the garnishee. See Koch vs. Mineral Ore Syndicate (1910) 54 SJ 600. And the service of the order nisi thereupon binds or attaches the debt in the hands of the garnishee. See section 85 of the Sheriffs And Civil Process Act (supra) thus: ”85. Service of an order that 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 in his hands”. Per Saulawa, J.C.A in CBN v. AUTO IMPORT EXPORT & ANOR (2012) LPELR-7858(CA) at Pp. 53-54, Paras. G-C. |
Effect of Garnishee Order Made Without Jurisdiction: “I did say from the onset that this issue may appear to border on the jurisdiction of the trial court; if the two names are not one and the same, or better put, if the appellants is not a juristic person, while the other name is; and the court knowingly or unknowingly granted garnishee order absolute in such circumstances, that order then was clearly made without jurisdiction. Where garnishee order nisi and absolute are made without jurisdiction, it is within the jurisdiction of the lower court to set those orders aside, on the application of an aggrieved party; this court is borne out in this belief by the authority of Njekwu v. KSMCI (2003) 10 NWLR part 827 at 41.” Per Mustapha, J.C.A. in SUNNET SYSTEMS LTD v. NERC (2014) LPELR-23967(CA) at Pp. 11-12, Paras. F-B. |
Certainty or Ascertainability of Judgment Sum: “One wonders how the appellant was able to compute those sums of money by himself alone outside the judgment of the court and tag it as the judgment sum. In garnishee proceedings, the judgment sum must be certain and can be located in the judgment. It is not to be left to conjecture.” Per Okoro, J.S.C. in GWEDE V. D.S.H.A. (2019) 8 NWLR (Pt. 1673) 30 at P. 55, Para. E. |
Certainty or Ascertainability of Judgment Sum: “The condition precedent for the enforcement of money judgment by garnishee proceedings is that the sum of money sought to be recovered must be certain or liquidated in the sense that it is specifically stated in the judgment or agreed upon by the parties or is capable of mathematical computation from the judgment which is not the case with the portion of the judgment (supra), therefore the said judgment could not have been enforced by garnishee proceedings vide the latest decision of this Court (to my knowledge) in Nigerian Breweries Plc v. Chief Dumeje (supra) at page 601 per the lucid lead judgment of Ogunwumiju, J.C.A., thus – “… a garnishee order can only be upon a sum certain – liquidated amount which cannot be varied. “. Per Ikyegh, J.C.A. in UNILAG v. OLUWASANMI & ORS (2017) LPELR-42305(CA) at Pp. 12-13, Paras. F-F. |
Requirement of Attorney-General’s Consent in Respect of Public Funds: “Considering the fact that the money with the appellant which the garnishee order attached were deposits belonging to the public and thus qualified as public fund in contra-distinction to money from the general reserve of the appellant commission, consent of the Attorney-General of the Federation should have been sought and obtained by the judgment creditor before initiating the garnishee proceeding at the court below.” Per Ikyegh, J.C.A. in NATIONAL INSURANCE COMMISSION v. OYEFESOBI & ORS (2013) LPELR-20660(CA) at Pp. 54-55, Paras. F-A. |
Requirement of Attorney-General’s Consent in Respect of Public Funds: “Garnishee proceedings are essentially a process of enforcing a money judgment by seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. In the instant case, the funds which the 1st respondent sought to be attached at the lower Court are public funds standing not to the credit of the judgment debtor but standing to the credit of the Joint Local Government Councils in Zamfara State and domiciled with the appellant. The 2nd respondent owns nothing until the money is shared among the 14 Local Government in Zamfara State. By virtue of Section 83(1) of the Sheriffs and Civil Process Act, Cap. 56, Laws of Federation of Nigeria, 2004, it is only the debt due to the judgment debtor from the garnishee that can be paid over to the judgment creditor in a garnishee proceedings. That being the position, the garnishee order nisi should not have been granted in the first place, as the onus of showing that the debt in the hands or possession of the garnishee is that of the judgment debtor, is on the applicant/judgment creditor. I also subscribe to the view in the lead judgment that in the instant case, the prior consent of the Attorney General of Zamfara State must be obtained before the initiation of Garnishee proceedings resulting in the order Absolute granted by the trial Court. For the above and the fuller reasons contained in the lead judgment, that I too allow the appeal. I abide by the consequential orders.” Per Shuaibu, J.C.A. in UBA PLC v. ACCESS BANK & ANOR (2018) LPELR-44060(CA) at Pp. 15-16, Paras. A-C. |
Requirement of Attorney-General’s Consent in Respect of Public Funds: “Section 84 (1) of Sheriffs and Civil Process Act, provides: “Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodial legis, the order nisi shall not be made under the provisions of the last preceding section unless consent of such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or the Court in the case of money in custodial legis, as the case may be. Section 84(3) In this section, “appropriate officer” means (a) in relation to money which is in custody of a public office who holds a public office in the public service of the Federal, the Attorney General of the Federation.” In the case of Central Bank of Nigeria vs Hydro Air Pty Ltd (supra) , the Court interpreted Section 84 of the Sheriffs and Civil Process Act and emphasized the need of obtaining prior consent of the Attorney General before issuance of garnishee Order Nisi under Section 84 of the Act. It held, thus: “The issue of constitutionality of requiring prior consent of the Attorney General before issuance of garnishee order nisi under Section 84 of the Sherriff and Civil Process Act is not new and has been raised and decided in some previous decisions of this Court. These include: 1) Onjewu Vs Kogi Ministry of Commerce and Industry (2003) 10 NWLR (part 827) 40; 2) Government of Akwa Ibom State Vs Powercom (Nig) Ltd. (2004) 6 NWLR (part 868) 202. … In the instant case before instituting the garnishee proceedings against the Appellant, 3rd and 4th Respondents at the lower Court, the 1st and 2nd Respondents did not obtain consent of the Attorney General of the Federation as provided by Section 84(1) of the Sheriffs and Civil Process Act. Therefore, the failure of the 1st and 2nd Respondents to obtain the consent of the Attorney General of the Federation made the whole Garnishee proceedings in the lower Court a nullity.” Per Jauro, J.C.A. in CBN v. OSCKO PETROLEUM LTD & ORS (2018) LPELR-46732(CA) at Pp. 9-17, Paras. E-F. |
Set Off of Debts Accruing After Service of Garnishee Order Nisi: ”However, the garnishee cannot set off debts accruing after service of the garnishee order nisi, nor can he set off a debt due to him from the judgment creditor. See the case of Sampson v. Seaton RLY Corp. (L874) LR QB 28, See also the case of O.A.U. v. Olanihun. In OAU v. Olanihun (1996) 8 NWLR Pt. 464 Pg.123 at 129, this court held inter alia per Okunola JCA: “What is more the decision of Lord Hobhouse in Newfoundland Government v. Newfoundland Rly Co, (1888) 73 App. Cas 799p. 272 quoted with approval by Sellers L. J in Hanak v. Green (1958) 2 ALL E.R, 747 Pg. 754 had clarified the position of set off with respect to liquidated or unliquidated money demand to the effect that “Unliquidated damages may now be set off as between the original parties and also an assignee…” This principle had been extended to allow set off in respect of claim for damages and even where the claim, basis of the set off arises from a different transaction, See Bankers v. Jarvis (1903) 1KB 549 which also cited with approval in Hanak v, Green (supra) .” Per Ogunwumiju, J.C.A. in FIDELITY BANK PLC v. OKWUOWULU & ANOR (2012) LPELR-8497(CA) at Pp. 22-23, Paras. G-E. |
Order Absolute: Power of Court to make Garnishee Order Absolute where the Garnishee Fails to File Affidavit to Show Cause: “Where a Garnishee fails to file an affidavit to show cause why a Garnishee Order Nisi should not be made absolute, the Court should proceed and make the Order Nisi to become absolute. The only way by which the Garnishee can express dissatisfaction with the order is to appeal against it .” Per Orji-Abadua, J.C.A in UNITED BANK FOR AFRICA PLC v. EKANEM (MD PARAGON ENG. LTD) & Anor (2009) LPELR-8428(CA) at Pp. 22-23, paras. G-A. |
Order Absolute: Power of Court to make Garnishee Order Absolute where the Garnishee Fails to File Affidavit to Show Cause: “I shall refer also to the case in relation to the point on ground the case of Oceanic Bank PIc. v. Oladepo & Anor (2012) LPELR 1970 when it held that: “… by playing games of hide and seek with the court by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the garnishee only exposes itself to trouble, daring the court to do its worst. It can therefore be made to pay the debt of the judgment debtor. If the court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law to disclose the true state of the account of judgment debtor in its custody. In that situation, the court will have no other option than that to order the garnishee to settle the judgment debt.” Per Peter-Odili, J.S.C. in C.B.N. V. INTERSTELLA COMM. LTD (2018) 7 NWLR (Pt. 1618) 294 @ Pp. 363 – 364, paras. H-C. |
Order Absolute: Power of Court to make Garnishee Order Absolute where the Garnishee Fails to File Affidavit to Show Cause: “The trial Judge was right to have made the Order Nisi absolute because the only consideration for not making an Order Nisi absolute is a cogent affidavit to show cause. This is in tandem with a line of judicial authorities. In Omnia (Nig.) Ltd v. Dyktrade Ltd. (2007) 15 NWLR (Pt. 1058) 576, it was held that it amounts to concession of facts where preliminary objection is filed before filing a defence. The court in United Bank For Africa Plc v. Ekanem (MD Paragon Eng. Ltd) & Anor (2009) LPELR-8428 (CA), aptly held: “Where garnishee fails to file an affidavit to show cause why a garnishee Order Nisi should not be made absolute, the court should proceed and make the Order Nisi to become absolute. The only way by which the garnishee can, express dissatisfaction with the order is to appeal against it.” See also Re: Diamond Bank Ltd. (2002) 17 NWLR (Pt. 795) p. 120.” Per Abba Aji, J.C.A. (as he then was) in C.B.N. V. INTERSTELLA COMMS. LTD (2015) 8 NWLR (Pt. 1462) 456 @ P. 512, paras. A –D. |
Attachment of an Amount Due to a Third Party in Judgment Debtor’s Account: Where a customer genuinely assigns the amount of his account balance to a third party and gives notice to the bank accordingly, the amount assigned ceases to be the property of the customer and therefore cannot be attached if the assignee has received notice of the assignment. RESTIN V SEVERO SIBIRSKO GOSUDAR STVERNNOE AKCIONERNOE OBSCHETRO KOMSCVERPUTJ AND BANK OF RUSSIAN TRADE 1933 1 KB 47 |
Particulars: whether Account Number and “Exact Amount” Required for Granting Order Nisi: “I have already stated in this judgment that the relevant particulars required by section 83(1) of the Sherriff and Civil Process Act, for the purpose of garnishee proceedings, had been satisfied by the 1st Respondent and that the application at the lower Court was not speculative, simply because the account number and the exact amount to the credit of the judgment Debtor were not stated by the 1st Respondent. Of course, the information as to the account number and the exact amount in the account, were information within the exclusive knowledge of the Appellant and the 2nd Respondent, and by banking confidentialities, division (sic) of such information is not permitted to a 3rd party. The 1st Respondent was therefore not expected to have such detail.” Per Mbaba, J.C.A in OCEANIC BANK PLC. V. OLADEPO & ANOR (2012) LPELR-19670(CA) at P. 23, Paras. A-D. |
Order Absolute to be made where the Garnishee Fails to Appear or File Affidavit in a Garnishee Proceeding: “… Where the garnishee does not appear or appears but does not show cause why he should not be ordered to pay the judgment sum from the account of the judgment debtor in his possession to the judgment creditor, then an order absolute is made against him/her. The above procedure is backed up by section 83(1) and (2) of the Sheriffs and Civil Act…” Per Okoro, J.S.C. in GWEDE V. D.S.H.A. (2019) 8 NWLR (Pt. 1673) 30 at P. 54, Paras. A – B. |
Order Absolute to be made where the Garnishee Fails to Appear or File Affidavit in a Garnishee Proceeding: “Where the Garnishee fails to pay into the Court the amount due within the time prescribed by the Court or the amount equal to the Judgment Debt and at the same time does not show cause why he is not able to do so, the Court, upon proof of service, may order execution which in effect is an order absolute. The law governing these garnishee proceedings is as set out in Section 86 of the Sheriffs and Civil Process Act, Cap 204, Laws of the Federation of Nigeria, 2004, which provides as follows: “If the Garnishee does not, within the prescribed time, pay into the Court the amount due from him to the Judgment Debtor or an amount equal to the Judgment Debt together with the cost of the Garnishee proceedings and does not dispute the debt 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 accordingly without any previous writ or process, to levy the amount due from such Garnishee, or so much thereof as maybe sufficient to satisfy the Judgment or Order, together with the cost of the Garnishee proceedings.” Therefore, where a Garnishee to a proceeding does not dispute the debt due, the Garnishee has to pay the amount due to the Court and in default, an order absolute will be levied against him in order to compel the Garnishee to discharge this responsibility. This was the purport of the decision in Wema Bank Plc V Brastem-Sterr (Nig) Ltd (2011) 6 NWLR (Pt. 1242) 58 at 82.” Per Sankey, J.C.A. in ZENITH BANK PLC v. KANO & ORS (2016) LPELR-40335(CA) at Pp. 8-10, Paras. E-A. |
Appeal Against a Garnishee Order Absolute: Whether is of Right: ”I am of the settled view that Garnishee Order absolute made by the Lower Court is not an Interlocutory Order. The Appellant can therefore appeal as of right. ” Per Ige, J.C.A in UBA PLC v. ONUOHA & ORS (2014) LPELR-24360(CA) at Pp. 33-34, Paras. E-E. |
Award of Cost in Garnishee Proceeding: “By virtue of Section 86 of the Sheriffs and Civil Process Act, the lower Court has the power to award cost of the garnishee proceedings in favour of the garnishor. See Fidelity Bank Plc v. Okwuowulu & Anor (2012) LPELR – CA/L/776M/06.” Per Awotoye, J.C.A. in UBA v. PRIMA IMPEX (NIG) LTD & ORS (2017) LPELR-42015(CA) at P. 30, Paras. C-D. |
Appeal Against a Garnishee Order Absolute: “The Appellant/Garnishee was definitely a person aggrieved by the decision of the lower Court which required it to make over to the Judgment Creditor/Respondent an amount in excess of the balance standing to the Credit of the Judgment Debtor in its account with the Appellant/Garnishee. It therefore had the locus to appeal against the decision.” Per Ogakwu, J.C.A. in CBN v. DANTRANS (NIG) LTD & ORS (2018) LPELR-46678(CA) at Pp. 41-42, Paras. F-A. |
Appeal Against a Garnishee Order Absolute: whether a Garnishee can Initiate an Appeal on behalf of the Judgment Debtor: “I have critically examined the Appellant’s issues in this Appeal and the question I have had to ask myself repeatedly is this; what is the matter between the Appellant as Garnishee Bank and the Judgment-Creditor in this case? The question of the Appellant’s legal right to institute the Appeal is vital as it must crystallize before it can be activated. Under the Garnishee proceedings, the apex Court in tons and tons of their decisions have left no one in any doubt that the role of the Garnishee Bank in a Garnishee proceedings, is clearly to satisfy the Court as to why the funds in its possession belonging to the Judgment Debtor should not be garnished to pay the judgment debt and not to play the role of a Defender or an advocate for the Judgment-Debtor or to protect the debtor’s money in its possession by raising issues on Appeal which confer practically no benefit on it. For all practical purposes our laws and indeed the rules providing for the Garnishee proceedings do not permit the kind of crusade embarked upon by the Appellant in this Appeal. True, such crusading role might be beneficial to the society at large in social circles, but in strict legal circles for the crusader to succeed, he must satisfy the dictates of the doctrine of locus standi, which the Appellant has failed woefully to do in initiating this Appeal. The pertinent question to therefore address here is; even if all the issues nominated by the Appellant are to be resolved in favour of the Appellant, what benefit does that confer on it? What should perhaps, be borne in mind by the Garnishee Bank who is the Appellant herein is that a Garnishee order is an order passed by an executing Court directing or ordering a Garnishee not to pay money to the judgment-debtor since the latter is indebted to the Garnisher (decree-holder). It is an order of Court to attach money or goods belonging to the judgment-debtor in the hands of a third person, usually Bank or other financial institution in our clime. It is a remedy available to any Judgment-Creditor; this order may be made by the Court to holders of funds (3rd party) that no payments are to be made until the Court authorizes them. The purpose of the order is to protect the interest of the creditor and the Garnishee has no business whatsoever by acting as a clog in the process, which is exactly what the Appellant is doing by initiating this Appeal. In the recent decision of the Supreme Court on the issue in the case of Guaranty Trust Bank Plc vs. Innoson Nigeria Limited (2017) LPELR-42368(SC), the pronouncement of the apex Court on the issue is instructive. Here the Supreme Court per Eko, JSC had this to say on the subject; – “It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him or does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor.” In the contributions of the noble Lord, Kekere-Ekun, JSC still in the case of Guaranty Trust Bank (supra) had this to say on the subject; “It is most pertinent to bear in mind the fact that the appellant/applicant herein is a garnishee. The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession belonging to the judgment debtor should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor or to protect the debtor’s money in its possession. See: Oceanic Bank Plc vs. Michael Olusegun Oladepo & Anor. (2012) LPELR-19670 (CA).” In view of the foregoing and particularly in this case in which the Appellant has failed to disclose its locus standi, I find myself unable to see what benefit the grant of the issues canvassed by the Appellant, who is the Garnishee Bank herein would be to it.” Per Oho, J.C.A. in UBA v. OPTION ONE AGRITRADE (NIG) LTD & ANOR (2018) LPELR-43865(CA) at Pp. 8-12, Paras. D-D. |
Appeal Against a Garnishee Order Nisi: “I am in complete agreement that the preliminary objection by learned Respondent’s counsel must be upheld and the application must therefore be struck out. The motion is for an order ex debito justitae to suspend the execution or further execution of the ex parte garnishee order nisi pending the hearing and determination of the motion on notice for unconditional stay pending in this Court. That in my view is a back door way of appealing against an Order Nisi. Section 24 of the Court of Appeal Act 2004 specifically prohibits any appeal against an order Nisi. The Applicant not being a party to the ex parte proceedings which culminated in the Order Nisi being granted cannot seek any relief against the order by relying on the inherent jurisdiction of this court under Order 4 of the Court of Appeal Rules or Section 15 of the Court of Appeal Act which mandates this court to grant reliefs the trial court would have granted. In the sui generic circumstances of this case, the only orders the trial court can grant on the return date would be to make the Order Nisi absolute or on proper application by the garnishee to discharge same. The Applicant being a party on the return date can make a case that the Order Nisi be discharged having been served with the order Nisi thus affording him an opportunity to be heard. It is after the Order Nisi has been made absolute that there is a recourse by way of appeal against same before this Court.” Per Ogunwumiju, J.C.A. in PORTLAND PAINTS & PRODUCTS NIG & ANOR V. OLAGHERE & ANOR (2012) LPELR-7941(CA) at Pp. 20-21, paras. B-A. |
Service of Order Nisi on Judgment Debtor: “It is after the making of the order Nisi that the law requires that the judgment debtor be served and even at that he has no part in the proceedings. It has been settled that garnishee proceedings are distinct from the proceedings leading to the judgment debt, see Star Deepwater Petroleum Limited & Ors v. A.I.C Limited & Ors (2010) LPELR – 9165(CA) where the Court held as follows: “It is trite law, that garnishee proceedings though incidental to the judgment pronouncing the debt owed, the judgement debtor is not a necessary party to the said proceedings.” See also P.P.M.C v. Delphi Petroleum Incorporated (2005) 1 NWLR (PT. 928) 458 at 486 and In Re: Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120 at 133. Taking the two authorities cited above together therefore suggest strongly that, though not a necessary party, the judgement debtor is only served with the order Nisi being a requirement of the law.” Per Nimpar, J.C.A. in SCOA (NIG) PLC & ANOR v. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIG & ANOR (2016) LPELR-40192(CA) at Pp. 10-11, Paras. D-C. |
Service: Effect of Failure to Serve an Order Nisi on Judgment Debtor: “Section 83 (2) of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990 uses the word “shall” which has been interpreted to mean a command or compulsory mandate which gives no room for discretion. See National Assembly v. C.C.J. Co. Ltd. (2008) 5 NWLR (Pt. 1081) Pg. 519 at 540. It is also the opinion of this court per Olagunju, J.C.A. in STB Ltd. v. Contract Resources Nig Ltd. (2001) 6 WLR (Pt. 708) Pg. 115 at 123 that a garnishee proceedings shall be defective where the order nisi is not served on the judgment debtor within the time prescribed by law.” Per Ogunwumiju, J.C.A. in NIGERIAN BREWERIES PLC. V. DUMUJE (2016) 8 NWLR (Pt. 1515) 536 @ P. 598, Paras. C – E. |
Service: Effect of Failure to Serve an Order Nisi on Judgment Debtor: “Failure to serve an order nisi before an 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. See Tubonemi v. Dikibo (2006) 5 NWLR (Pt. 974) 565, Wema Bank Plc v. Brastem-Sterr Nigeria Ltd. & Anor (2010) LPELR-9166(CA). However, in view of the fact that the Appellants failed to provide evidence contradicting the affidavit of service filed by the Respondent, the order absolute is valid in law and ought to stand.” Per Nimpar, J.C.A. in FIRST BANK & ANOR v. FCMB (2016) LPELR-42217(CA) at P. 28, Paras. A-D. |
Parties to Garnishee Proceedings; Whether a Judgment Debtor is a Necessary Party in a Garnishee Proceeding: “Ordinarily, a judgment debtor is not a necessary party in a garnishee proceeding before the Court. However, the Court cannot close its eyes to processes filed in court and the law includes the judgment debtor as one of the parties to be served with the order nisi.” Per Ndukwe-Anyanwu, J.C.A in CROSS RIVER STATE FORESTRY COMMISSION & ANOR v. ANWAN & ORS (2012) LPELR-9479(CA) at P.8, Paras. E-F. |
Appeal: Whether Judgment Debtor can Appeal Against a Garnishee Order: “More importantly, a judgment debtor may challenge a garnishee order nisi before the Court that made it by moving the Court concerned to set it aside, for example, on ground of want of jurisdiction if the judgment sum is alleged to be uncertain or unliquidated, as in this case vide Nigerian Breweries Plc v. Chief Worhi Dumuje and Anor. (2016) 8 NWLR (Pt. 1515) decided by this Court (Benin Division) on 15-07-15, cited by the appellant in the reply brief which came later in time than the cases decided by this Court on the issue cited (supra) by the 1st respondent in his brief of argument. I had the privilege of reading the Ruling of this Court (Lagos Division) in Stanbic I.B.T.C. Bank Plc v. Long Term Global Capital Ltd. and Ors in CA/L/245A/2011 delivered on 29.04.16 and reported in (2016) LPELR-40517 where my learned brother, Abubakar, J.C.A., painstakingly considered the status of a judgment debtor in ex parte proceedings culminating in the issuance of a garnishee order nisi and proceedings in which a garnishee order absolute is to be issued and concluded that in the latter the judgment debtor can be a necessary party and can maintain an appeal against the garnishee order absolute, while in the former the judgment debtor is not a necessary party. The application in that case dealt inter alia with prayer for extension of time to appeal against garnishee order absolute while the present case is an appeal on the refusal of the Court below to set aside the garnishee order nisi on ground of lack of jurisdiction. Although the principle of law thoroughly stated in Stanbic I.B.T.C. Bank Plc stands, the Stanbic I.B.T.C. Bank Plc case (supra) was not with respect to an appeal challenging the refusal of the trial Court to set aside a garnishee order nisi on ground of want of jurisdiction and is thus distinguishable on the facts from the present case. Accordingly, I defer to the latest decision of this Court (to my knowledge) in Nigerian Breweries Plc v. Chief Dumuje and Anor. (supra) and hold that the appellant was entitled to initiate the proceedings to set aside the garnishee order nisi on ground of lack of jurisdiction at the Court below and in the same token the appellant was entitled to file this appeal against the adverse decision of the Court below on the issue, as the appeal is the continuation of the proceedings of the Court below on the issue.” Per Ikyegh, J.C.A. in UNILAG v. OLUWASANMI & ORS (2017) LPELR-42305(CA) at Pp. 5-7, Paras. B-C. |
Liability of a Garnishee: whether Exceeds the Credit Standing to the Judgment Debtor’s Account: “I think I should state straight away that in law a Garnishee, such as the Appellant, is under no obligation to pay to a Judgment Creditor, such as the Respondents/Judgment Creditors, any sum or amount over and above the credit standing to the Judgment Debtor in its custody and no Court can merely by its order compel a Garnishee to pay to a Judgment Creditor a sum or amount over and above the sum or amount standing as credit to a Judgment Debtor in his account or custody with the Garnishee. It is my view that such an order failing to take into account the actual credit standing to the Judgment Debtor in his account with the Garnishee is unjust and perverse and cannot be allowed to stand but must be set aside so that the Garnishee is only made to pay to the extent of the sum or amount standing to the credit of the Judgment Debtor in his account with the Garnishee. A Garnishee, in a Garnishee proceeding, does not become the Judgment Debtor by reason only of the Garnishee proceedings to be liable to pay the entire judgment sum where the amount is above the sum standing to the credit of the Judgment Debtor in his account with the Garnishee. In other words, the extent of liability, if it could even be properly so termed, of the Garnishee is only to the extent of the sum standing in credit to the Judgment Debtor in the custody of the Garnishee and no more no less!” Per Georgewill, J.C.A. in CBN v. DANTRANS (NIG) LTD & ORS (2018) LPELR-46678(CA) at Pp. 31-32, Paras. A-B. |
Order Absolute: Whether an Order Absolute can be made against a Garnishee, not Having Funds Belonging to the Judgment Debtor: “A garnishee order can only be effectively made against a third party in possession of funds belonging to the judgment debtor. Where it was shown as in this case that the account involved belonged to some other entity other than the judgment debtor, then any garnishee order absolute would be improper.” Per Oyewole, J.C.A. in ECOBANK v. UDOFIA & ANOR (2018) LPELR-45164(CA) at P. 19, Paras. D-E. |
Order Absolute: whether Garnishee Order Absolute only Enforceable Against Liquidated Cash: “In First Inland Bank Plc. v. Effiong, 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.” Per Ogunwumiju, J.C.A. in ZENITH BANK V. IGBOKWE (2014) ALL FWRL (Pt. 756) 451 at P. 465, Paras. F-G. |
Order Nisi: Endorsement to be made on Order Nisi in line with Section 97 of the Sheriffs and Civil Process Act: “Indeed, from the appellant’s brief it is admitted that the motion ex-parte which was heard and granted by the court was endorsed with the notice as required under Section 97 of the Sheriffs and Civil Process Act. I shall recast the provisions of that Section as follows: Order 37 Rule 2 An application for an order under Rule 1 of this Order shall be made ex- parte supported by an affidavit- a. Stating the name and last known address of the judgment debtor; b. Identifying the judgment or order to be enforced and stating the amount of the judgment or order and the amount remaining unpaid under it as (at) the time of the application; c. Stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent’s information or the grounds for his belief; and …. It follows that the process that needed be endorsed in compliance with Section 97 of the SCPA is the ex-parte application which appellant is not complaining of as it accompanied the Order nisi granted by the Court of trial.” Per Peter-Odili, J.S.C. in CBN v. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940(SC) at Pp. 105-107, Paras. D-D. |
Order Nisi: Payment to Third Party out of the Money Attached: “The case of FMBN Ltd vs. Desire Gallery Ltd (2004) 13 NWLR (PT.891) 522 cited by the Respondent is apt in this regard. This court at pages 540 to 541, held thus:- “By virtue of section 85 and 88 of the Sheriff and Civil Process Act a garnishee cannot unilaterally and without the leave of court, pay any money to third parties out of the moneys which by an order of a competent court had been attached. In the instant case, the money belonging to the defendants which was in the hands of the Appellant became payable to the Respondents upon the judgment of the trial court in their favour and also became attached upon the service of the garnishee decree Nisi on the appellant. In the circumstance the Appellant ought not to have paid the money to third parties .” Per Oseji, J.C.A. in SKYE BANK PLC v. COLOMBARA & ANOR (2014) LPELR-22641(CA) at Pp.28-29, Paras. B-B. |
Service – Correction of Clerical Error about the Date in the Processes served on a Garnishee: “From the proceedings, it is clear that the garnishee was absent from court. The trial Judge himself noticed that there was a clerical error about the date in the processes served on the Garnishee. The trial Judge corrected this error and proceeded. Once the trial Judge noticed the error, it should be resolved for the benefit of the absent parties. As soon as the error was corrected, the court ought to adjourn the proceedings. The error might have operated on the mind of the absent party. As soon as the correction was made, the right thing to do was to adjourn the case and issue fresh hearing Notice on the absent party. All the proceedings after the correction, was done without jurisdiction as the parties were no longer privy to the correction made. The maxim audi alterem partem was no longer observed. The court lacked the necessary vires to continue. It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law to a nullity irrespective of how well the proceedings was conducted. Umanah vs. Attah (2006) 17 NWLR (Pt. 1009) 503 Madukolu Vs. Nkemdilim (1962) 1 All NLR 587 Skenconsult Vs. Ukey (1981) 1 SC 6. Benin Rubber Producers Ltd vs. Ojo (1997) 9 NWLR (pt.521) 388. As it were, the garnishee was not informed about the correction. After the correction, the court ought to have adjourned the proceedings and given a return date and a Hearing Notice to the absent party. The trial court lacked jurisdiction when it made the garnishee order nisi absolute. The order absolute is therefore a nullity. This appeal is meritorious and therefore succeeds. The order absolute made by the trial court is a nullity. The parties are to return to Federal High Court for the trial to start de novo by a different coram.” Per Ndukwe-Anyanwu, J.C.A. in ZENITH BANK v. ARCHIBONG & ORS (2013) LPELR-20204(CA) at Pp. 13-15, Paras. C-A. |
Duty of Court where the Debt Sought to be Attached Belongs to a Third Party or has Lien or Charge: “Section 88 of the Sheriff and Civil Process Act Cap 407 Laws of the Federation provides: Whenever in any proceedings to obtain an attachment of a debt. It is suggested by the Garnishee that the debt sought to be attached belongs to some third person or any third party has a lien or charge upon it, court may order such third person to appear in court and state the nature and particulars of his claims upon such debt”. Unfortunately, lower Court did not order the third person here suggested by the appellant being the owner of the said account number, the Police Pension Board; this would have helped the lower Court in arriving at a just conclusion. Section 89 of the same Act further provides that, if the third person as described in the last proceeding section does not appear, the court on proof of service of a copy of the order, may proceed to make an order as if such person had appeared. By implication this section is to the effect that once the person fails to appear it would create the presumption that the third person suggested by the appellant is the owner of the account. The court can thereafter go ahead to make the order absolute. However, this requirement was not met by the lower Court in this case. This could be pretty embarrassing and contrary to the provision of section 83(1) of the above law which provides that the Garnishee must have in its procession funds belonging to the judgment debtor. This is the more reason why the court must be careful in dealing with the case of this nature.” Per Jella, J.C.A. in ECOBANK NIG. PLC v. ETTE & ORS (2014) LPELR-23444(CA) at Pp. 9-10, Paras. D-D. |
Jurisdiction of Court in a Garnishee Proceeding: “The long established principle in garnishee proceeding is that where the debt is situate determines the jurisdiction of the trial Court; and it is a guide to garnishee proceeding leading eventually to the attachment of the credit balance of the third party.” Per NIMPAR, J.C.A. in SCOA (NIG) PLC & ANOR v. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIG & ANOR (2016) LPELR-40192(CA) at Pp. 6-7, Paras. D-E. |
Application to Set Aside Order Nisi by Judgment Debtor: “I am of the opinion that the only possible ground upon which the lower court could have entertained the application of the judgment debtor, and set aside the garnishee order nisi was that there had been some procedural irregularity in the proceedings of such serious nature that the order ought to be treated as a nullity. The factual basis of any such contention on the part of the appellant could only be the pendency of an application for stay of execution of the judgment. The complaint of about the breach of provisions of section 84 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990 can only be addressed by way of appeal.” Per Galadima, J.C.A. (as he then was) in Purification Tech. Nigeria Ltd. v. AG, Lagos State (2004) LPELR-7424(CA) at Pp. 18-19, Paras. F-B; [2004] 9 NWLR (Pt.879) 665 |
Public Officer: “The Sheriff and Civil Process Act has no definition of who a pubic officer is but section 18 of the Interpretation Act defines a Public Officer as: “… a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the Public Service of a State.” Per Tallba, J.C.A. in C.B.N. V. AINAMO (2019) 7 NWLR (Pt. 1672) 407 at P. 419, Para. G. |
Public Officer: “Who then is a Public Officer contemplated by this provision? In Shakira & Sons Ltd. v. The Governor of Kaduna State & Ors (2013) LPELR-20379 (CA), the term public officer was defined to only relate to the holders of the office as reflected only in section 318(1) of the CFRN, 20 11 (as amended). The said Section 84 also – referred to a public officer as a holder, officer or person holding a public office.” Per Abba Aji, J.C.A. (as he then was) in C.B.N. V. INTERSTELLA COMMS. LTD (2015) 8 NWLR (Pt. 1462) 456 @ P. 505, paras. C – D. |
Central Bank of Nigeria – Legal Personality of the Central Bank of Nigeria: “Section 1 of the Central Bank of Nigeria Act, 2007 describes the Central Bank of Nigeria to be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.” Per Abba Aji, J.C.A. (as he then was) in C.B.N. V. INTERSTELLA COMMS. LTD (2015) 8 NWLR (Pt. 1462) 456 @ P. 505, Paras. G-H. |
Central Bank of Nigeria – Whether the Central Bank of Nigeria (CBN) is a Public Officer within the Meaning of Section 84 of the Sheriffs and Civil Process Act : “Again and contrary to the submission advanced by the learned counsel for the appellant, the consent of the AGF had all along been obtained. Consequently, the garnishee proceedings ‘against the appellant was rightly commenced and I so hold. The other leg of the argument is where the appellant’s counsel holds out the CBN as a public officer and relied on the case of Ibrahim v. JSC (supra) in particular. In the case under consideration, I have ruled that the relationship between the appellant and the 3rd and 4th respondents is that of banker and customer relationship. In other words and as rightly argued by 1st and 2nd respondents’ counsel, the appellant is not a public officer in the context of section 84 SCPA, when regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment. It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government Funds with respect to government funds in its custody. Section 2(e) of the CBN Act provides thus: “Act as a banker and provide economic and financial advice to the Federal Government.” Section 36 of the CBN Act also provides:- “The bank shall receive and disburse Federal Government moneys and keep accounts thereof.” The appellant does not stand as public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise. Relevant to this conclusion is again the persuasive authority of CBN v. Ekong (supra) cited also by the appellant’s counsel…” Per Ogunbiyi, J.S.C. in C.B.N. V. INTERSTELLA COMM. LTD (2018) 7 NWLR (Pt. 1618) 294 @ P.346, Paras. C – H. |
Central Bank of Nigeria – Whether the Central Bank of Nigeria (CBN) is a Public Officer within the Meaning of Section 84 of the Sheriffs and Civil Process Act: “This Court will thus answer the question posed on the basis of the factual situation in this case. The factual basis upon which Counsel to the Appellant predicated the assertion that the Appellant is a public officer in this case is that the Appellant acts as banker of the monies of the second and third judgment debtors, the Nigeria Army and Chief of Army Staff, agencies of the Federal Government of Nigeria, as part of its duty of being a banker and financial adviser to the Federal Government of Nigeria. A similar question in similar circumstances was posed before and answered by the Supreme Court in the case of Central Bank of Nigeria Vs Interstella Communications Ltd (supra) at pages 178 to 180 thus: “The other leg of the argument is where the Appellant’s Counsel holds out CBN as a public officer and relied on the case of Ibrahim v JSC … in particular. … It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government with respect to government funds in its custody. Section 2(e) of the CBN Act provides thus: ‘act as a banker and provide economic and financial advice to the Federal Government.’ Section 36 of the CBN Act also provides: ‘The Bank shall receive and disburse Federal Government moneys and keep accounts thereof.’ The Appellant does not stand as a public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney General of the Federation does not arise. Relevant to this conclusion is again the persuasive authority of the CBN v Ekong … wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the CBN: ‘Generally, it is for overall control and administration of the monetary and banking policies of the Federal Government … It is not established for commercial profit making purpose …” The case of Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State … is also on all fours with the facts of the case under consideration herein. Again the persuasive judgment of the Court of Appeal … is relevant and said: ‘… There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other juristic personality or customers …'” It is trite that where the provisions of a statute or section of a statute are in pari material, light may be thrown on the meaning of such a provision of a statute or section which is in pari material by referring to a previous decision of a competent Court where similar provisions had been previously considered – Attorney General, Abia State Vs Attorney General, Federation (2005) 12 NWLR (Pt 940) 452. Where that previous decision was given by a Court higher up in the judicial hierarchy then it becomes a matter of judicial precedent and is binding on the Courts lower in the hierarchy where they are called upon to consider a provision similar to that earlier considered – Nwobodo vs. Onoh (1984) 1 SCNLR 1, University of Lagos vs. Olaniyan (1985) 1 NWLR (Pt 1) 156 and Ngige vs Obi (2006) 14 NWLR (Pt 999) 1. This above quoted decision of the Supreme Court is on similar facts and on the same Section 84 of the Sheriffs and Civil Process Act as in this case and this Court is bound by the decision. The decision affirmed the earlier decision of this Court in Central Bank of Nigeria Vs Interstella Comms Ltd (2015) 9 NWLR (Pt 1463) 1 and it supersedes the myriad of decisions of this Court referred to by Counsel to the Appellant. Thus, the reliance placed by the lower Court on the decision of this Court in Central Bank of Nigeria vs Interstella Comms Ltd (supra) in making its finding in the instant case cannot be faulted, any more, on the ground that the lower Court ignored latter decisions of this Court on the point. The answer to the question posed by Counsel to the parties in this appeal therefore is that, on the facts and in the circumstances of this case, the Appellant is not a public officer as to warrant the application of Section 84 of the Sheriffs and Civil Process Act.” Per Abiru, J.C.A. in CBN v. DOMA (2018) LPELR-45639(CA) at Pp. 11-28, Paras. C-B. |
Central Bank of Nigeria – Whether the Central Bank of Nigeria (CBN) is a Public Officer within the Meaning of Section 84 of the Sheriffs and Civil Process Act: “In answer to the question herein raised, a recourse to the deposition of 3rd and 4th respondents at paragraph 13 of the affidavit as shown at page 76 of the Record would be helpful and therein they admitted against interest as follows: “That the Judgment Creditor has so far been paid the sum of Two Billion- Seven Hundred Million Naira in fulfillment of agreement and towards the discharge of the compromised sum of Twelve Billion Naira (N12,000,000,000.00)” That admission above stated needed no further proof. See Rauph Bello Oseni v Chief Lasisi Bajulu & 2 Ors. (2010) ALL FWLR (Pt. 511) 813 at 831 – 832: Section 123 of the Evidence Act 2011 (as amended)). It is now trite that every case is to be considered and determined based on its peculiar facts and that being the case and in the light of the unique facets displayed in the case under review that it is to say that those peculiar circumstances have removed this case from the purview of the general application of Section 84 of the Sheriffs and Civil Process Act in that the consent of the 4th respondent by virtue of Exhibit “1” and Exhibit “L” which exhibits reveal that the 3rd and 4th respondents adopted indebtedness of N12B to the 1st and 2nd respondents on behalf of NITEL, which are effectively the consent already obtained and so appellant (CBN) was only acting as a banker to the 3rd respondent (FGN). The basis for the securing the Attorney General’s consent as stipulated in Section 84 SCPA is to avoid embarrassment of not knowing that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt which the government may not know anything about. I refer to the case of Onjewu v KSMCI (2003) 10 NWLR (Pt. 877) 40 at 89. From the available facts the consent of the 3rd and 4th respondents was sufficiently obtained by the 1st and 2nd respondents and therefore the garnishee proceeding was validly commenced.” Per Peter-Odili, J.S.C. in CBN v. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940(SC) (Pp. 124-126, Paras. C-A. |
Central Bank of Nigeria – Proper Venue to commence Garnishee Proceedings Against CBN: “By virtue of section 3 of the Central Bank Act, the appellant, Central Bank of Nigeria maintains a branch in all the state capitals including Abeokuta, the Ogun State Capital. Suffice it to add that in garnishee proceedings involving the Central Bank of Nigeria, it is within the jurisdiction of Ogun State High Court. Moreso it is a common knowledge that due to advancement in technology and the Computer or digital age garnishee proceedings can rightly be commenced and prosecuted against the Central Bank of Nigeria in any part of the Federation notwithstanding that the Headquarter is in Abuja. It is in view of this fact that the appellant submitted to the jurisdiction of Ogun State High Court. The case of Sokoto State Govt. v. Kamdax (Nig) Ltd (supra) applies to this case.” Per Talba, J.C.A. in C.B.N. V. AINAMO (2019) 7 NWLR (Pt.1672) 407 at P. 417, Paras. D- F. |
Jurisdiction – Applicability or otherwise of Section 83 of the Sheriffs and Civil Process Act to the Federal High Court: “The point raised by the appellant is that the Suit ought not to have been commenced in Abia State and so the garnishee must be within the State where the Court to which the application is made exercises jurisdiction and the debt owed by the garnishee must be recoverable within the jurisdiction of the Court and definition of Court under the provision of Section 2 of SCPA includes the Federal High Court of Nigeria and that in his instance the Court of trial ought to be that in Abuja or the Federal Capital Territory Court. Section 83 SCPA referred to. I am inclined to the stance of the respondent’s counsel that the philosophy behind the provision of Section 83 (1) of the SCPA with regard to a debtor residing within the state is basically for convenience and effective enforcement by the Court as where the action is not commenced in the jurisdiction of High Court wherein the garnishee is resident there will arise some difficulty in enforcing the judgment of obtained from another jurisdiction on him. See Ben Obi Nwobueze & Anor. v Justice Obi Okoye (1988) 4 NWLR (Pt. 91) 64 at 681. To be said for clarification is that where the case is initiated at the Federal High Court, the principle will vary slightly in application since the Federal High Court across the country has only one jurisdiction. The jurisdiction of the Federal High Court is not restricted to any particular judicial division of the Court but cuts across the entire country and can sit in any city of the Nigerian nation as the territory of the Federal High Court traverses all the States in Nigeria and the enforcement of its judgment is without regard to the particular judicial division. See Abiola v FRN (1995) 3 NWLR (Pt. 382) 203, though a decision of the Court of Appeal remains the law on the point. Therefore the garnishee proceedings which brought about this appeal before this Court was rightly entertained by the Court of trial regard being given to the fact that the appellant is within the jurisdiction of the Court and so compliance was made with the relevant operating law on the commencement of garnishee proceedings.” Per Peter-Odili, J.S.C. in CBN v. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940(SC) at Pp. 113-114, Paras. A-E. |
Distinction (if any) between Execution and Garnishee Proceedings: ”Again, given the distinction that exists between execution and garnishee proceedings for the enforcement of a judgment. I do not think the existence of an application seeking for an order staying execution of a judgment does preclude a judgment creditor from seeking to use some other legal method to enforce judgment. There is a clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings. The distinction is brought out by the definition of “writ of execution” in section 19 of the Sheriffs and Civil Process Act, Cap 407 Laws of Federation, 1990. Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration. It excludes a garnishee proceedings.” The distinction is further made clear by the learned authors of Atkin’s court Forms Volume 19, 2nd Edition paragraph 21 on page 47 thus: “Garnishee proceedings or attachment of debts is a method auxiliary to that of execution for the enforcement of judgment or order for the payment of money into court enabling the judgment creditor to attach money due to the judgment debtor from a third person called the garnishee, who must be within jurisdiction”. Per Owoade, J.C.A in NIGERIA AGIP OIL COMPANY LTD. v. OGINI (2010) LPELR-9141(CA) at Pp. 15-16, paras. F-E. |
Application by Judgment Debtor in Garnishee Proceeding: “In the case of Newswatch Communications Ltd. vs. Atta (2006) LPELR-1986(SC), Tobi JSC held that the State of the law is that a Court must hear a motion or any process before it, however unmeritorious. A Court should not ignore a motion or process before it and give a decision one way or the other without considering the motion or process. That is good and valid law. This law I must say has not yet changed, it can never change. The right to be heard is a very fundamental principle of the adversarial system of administration of justice in this country. Failure of the Lower Court to consider the motion filed by the Appellants on 18th July, 2006 is a fundamental breach of the entrenched right of the Appellant to fair hearing. The repercussion of this is to nullify the proceedings of the Lower Court in favour of the Appellant who is the victim of this fundamental breach.” Per Adah, J.C.A. in MOBIL PRODUCING (NIG) UNLTD v. IWO & ORS (2018) LPELR-44313(CA) at Pp. 11-19, Paras. A-E. |
Nature of garnishee order: “By the order nisi, the third party i.e. the garnishee is given an opportunity to tell the Court, in the enforcement or garnishee proceedings, why the order should not be made absolute by directing him to pay the judgment debt or part thereof to the judgment creditor. In other words, garnishee order nisi affords the third party (the garnishee) an opportunity to explain or give his reason to the Court why he should not be directed to bear the burden of paying the judgment debt (on behalf of the judgment debtor) to the judgment creditor. See Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd (2005) All FWLR (Pt. 278) 1037, (2005) 13 NWLR (Pt. 943) 654 at 666. It is not contemplated that by the garnishee order nisi that the garnishee would become a mercenary fighting a “proxy war” for and and on behalf of the judgment debtor against the judgment creditor. The dictum of Lord Denning, MR, in Choice Investments Ltd v. Jeromnimon (1981) QB 149 at 154 further elucidates the point I am trying to make. The master of the rolls had put it thus- “The word “garnishee” is derived from the Norman-French. It denotes one who is required to “garnish”; that is, to furnish a creditor with the money to pay off debt. A simple instance will suffice. A creditor is owed Per EJEMBI EKO, JSC in OBOH & ANOR v. NFL LTD & ORS (2020) LPELR-55520(SC) (Pp 2 – 4 Paras E – A) |
Stay of execution of a Garnishee Order Absolute pending an appeal: “Only one issue stands out starkly for consideration here. It is the status and locus of a judgment debtor to file an application for stay of execution of the Garnishee Order Absolute. This issue had been settled by this Court in Gwede v. Delta State House of Assembly & Anor (2019) 8 NWLR pt. 1673 pg. 30 at 50, a judgment of this Court on all fours with the facts of this case. The judgment debtor has abundant and not merely sufficient legal interest. The law is that the person whose money with the garnishee is being attached has a right to stay the attachment of his money by Garnishee Order absolute pending the conclusion of any legal process to challenge the decision of the garnishee proceedings or the substantive case that formed the basis of the garnishee proceedings. In fact, Gwede v. Delta State House of Assembly Supra decided in 2019 has answered the main issue submitted for determination in this appeal. The distinction without a difference which learned Appellant’s counsel sought to make between this appeal and Gwede did not take into consideration the far reaching settled points in Gwede in respect of the status of the judgment in garnishee proceedings. I agree with the Court below that the judgment of this Court was in respect of an unliquidated sum of money yet to be agreed and ascertained by the parties. The ascertainment of a calculated sum to which a Garnishee Order may apply had not been done. As was stated clearly in Gwede v. Delta State House of Assembly, this is one of the instances where the judgment debtor may step in to protect the res. Indeed the Court must also step in to protect the judgment debt sought to be attached before all issues in controversy in the garnishee or appellate proceedings are settled.” Per HELEN MORONKEJI OGUNWUMIJU, JSC in SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2021) LPELR-53067(SC) (Pp 45 – 46 Paras A – D) |
Judgment Debtor: Right of Judgment Debtor to be heard in a garnishee proceeding: “Let me state briefly that in garnishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex – parte application in Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is made ex – parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor and the registrar must then fix a date not less than 14 days after the service of the order nisi on the three parties aforesaid. It has to be noted that at the stage of the ex – parte application only two parties, i.e. the judgment creditor and the garnishee are involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would say in NAOC Ltd v Ogini (supra), the subsequent hearing envisage a tripartite proceedings in which the three parties are represented. I am persuaded to agree with the learned counsel for the 1st Respondent herein that at this stage of the proceedings, the three parties can be heard by the Court before an order absolute is made depending on the facts and circumstance of the case. I say so advisedly bearing in mind that garnishee proceedings is in the nature of enforcement of the judgment of a Court of law and does not permit the re-opening of hearing in a matter which has been settled in the judgment sought to be enforced. I shall return to this anon. See GTB v Innoson Nigeria Ltd (2017) LPELR – 42368 (SC); Union Bank of Nigeria Plc vs Boney Marcus Industries Ltd (2005) 13 NWLR (pt. 943) 654. The last stage of this proceeding is that where the garnishee does not appear or appears but does not show cause why he should not be ordered to pay the judgment sum from the account of the judgment debtor in his possession to the judgment creditor, then an order absolute is made against him/her. The above procedure is backed up by Section 83(1) and (2) of the Sheriffs and Civil Process Act which states as follows:- “The Court may, upon the ex – parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state order that debts owing from such third person, herein after called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as many be sufficient to satisfy the judgment or order together with costs aforesaid. (2) 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.” Again, Order VIII Rule 8(1) of the Judgment (Enforcement) Rules provides:- “If no amount is paid into Court (following service of the garnishee order nisi), the Court, instead of making an order that execution shall issue, may after hearing from the judgment creditor, the garnishee and the judgment debtor or such of them as appear, determine the question of liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor…” (underlining mine for emphasis) There appears to me that by a combination of Section 83(2) of the Sheriff and Civil Process Act and Order VIII Rule 8 of the Judgment Enforcement Rules, a judgment debtor, after being served with order nisi can be heard by the Court only if or where he observes irregularities in what is presented before the Court by the judgment creditor. Why I say so is that at that stage, it is not an opportunity to reopen the case which judgment has been entered. It is strictly for the enforcement of such judgment. Thus, where the judgment sought to be enforced is certain, in terms of the parties, the judgment sum and the party adjudged the debtor, then the judgment debtor has nothing to say in the proceedings. However, where, as in this case, the judgment sum is not certain and the party adjudged as the debtor is confused by the judgment creditor, I think that justice demands that the “judgment debtor” be heard in such circumstance. In other words, it is not cast on stone that a judgment debtor cannot be heard in garnishee proceedings. It is the Court that will determine whether he should be heard or not. If the application of the judgment debtor before the Court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard. I am persuaded by some Court of Appeal authorities in this matter including but not limited to Barbedos Ventures Ltd v Zamfara State (2017) LPELR-42499, CA, Nigerian Breweries Plc v Dumuje (Supra).” Per JOHN INYANG OKORO, JSC in GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC) (Pp 35 – 40 Paras C – A) |
Stay of execution of a garnishee order absolute pending the determination of an appeal: “…On whether the Court below was right to order a stay of execution of the garnishee order absolute, made by the trial Court, the Court below held that the execution of a judgment ordering the payment of a specific sum of money does not end with the attachment of the property to the judgment debtor. It ends when the judgment sum is finally paid to the judgment creditor. Until the judgment sum is paid, to the judgment creditor, the process of execution can be stayed for legally recognized reasons. One of such reasons is that there is a pending appeal against the said judgment or order and that if the money is paid to the judgment creditor while the appeal is pending, it will render nugatory, the process and result of the appeal. The Appellant in an appeal against a judgment has a right to protect the appeal from being rendered nugatory and therefore has the right to employ the appropriate legal and equitable process to protect the appeal from being negated. One such process is an application for an order of Court staying the execution of the judgment, pending the determination of the appeal. It is part of the compendium of the Appellant’s right of appeal to be able to protect the exercise of that right from being rendered illusory. It is equally the duty of the Court to protect the appeal from being rendered nugatory. In S.P.D.C (Nig) Ltd & Anor v. Amadi & Ors (2011) LPELR3204 SC, this Court per Muntaka Coomassie JSC held that “… In an application for stay of execution the Court has a primary duty to protect the res from being destroyed, annihilated or demolished. The Court has a duty to ensure that the res is intact, not necessarily for posterity, but for the immediate benefit and pleasure of the party who is finally in victory in the litigation process. This is necessary because if the res is destroyed in the course of litigation before the party gets judgment, then he has no property to make use of in the way he wants as the owner and the direct result in such a circumstance is that the victor has on his land a barren victory, a victory without a difference, an empty victory. He leaves the Court empty handed. In real fact he leaves the Court in victory without victory. If the res is destroyed, annihilated or demolished before the matter is heard on appeal, then this Court will be reduced to a state of hopelessness and that will be bed, very bad indeed. This Court, like every other Court cannot give an order in vain. The Court will then be reduced to a situation where it can bark by the use of its judicial powers under Section 6 (6) of the 1979 Constitution but cannot bite.” I completely agree with the view of his Lordship and I adopt same as mine. In the instant case, it is incumbent upon this Court, to protect the res, pending the outcome of the appeal lodged at the Court below. The proposition or notion that an Appellant in an appeal against a garnishee order absolute cannot apply for an order to stay or suspend the payment of the sum of money attached by the garnishee order absolute pending the determination of the appeal is therefore wrong. In the present case, the sums of money in the accounts of the 7th judgment debtor with the 14th garnishee attached by the order absolute of 19th June, 2019 have not been paid to the judgment creditor till now. In reality, the execution of the order to pay the attached funds to the judgment creditor has not been completed as he has not received the attached funds. It follows therefore that the decisions of this Court in Zenith Bank Plc v. John (2015) 7 NWLR (PT 1458) 393; Union Bank of Nig. Plc. v. Boney Marcus Ind. Ltd (2005) 13 NWLR (PT 943) 654; and UBA v. Ekanem (2010) 2 NWLR (PT 1177) 181; are not applicable here. In Zenith Bank Plc v. John supra, there was no appeal against the garnishee order absolute. There was no pending appeal whose res needed protection by an order of stay of execution. By not appealing against the garnishee order absolute, the garnishee and the judgment debtor accepted it as valid, binding and conclusive. It was in that context that this Court held that the garnishee order absolute could not be stayed as it had become conclusive and binding and there was nothing left for the Court to determine. The decision on Union Bank of Nig. Plc v. Boney Marcus Ind., supra, is also not applicable to this case because the issue dealt with in that case is whether a garnishee order absolute is an interlocutory or final decision. It was held that it was a final decision. This Court did not decide the issue of whether an order of garnishee made absolute is a completed act of execution of judgment. Similarly, the decision in UBA Plc v. Ekanem supra, is not applicable to this case because the facts of that case are different from those of the present case. The execution of the judgment of the writ of attachment had commenced. The judgment debtor had even started paying the judgment sum after notice of attachment was served on it by issuing a bank draft to the judgment creditor. However it refused to give value to the draft and applied to the trial Court for permission of the Court not to give value to the bank draft in the sum of N5 million naira it issued to the bailiff and secondly the sum of N500 it paid to the Bailiffs be returned to it pending the determination of the motion for stay of execution of the main judgment and the one for stay of execution of a subsequent garnishee order absolute in execution of the same judgment. In that case, there was no pending appeal against the garnishee order absolute. In the final analysis, I answer the question, “whether the Court below was right when it granted the 1st Respondent’s application for stay of execution of the Ruling of the Trial Court pending the determination of the 1st Respondent’s appeal”; in the affirmative.” Per ABDU ABOKI, JSC in SANI v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2021) LPELR-53067(SC) (Pp 38 – 43 Paras A – A) |
Procedure in garnishee proceedings; effect of a garnishee successfully debunking the information relied upon by the Court to issue an order nisi: “The Court before which garnishee proceedings and application for garnishee order nisi is brought, must summon the garnishee to show cause why he should not pay the judgment debt to the judgment creditor from the account of the judgment debtor with him. The procedure in garnishee proceedings entails ‘a garnishee’ who is a third party and who is indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the credit of the judgment debtor in his account with the third party. It is pertinent that mere issuance of order nisi by the Court in garnishee proceedings does not conclude execution of a judgment. Notwithstanding, the fact that service of a garnishee order nisi on the garnishee binds the debt or money owed to the judgment debtor in the hands of the garnishee in the sense that upon service on him of an order nisi the garnishee must not pay the money to any person while the order absolute is still pending. Thus, the application for and issuance of an order nisi is the igniting step in garnishee proceedings. Where the information relied upon by the Court to issue an order nisi has been debunked successfully by the garnishee, the proceedings must terminate and the order nisi discharged.” Per HUSSEIN MUKHTAR, JCA in FCMB v. DEKINA & ANOR (2020) LPELR-51435(CA) (Pp 8 – 9 Paras D – E) |
Credit standing to the judgment’s debtor – Whether a garnishee is obliged to pay a judgment creditor above the credit standing to the judgment debtor in his account: “I think I should state straight away that in law a Garnishee, such as the Appellant, is under no obligation to pay to a Judgment Creditor, such as the Respondents/Judgment Creditors, any sum or amount over and above the credit standing to the Judgment Debtor in its custody and no Court can merely by its order compel a Garnishee to pay to a Judgment Creditors a sum or amount over and above the sum or amount standing as credit to a Judgment Debtor in his account or custody with the Garnishee. It is my view that such an order failing to take into account the actual credit standing to the Judgment Debtor in his account with the Garnishee is unjust and perverse and cannot be allowed to stand but must be set aside so that the Garnishee is only made to pay to the extent of the sum or amount standing to the credit of the Judgment Debtor in his account with the Garnishee. A Garnishee, in a Garnishee proceeding, does not become the Judgment Debtor by reason only of the Garnishee proceedings to be liable to pay the entire judgment sum where the amount is above the sum standing to the credit of the Judgment Debtor in his account with the Garnishee. In other words, the extent of liability, if it could even be properly so termed, of the Garnishee is only to the extent of the sum standing in credit to the Judgment Debtor in the custody of the Garnishee and no more no less!” Per BIOBELE ABRAHAM GEORGEWILL, JCA in CBN v. DANTRANS (NIG) LTD & ORS (2018) LPELR-46678(CA) (Pp 31 – 32 Paras A – B) |
Garnishee – Effect of failure of a garnishee to appear in Court to dispute/pay the debt owed: “As rightly submitted for the Appellant, the procedure for execution of a garnisheed judgment debt, if a garnishee who does not dispute the debt due or claimed to be due from him fails to pay into Court the amount due to the judgment debtor, together with the costs of the garnishee proceedings, is clearly spelt out in Section 86 of the Sheriff and Civil Process Act. Execution may be levied against the garnishee to satisfy the judgment debt, as well as the costs of the garnishee proceedings. By virtue of Section 87 of the Sheriff and Civil Process Act, if the garnishee appears and disputes his liability, the trial Court, rather than ordering execution to 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 maybe tried. See also Fidelity Bank Plc v. Okwuowulu (2012) LPELR-8497(CA); Central Bank of Nigeria v. Hydro Air Pty Ltd (2014) LPELR-22587(CA). The procedure prescribed under Section 86 does not include changing the status of the parties by declaring the garnishee a judgment debtor and then proceeding to declare another body a garnishee to the former garnishee now turned into judgment debtor. The garnishee remains a garnishee and execution will be levied to satisfy the judgment debt and costs of the garnishee proceedings.” Per ONYEKACHI AJA OTISI, JCA in UBA PLC v. EDET & ORS (2014) LPELR-24243(CA) (Pp 18 – 19 Paras D – E) |
ORDER ABSOLUTE – Liability of a party who was not included in proceedings leading to the grant of an order nisi: “…It is my view that the complaint of the appellant is real and valid, going by the peculiar circumstances of this appeal. First, in the order nisi granted by the lower Court, which order is quoted above, the lower Court specifically stated that it was against the sixteen garnishee banks listed on the motion ex parte before the Court. The appellant was not a party to that motion ex parte or proceedings and was not listed as such, even in the enrolment of order of the lower Court reflecting the order nisi. Thus, the lower Court was in error when, after discharging the order nisi against each of the original sixteen garnishees, it allowed itself to be persuaded by the 1st respondent and his counsel, to re-open concluded garnishee proceedings, which ended with the discharge of its order nisi, against each of the sixteen original garnishees. Garnishee proceedings is commenced with a motion ex parte usually praying the Court to make a garnishee order nisi against named garnishees, who are respondents to the application. Thus, the second motion ex parte filed by the 1st respondent, in the same proceedings and which the lower Court heard and granted, has no place in the procedure for garnishee proceedings, under Order VIII of the Judgment Enforcement Rules, which I have quoted completely above. The appellant was not made a party to proceedings leading to the grant of the order nisi and the lower Court was in grave error to have, retroactively, ordered that the appellant is to be bound by the order, in a manner occasioning gross miscarriage of justice, to the appellant. In the case of UBN v. Boney Marcus Ind. Ltd. (2005) LPELR – 3394(SC), the Court explained that: “During the period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at that stage, being interlocutory would therefore not arise.” Per AKINTAN, J.S.C (Pp. 15 paras. D) In the case of FCMB v. Dekina (2020) LPELR-51435(CA), this Court ruled, as follows: “The Court before which garnishee proceedings and application for garnishee order nisi is brought, must summon the garnishee to show cause why he should not pay the judgment debt to the judgment creditor from the account of the judgment debtor with him. The procedure in garnishee proceedings entails ‘a garnishee’ who is a third party and who is indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the credit of the judgment debtor in his account with the third party. It is pertinent that mere issuance of order nisi by the Court in garnishee proceedings does not conclude execution of a judgment. Notwithstanding, the fact that service of a garnishee order nisi on the garnishee binds the debt or money owed to the judgment debtor in the hands of the garnishee in the sense that upon service on him of an order nisi the garnishee must not pay the money to any person while the order absolute is still pending. Thus, the application for and issuance of an order nisi is the igniting step in garnishee proceedings. Where the information relied upon by the Court to issue an order nisi has been debunked successfully by the garnishee, the proceedings must terminate and the order nisi discharged. Per MUKHTAR, J.C.A (Pp. 8-9 paras. D) At the time the lower Court made the second order nisi, on 11/03/2015, it had become functus officio. It no longer had any garnishee proceedings before it, in which it could have joined the appellant as a party (17th garnishee).” Per ADEGBEHINGBE, JCA in CBN v. EZE & ORS (2021) LPELR-55554(CA) (Pp 95 – 98 Paras A – D) |
HISTORY OF TRANSACTIONS ON JUDGMENT DEBTOR’S ACCOUNT – When will the attachment of the debt due or accruing to a judgment debtor from a garnishee take effect; whether a garnishee bank must provide the history or other previous transactions in accounts which were attached by an 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.” These provisions show clearly that the attachment of the debt due or accruing to a judgement debtor from a garnishee takes effect from the time/date the order of the attachment was served on the garnishee. From the date a garnishee order nisi attaching debt(s) owed to the judgement debtor by a garnishee was served on the garnishee, the said debts become attached by the order and can only lawfully and legally be operated or administered as may be directed by subsequent order of the Court. Neither the garnishee nor the judgement debtor could legally and properly operate or administer such debts after the date of the service of the garnishee order nisi on the garnishee, attaching the debts. UBA, Plc v. Ekanem (supra); CBN v. Kraus Thompson Org. Ltd. (2002) 7 NWLR (765) 139 @ 154; FMBN Ltd v. Desire Gallery Ltd (2004) 13 NWLR (891) 522. However, a garnishee order nisi does not attach debt(s) which did not exist at the time the order was made and served on the garnishee, but only debts shown to be owed to the judgement debtor by the garnishee at the time the order was made and served. Happenstall v. Jackson (1939) 2 ALL ER, 10 (1939) 1 KB, 585; Sokoto State Govt. v. Kamdex Nig. Ltd (supra) @ 375-6; Oceanic Bank Plc v. Oladepo (supra); Skye Bank, Plc v. Colombara (supra). In these premises, the arguments of the 1st and 2nd Respondents which was accepted; hook, line and sinker; so to say, by the High Court, with respect due to it, that because the statement of accounts provided by the Appellant for the accounts held by the 3rd Garnishee as at the time or date the garnishee order nisi was made and served on it, did not contain “history and other transactions” in the said accounts is not supported and not tenable in law. The simple reason is that whatever history the accounts might have or had and transactions made or carried out in the said accounts before the date the order nisi was made by the High Court and served on the Appellant were not covered or affected by and so not relevant and material for the attachment of the debt owed by the Appellant in the said accounts, to the 3rd Garnishee. The Order nisi could not reasonably have been directed at the history of the accounts or other transactions made in the accounts before the garnishee proceedings were initiated and the order nisi made and brought to the notice of the Appellant by way of service thereof, on it. As stated above, the order nisi was directed at and affected only the debt owed to the 3rd Garnishee as at the date the order was made and served on the Appellant and the burden on the Appellant was to frankly disclose to the High Court the true position of the accounts held by the 3rd Garnishee, showing of the debt, if any, owed by it in the said account as at the date of the service. Section 85 of the SCPA, does not impose any legal duty or burden on a garnishee bank to provide the history or other previous transactions in accounts which were attached by an order nisi, in statements of accounts filed along with an affidavit to show cause.” Per GARBA, JCA in FCMB v. LIQUID AFRICA HOLDINGS LTD & ORS (2019) LPELR-47623(CA) (Pp 43 – 46 Paras E – C) |
APPEAL – Right of a judgment debtor to appeal against a garnishee order in garnishee proceedings: “it cannot be overemphasized that there is a distinction between the enforcement of a judgment by a writ of execution, and by garnishee proceedings. In Purification Techniques (Nig) Ltd v. Attorney General of Lagos State (2004) 9 NWLR Part 879 p. 665, it was held that, the existence of an application seeking for an order of Stay of Execution of a judgment does not preclude a judgment creditor from seeking to use Garnishee proceedings to enforce the judgment. It was further held that the contention of the respondent that the appellant was not entitled to enforce the judgment in its favour by Garnishee proceeding because the respondent had filed an application for stay of execution is untenable. It was equally stressed in that case that the proceedings for this separate and distinct action is basically between the Judgment Creditor and the Garnishee even though the Sheriff and Civil Process Act requires that the Judgment Debtor be served with a copy of the Order Nisi. The Judgment Debtor is not a necessary party to the said proceedings. Therefore, it is the Garnishee, that is to say, the person or body in custody of or holding the assets of the Judgment Debtor that could be aggrieved and competently appeal against a Garnishee order. In Pipeline and Products Marketing Company Ltd vs. Messrs Delphi Petroleum Inc. (2005) 8 NWLR Part 928 p. 488, Salami J.C.A., in his dissenting judgment, opined that the appellants in that appeal, being the Judgment Debtors, were not competent parties to the Garnishee proceedings notwithstanding that the trial Court inadvertently allowed them to participate in the proceeding making the Order Nisi Absolute. It is not a due process for the appellants who have no right of appeal against the Garnishee Order Absolute to bring an appeal. He further held that a Judgment Debtor has no right of appeal against a Garnishee order made by a trial Court. This is because such an order is a product of proceedings between the Judgment Creditor and the person in possession of the assets of the judgment debt in this case the Guaranty Trust Bank. Where a Garnishee fails to file an affidavit to show cause why a Garnishee Order Nisi should not be made absolute, the Court should proceed and make the Order Nisi to become absolute. The only way by which the Garnishee can express dissatisfaction with the order is to appeal against it. See also, In Re Diamond Bank Ltd (2002) 17 NWLR Part 795 p. 120. Also, in Denton-West v. Muoma (2008) 6 NWLR Part 1083 p. 418, it was held that Garnishee proceedings are legitimate exercise of the right of a party to employ ancillary methods to enforce the judgment obtained in his favour and they are competent notwithstanding the pendency of a Motion for Stay of Execution. It was further held that it is the Garnishee that could be aggrieved and competently appeal against the order. As there was no pending appeal against the Garnishee orders made by the trial Court, and as the applicant was not a party to those proceedings, the Garnishee order of the High Court could not be set aside at the instance of the applicant (Judgment Debtor/Appellant). It ought to be emphasized that an order of a trial Court refusing to discharge its Garnishee Order Nisi and at the same time making it an absolute order is a final one and it is appealable as of right.” Per THERESA NGOLIKA ORJI-ABADUA, JCA in UBA PLC v. EKANEM & ANOR (2009) LPELR-8428(CA) (Pp 16 – 19 Paras A – A) |
APPEAL – Right of a judgment debtor to appeal against a garnishee order in garnishee proceedings “it cannot be overemphasized that there is a distinction between the enforcement of a judgment by a writ of execution, and by garnishee proceedings. In Purification Techniques (Nig) Ltd v. Attorney General of Lagos State (2004) 9 NWLR Part 879 p. 665, it was held that, the existence of an application seeking for an order of Stay of Execution of a judgment does not preclude a judgment creditor from seeking to use Garnishee proceedings to enforce the judgment. It was further held that the contention of the respondent that the appellant was not entitled to enforce the judgment in its favour by Garnishee proceeding because the respondent had filed an application for stay of execution is untenable. It was equally stressed in that case that the proceedings for this separate and distinct action is basically between the Judgment Creditor and the Garnishee even though the Sheriff and Civil Process Act requires that the Judgment Debtor be served with a copy of the Order Nisi. The Judgment Debtor is not a necessary party to the said proceedings. Therefore, it is the Garnishee, that is to say, the person or body in custody of or holding the assets of the Judgment Debtor that could be aggrieved and competently appeal against a Garnishee order. In Pipeline and Products Marketing Company Ltd vs. Messrs Delphi Petroleum Inc. (2005) 8 NWLR Part 928 p. 488, Salami J.C.A., in his dissenting judgment, opined that the appellants in that appeal, being the Judgment Debtors, were not competent parties to the Garnishee proceedings notwithstanding that the trial Court inadvertently allowed them to participate in the proceeding making the Order Nisi Absolute. It is not a due process for the appellants who have no right of appeal against the Garnishee Order Absolute to bring an appeal. He further held that a Judgment Debtor has no right of appeal against a Garnishee order made by a trial Court. This is because such an order is a product of proceedings between the Judgment Creditor and the person in possession of the assets of the judgment debt in this case the Guaranty Trust Bank. Where a Garnishee fails to file an affidavit to show cause why a Garnishee Order Nisi should not be made absolute, the Court should proceed and make the Order Nisi to become absolute. The only way by which the Garnishee can express dissatisfaction with the order is to appeal against it. See also, In Re Diamond Bank Ltd (2002) 17 NWLR Part 795 p. 120. Also, in Denton-West v. Muoma (2008) 6 NWLR Part 1083 p. 418, it was held that Garnishee proceedings are legitimate exercise of the right of a party to employ ancillary methods to enforce the judgment obtained in his favour and they are competent notwithstanding the pendency of a Motion for Stay of Execution. It was further held that it is the Garnishee that could be aggrieved and competently appeal against the order. As there was no pending appeal against the Garnishee orders made by the trial Court, and as the applicant was not a party to those proceedings, the Garnishee order of the High Court could not be set aside at the instance of the applicant (Judgment Debtor/Appellant). It ought to be emphasized that an order of a trial Court refusing to discharge its Garnishee Order Nisi and at the same time making it an absolute order is a final one and it is appealable as of right.” Per THERESA NGOLIKA ORJI-ABADUA, JCA in UBA PLC v. EKANEM & ANOR (2009) LPELR-8428(CA) (Pp 16 – 19 Paras A – A) |
Nature of garnishee proceedings: “By Section 83 of the Sheriffs and Civil Process Act, the intention of the draft person, in setting up the procedure of recovery of debt by garnishee envisions that the money available to be garnisheed, is debt owing from such third person to the judgment debtor which could arise in the following ways- that the judgment has been recovered/obtained against a judgment debtor which judgment had remained unsatisfied; that a third party known as the garnishee, is indebted to the judgment debtor; that an order is made by a Court jurisdiction, that debt owing from such person, called the garnishee, to such debtor, be attached to satisfy the judgment or order; and that the Court, after making the order of attachment, either by the same or any subsequent order, makes an order that the garnishee appears before the Court to show cause why the garnishee should not pay to the judgment creditor, the debt due from the garnishee to the judgment debtor or so much of it as may be sufficient to satisfy the judgment debt vide BARBEDOS VENTURES LTD V. F.B.N PLC supra @ 295-296 following U.B.A. LTD V. S.G.B. LTD (1996) 10 (PT. 478) 381. Accordingly, the third party envisaged as a prospective garnishee under Section 83(1) of the Sheriffs and Civil Process Act, must be a person, who holds sum of money amounting to debt due or accruing to the judgment debtor; hence, banks are the usual or typical garnishee, given the nature of the banker-customer relationship, which is a contractual relationship vide BARBEDOS VENTURES LTD V. F.B.N. PLC supra following C.B.N. V AUTO IMPORT/EXPORT (2012) 2 NWLR (PT 1337) 80, LINTO IND TRAINING (NIG) LTD V. C.B.N (2015) 4 NWLR (PT 1448) 94 ?In the light of the foregoing, garnishee proceedings is post judgment proceedings, not against the judgment itself, but premised on the enforcement of the judgment. Therefore, a garnishee proceeding is strictly between the judgment creditor, on one hand, and the garnishee, who, though not a party in the substantive action in which the judgment was entered, but who is indebted to the judgment debtor in that judgment in which the garnishee was not a party, on the other hand. Consequently, garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody, the assets of the judgment debtor, although, it follows from the judgment that pronounced the debt owing. Thus, a successful party, in his quest to move fast against the assets of the judgment debtor, usually makes an application, ex-parte, for a garnishee “order nisi”, attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee vide C.B.N. V. INTERSTELLA COMMUNICATIONS LTD & ORS (2018) 7 NWLR (PT 1618) 294 @ 337 and 339 following U.B.A. PLC V. EKANEM (2010) 6 NWLR (PT 1190) 207; IN RE: DIAMOND BANK LTD (2002) 17 NWLR (PT 795) 120.” Per JOSEPH SHAGBAOR IKYEGH, JCA in STANBIC IBTC BANK PLC v. LONGTERM GLOBAL CAPITAL LTD & ANOR (2021) LPELR-54833(CA) (Pp 16 – 19 Paras D – A) |
JURISDICTION – Need of the Court to have jurisdiction over the garnishee before it can exercise its inherent or statutory powers to enforce its judgment by garnishee proceedings: “In Unreported Appeal No: CA/MK/187/2017 – Central Bank of Nigeria v. Igbadoo & 2 ORS delivered on 9th of November, 2017, this Court (Ekanem, JCA) at @ p. 36 -39 had this to say on this issue: “…the fact that garnishee proceedings are a separate and distinct action or proceedings between the judgment creditor and the garnishee though it flows from the judgment that pronounced the debt owing. See Diamond Bank Ltd v. Ndubusi (2002) FWLR (PT.105) 727 and Denton-West v. Muoma (2008) 6 NWLR (PT. 1083) 418, 442. Being a separate and distinct action or proceedings between the judgment creditor and the garnishee the issue of jurisdiction, in this instance Section 251(1) (d) of the Constitution, comes into play. This is because the judgment creditor steps into the shoes of the judgment debtor to sue for the money due and owing to the judgment debtor from the garnishee. In Nwadialo’s Civil Procedure in Nigeria, 2ND Ed. p 2013, it is stated that the Garnishor vis-a-vis the garnishee, stands in the shoes of the original judgment debtor”. It follows inexorably that such proceedings can only be brought in a Court in which the judgment debtor could sue the garnishee. “… “The implication is that the lower Court must first have jurisdiction over the garnishee in banking or fiscal matters as in this instance before it can exercise its inherent or statutory powers to enforce its judgment by garnishee proceedings against the appellant. No Court has inherent power to do a thing which it is not constitutionally or statutorily empowered to do. … “… “In other words, a Court must first and foremost have jurisdiction over the subject matter of the suit before it can exercise any judicial powers over the suit or matter. See Shaban v. Sambo (2010) 9 NWLR (PART 1226) PAGE 353. The implication is that the lower Court must first have jurisdiction over the Garnishee in banking or fiscal matters as is in the instance before it can exercise its inherent or statutory powers to enforce its judgment by garnishee proceedings against the appellant. It does not possess such jurisdiction and so the idea of its exercising power in regard to the garnishee proceedings does not arise. No Court has inherent powers to do a thing which it is not constitutionally or statutory empowered to do. No Court can act or extend its jurisdiction when none has been conferred….” In Central Bank of Nigeria v. Kakuri (2016) LPELR – 41468 (CA), again this Court (Agim, JCA, as he then was) held thus: ” … Garnishee proceedings can be brought in only a Court where the judgment debtor can sue the garnishee for the debt. I agree with the learned counsel for the appellant that the Court where the (2nd judgment debtor) can sue the Central Bank of Nigeria (garnishee) for the funds in the custody of the appellant attached by garnishee is the Federal High Court of Nigeria and not Federal Capital Territory High Court…. And Section 251 (1) (d) of the 1999 Constitution vests exclusive jurisdiction over such suits in the Federal High Court of Nigeria…” Per BOLOUKUROMO MOSES UGO, JCA CBN v. UMAR & ORS (2021) LPELR-55565(CA) (Pp 11 – 14 Paras D – B) |
APPEAL – Right of a judgment debtor to appeal against a garnishee order in garnishee proceedings: “Since the Appellant here, as the Judgment debtor, was not a party to the garnishee proceedings between the Respondent and the garnishee Banks in which the order Nisi was made Absolute on the 14th February 2006, it has no right of appeal against the order, at least, as of right. Although by the provisions of Section 83 (2) of the Sheriff and Civil Process Act, a copy of an order Nisi made in the course of garnishee proceedings, is to be served on both the garnishee(s) and the judgment debtor, the proceedings are strictly between the judgment creditor and the garnishee(s) at whom the order was directed to appear in Court to show cause why the order should not be made absolute. The judgment debtor has no role to play in the garnishee proceedings and so is not made a party thereto. Not being a party to the garnishee proceedings, the judgment debtor lacks the requisite right of appeal against any order made by the Court in the proceedings.” Per MOHAMMED LAWAL GARBA, JCA in IBETO PETROCHEMICAL IND. LTD v. TOTAL NIG PLC (2016) LPELR-41457(CA) (Pp 9 – 10 Paras D – B) |
The procedure in garnishee proceedings: “The law affords a judgment creditor some options of enforcement of judgment under the Sheriffs and Civil Process Act, Cap S6 LFN 2004. The one deployed in this case is that of Garnishee Proceedings. Garnishee proceedings was discussed by a learned author Jerry Amadi in his work – Modern Civil Procedure law and Practice in Nigeria Vol. II at Page 1760. The learned author explains Garnishee proceedings as follows:- “The word “garnishee” was derived from the word ‘garner’ which means ‘to warn’ or ‘to prepare’. Historically, the word garnish means “to notify or warn (a person) of certain debts that must be paid before the person is entitled to receive property as an heir. Garnish means ‘to subject (property) to garnishment; to attach (property held by a third party) in order to satisfy a debt. To notify (a person, bank, etc) that a garnishment proceeding has been undertaken and that the one receiving notice may be liable as stakeholder or custodian of the Defendant’s property. A garnishee is therefore, a person or institution (such as a bank) that is indebted to or is bailee for another whose property has been subject to garnishment. Also termed garnishee Defendant (as opposed to the “principal Defendant” that is the primary debtor). The party who initiates proceeding of this nature is called a garnishee or garnishor.” Under our law, Sect. 83 of the Sheriff and Civil Process Act Cap S6, LFN, 2004 garnishee proceeding is designed to attach the money of the judgment debtor in the hand of a third party (the garnishee), in such a manner that the garnishee is under a duty of law to pay over the money to the judgment creditor, the garnishor or ganisher. The peculiarity of Garnishee proceeding is the fact that a judgment creditor in a bid to recover fast his judgment sum follows up the money of the judgment debtor in the hand of a third party. The third party it must be appreciated only has the custody of the money. The money is that of the judgment debtor and not for the third party. By operation of law, when a Court grants an order nisi, the third party who is the Garnishee must immediately set apart the sum being claimed and block it from being expended or frittered out by the judgment debtor. A breach of its duty placed on the Garnishee has repercussions. Section 86 of the Sheriffs and Civil Process Act (Ibid) provides as follows:- “If the garnishee does not within the prescribed time pay into the 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 his 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.” It is very certain and clear that by this provision once a garnishee does not within the prescribed time given in the order nisi, pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt and he does not dispute the debt claimed to be due from him to the debtor or he does not appeal upon summons, the Court upon proof of service may order execution, in effect order absolute.” Per STEPHEN JONAH ADAH, JCA in GTB PLC v. EST MASTER CONSTRUCTION LTD (2015) LPELR-45774(CA) (Pp 22 – 25 Paras E – E) |
ORDER ABSOLUTE – Effect and setting aside garnishee order absolute: “In law, once a Garnishee Order Absolute is made by a Court of competent jurisdiction that is indeed the end of the matter and the party against whom the Garnishee Order Absolute is made is under an obligation by the force of law to pay over the amount specified in the Garnishee Order Absolute to the Judgment Creditor. The only option open to such a Garnishee is to appeal and obtain an order of stay of execution of the Garnishee Order Absolute. Thus, the Court which has made the Garnishee Order Absolute is itself precluded and robbed of any further jurisdiction from considering again the matter even if new evidence or arguments are presented to it. See Union Bank Plc. V. Boney Marcus Ind. Limited (2005) 7 SC (Pt. II) 780 @ pp. 74 – 78 per Akintan JSC.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in UNITY BANK v. BENEDICK (2021) LPELR-54549(CA) (Pp 37 – 37 Paras C – F) |
Status of a judgment debtor in a garnishee proceeding: “Therefore, in all ramifications, it is only the Garnishee, in the instant case the 2nd Respondent, that is expected to react, if the law was not properly followed or observed at the garnishee proceedings. As it is only against the Garnishee that execution under the Garnishee proceedings could be levied and not against the Judgment Debtor. Hence, upon the issuance of the “Order Nisi”, by the provisions of Section 87 of the Act, 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 the determination of 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. However, under Sections 85 and 86 of the Act, if the Garnishee does not dispute the debt due or claimed to be due from him to the Judgment Debtor, or if he does not appear upon summons, 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, thereby making the “Order Nisi”, “Absolute”. However, 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, the Court may order execution to issue immediately, to levy the amount due from such Garnishee, or so much thereof as may be sufficient to satisfy the judgment together with the costs of the garnishee proceedings. From the above law, it is quite obvious that under garnishee proceedings, the clash is simply between the Judgment Creditor and the Garnishee. As I stated earlier on above in this judgment, in a garnishee proceedings, the Judgment Debtor is a mere nominal party. He is only joined as a party and put on notice as an observer, so to speak, because of his basic interest in the subject-matter of the proceedings and merely to avoid procedural defect. Of course, once the Court makes the “Order Absolute”, the only option is that of an appeal to the Court of Appeal against either of the orders of the trial Court and the option is open to only the Garnishee and none else. See the cases of: (1) In Re Diamond Bank Ltd. (2002) 17NWLR (Pt.795) p.120 and (2) U.B.A. Plc v. Hon. Iboro Ekanem (MD Paragon Eng. Ltd.) (supra). In the case of: Standard Trust Bank Ltd. V. Contract Resources Nig. Ltd. (2001) 6NWLR (Pt.787) p.115, it was held that the application for a decree “Nisi” by the Respondent/Judgment Creditor and its grant by the trial Court, after the party that lost in the suit before it had filed an appeal against the decision in addition to an application for stay of execution of the judgment, was improper and incompetent. It is deduceable from that decision that the Judgment Debtor can only appeal against the decision in the substantive suit which did not go in his or her favour to the Court of Appeal and if he or she desires, he or she may in addition to the appeal, file an application for the stay of the execution of the said decision either at the trial Court or the Court of Appeal, as the case may be. The import of the above stated position is that in the instant case, the appeal of the Appellant against the judgment of the trial Court in the garnishee proceedings between the 1st and 2nd Respondent is incompetent, as he lacks the “locus standi” in instituting the appeal.” Per OMOLEYE, JCA in CP ADAMAWA v. MAIYINI CENTURY CO. LTD & ANOR (2017) LPELR-43025(CA) (Pp 15 – 18 Paras A – A) |
ROLE OF GARNISHEE – Whether a garnishee who filed an affidavit to show cause and did not dispute its liability, can challenge the jurisdiction of Court and apply that an order nisi be set aside: “It was argued by 1st and 2nd respondents’ counsel that since the appellant had filed an affidavit to show cause which did not dispute its liability, filing an application to set aside the order nisi was not permitted by law and the appeal against its refusal is incompetent. There is no doubt that what is expected of a garnishee served with an order nisi is to appear before the Court to show cause why he should not pay to the judgment creditor the sum attached by the order nisi, that is, if he disputes the debt. See Section 83 (1) of the Sheriffs and Civil Process Act. It has been held by the Supreme Court in GTB Plc v Innoson (Nig) Ltd (2017) LPELR – 42368 that it is not for the garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be too indolent to fight his cause. It was further held, inter alia, that the cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one and does not include attacking the main judgment which the judgment creditor and judgment debtor have accepted or are deemed to have accepted. In this instance, the appellant qua judgment creditor filed an affidavit in a bid to show cause why it should not pay. It thereafter filed a motion on notice for the setting aside of the garnishee order. The grounds for the application were that (i) the Lower Court lacked the jurisdiction to entertain the proceedings and that (ii) the consent of the Attorney – General of the Federation was not obtained as required by Section 84(1) of the Sheriff and Civil process Act. The appellant thus raised issue/s of jurisdiction of the Lower Court. Jurisdiction is the foundation of any adjudicatory process including garnishee proceedings. Where it is lacking it renders the whole proceedings and at the steps taken therein a nullity. Being so fundamental it can be raised at any stage by any of the parties by any means or even by the Court suo motu. If the Court can suo motu raise issue of jurisdiction how much more a party to the suit including the garnishee in a garnishee proceeding. See Anyanwu v Ogunewe (2014) 8 NWLR (Pt.1410) 437 and Ngere V Okuruket Supra. I could illustrate the point I am trying to make: Where for example, a Court, without first issuing a garnishee order nisi, issues a garnishee order absolute against a garnishee, the garnishee would be perfectly right to challenge the competence or jurisdiction of the Court to do so. This is because a condition precedent to the issuance of the garnishee order absolute is absent thus affecting the Court’s competence or jurisdiction to issue the garnishee order absolute. The same consideration applies where, as in this instant, the garnishee says that the Court has no jurisdiction to entertain the garnishee proceedings by virtue of Section 251(1) (d) of the Constitution and failure to obtain the consent of the Attorney-General to commence the proceedings. Whether or not the point is meritorious is a different matter. The appellant was therefore not wrong in raising the issue of jurisdiction as it did and since the Court decided it, it rightly appealed against the decision.” Per JOSEPH EYO EKANEM, JCA in CBN v. IGBADOO & ORS (2017) LPELR-44591(CA) (Pp 17 – 20 Paras F – C) |
ORDER NISI – Meaning of garnishee order nisi and options open to a garnishee against whom a garnishee order nisi was made: “A garnishee order nisi by Section 85 of the Sheriff and Civil Process Act is an attachment on the money of the judgment debtor in the hands of the garnishee until it shows cause why the order should not be made absolute. By Section 86 of the Act, a garnishee can react to the garnishee order nisi in any of the following three ways: (1) Pay into Court the amount due from him to the Judgment Debtor; (2) By an affidavit show cause or; (3) Appear in Court, failing which the order nisi is made absolute. See CITIZENS INTERNATIONAL BANK LTD V SCOA (2006) 19 NWLR PT 1102 333.” Per PATRICIA AJUMA MAHMOUD, JCA in SKYE BANK v. GTB (2020) LPELR-50529(CA) (Pp 15 – 16 Paras E – B) |
ENDORSEMENT OF ORDER NISI – Whether a garnishee order nisi must be endorsed with the mandatory notice as provided in Section 97 of the Sheriffs and Civil Process Act: “In summary, the appellant’s complaint in this issue borders on the Order Nisi which was served on it by the 1st and 2nd Respondents. It is its contention that same did not comply with the mandatory provision of Section 97 of the Sheriffs and Civil Process Act. Put differently, the contention of the appellant is that the Writ is defective and incompetent having been issued without the endorsement of the mandatory notice in Section 97 of the SCPA. To my mind, the mandatory nature, effect and Purpose of Section 97 SCPA is not in question or at stake. Various judicial authorities are well pronounced that the provision must be invoked where it is applicable and appropriate. Rather, the crucial point in issue is whether the said Section 97 is applicable in law and fact to the case at hand? It is pertinent to restate that the Garnishee order summons form 26 was issued by the Federal High Court, holden at Umuahia, in Suit No: FHC/UM/M/85/2011 as contained at pages 53 and 54 of the records of proceedings. It is not in doubt therefore that the suit originated from the Federal High Court. The learned counsel for the appellant made a heavy weather in submitting that the defect in the form 26 is fatal and has robbed the Federal High Court and hence the Court below of jurisdiction to entertain the Garnishee Proceedings. Counsel cites with approval the case of Owners of the MV Arabella Vs. N. A. I. C. (supra). The order Nisi at pages 55 – 59 of the record was consequent upon the motion exparte wherein the trial Court made the following order among others:……………………………… “AN ORDER granting leave to the Applicant Garnishors to serve the Garnishee the order Nisi and any other processes of this Honourable Court at the Garnishees’ headquarters at Central Bank of Nigeria, Abubakar Tafawa Balewa Way, Central Business District, Garki Abuja in the Federal Capital Territory of Nigeria.” At page 444 of the record, the lower Court had this to say on the foregoing order Nisi made by the trial Court:- “….though the 1st and 2nd Respondents obtained leave to serve the order nisi on the appellant at its Headquarters at Abubakar Tafawa Balewa way, Central Business District Abuja (purported to be outside the jurisdiction of the Federal High Court) does not mean that the necessary notice in Section 97 of the Sheriffs and Civil Process Act applies nor does rob the Federal High Court of its jurisdiction.” In other words, the leave obtained by the 1st and 2nd Respondents did not serve any purpose and it did not incur any damage to the case as rightly concluded by the lower Court, supra. The learned counsel for appellant relies heavily on the cases of Kida V. Ogunmola and Odofin V. Agu (both decisions of this Court), supra. Without having to belabor the point, it is instructive to say that the authorities are not relevant to the issue in contention, raised by the appellant. This is because both cases were initiated by Writ of Summons and therefore come appropriately within Section 97 of the Act. A critical look of Section 97 will reveal that the endorsement for service outside jurisdiction applies only to an originating process in a suit. The reproduction of the section states as follows: “Every Writ of Summons for service under this Act out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)- “This summons (or as the case may be) is to be served out of the —– State (or as the case may be) —– and in the State (or as the case may be).” The mode of commencing a Garnishee proceeding as provided by Order 37 Rule 2 of the Federal High Court Rules 2009, is by filing an Ex-parte application and supported by an affidavit. As rightly submitted by the appellant’s counsel therefore, there is no question that the endorsement per Section 97 of SCPA is mandatory where the Writ is to be served out of jurisdiction. To that extent, the authorities cited on behalf of the appellant are apt and obvious. A Critical analysis of Section 97 will reveal that the endorsement for service outside jurisdiction applies only to an originating process in a suit. In respect of Garnishee Proceeding of the trial Court however the originating process is the exparte Application filed on 11/10/2011. This process was duly endorsed as required by law and this was admitted in Paragraph 3.1.16 of the Appellant’s Brief of Argument where it states: “It is also necessary to observe that it was the Motion Exparte which was heard and granted by the Court that was endorsed with the notice in Section 97 of the Sheriffs and Civil Process Act (See pages 1 and 2 of the Record.” It is expedient to say that the appellant from the foregoing paragraph is not complaining about the competence of the Exparte application. I seek to add also that if there is any Process to be endorsed in compliance with Section 97 of the SCPA, it should have been the Exparte application, being an originating Process in Garnishee Proceeding. The two Sections 95 and 97 of the Act are not relevant to this case. I have said earlier in the course of this judgment that the cases of Kida V. Ogunmola as well as Odofin V. Agu were cited out of context by the appellant. Therefore, the elaborate submission advanced by the learned counsel for the appellant on their amended brief and reply brief of argument relating the provisions of Section 95 and 97 of the SCPA as well as Order VIII Rule 4(1) of the judgment (Enforcement) Rules do not apply to this case. Rather the argument by the 1st and 2nd respondents’ counsel was apt on the point. Furthermore, and in addition to the foregoing conclusion, I seek to say that the motion exparte of 11/10/2011 which was endorsed with the notice as provided by Section 97 of the SCPA. Pages 1 and 2 of the record of appeal are evident and it was heard and granted. The said order made there from was duly served on the appellant who entered conditional appearance and subsequently took steps. The entire grouse by the appellant is that the absence of endorsement as provided by Section 97 on the order Nisi in form 26 had rendered the process as incompetent. It is on record that the order Nisi is a result of the exparte application which is the originating process. The expectation by the appellant that Section 97 should apply to the order Nisi is in my view grossly misplaced. This I say because the order Nisi is not an originating process needing an endorsement.” Per OGUNBIYI, JSC in CBN v. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940(SC) (Pp 15 – 20 Paras A – E) |
ORDER ABSOLUTE – Whether a garnishee who was not in Court when the garnishee order nisi was made absolute is entitled to be notified before execution could be levied: “The complaint herein is not about the judgment debtor’s money in the Garnishee bank (the Appellant). It is about the attachment of the movable properties of the Appellant. It is their contention that since they were not in Court when the garnishee order nisi was made absolute, they were therefore entitled to be notified before execution could be levied. Reliance was placed on Section 86 of the Sheriffs and Civil Process Act. It is not the 1st Respondent’s case that the Appellant was notified before execution was levied on their movable properties. The 1st Respondent’s case is that the Appellant even though served with the order nisi, neither attended Court on the date shown therein nor filed an affidavit to show cause. That he was therefore entitled to the garnishee order nisi being made absolute. Nothing in the record of appeal points to the service of the garnishee order absolute on the Appellant before execution was levied on the movable properties of the Garnishee Bank/Appellant. The provision of Section 86 of the Sheriffs and Civil Process Act is important in this argument. It provides: “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.” A literal interpretation of Section 86 supra is that once it is proved that the garnishee order nisi was served on the garnishee, no further notice is required to be served before execution can be levied. The order absolute is the execution. The following cases on Section 86 supra are instructive on the point: Zenith Bank Plc V Kano & Ors (2016) LPELR- 40335 (CA); CBN V Dantrans (Nig) Ltd & Sons (2018) LPELR-46678 (CA). Now, I have taken particular note of the fact that execution here was levied on the movable properties of the Appellant. The Appellant’s complain in this issue is that it was not notified before execution was levied, its complaint is not on the propriety of execution being levied on its movable properties. The issue is thus rested with my finding that it was not entitled to any further service of notice since it has been proved and admitted by them that the garnishee order nisi was served on the Appellant before it was made absolute.” Per ABUNDAGA, JCA in UNITY BANK v. ABIKOYE & ORS (2019) LPELR-48213(CA) (Pp 13 – 16 Paras E – A) |
Nature of garnishee proceedings: “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.” Per ABDULLAHI, JCA in ZENITH BANK v. ABAZU & ORS (2021) LPELR-55677(CA) (Pp 44 – 44 Paras D – E) |
APPEAL – Whether a garnishee can initiate an appeal on behalf of the judgment debtor: “However, this being an Appeal, the question of the Appellant’s “sufficiency of interest” or the sufferance of injury or damages can be discerned in the issues nominated by the Appellant for the determination of the Appeal. These issues have earlier on been reproduced in the body of this judgment. I have critically examined the Appellant’s issues in this Appeal and the question I have had to ask myself repeatedly is this; what is the matter between the Appellant as Garnishee Bank and the Judgment-Creditor in this case? The question of the Appellant’s legal right to institute the Appeal is vital as it must crystallize before it can be activated. Under the Garnishee proceedings, the apex Court in tons and tons of their decisions have left no one in any doubt that the role of the Garnishee Bank in a Garnishee proceedings, is clearly to satisfy the Court as to why the funds in its possession belonging to the Judgment Debtor should not be garnished to pay the judgment debt and not to play the role of a Defender or an advocate for the Judgment-Debtor or to protect the debtor’s money in its possession by raising issues on Appeal which confer practically no benefit on it. For all practical purposes our laws and indeed the rules providing for the Garnishee proceedings do not permit the kind of crusade embarked upon by the Appellant in this Appeal. True, such crusading role might be beneficial to the society at large in social circles, but in strict legal circles for the crusader to succeed, he must satisfy the dictates of the doctrine of locus standi, which the Appellant has failed woefully to do in initiating this Appeal. The pertinent question to therefore address here is; even if all the issues nominated by the Appellant are to be resolved in favour of the Appellant, what benefit does that confer on it? What should perhaps, be borne in mind by the Garnishee Bank who is the Appellant herein is that a Garnishee order is an order passed by an executing Court directing or ordering a Garnishee not to pay money to the judgment-debtor since the latter is indebted to the Garnisher (decree-holder). It is an order of Court to attach money or goods belonging to the judgment-debtor in the hands of a third person, usually Bank or other financial institution in our clime. It is a remedy available to any Judgment-Creditor; this order may be made by the Court to holders of funds (3rd party) that no payments are to be made until the Court authorizes them. The purpose of the order is to protect the interest of the creditor and the Garnishee has no business whatsoever by acting as a clog in the process, which is exactly what the Appellant is doing by initiating this Appeal. In the recent decision of the Supreme Court on the issue in the case of GUARANTY TRUST BANK PLC vs. INNOSON NIGERIA LIMITED (2017) LPELR-42368 (SC), the pronouncement of the apex Court on the issue is instructive. Here the Supreme Court per EKO, JSC had this to say on the subject; – “It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him or does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor.” In the contributions of the noble Lord, KEKERE-EKUN, JSC still in the case of GUARANTY TRUST BANK (supra) had this to say on the subject; “It is most pertinent to bear in mind the fact that the appellant/applicant herein is a garnishee. The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession belonging to the judgment debtor should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor or to protect the debtor’s money in its possession. See: OCEANIC BANK PLC vs. MICHAEL OLUSEGUN OLADEPO & ANOR. (2012) LPELR-19670 (CA).” In view of the foregoing and particularly in this case in which the Appellant has failed to disclose its locus standi, I find myself unable to see what benefit the grant of the issues canvassed by the Appellant, who is the Garnishee Bank herein would be to it.” Per FREDERICK OZIAKPONO OHO, JCA in UBA v. OPTION ONE AGRITRADE (NIG) LTD & ANOR (2018) LPELR-43865(CA) (Pp 8 – 12 Paras D – D) |
ROLE OF A GARNISHEE – whether a garnishee can challenge the decision of Court in a garnishee proceeding: “At this point, let me clearly state that garnishee proceeding is that which intends to achieve the result of enforcing judgment of the trial Court by paying the judgment debt ordered by the trial Court to the judgment creditor. The law which is the sheriff and Civil Process Act, had laid out the mode of enforcing the judgment of the trial Court, the mode of enforcement through garnishee proceeding appears to be more effective and potent for monetary judgment debts. In the case of CBN V. Interstella Communications Ltd & Ors (2018) 7 NWLR (Pt. 1618) 294, 350, Ogunyibi, JSC, explained the role of a garnishee proceedings as follows: The role of Garnishee in any Garnishee proceeding is delimited. As rightly argued by the counsel for the 1st and 2nd respondents, it is not envisaged that after a judgment creditor has gone through the rigors to establish his right through the legal system, that the garnishee, who is asked to surrender the judgment debtor’s money in its possession should engage the judgment creditor in another bout of legal battle. See Order Vlll Part II of the Judgments (Enforcement) Rules. Basically, the restrictive rote and legal duty of a garnishee in the judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the Judgment Debtor’s state of account in its custody. It is no wonder therefore that the lower Court while quoting the Court of Appeal case of Oceanic Bank Plc v. Oladepo & ANOR (2012) LPELR – 19670 held the view that it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor… By the rule of jurisprudence, no justice will be done to a garnishee, neither will it be denied any legal right when made to give up the judgment debtor’s money in its custody. It is also inequitable for a garnishee to continue to latch on to the money that does not belong to it when the judgment debtor has conceded the judgment. In the instant case, it is not on record that the judgment creditor or judgment debtor are fighting the judgment debt on appeal. Where the judgment debtor does not fight the judgment on appeal, the garnishee whose role is only to keep the money of the appellant cannot raise issues in the enforcement to challenge the enforcement procedure adopted by the judgment creditor. In that circumstance it is not the business of the garnishee to plead that the trial Court has no jurisdiction because the fiat of the Attorney General was not obtained before the enforcement of the judgment given against a judgment debtor. The position of the law is as rendered by the Supreme Court in Gwede v. Delta State House of Assembly & Anor., (2019) LPELR – 47441 (SC). The dictum of Okoro, JSC is as follows:- “A few words on garnishee proceedings. A garnishee proceeding is usually commenced by an ex-parte application made to the Court having jurisdiction to hear the matter by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order NISI. Simply, NISI is a Norman – French word which means “unless”. It is therefore an order made, at that stage that the sum covered by the application be paid in to Court or to the judgment creditor within a stated time unless there is sufficient reason given by the party on whom the order is directed why the ordered should be made. Such reasons could be that he does not hold any money belonging to the judgment debtor or that such money belonging to the judgment debtor in his possession is a subject of litigation or has been assigned to a third party or any other legal and reasonable excuse. If no sufficient reason is given, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made liable to pay the amount specified in the order to the judgment creditor. The Court then becomes functus officio as far as that matter is concerned in that the judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd & Ors., (2005) 13 NWLR (PT. 943) 654, Choice Investments Ltd v. Jeromnimon (Midland Bank Ltd. Garnishee) (1981) 1 All ER 225 at 328, Guarantee Trust Bank Plc v. Innoson Nig., (2017) LPELR – 42368 (SC).” The appellant in this appeal has no justifiable reason to contest the order of the lower Court. This appeal has again shown the modern trend of a garnishee joining the contest of the substantive litigants to fight a proxy war for the judgment debtor. This is no longer to be encouraged or tolerated in a garnishee proceeding.” Per STEPHEN JONAH ADAH, JCA CBN v. OCHIFE & ORS (2020) LPELR-52495(CA) (Pp 27 – 31 Paras F – F) |
ROLE OF A GARNISHEE – whether a garnishee can challenge the decision of Court in a garnishee proceeding: “The only area worthy of response in the appellant’s submission relates to his submission to the effect that it is not the garnishee’s business to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Counsel cited and relied on OCEANIC BANK PLC Vs. OLADEPO (2012) LPELR-19670, a decision of this Court. No doubt, in a garnishee proceedings the judgment debtor is a nominal party. He is not called upon to appear before the Court to show cause why order nisi shall not be issued during the garnishee proceedings. That is the reason behind the Ex-parte application. In this situation, it is only the garnishee that is expected to inform the Court of any encumbrance on the judgment debtor’s money. It is only the garnishee that is expected to react if the law was not properly followed or observed. See FIRST BANK OF NIG PLC & ANR vs. FCMB PLC & ANR (2013) LPELR-22050 (CA). Being the custodian of the judgment debtor’s assets, the garnishee has every reason to be aggrieved and to competently appeal against an order wrongly granted through garnishee proceeding, NIG AGIP OILCO, LTD vs. OGINI & ORS (2010) LPELR–9141 (CA) and IN RE; DIAMOND BANK LTD (2002) 17 NWLR (Pt 795) 120.” Per USMAN ALHAJI MUSALE, JCA in AKPAN v. EFCC & ANOR (2021) LPELR-55800(CA) (Pp 22 – 23 Paras E – E) |
APPEAL – LEAVE – Whether leave of Court is required for a judgment debtor to appeal against a garnishee order: “The pith of the submissions on the preliminary objection is that the Appellants require leave of Court to appeal against the decision of the lower Court and that they did not obtain leave to appeal. A garnishee proceedings is governed by the Sheriffs and Civil Process Act, 2004. A careful examination of that Act, particularly part V thereof which deals with attachment of debts by garnishee order, reveals that a garnishee proceedings is essentially one between the judgment creditor and the garnishee. The judgment creditor or to use the language of the Act, any person who is entitled to the benefit of a judgment, applies by way of an ex-parte application duly supported by an affidavit, indicating that the judgment in his favour is still unsatisfied and that another person within the State i.e. the garnishee is indented to the judgment debtor and that the debt owed by that garnishee to the judgment debtor be attached to satisfy the judgment debt or order as well as the costs of the garnishee proceedings. Further, the garnishee is required by the Act to appear in Court to show cause why he should not pay the judgment creditor the money owed the judgment debtor that is in his custody. See Section 83 of the Sheriffs and Civil Process Act. The Court, if satisfied by the judgment creditors application, will make an order nisi, a copy of which order by Subsection (2) of Section 83 of the Act, shall be served on the garnishee and the judgment debtor at least 14 days before the date fixed for hearing by the Court. Other than the requirement that a copy of the garnishee order nisi shall also be served on the judgment debtor, there is nothing more in that part of the Act that relates to the judgment debtor. Where the garnishee does not appear in Court after the order nisi is served on him and does not dispute his liability, the Court will make an order that the execution shall issue. Where the garnishee appears and disputes his liability, the Court may determine any issue that may thereby arise. From the Sheriffs and Civil Process Act therefore, the judgment debtor can best be described as an interested party. Therefore, even though a garnishee order absolute is a final decision, a judgment debtor being a mere interested party, can only appeal against the decision with the leave of Court, In the case of HON. JUSTICE SOTONYE DENTON-WEST V. MUOMA (Supra), this Court, per Kekere-Ekun JCA (as he then was), stated that with regard to garnishee proceedings, it is the garnishee, that is the person or bodies in custody of holding the assets of the judgment debtor, that could be aggrieved and competently appeal against the order. This position of the law was re-stated by this Court in the case of NIGERIA AGIP OIL COMPANY LTD. V. PETER OGINI & ORS. (2010) LPELR – 914 (CA). Going by the lex scripta which in this case is the Sheriff and Civil Process Act, as well as case law therefore, it is very clear that the Appellants being the judgment debtors are mere interested parties and cannot competently appeal against the final decision of the lower Court in the matter on appeal without first obtaining the leave of Court.” Per DANIEL-KALIO, JCA ABUTH & ANOR v. STAR GLOBAL MARKETING LTD & ANOR (2017) LPELR-43213(CA) (Pp 11 – 14 Paras D – B) |
SERVICE OF ORDER NISI – Effect of mere service of garnishee order nisi on the garnishee: “Decidedly, though service of the Garnishee order nisi binds and attaches the debt in the hands of the Garnishee, but mere service of the Garnishee order nisi on the Garnishee (as was done in this case) does not necessarily operate as a transfer of the ownership of the debt to the Judgment Creditor – CBN VS AUTO IMPORT EXPORT (2013) 2 NWLR (PART 1337) PAGE 126-127 paragraphs h-a.” Per PEMU, JCA in CBN v. J. I. NWANYANWU & SONS ENTERPRISES (NIG) LTD (2014) LPELR-22745(CA) (Pp 17 – 17 Paras E – G) |
LIABILITY OF GARNISHEE – Effect of failure of a garnishee to appear in Court to dispute/pay the debt owed: “In the instant case, there was no contest that the first Respondent obtained a Garnishee Order Nisi and caused same to be served on the Appellant along with a Hearing Notice. Section 86 of the Sheriffs and Civil Process Act stipulates the process that follows the service of a Garnishee Order Nisi. It states that: “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.” Now, the way the Court orders execution to issue where a garnishee fails to appear to show cause in response to a Garnishee Order Nisi, is by making the order absolute. Explaining this point, the Supreme Court in Zenith Bank Plc Vs John (2015) 7 NWLR (Pt 1458) 393 stated that once a Court issues a Garnishee Order Absolute, the money or debt of the judgment debtor in the hands of the garnishee becomes attached to the extent of the judgment debt and the judgment becomes executed automatically without further ado and the entire matter becomes concluded and neither an order of stay of execution or injunction pending appeal can be granted against it. What these mean is that where a Garnishee Order Absolute is made for failure of a garnishee to appear in response to a Garnishee Order Nisi to show cause, it concludes all deliberations on the garnishee proceedings and there is nothing left before the Court in the matter. It is a final order – Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd supra, United Bank of Africa Plc Vs Ekanem (2010) 6 NWLR (Pt 1190) 207, Federal Government of Nigeria Vs Interstella Communications Ltd (2015) 9 NWLR (Pt 1463) 1, Nigerian Breweries Plc Vs Dumuje (2016) 8 NWLR (Pt 1515) 536. In Union Bank of Nigeria Plc Vs Boney Marcus Industries Ltd (2005) 13 NWLR (Pt 943) 654, the Supreme Court made the point thus: “During the period when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at that stage being interlocutory would not arise.” The Court that made the Garnishee Order Absolute is after making the order precluded from, again considering the matter even if new evidence or arguments are presented to it – Choice Investments Ltd Vs Jeromniom (Midland Bank Ltd, Garnishee) (1981) 1 All ER 225.” Per ABIRU, JCA in STANBIC IBTC BANK PLC, BAUCHI BRANCH v. ABOABA & ORS (2016) LPELR-43700(CA) (Pp 44 – 46 Paras B – F) |
SETTING ASIDE OF ORDER NISI – Instance(s) where a Court can set aside its own order nisi and absolute in a garnishee proceedings: “…the Appellant having established by the uncontroverted affidavit evidence that the garnishee did not have money belonging to the judgment debtor in its custody, the lower Court ought to have set aside the garnishee order absolute on ground of deceit. See also ALAKA V ADEKUNLE (1959) LLR 76; IGWE V KALU (2002) 7 SC (PT.11) 236. Furthermore, the indebtedness of the garnishee to the judgment debtor of an amount attachable is a condition precedent to the issuance of a garnishee Nisi against a garnishee. This is the requirement of Section 83(1) of the S & CPA. It thus stands to reason that where no amount is due or accruing to the judgment debtor from the garnishee, an Order Nisi shall not issue, as there will be nothing to garnishee. The judgment Creditor/Garnishor cannot by the garnishee proceedings be placed in a better position with the garnishee than the judgment debtor was before the proceedings nor can the garnishor reap where he has not sown. This statement of the law is supported by the decision in UBA V SOCIETE GENERALE BANK (SUPRA) where it was held inter alia:- “It is a condition precedent that the money must be due or have accrued to the judgment debtor for it to be liable to garnishment. For it is said that a judgment creditor cannot by means of attachment stand in a better position as regard the garnishee than judgment debtor did because he can only obtain what the judgment debtor could honestly give him.” Similarly, in CBN V AUTO IMPORT EXPORT & ANR (2012) LPELR 7858 (CA) this Court per SAULAWA JCA stressed the point that for a garnishee proceedings to be valid, it is incumbent on the Court to ensure among other conditions therein enumerated, that the garnishee must be indebted to the judgment creditor within the state. I dare say that it is only upon fulfillment of the conditions in Section 83(1) of the S & CPA as amplified by judicial authorities, and the satisfaction by the Court of the judgment creditor’s entitlement to the attach merit of the funds, that the Order Nisi shall issue. The Order Nisi having been issued when there was not in existence any debt existing or accruing to the judgment debtor, a condition precedent to the issuance of the order, the Appellant which was affected by the Order was entitled ex debito justitiae to have the Order set aside by the same Court. See MARK VS EKE (SUPRA) AT 76-77 PARAS A.C. We agree with the Appellant’s Counsel that unless the order absolute is set aside, the Appellant would be forced to pay the judgment debt which does not belong to the judgment debtor. Had the learned trial Judge given effect to the facts in the uncontroverted affidavit, it would have found that the Appellant is not indebted to the judgment debtor, which fact strikes at the heart of the order absolute against the Appellant. Once a Court finds that the garnishee is not indebted to the judgment debtor, it has no business sustaining an order absolute against the garnishee, for the garnishee cannot be made to pay money to the judgment creditor which is not owed or accruing to the judgment debtor. To endorse the judgment of the lower Court and compel the Appellant to pay the said money which is not in its custody to the judgment creditor, we agree with the Appellant’s counsel, will be inequitable. It is trite that it is not the business of the Courts to make or endorse inequitable orders; rather, it is the duty of an appellate Court on review of the decision of a lower Court, to set aside an unjust or inequitable order or decision. This Court as a Court of law and a Court of equity, will not compel a garnishee who has shown, albeit, after Order Nisi has been made absolute, that it is not indebted to the judgment debtor, to pay the judgment creditor the garnisheed money in the Order absolute. The lower Court having not set aside the order, this Court is empowered by Section 15 of the Court of Appeal Act to step into the shoes of the lower Court to set aside both the Nisi and Absolute Orders.” Per WAMBAI, JCA in JAIZ BANK v. GT BANK & ORS (2017) LPELR-45130(CA) (Pp 24 – 28 Paras C – A) |
APPEAL BY JUDGMENT DEBTOR – Whether leave of Court is required for a judgment debtor to appeal against a garnishee order: “A right of appeal from a decision of the High Court to the Court of Appeal is provided for in Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). As to the persons who can exercise that right of appeal, Section 243 (1) (a) of the same Constitution provides that: “(1) any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be – (a) exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter …” In respect of garnishee order absolute, there has been a conflict of judicial opinion as to whether or not a judgment debtor can appeal as of right against such an order as a party to the proceeding or he can appeal only with leave of Court pursuant to Section 243 (1) (a) of the Constitution. On the one hand, it has been held that a judgment debtor can only appeal against a garnishee order absolute with leave of Court as he is at the best a nominal party to a garnishee proceeding. See Denton – West V Muoma (2008) 6 NWLR (Pt. 1083) 418, 442 – 443, UBA Plc V Ekanem (2010) 6 NWLR (Pt. 1190) 207, 225, 227, and Re: Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120. On the other hand, it has been held that a judgment debtor can appeal as of right (and therefore does not leave of Court against a garnishee order absolute) as he is a necessary party to garnishee proceeding. See Delta State Government V KQ Investment Ltd (2018) All FWLR (Pt. 970) 994, 1010 and Nigerian Breweries Plc V Dumuje (2015) All FWLR (Pt. 807) 513. Section 83 (1) and (2) of the Sheriffs and Civil Process Act provides: “(1) The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and it is still unsatisfied and to what amount, and that any person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the cost of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.” (2) 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.” On account of the foregoing, it has been held in Sokoto State Government V Kamdax (Nig) Ltd (2004) 9 NWLR (Pt. 878) 345, CBN V Auto Import Export (2013) 2 NWLR (Pt. 1331) 80, 126 and especially Fidelity Bank Plc V Okwuowulu (2013) 6 NWLR (Pt. 1349) 197, 213 – 214 that a garnishee proceeding, particularly after stage of issuance of order nisi, involves three parties, viz; judgment debtor, judgment creditor and garnishee. These decisions would therefore seem to support the second stream of judicial opinion that a judgment debtor being a party to a garnishee proceeding does not require leave of Court to appeal against a garnishee order absolute.? It must stated that the decisions referred to above were given by the Court of Appeal. It however seem to me that the Supreme Court has settled the controversy as to whether or not a judgment debtor is a party to a garnishee proceeding. In the case of Central Bank of Nigeria v Interstella Communication Limited (2018) 7 NWLR (Pt.1618) 294, 339, Ogunbiyi, JSC, stated that: “The law is long established that a garnishee proceeding is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor.” His Lordship relied on the case of UBA Plc v Ekanem supra. In a garnishee proceeding, there is no doubt that the judgment debtor is to be served with the garnishee order nisi and he may even be examined before making the order nisi (under Section 83 of the Sheriff and Civil Process Act) or the Court may hear him under part viii of the Judgment Enforcement Rules, Rule 8 (i) where the garnishee disputes liability, yet going by Section 83 supra it is the garnishee (and not the judgment debtor) who is to show cause why he should not pay to the judgment creditor the debt due from him to the judgment debtor. See UBA Plc v Ekanem supra. It must be remembered that a garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor although it flows from the judgment that pronounced the debt. See Central Bank of Nigeria v Interstella Communication Ltd. supra. 337, In Re: Diamond supra and Purification Techniques (Nig) Ltd v Attorney – General of Lagos State (2004) 9 NWLR (Pt. 879). 665. The Supreme Court having settled the point as to who the parties to a garnishee proceeding are in Central Bank of Bank v Interstella Communication Ltd Supra are, viz; the judgment creditor and the garnishee, it follows therefore that the judgment debtor not being a party strictly speaking to a garnishee proceeding, requires leave under Section 243 (1) (a) of the Constitution of Nigeria, 1999 (as amended) to appeal against a garnishee order absolute. The appellant did not apply for such leave and so his appeal is incompetent.” Per JOSEPH EYO EKANEM, JCA in DANGOTE FLOUR MILLS PLC v. SAMAGADA INDUSTRIES LTD (2019) LPELR-48083(CA) (Pp 5 – 10 Paras E – D) |
LIABILITY OF GARNISHEE – Whether a 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: “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.” Per HELEN MORONKEJI OGUNWUMIJU, JCA in ZENITH BANK v. IGBOKWE & ANOR (2013) LPELR-21975(CA) (Pp 22 – 24 Paras E – C) |
Nature of garnishee proceedings; whether a garnishee proceeding can be commenced against a bank in any part of the Federation: “Garnishee proceedings is a judicial proceeding in which a creditor asks the Court to order a third party who is indebted to turn over to the creditor any of the debtor’s property. In other words, a garnishee proceedings is one of the methods by which liquidated money judgments can be enforced, the essence is to realize the fruits of judgment. The contention of the appellant’s counsel is that since the judgment giving rise to the garnishee proceedings was given in Nasarawa State where the judgment debtor resides, the garnishee proceedings for the enforcement of judgment should have commenced in Lafia Nasarawa State and not Jos, Plateau State which is outside jurisdiction. He argued and submitted that High Court Jos, Plateau State has no jurisdiction to entertain the garnishee proceedings. First Bank Plc, the appellant in this case has branches all over the States of the Federation. Therefore a garnishee proceedings can be filed in any of its branches in a State, of the Federation. This is because the garnishee proceedings involving the First Bank Plc is within the jurisdiction of Plateau State High Court. Moreso, due to advancement in technology, garnishee proceedings can rightly be commenced against the First Bank Plc. in any part of the Federation notwithstanding that the judgment was obtained in Lafia Nasarawa State. See Sokoto State Govt. Vs. Kamdax (Nig) Ltd. (2004)9 NWLR (Pt. 878)345; CBN Vs. Auto Import Export (2013)2 NWLR (Pt. 1337)80; C.B.N Vs. S.C.B. Vs. No. 1 (2015) 11 NWLR (Pt. 1469) 130; CBN Vs. Ainamo (2019) 7 NWLR (Pt. 1672) 407 and CBN Vs. Interstella Com. Ltd. (2018)7 NWLR (Pt. 1618). The purport of Section 83 of the Sheriffs Civil Process Act revolves in the essence of commencing a garnishee proceedings in the High Court of the State where the garnishee resides. The rationale for the provision in the Section with regard to a debtor residing within the State is basically for convenience and effective enforcement of the judgment, since the First Bank Plc has branches across the country, its jurisdiction is not restricted to any particular judicial division of the Court. Accordingly, the judgment can be enforced in any branch of First Bank Plc. in any State. Thus the Plateau State High Court rightly entertained the garnishee proceedings because the appellant is within the jurisdiction of the Court in the context of Section 83 of the Sheriffs and Civil process Act. See Nwabueze Vs. Okoye (1988)4 NWLR (Pt. 91)664 and Abiola Vs. FRN (1995)3 NWLR (Pt. 382) 203.” Per TANI YUSUF HASSAN, JCA inFIRST BANK v. AKUBO & ORS (2020) LPELR-49992(CA) (Pp 27 – 29 Paras E – E) |
LIABILITY OF A GARNISHEE – Whether Court can make an order nisi absolute against a garnishee who is not indebted to the judgment debtor: “Garnishee proceedings are governed by section 83(1) of the Sheriff and Civil Process Act Cap 56 LFN 2004, which provides as follows:- “The Court may, upon exparte application of any person who is entitled to the benefit of a Judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such Judgment and upon affidavit by the Applicant or his legal practitioner that Judgment has been recovered and that it is still unsatisfied and what amount, and that any other person is indebted to such debtor and is within the State, order that debt owing from such third person herein after called the Garnishee, to such debtor shall be attached to satisfy the Judgment or order together with the costs of the Garnishee proceedings and by the same or any subsequent order it may be ordered that the Garnishee shall appear before the Court to show cause why he should not pay the person who has obtained such Judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with cost aforesaid”. The foregoing provision clearly requires that the Judgment debtor must be indebted to the Garnishor. In other words, the Garnishee must be in custody of the money belonging to the Judgment debtor. Thus, the contention of the Appellant that money in the account of the Nigeria Police Force be attached to pay the debt of the Inspector General of Police was misconceived. Garnishee proceedings requires attachment of funds in account of judgment debtor, which the NPF and its subsidiaries were not. The onus is on the Judgment Creditor/Appellant in a Garnishee application of this nature to show that the money in the hands of the garnishee belongs to the Judgment debtor who is the Inspector-General of Police. Thus, funds in the account of the Nigeria Police Force or any of its subsidiaries were wrongly garnished in the instant proceedings. The accounts attached by the counsel to the Appellant has been shown to belong to the Nigeria Police Force and its subsidiaries. The law as stated above is that the Judgment debtor must be indebted to the third person garnishor or have funds, capable of satisfying the judgment debt wholly or partly, standing to the credit of the judgment debtor. In other words, the garnishee must be in the custody of the money belonging to the Judgment debtor. The Inspector-General of Police is only an agent of the Nigeria Police Force. The Appellants had commenced the garnishee proceedings against the 1st and 2nd Respondents and obtained a garnishee order of the 2nd Respondent’s funds from the 1st Respondent but when the 1st Respondent gave a balance of N999 in the 2nd Respondent’s account, the Appellant sought to garnish funds in the account of the NPF, which was not the judgment debtor. It must be emphasized that only money standing to the credit of the judgment – debtor, as at the time the order nisi was served, is attachable and upon which an order absolute may be obtained by the judgment creditor in garnishee proceedings. The order nisi was wrongly issued against the account of the NPF that was neither a judgment debtor nor a party to the judgment upon which the garnishee proceeding was founded. It is only the money in the bank account of the judgment – debtor that is attachable.” Per HUSSEIN MUKHTAR, JCA in OKAFOR v. FCMB LTD & ANOR (2020) LPELR-51436(CA) (Pp 10 – 13 Paras B – A) |
NATURE OF GARNISHEE PROCEEDING – Whether garnishee proceedings is a separate and distinct proceeding: “I concede the point that a Garnishee proceeding is a matter within a cause or cause of action. It follows that the parties to the suit ordinarily ought to be stated before the object or parties to the application ex-parte prescribed by Section 83(1) of the S & CPA. In the title of the application ex-parte, it is the Garnishee that will be named as the respondent, while the appellant shall be the judgment creditor. I have to agree with Dr. Banire that the S & CPA has determined the necessary parties to garnishee proceedings with variations at different stages, namely, the judgment creditor, the garnishee and the judgment debtor, as the case may be. See S. 83, 109 of the S & CPA, Orders VIII (4), (6) and (8) of the JER. These are the statutory parties to a garnishee proceedings, most importantly, at the stage of making order absolute. The introduction of the garnishee who was not party to the proceedings at trial is a statutory variation of the party composition of the case at trial. Secondly, garnishee proceedings is not an avenue to re-litigate the matter all over. It is just a means of enforcing judgment already given in respect of which the Court that gave it has become functus officio save in such circumstances where it could set aside its decision. That explains why the garnishee action is a separate and distinct action between the judgment creditor and the garnishee with the judgment debtor as a statutory participant. Some judgments of this Court seem to hold to the view expressed in Cross River State Forestry Commission v. Anwan & Ors. (Supra) as follows: “Garnishee proceedings is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing.” I humbly believe that these sweeping statements are one of the reasons for the seeming contradictions of judicial opinion on this point. I have to stand aloof from that sweeping statement that garnishee proceedings are distinct and separate actions from the judgment from which it emanated, because the former decision (judgment) is the basis of the present proceeding (garnishee). The processes to be filed must indicate the parties viz “In the matter”. A Garnishee proceeding is separate and distinct only to the extent that it is started as a separate process from the judgment it wants to enforce. Then the judgment creditor is only obliged to name the persons he wishes to move against to recover the judgment debt. He is not bound to move against all the judgment debtors. In this case, the 1st Respondent and judgment debtor in the original suit decided to move only against the manufacturer and the 1st Defendant and judgment debtor in the original suit. As I said earlier, the garnishor is only obliged to name the garnishee and the judgment debtor who are made necessary parties by virtue of S.83 of the S & CPA. Besides, a judgment creditor is at liberty to enforce/execute the judgment against all or any of the joint debtors. See Mucas Hospital Ltd v. Fasuyi (2004) 8 NWLR (Pt. 874) Pg. 67 at 84-85, Para. H-A.” Per HELEN MORONKEJI OGUNWUMIJU, JCA in NIGERIAN BREWERIES PLC v. DUMUJE & ANOR (2015) LPELR-25583(CA) (Pp 101 – 104 Paras D – C) |
STAY OF EXECUTION – Whether a garnishee can seek an order for stay of execution of judgment or initiate an appeal: “The other aspect of the argument by the Appellant is whether or not the garnishee is competent to seek for an order of stay of execution. My understanding of the decision in U.B.A. V. HON. IBORO EKANEM (MD PARAGON ENG. LTD.) & ANOR. (2009) LPELR 8428 is that it is the garnishee that has the power to challenge the order absolute. The reason for this is simple. In a garnishee preceding the judgment debtor is a silent and dormant party. He is only served with the processes in the garnishee proceedings but he is not a party. Therefore, it is the garnishee Bank that can initiate an order of stay or an appeal. In addition to this, the order of the trial Court making an order nisi absolute is a final order and appealable by any aggrieved party to the proceeding i.e. the judgment creditor and the garnishee in particular. But definitely a judgment debtor is incompetent to initiate a process for stay nor that of an appeal.” Per MUDASHIRU NASIRU ONIYANGI, JCA in ABURIME v. UBA & ORS (2018) LPELR-44769(CA) (Pp 15 – 15 Paras B – F) |
ORDER NISI – Whether the grant of a garnishee order nisi concludes the execution of the judgment; effect of a garnishee showing cause why the garnishee order nisi should not be made absolute: “As held by my learned brother, and which I agree with, a garnishee order nisi, as ordered by the lower Court does not conclude execution of the judgment obtained. See Standard Trust Bank Ltd v Contract Resources Nigeria Ltd (2001) 6 NWLR Part 708 Page 115 at 124 Para E per Olagunju JCA. Where the Garnishee has succeeded in showing cause why the Garnishee Order absolute should not be made, as done in this case, the Court has no option but to discharge the order.” Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA inFCMB v. DEKINA & ANOR (2020) LPELR-51435(CA) (Pp 12 – 13 Paras F – B) |
LIABILITY OF A GARNISHEE – Step or procedure to be adopted by a trial Court where the garnishee appears and disputes his liability for the judgment debt: “Not infrequently however, issues arise where a garnishee appears in Court in obedience to the garnishee order nisi and files an affidavit to show cause. The course open to a Court in such a situation is provided for in S. 87 SCPA: “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”. But the determination of whether or not a garnishee has actually disputed his liability is not always a walk in the park, and the discretion of first instance Courts has been disturbed on appeal in not a few cases on the basis that S. 87 SCPA “which stipulates what procedure to be adopted by the trial Court, where liability for the Judgment debt is DISPUTED by the Garnishee, indeed limits the exercise of the Court’s discretion to either, to call for trial of the case, or to refer the matter to a referee. No other procedure is implied in the provisions of that statute”. See MAINSTREET BANK LTD v. U.B.A. (2014) LPELR-24119(CA) 1 at 26-28. The cases of POLARIS BANK v. GUMAU & ORS (2019) LPELR-47066(CA)1 at 34-37, STERLING BANK v. GUMAU & ORS (2019) LPELR-47067(CA) 1 at 19-35 and FIDELITY BANK PLC v. GUMAU & ANOR (2019) LPELR-47068(CA) are a trilogy of appeals in which his Lordship, Abiru JCA queried rhetorically: “When is there said to be a dispute of liability by a garnishee and which requires further enquiry under S. 87 of the Sheriffs and Civil process Act? before proceeding to expound the legal position with characteristic clarity as follows: “Three scenarios have emerged from the interpretation of the Courts as to what a trial Court can do where a garnishee appears in obedience to a garnishee order nisi and disputes liability by filing an affidavit to show cause. The first is 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 fails to condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, the trial Court can proceed to make an order of garnishee absolute, notwithstanding the affidavit to show cause – Skye Bank Plc v. Colombara & Anor (2014) LPELR 22641(CA), Governor of Imo State v. Ogoh (2015) LPELR 25949(CA), Access Bank Plc v. Adewusi (2017) LPELR 43495(CA), First Bank of Nigeria Plc v. Okon (2017) LPELR 43530(CA), Heritage Bank Ltd v. Interlagos Oil Ltd (2018) LPELR 44801(CA), First Bank of Nigeria Plc v. Yegwa (2018) LPELR 45997(CA). The second scenario is 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, the trial Court cannot proceed to make a garnishee order absolute and must constitute the question of the liability of the garnishee as an issue to be tried or determined in any manner in which any issue in a proceeding is tried or determined, or he may refer the matter to a referee – Central Bank of Nigeria v. Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, Mainstreet Bank Ltd v. United Bank for Africa Plc (2014) LPELR 24118(CA), Eco Bank (Nig) Plc v. Mbanefo & Bros Ltd (2014) LPELR 41106(CA), Total Upstream Nigeria Ltd v. A.I.C. Limited (2015) LPELR 25388(CA).Order 8 Rule 8(2) of the Judgment Enforcement Procedure Rules provides that in this situation, the Court shall set the issue or question down for hearing and shall direct which of the persons interested shall be plaintiff and which shall be defendant and the parties shall be at liberty to lead evidence -Central Bank of Nigeria v. Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA). The third scenario is that 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, and the judgment creditor fails to depose to a further affidavit contesting the assertions of the garnishee, the trial Court may discharge the garnishee on the basis of its deposition – Zenith Bank Plc v. Kano (2016) LPELR 40335(CA), United Bank for Africa Plc v. Access Bank Plc & Anor (2018) LPELR 44058(CA), All Works Commercial Company Ltd v. Central Bank of Nigeria ?(2018) LPELR 45991(CA). It is within these three scenarios that a trial Court can exercise the discretion given to it under Section 87 of the Sheriffs and Civil Process Act. Outside these three scenarios, this Court is not aware that the provisions of Section 87 of the Sheriffs and Civil Process Act can be interpreted to accommodate any other step that may be taken by a trial Court where a garnishee appears and denies liability.” Per PETER OYINKENIMIEMI AFFEN, JCA in GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 13 – 18 Paras F – B) |
ORDER ABSOLUTE – Whether a garnishee order can only be made against a third party in possession of funds belonging to the judgment debtor: “The sole issue in this appeal which was argued by the parties in their respective briefs has to do with whether the Bank Account No. 2342050665 with the Appellant does not belong to the Judgment Debtor as to justify the Garnishee Order being made absolute. Garnishee proceedings are fast becoming platitudinous in our jurisprudence. It is the choice of practitioners for recovery of judgment debts due to its apparent effectiveness and fruitfulness but there are still many worries about its applicability by the practitioners and to some extent some of the trial Courts. In the instant case, the 1st Respondent as a Judgment Creditor applied to the trial Court for a Garnishee Order against some ten banks of which the Appellant, Ecobank was listed as No. 4. The judgment debt was for a sum of Two Million and Fifty Thousand Naira (N2,050,000.00) with a cost of One Hundred Thousand Naira (N100,000.00). The Judgment Debtor from the record before the Court is the Commissioner of Police, Akwa Ibom State. By Section 83 of the Sheriffs and Civil Process Act 2004 Garnishee proceeding was prescribed as a process for the enforcement of a money judgment of a Court. By this process the Court has the power to order a third party to pay direct to the Judgment Creditor the debt due from him to the Judgment Debtor or as much of it as may be sufficient to satisfy the amount of the Judgment and the costs of the Garnishee proceedings. The third person indebted to the Judgment Debtor is called the Garnishee while the Judgment Creditor is also referred to as the Garnishor. The process is instituted in Court through an ex-parte motion by the Judgment Creditor applying to the Court for an order attaching the said sum, the order nisi is then served on the Garnishee and the Judgment Debtor, if the Garnishee fails to refute the claim that he has an obligation to the Judgment Debtor, the Court may then order that the order nisi be made absolute. See Eko, JSC in GTB VS. INNOSON NIG. LTD. (2017) LPELR-42368 (SC). For this process to be available the Garnishee must be indebted to the judgment debtor and the application must be commenced ex-parte by the Judgment Creditor. In the instant case, the contention is that the account garnisheed belonged to another organization and not the Judgment Debtor in this case. The terrain of Garnishee proceedings I must emphasize, is not that much loose and free of any duty. The terrain is well guarded by some conditions inherent in Section 83 of the Sheriffs and Civil Process Act. In the case of CBN VS. AUTO IMPORT EXPORT & ANOR. (2012) LPELR-7858 (CA). This Court elaborately considered the procedure for instituting Garnishee proceedings per Saulawa, JCA as follows: “Hence, a Garnishee proceeding to be valid, it is incumbent upon the Court to ensure that the following conditions have been duly satisfied. (i) That, the Garnishee must be indebted to the Judgment Debtor within the State and be resident in the State in which the proceedings are to be brought. As such, if the debt is owed by someone outside the state, the proceedings are inapplicable. See Section 83(1) of the Sheriffs & Civil Process Act (supra); (ii) The proceedings should be filed in any Court in which the Judgment Debtor could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in Magistrate’s Courts, as the case may be, sue the Garnishee in respect of the debt. Thus, the Court may not necessarily have to be the one that gave the judgment. It could be a magistrate; and the fact that the debt exceeds the jurisdiction thereof notwithstanding. See Order 8 Rule 2 (a) (b) of the Sheriffs and Civil Process Act (supra); (iii) the application for the Garnishee order shall be made ex-parte. The Court, if satisfied that the Judgment Creditor is entitled to attach the debt, shall make a Garnishee Order Nisi. See Order 8 Rule 3(2). (iv) The service of the order nisi thereon binds or attaches the debt in hands of the Garnishee. Section 85 of the Sheriffs and Civil Process Act (supra). However, it must emphatically be made clear, that the mere service of the Garnishee order nisi on the Garnishee does not necessarily operate as a transfer of the ownership of the debt to the Judgment Creditor. Conversely, it merely creates an equitable charge on the debt in his favour, and the Garnishee cannot pay the debt to anyone but the Judgment Creditor without the risk of having to pay it over again. By the order, the Judgment Creditor is placed in the position of the assignee of the judgment to any equities which exist against the Judgment Debtor. See Section 85 of the Sheriffs and Civil Process Act (supra); CALBRAITH VS. GRIMSHAN AND BAXITER (1910) 1 KB 339 @ 343; LEVENE VS. MATON.” I had earlier pointed out in this judgment that it is basic that the Garnishee so summoned must be indebted to the Judgment Debtor. The Appellant had contended at the Court below that it is not having the fund of the judgment Debtor who from the record before us is the Commissioner of Police. She asserted that the account with her is that of the Ministry of Police Affairs and the statement of account issued out which was exhibited in the Record of Appeal, Showed that the account belong to Akwa Ibom State Command Ministry of Police Affairs. It was alleged in the counter affidavit that the Judgment Debtor the Commissioner of Police is the sole signatory of the account. There is no evidence to back up this allegation. When a person asserts the onus is on him to prove his assertion to the satisfaction of the Court. In MBANEFO VS. AGBU & ANOR. (2014) 6 NWLR (PT. 1403) 238, the Supreme Court per Kekere-Ekun, JSC held as follows: “The law is settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exists. It is also trite that in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumptions that may arise on the pleadings. See Sections 131, 132 and 133 of the evidence Act, 2011, as amended.” Bank accounts are bank records and they are all documentary. To prove that a person is a signatory, there must be the Account mandate showing that fact. This type of record are in the bank and the applicant who got a statement of account from the bank would have pleaded and requested for the signature mandate to prove his allegation. This apparently is required because the name of the account in issue is not bearing Commissioner of Police or directly the Akwa Ibom State Police Command. Ministry of Police Affairs has to be shown clearly to be within the control of the 2nd Respondent before the account in issue can be garnisheed to pay the Judgment Debt of the Commissioner of Police. There is no room created in our Garnishee proceedings for robbing Peter to pay Paul. A debtor is only obligated to pay his own debt not another person’s debt. The account that can therefore be garnisheed to pay the judgment debt is that singular account showing the indebtedness of the Garnishee to the Judgment Debtor. Since the bank account in question has not been satisfactorily established to belong to the Judgment Debtor it cannot in any sense be conjured into being the bank account of the Judgment Debtor. The Court below while considering this issue said as follows: I have read the said Garnishee’s original affidavit to show cause, the Judgment Creditor’s counter affidavit as well as the Garnishee’s reply aforesaid. The owner or operator of Account No. 2342050665 is “AKS COMMAND MINISTRY OF POLICE AFFAIRS”. The address of the operator or that account is “POLICE HEADQUARTERS, IKOT AKPAN ABIA, UYO, AKS”. See the statement of account attached to the aforesaid Exhibit A to the counter affidavit of the Judgment Creditor/Applicant. The contention of the Garnishee is that the owner or operator of the said account is the Police Service Commission (PSC) and that the said commission is not a party to this case. To push the matter further, it is considered that the Judgment Debtor and the said Police Service Commission are two separate entitles. That is why the Garnishee is contending that the Judgment Debtor does not maintain an account with the Garnishee. See paragraphs 6(i), (ii), (iii), (iv), (v) & (vi) of the Garnishee said reply to the counter affidavit. Perhaps I should out rightly agree with and conclude to the Garnishee that the Police Service Commission (PSC) and the Judgment Debtor (Commissioner of Police) are two separate entitles. But that does not mean that they are not related. Although I also concede to the Garnishee that the said relationship between the two entitles may not make the said commission liable for the debt of the Commissioner of Police, it was not appear to me that that is the contention of the Judgment Creditor/Applicant in this case. It is not also because of the said relationship that the Judgment Creditor/Applicant is seeking to Garnishee the account in question. Instead, my understanding of the case of the Judgment Creditor/Applicant is that the account in question is in that operated and maintained by the Judgment Debtor in this case (not by the said Police Service Commission). Indeed, in paragraph 6 of his counter affidavit, the Judgment Creditor/Applicant has deposed positively to the fact that the Judgment Debtor is the sole signatory to the said account and in paragraph 8 or the said counter affidavit the judgment Creditor/Applicant has also deposed to the fact that the present Garnishee has been paying other creditors of the Judgment Debtor out of the account in question. The question is whether the Garnishee has derived the said averments of the Judgment Creditor/Applicant. I do not think it has. The only attempt to deny those facts is made in paragraph 5 of the Garnishee’s reply to the counter affidavit which it claims to be incorrect without more. That averment is to say the least evasive and therefore no legal denial of the said facts in issue. For an averment in a counter affidavit or reply to deny the facts to which it seeks to counter or deny, it is not enough to state as the Garnishee in the case has done that such facts are not correct or true. Instead such a counter affidavit or reply must not only specifically deny such – facts but must go a step further to state what, in the alternative, is correct or true as the case may be. This reasoning of the trial Court cannot with all respect be correct. A Bank Account as it is well known is a financial account maintained by the bank for a customer. Every bank in ordinary parlance, knows its customers. When a banker Garnishee asserts that the Judgment Debtor is not their customer and that their customer is someone else, the onus now shifts’ to the 1st Respondent who is insisting that the situation is otherwise to prove his position. In a Garnishee proceeding it must be underlined that what you have is an application with affidavit evidence. In that wise when a party denies anything on oath in an affidavit – it remains the party’s position and if there is no other convincing contrary evidence the Court cannot conjecture and rationalize to impute anything to the contrary. The fact as presented by the Garnishee accentuated by the statement of account at page 22 of the record of appeal showing account holder as AKS Command Ministry of Police Affairs is probably right. The analysis of the trial Court and the conclusion he reached that the Garnishee in this case is indebted to the Judgment Debtor, has no foundation in law and in fact. There is no evidence to sustain that the finding of the Court below.” Per STEPHEN JONAH ADAH, JCA ECOBANK v. UDOFIA & ANOR (2018) LPELR-45164(CA) (Pp 8 – 18 Paras D – E) |
RIGHT OF APPEAL – Who can exercise a right of appeal against a garnishee order: “The judgement debtor who did not object to the continuation of the garnishee proceeds after the delivery of the rulings dismissing the applications on 2-3-2017, cannot now on appeal contend that the trial Court should not have proceeded to determine the garnishee proceedings after dismissing the applications on 2-3-2017. In any case the appellant who is the judgment debtor, has not shown or suggested that it was prejudiced by the continuation and determination of the garnishee proceedings on 2-3-201. It is not the party to show cause in the garnishee proceedings and therefore not a necessary to the proceedings. The necessary parties to the garnishee proceedings are the judgment creditor and garnishee (the party to show cause). As a result, a judgment debtor has no right of appeal against any decision in the garnishee proceedings. See Denton-West V Muoma (2008) 6 NWLR (Pt. 1083) 418 at 442, Stanbic IBTC Bank PLC V Long Term Global Capital Ltd & Ors (2016) LPELR-40517 (CA) and NIMASA V Odey & Ors (2012) LPELR.” Per EMMANUEL AKOMAYE AGIM, JCA in TRINITY HOSPITALITY SOLUTIONS LTD v. EMIRATES HOTELS INTERNATIONAL HOTELS & SUITES LTD & ORS (2019) LPELR-48449(CA) (Pp 13 – 14 Paras E – C) |
ONUS TO SHAW CAUSE – On whom lies the onus to show cause why an order nisi should not be made absolute: “The law governing Garnishee proceedings and the onus placed on a Garnishee ordered to show cause by a Court, largely requires that a Garnishee be transparent and show by a Statement of Account of that named account and if any other account to satisfy the Court that there is nothing to hide. I must say that it is not the duty of a garnishee to protect the debtor by producing evasive or incorrect statement of account, after all they are merely custodians and not the owners of the said funds to be garnisheed. The first duty of a garnishee is to the Court that made the order. The earlier the banks or custodian of funds and the debtors/counsel representing debtors in any suit understands this point, the society and our jurisprudence will be better and richer for it. In ZENITH BANK PLC v OMENAKA [2016] LPELR-40327 (CA) the Court held per GEORGEWILL, JCA thus: “…the onus placed on a garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee order nisi does not exist in its system or if it exist it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer. See also UBN PLC v BONDY MARCUS INDUSTRIES [2005] ALL FWLR (PT 278) 1037 at 1046-1047; FIDELITY BANK PLC v OKWUOWULU (2012) LPELR-8492 (CA); CITIZENS INTER BANK v SCOA (NIG) LTD. [2006] 18 NWLR (PT 1017) 334…” In this case, I agree that the garnishee failed to discharge the onus on it to show successfully that there is no credit in the named account or any account system belonging to the debtor.” Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA in ACCESS BANK PLC v. ADEWUSI & ORS (2017) LPELR-43495(CA) (Pp 37 – 38 Paras D – F) |
Whether only the debt due to a judgment debtor from the garnishee can be paid over to the judgment creditor in a garnishee proceedings: on whom lies the onus of proving that the debt in the possession of the garnishee is that of the judgment debtor: “S. 83 (1) of the Sheriffs and Civil Process Act, Cap S6, LAWS OF THE FEDERATION OF NIGERIA, 2004 Law stipulates as follows: The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the cost of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. (underlining mine). It is trite that where words of a statute are clear and unambiguous, they should be given their ordinary grammatical meanings. See among several cases, DANGANA v. USMAN (2012) 49 NSCQR 1064. From the ordinary words of the unambiguous provisions in Section 83 (1) above, only the debt due to a judgment debtor from the garnishee can be paid over to the judgment creditor in a garnishee proceedings and onus of showing that the debt in the hands or possession of the garnishee is that of the judgment debtor, is on the applicant or judgment creditor. Where such onus is not discharged, the onus does not shift to the garnishee to show why the debt could not be paid. The debt in issue must have been shown by the applicant or judgment creditor to belong to the judgment debtor.” Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA in UWAK & ORS v. SAMPSON & ORS (2016) LPELR-41216(CA) (Pp 15 – 17 Paras D – B) |
PENDING APPEAL OVER ORDER NISI – Whether Court can grant a garnishee order absolute notwithstanding a pending appeal against a garnishee order nisi and an application for stay of proceedings: “The sole issue for determination in this appeal appears to be plain and therefore devoid of any ambiguity, it is the complaint of the Appellant that the lower Court ought not have made the garnishee order absolute, having regard to the fact that there is already pending before this Court, an appeal against the Order Nisi as well as an application for stay of proceedings. It is on record that the present appellant had filed an appeal against the refusal by the lower Court to set aside the garnishee order nisi vide Appeal No. CA/L/390/2013. The genesis of the dispute leading to the present appeal stems from the proceedings of 11th July, 2013 where the following transpired: “Judgment Creditor in Court A. F. Okunugo for the Judgment Creditor, Kelechi Onwuegbuchlem for the Judgment Defendant. Mrs. Okunuga:- My Lord pursuant to the Order Nisi, the Garnishee filed an affidavit saving (sic) cause that it has N20 Million 278,173.29 in its custody. I therefore ask my Lord to make the Garnishee Order Nisi Absolute. Court:- Are you aware of an application for stay of proceedings at the Court of Appeal. Mr. Okunuga:- My Lord I am aware. Court:- I shall stand this matter down to check the last ruling at this Court. Court: Recalls 12 p.m. A. F. Okunuga for the Judgment Creditor. Kelechi:- Announces his appearance: Mr. Kelechi Onuwuegbuchulem. This Court recorded your appearance in error. In view of the last ruling on the 6th of May, 2013. In that ruling this Court held that this proceeding remain strictly between the Judgment Creditor and the garnishee and can no longer admit any other person. In view of that ruling, the receipt of Judgment debtor’s Affidavit in support of their Judgment Debtor’s Application before the Court of Appeal was received by the registrar in error, as the Judgment debtor is not part of the pending proceedings. The Affidavit in the record in this Court in support of the Judgment debtor’s Motion on Notice in the Court of Appeal dated 21st day of May, 2013 is hereby struck off the record. The appearance of Kelechi Onwuegbechulem is also struck off the record. Court:- On close scrutiny of the records when this Court rose. This Court observed an omission on the records of the 16th of May, 2013. On that day Chief Okunuga you were not in Court but you’re the Judgment debtor and counsel from your chambers as well as Oluwotosin Ayeni for the and Garnishee were in Court. The record of the Court however read that the matter was to come up on 7th May, 2013. But counsel in Court informed the Court that was a mistake as the Court pronounce 6th May, 2012 & 7th. In spite of the record of all the parties agreed to proceed with the matter on the 6th May, 2012. The record at that date cought (sic) at that stages should have reflected that the date of 7th May was set aside. This was a minor slip, which this Court has the jurisdiction to set right. In view of the proceedings and the argument of parties by extension, the ruling of this Court delivered on the 11th day of March, 2013. The date of adjournment on the last paragraph as 7th May is corrected to 6th May, 2013. This 11th day of June, 2013 for the purpose of the ruling of 11th March, 2013 only I take notice that the Judgment debtors Counsel who is in Court is aware that the records have not been set strait (sic). Person as …………… the slip rule. Mr. Okunuga:- Thanks my Lord. I can confirm the position, and I was briefed on the proceedings and mix-up in the date Mr. Okunuga:- My Lord, the Garnishee has filed affidavit to show case dated 23rd October, 2012 that the Judgment Debtors Account has the sum at N20,378,473,92 in Credit balance as at 15th October, 2012. I urge this Court to make the Garnishee Order Nisi Absolute. RULING Court:- I have carefully examined the law and I am satisfied that this being a proceeding strictly between the Judgment Creditor and the Garnishee, after the garnishee has disclosed that to Judgment Debtor has the sum of N20,378,473.92 in credit balance, in his account with the Garnishee, and after the Judgment debtor has been put on Notice as required by law, all the requirement and conditions for the grant of Garnishee order absolute has been fulfilled. Accordingly, I hereby pronounce the garnishee order absolute…” It is obvious that the learned trial judge proceeded to grant the garnishee order absolute, resting his decision on the premise that the garnishee proceedings are strictly between the Judgment Creditor and the Garnishee, and the Judgment debtor, a stranger therein, who therefore lacks the locus to participate, interfere and or challenge the decision of the Court regarding the attachment of the sum due to the Judgment debtor with the Garnishee. Garnishee proceedings, are ipso facto, sui generis. Before now, the attitude of this Court had been to hold that the judgment debtor is not a party to the garnishee proceedings, in line with the decisions in P.P.M.C LTD v. DELPHI PET. INC. (2005) 8 NWLR (Pt. 928) 458; STAR DEEPWATER PETROLEUM LTD & ORS v. A.I.C. LTD & ORS. (2010) LPELR-9165 (CA). This is also the position adopted by the trial Court. 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. See also BAUCHI STATE WATER BOARD & ORS v. G. P. NIGERIA LIMITED (Unreported APPEAL No. CA/L/202M/2011) where this Court held inter alia that “in garnishee order nisi proceedings, which are ex parte in nature; only the Judgment Creditor and the Garnishee, are parties of this stage. A Judgment debtor is at best an interested party, who by law must obtain leave to appeal against an order nisi…” See also NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v. STEPHEN ADIODER & ORS (Unreported APPEAL NO. CA/C/45/2009). Similarly, in NIGERIAN BREWERIES PLC v. DUMUJE & ANOR (2015) LPELR-25583 (CA), this Court, per OGUNWUMIJU, JCA held and I quote as follows: “The implication of the above is that where there is payment by the garnishee into Court, consent of the judgment debtor is necessary to pay some to the judgment creditor. Where the garnishee does not pay until the return date, the Court shall hear both the judgment creditor and the judgment debtor if the latter appears in Court before making such “order in the proceedings (including an order as to costs) as may be just.” Even in cases where the garnishee disputes liability, the Court still has a duty to hear the judgment debtor just like the judgment creditor before determining the liability of the garnishee to pay out the amount to the judgment creditor. See Order VIII Rule 8(1) of the S & CPA. I agree with all amici in this case that any decision made on relevant parties in a garnishee proceedings post Order Nisi without advertence to the provisions referred to above is per incuriam. I am of the firm view that after the service of the Order Nisi on him, the judgment debtor may convince the Court by way of affidavit to discharge the Order Nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the origination process of the main suit or any other vitiating factor based on which the trial Court has the power to set aside its own judgment or even payment or liquidation of the judgment sum which is being sought to be realized by way of enforcement where the Court refuses to discharge the Order Nisi and make the Order Nisi Absolute, the judgment debtor, being a necessary party, can appeal as of right since the Order Absolute is regarded as a final decision of the Court. The emphasis here is the fairness of the judicial process. The right to fair hearing enshrined in S.36 of the 1999 Constitution only connotes that a party should be given the opportunity to be heard whether or not a party’s submission is accepted is entirely the Court’s prerogative. The service of the Order Nisi and all accompanying processes on the judgment debtor is not a matter of justifying righteousness. In my humble but strong view, it is a mandatory provision without which any subsequent judicial action would be rendered a nullity. In my humble view, the judgment debtor who is the owner of the money in possession of the garnishee has a right to be heard if he wishes before the garnishee order is made absolute. I am also of the strong but humble view that his right to be heard should not be at large. If not a Pandora’s box would be opened to enable the judgment debtor engage in all manner of activities that can abort the process and or make nonsense of the raison d’etre of the provisions and rules of Court in garnishee proceedings enacted for the express purpose of oiling the wheels of execution of liquidated money judgment. Therefore, it is my own humble conclusion that a judgment debtor is free to challenge the Order Nisi before the Court that made the order…” See also STANBIC IBTC BANK PLC v. LONG TERM GLOBAL CAPITAL LTD & ORS (Unreported APPEAL NO. CA/L/245A/2011) where this Court held: “Section 83(2) of the Sheriffs and Civil Process Act makes the service of the order nisi on the judgment debtor at least fourteen days before the hearing wherein the order nisi will be made absolute mandatory. The pertinent question to ask is, why must the judgment debtor be served copy of the order Nisi? I think the reason is not far-fetched, it is obviously to enable him appear in Court on the adjourned date to be so heard if he desires before the order is made absolute. The section makes it mandatory for the service of the order nisi on the Judgment debtor, which presupposes that he is a necessary party in the proceedings, service upon him of the order Nisi serves as an invitation to him (the Judgment Debtor) to enable him to be heard by the court before the order absolute is finally made… The implication of the above provision is that a judgment debtor in garnishee proceedings is required to be heard along with the judgment creditor and garnishee before an order nisi is made absolute….” The controversy in the instant case is not, as seen from the argument canvassed by the respective counsel, with regards to the failure or otherwise of the Appellant to obtain leave of Court, but stems from the decision of the lower Court to make the garnishee order absolute notwithstanding notice by the Appellant to the Court and the Respondent that the Appellant had already filed an appeal against the garnishee order nisi. The learned trial judge held the view that since the Appellant/Judgment debtor is not a party to the garnishee proceedings, he cannot be heard to complain. This conclusion is in my humble view misconceived and does not represent the correct position of the law. From the facts relevant to this appeal, it is clear that the learned trial judge did not consider the merits of the case put forward by the judgment debtor before making the garnishee order absolute, it appears from the records and in my view too, that the learned judge made up his mind that the judgment debtor not being a party to the garnishee proceedings, cannot be heard by the lower Court and the appearance of the counsel for the judgment debtor, who was perceived by the lower Court to be an interloper meddling in the proceedings in which he is not a party. It is on this ground that the lower Court ignored the judgment debtor, and therefore dispensed with the participation of the Appellant in the proceedings prior to the grant of the garnishee order absolute. Having found that he is a party to the suit, I have no hesitation in coming to the conclusion that the decision of the lower Court that the Judgment debtor is a stranger to the proceedings constitutes a grave misconception of the law and therefore occasioned gross miscarriage of justice in the circumstances. The failure by the learned trial Judge to grant audience to the Appellant is a grave infraction on the right of the Appellant to be heard, and so doing rendered the entire proceedings a nullity.” Per TIJJANI ABUBAKAR, JCA in DELTA STATE GOVT v. KAY QUE INVESTMENT LTD & ANOR (2018) LPELR-45545(CA) (Pp 8 – 19 Paras C – E) |
Whether garnishee proceedings is a separate and distinct proceeding: “Suit NO HEK/MISC.83/2011 were garnishee proceedings to which the Appellant/Respondent was not made a party. And, indeed, the Appellant/Respondent need not be made a party to garnishee proceedings; a garnishee proceeding being a separate and distinct action between the judgment creditor and the garnishee. This is notwithstanding the fact that it is the judgment debt that gave rise to the garnishee proceedings. However, the judgment debtor must be served with the order nisi. See: Section 83(2) Sherriff and Civil Process Act 1990: Cross River State Forestry Comm. vs. Anwan (2012) LPELR- 9479 (CA).” Per ONYEKACHI AJA OTISI, JCA in DOKUBO & ORS v. MOBIL PRODUCING NIGERIA UNLTD & ANOR (2013) LPELR-21951(CA) (Pp 29 – 29 Paras A – C) |
Whether Court can make an order nisi absolute against a garnishee who is not indebted to the judgment debtor: “The objective of a garnishee proceeding is to attach a debt owed the judgment debtor by a third party, the garnishee. The judgment debtor in the appeal here is the Inspector-General of Police. It is therefore the money owed him by the garnishee that can be attached by a judgment creditor through garnishee proceedings. The owner of the money in account number 2693645208 fixed with code number 9993022693645028 in the hands of the garnishee (the 1st Respondent) is the Nigeria Police Force and not the judgment debtor who as earlier mentioned, is the Inspector-General of Police. In the circumstances, the lower Court was quite right to have discharged its order nisi of 6/12/17.” Per OBIETONBARA OWUPELE DANIEL-KALIO, JCA in OKAFOR v. FCMB LTD & ANOR (2020) LPELR-51436(CA) (Pp 13 – 14 Paras D – B) |
Effect of failure of a garnishee to appear in Court to dispute/pay the debt owed: “Following the Exparte application dated 8/6/2015 which commenced the garnishee proceedings, the Court below upon taking the application filed at the instance of the respondent, granted their request hence the Court on the 25/6/15 made the order Nisi and directed same on the appellant, among other garnishee Banks to appear and show cause why the garnishee should not pay to the Judgment Creditor, the amount standing to her credit. This procedure is in line with provisions set out in Sections 83 and 86 of the Sheriff and Civil Process Act. Section 86 of the Act provides that: “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 cost of the garnishees 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.” It is apparent on the pages of the printed record of appeal that the appellant did not appear before the Court on 30th July, 2015 let alone make attempts to show cause as ordained by law. This Court in the case of Re: Diamond Bank (2002) 17 NWLR (Pt. 795) 120, 133 has set out the procedure parties are expected to follow for the sustenance of garnishee order in garnishee proceedings thus:- “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 exparte is adjudged to 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 Section 86 of the of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990…” Per Aderemi, JCA (as he then was) See further decision in Zenith Bank v. Igbokwe & Ors (2013) LPELR-21975 (CA). The appellant did not appear and did not also show cause hence the Court below rightly in my view made the order Nisi, absolute as it did on the 30th July, 2015.” Per SAIDU TANKO HUSSAINI, JCA in FIDELITY BANK PLC v. JERRAI INTERNATIONAL SECURITY SERVICE (2019) LPELR-48108(CA) (Pp 10 – 13 Paras C – D) |
Law governing garnishee proceedings and the onus placed on a garnishee ordered to show cause by a Court: “In considering the question whether or not the Appellant made out or showed cause why the Garnishee Order Nisi ought not to have been made absolute by the Court below, I think and deem it apposite to consider the relevant provisions of the law governing Garnishee proceedings and the onus placed on a Garnishee ordered to show cause by a Court. The relevant legislation is Section 83 of the Sheriffs and Civil Process Act; which succinctly provides thus: “The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant of his legal practitioners that judgment has been recovered and that it is still unsatisfied to what amount and that any other person is indebted to such debtor and is within the State, order hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with costs of the Garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who have obtained such judgment or order the debt due to from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with the costs aforesaid.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in ZENITH BANK PLC v. OMENAKA & ANOR (2016) LPELR-40327(CA) (Pp 27 – 28 Paras B – C) |
Status of the debt due or accruing to a judgment creditor upon service of the garnishee order nisi: “It is trite that service of a garnishee order nisi binds and attaches the money or funds of a judgment creditor in the hands of the garnishee and it becomes obligatory on the part of the garnishee not to release the money attached by the order unless and until it is directed by the Court to do so and this obligation to obey the Court’s order supersedes the garnishee’s duty to repay the judgment debtor the amount due to him – Central Bank of Nigeria Vs Auto Import Export (2013) 2 NWLR (Pt 1337) 80, Eco Bank (Nig) Plc Vs Guaranty Trust Bank Plc (2016) LPELR 40574(CA), First Bank of Nigeria Ltd Vs Jacob Agidi (Nig) Ltd (2018) LPELR 44997(CA). This is the import of Section 85 of the Sheriffs and Civil Process Act. There is nothing either in the wordings of Section 85 or in case law that suggests that the garnishee order nisi binds or attaches funds in the hands of a garnishee which had been taken out by a judgment debtor before the service of the garnishee order nisi.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in POLARIS BANK v. GUMAU & ORS (2019) LPELR-47066(CA) (Pp 42 – 43 Paras E – D) |
Effect of failure of a garnishee to appear in Court to dispute/pay the debt owed: “A conspectus of decided cases on garnishee proceedings reveal that little or no issues arise where a garnishee does not appear in Court to show cause or otherwise fails to make a return upon being served with a garnishee order nisi, in which case the Court is duty bound to proceed to make absolute the garnishee order nisi without further assurance. That is what S. 86 SCPA as well as the Supreme Court decision in UBN v. BONEY MARCUS INDUSTRIES LTD [2005] 13 NWLR (PT. 943) 656 at 666 enjoin the Court to do. Thus, a third party who fails to appear in Court or otherwise ignores a garnishee order nisi duly served on him does so at his own peril.” Per PETER OYINKENIMIEMI AFFEN, JCA in GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 13 – 13 Paras C – F) |
Whether a garnishee order absolute is a final decision: “Now dealing with the Appellant’s issue No. 1, which relates to the status of a trial Court after making a garnishee order absolute. That is to say, whether such Court has the power to vary or set aside such order upon an application by a garnishee. Judicial pronouncements in this aspect of the law are quite numerous. Firstly, it is the law that a garnishee order absolute whenever made, is final. It constitutes a final decision of the Court to all intents and purposes. See ODUTOLA VS. ODERINDE (2004) 12 NWLR (PT. 888) 574 and SUNNET SYSTEMS LTD. VS. NERC & ANOR (2014) LPELR 23967 (CA). A garnishee order absolute being a final order is appealable as of right and the only way by which a garnishee can ventilate his grievance against an order absolute is by way of an appeal. See ECOBANK PLC VS. AKAEHOMEN (2017) LPELR 43058 (CA). In SKYE BANK PLC VS. DAVID & ORS. (2014) LPELR 23731 (CA) this Court per Mbaba JCA held at pages 15 to 16 that: “Of course, a decision on a garnishee proceedings that makes an order Nisi (which infact is an interlocutory order) absolute, is a final judgment in the case on which an appeal lies as of right. See the case of Garba Vs. Ummuani (2012) LPELR 9841 (CA), on when a decision is interlocutory and when it is final, where it was held: “The Nigerian Courts have accepted and followed the latter test id est that where an order made by a Court finally determines the rights of the parties to an action, then it is final, and where it does not, then it is interlocutory. See Igunbor Vs. Afolabi (2001) 11 NWLR (Pt. 723) 148; Ogolo Vs. Ogolo (2000) 5 NWLR (Pt. 972) 163; Owoh Vs. Asuk (2008) 16 NWLR (pt. 1112) 113.” An order absolute is the final decision in any garnishee proceedings and a garnishee proceedings by its very nature is a suit taken out to enforce or execute the judgment of a Court and so it is a fresh and separate action from the suit that brought about the judgment debt.” See OCEANIC BANK PLC VS. OLADEPO (2012) LPELR 19676 (CA). In the case of UBA PLC VS. EKANEM & ANOR (2010) 6 NWLR (PT. 1190) 207, it was emphasised that an order of a trial Court refusing to discharge its garnishee order nisi and at the same time making it an absolute order is a final one and it is appealable as of right. It follows therefore that with the garnishee order absolute made by the lower Court on 15/12/15 the garnishee proceedings comes to an end. The lower Court having at this stage completely and finally determined the matter between the parties as far as the garnishee proceedings brought before it was concerned and it thenceforth becomes functus officio. There is nothing left for the Court to decide between the Appellant and the Respondent herein, including the motion on notice to vary the said order absolute. Except where it is shown that a garnishee order nisi or absolute is made without jurisdiction rendering the whole proceedings incompetent and void that an aggrieved party can apply to set it aside and the Court will have the power to consider same. See SUNNET SYSTEMS VS. NERC & ANOR supra. Barring such legal shortcoming a Court, upon making a garnishee order absolute becomes functus officio and the only option open to an aggrieved party is to appeal as of right. The case of UNION BANK OF NIGERIA PLC VS. BONEY MARCUS INDUSTRIES LTD. & ORS. (2005) 13 NWLR (PT. 943) 654 rightly cited by learned counsel for the Respondent as well as the lower Court aptly provides a germane elucidation on the principle guiding a garnishee order nisi and order absolute, wherein the Supreme Court held thus: “Applications for garnishee proceedings are made to the Court by the Judgment Creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman – France word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the Judgment Creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the Judgment Creditor. The Court thereafter becomes functus officio as far as that: (a) Matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him.” Furthermore, the Court held: (b) During that period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing. (c) Left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at that stage, being interlocutory would therefore not arise.” In the light of the above cited authorities, it is no doubt settled that a Court becomes functus officio upon pronouncement of a garnishee order absolute and lacks the power to revisit any issue pertaining thereof, thus leaving an aggrieved party with the only option of an appeal.” Per SAMUEL CHUKWUDUMEBI OSEJI, JCA in FBN v. JACOB AGIDI (NIG) LTD (2018) LPELR-44997(CA) (Pp 12 – 17 Paras E – C) |
Requirements of an applicant in garnishee proceedings; conditions to a valid garnishee proceedings: “Undoubtedly, by virtue of the provisions of Section 83 (1) & (2) of the Sheriffs and Civil Process Act (supra), debts may be attached by a garnishee order duly issued by a Court of jurisdictional competence. Thus, by virtue of Section 83 (1) (supra), it’s not at all in doubt, that a Court of competent jurisdiction can grant garnishee orders Nisi and absolute, to attach the debt owing and due from a third party who is indebted to the judgment debtor, thereby paying such money to the judgment creditor. See CBN VS. AUTO IMPORT EXPORT (2013) 2 NWLR (Pt. 1337) 80, wherein this Court emphatically reiterated the fundamental doctrine thus: For a garnishee proceedings to be valid, it is in arm bent upon the trial Court to ensure that the following conclusions have been duly satisfied:- (i) That the garnishee must be indebted to the judgment creditor within the state and be resident in the state in which the proceedings are to be brought. As such, if the debt is owed by some one outside the state, the proceedings are inapplicable. (ii) The proceedings should be filed, in any Court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate Section or Rule governing civilian magistrates Courts, as the case may be sue the garnishee in respect of the debt. Thus, the Court may not necessarily have to be the one that gave the judgment. It could be a magistrates Court and the fact that the debt exceeds the jurisdiction thereof notwithstanding. (iii) The application for the garnishee order shall be made ex parte. The Court if satisfied that the judgment creditor is distilled to attach the debt, shall make a garnishee order Nisi. See Order 8 Rule 3 (2) . (iv) The service of the order nisi thereon finds or attaches the debt in hands of the garnishee. Section 85 of the Sheriffs And Civil Process Act (supra). Per Saulawa, JCA, at 128 paragraphs A – D. See also BLACK’S LAW DICTIONARY, 9th Edition, 2009 at 749 – 750; UBA LTD VS. SGB LTD (1996) 10 NWLR (Pt. 708) 115 at 390; DUNLOP VS HANDALL (19957) 3 ALL ER 344; 347; WEB VS. STENTION (1883) 11 QBD 518; HOLLIBLY VS. HOLDGSON (1889) 24 QBD 103 at 108.” Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA in NIC v. OYEFESOBI & ORS (2013) LPELR-20660(CA) (Pp 27 – 29 Paras C – B) |
Whether the Court can grant a garnishee order where the account of the judgment debtor is domiciled outside the jurisdiction of the Court: “I shall start with the submission by appellant’s counsel that by virtue of Section 83(1) of the Sheriffs and Civil Process Act, for a garnishee order to issue, the garnishee must have the account of the judgment debtor within the state (where the Court is). 2nd garnishee’s counsel argued to the contrary. Section 83 (1) of the Sheriffs and Civil Process Act provides: “The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.” In the case of Central Bank of Nigeria v Auto Import Export, supra. this Court held that for garnishee proceedings to be valid – (i)The garnishee must be indebted to the judgment debtor within the state and be resident in the state in which the proceedings are to be brought. (ii) The proceedings should be filed in any Court in which the judgment debtor could under the High Court (Civil Procedure) Rules or under the appropriate section or Rules governing Civil Procedure in Magistrate’s Courts, as the case may be, sue the garnishee in respect of the debt. (iii) The application shall be made ex-parte. The Court if satisfied that the judgment creditor is entitled to attach the debt shall make a garnishee order nisi. (iv) The service of the order nisi on the garnishee binds and attaches the debt in the hands of the garnishee. The bone of contention is that the 2nd garnishee is not indebted to the appellant within Benue Sate. Counsel for the appellant invoked the case of Sokoto State Government v Kamdax (Nig) Ltd. (2004) 9 NWLR (Pt. 878) 345, 379 to show that where the debt is situate is an important factor for determination of the Court’s jurisdiction in respect of garnishee proceedings leading to the attachment of the credit balance of third persons in banks having branches within and outside jurisdiction. In the Sokoto State Government v Kamdax (Nig) Ltd case the judgment debtor had account with the Standard Trust Bank Ltd. (the garnishee) domiciled in Sokoto but the garnishee proceedings were commenced in the High Court of Lagos State; the order nisi was served on the garnishee’s registered office in Lagos State. It was argued by the garnishee’s counsel that the High Court of Lagos State had no jurisdiction. The case of Richardson v Richardson (1927) Probate 228 and another were relied upon. In his lead judgment, Aderemi, JCA (as he then was) did not follow Richardson v Richardson supra. but followed the decision of the Court of Appeal (England) in SCF Finance Co. Ltd v Masri (No. 3) (1987) 1 AER where Ralph Gibson L. J. reasoned: “The decision Richardson v Richardson is not binding on us and it seems to us that the relevant words in Order 49 Rule 1 …are not to be read as proposed by Hill J. in that case, Order 49 Rule 1 contains no express requirement that the garnishee be indebted within the jurisdiction and we see no reason to read in words to that effect. We accept that in a case where the garnishee is not indebted within the jurisdiction this may be relevant to the exercise of the Court’s discretion. Thus Scratton L. J. in Swiss Bank Corp. v Boehmische Industrial Bank (1923) 1KB 673 at 680 – 681 referred to the earlier decision of this Court in Martin v Nadel (Dresdner Bank garnishee) (1906) 2 KB (on which Hill J) had relied in Richardson v Richardson as a: ‘a decision … that the Court will not make absolute garnishee order where it will not operate to discharge the garnishee in whole or pro tanto from the debt; it will not expose him to the risk of having to pay the debt or part of it twice over. That is well established a principle of discretion on which the Court acts.” What is clear from the foregoing is that where the garnishee is not indebted to the judgment debtor within jurisdiction, that fact may be relevant to the exercise of the enforcing Court’s discretion (and not jurisdiction) to make the order absolute so long as the judgment debtor is within jurisdiction. The consideration in such an instance as was stated by Bankes, L. J, in Swiss Bank Corp. v Boehmische Industrial Bank supra. and quoted with approval in Sokoto State Government of Nigeria v Kamdax (Nig) Ltd. supra 377 – 378 ?is: “If the debt is situate, in other words if it is properly recoverable, in this country, then it would be discharged by payment under an order of our Courts and the garnishee need have no fear of being required to pay it a second time; but if the debt is situate, that is properly recoverable, in a foreign country, then it is not discharged by payment in this country; and the debtor may be called upon to pay it over again in the foreign Country.” Following the above, Aderemi, JCA, at page 378 reasoned that: “The debt has arisen this in country. The sum constituting the debt was held by a banker whose head office is in Lagos and the branch office where the judgment debtor has its funds is in Sokoto. The sum (debt) was held in Sokoto by the banker/garnishee for its customer the judgment – debtor and not payable until it was demanded in this country. The final demand was by order absolute even applying the equitable principles of tracing, such money when paid in a branch of the bank other than from the head office, it will be unconscionable to call on the bank, the 3rd appellant to re-pay it all over again.” His Lordship therefore resolved that the High Court of Lagos State could make a garnishee order nisi to bind an account in Sokoto State Branch of the garnishee bank. On this account, I hold the view that the lower Court had jurisdiction to issue the order nisi since the sum (the debt) is held by the 2nd garnishee within Nigeria and once payment is made in any part of the country (in this case Makurdi) there would be no danger of the 2nd garnishee being called upon to repay in Abuja or any other part of the country. Appellant’s counsel referred to page 379 of the Sokoto State Government case supra, where Galadima, JCA, as he then was, stated that “The long established principle in garnishee proceeding is that where the debt is situate determines the jurisdiction of the trial Court: and it is a guide to garnishee proceeding leading eventually to the attachment of the credit balance of the third party. Moreso, in a bank having branches within and outside the Court jurisdiction. See Richardson v Richardson (1927) All ER (Rep.) One of the principles enunciated in this case is that under the contract between banker and customer the promise of the bank is to repay the money received from the customer at the branch of the bank where the customer’s account is kept. As already noted, where a creditor seeks to garnishee bank balances of her debtor these balances cannot be made the subject of the garnishee order because they are not debts recoverable within the jurisdiction. It is therefore advisable for the Courts to advert to where the debt to be attached is situated.” The dictum above was in a large part based on the case of Richardson v Richardson supra. in which it was held that under the contract between the banker and its customer, the promise of the bank is to repay the money received from the customer at the branch where the customer’s account is kept (that is domiciled). I have already shown that Aderemi JCA, in his lead judgment followed the Court of Appeal (England) in its decision in SCF Finance Co. Ltd v Matri supra. which refused to be bound by the Richardson’s case. Besides the world has since moved on from the era of analogue banking to the era of digital banking. The Court must move on with the world or keep step with the dynamism of the world so that it (the Court) will not be left behind by the world and so become a fossilized behemoth irrelevant to the modern times. In Packer v Packer (1954) All ER 15 – 22 Lord Denning MR. deplored a situation where, “The law will stand still while the rest of the world goes on; and that will be too bad for both.” It will be stating the obvious to say that by the development of on-line banking system, a customer of a bank can obtain payment at any branch of his bank anywhere in the country and not necessarily in the branch where the account is domiciled. The result is that the contract between the banker and its customer has gone beyond what was obtainable in 1927 when Robinson v Robinson was decided and even up to the recent past. Now the contract carries with it a promise to repay the money of the customer anywhere that the banker has a branch. The Court as I have already said cannot close its eyes to developments in the banking sector including on- line banking. See Mudiaga – Odje v Younes Power System Nigeria Ltd (2014) 5 NWLR (Pt. 1400) 412, 433 and Federal Republic of Nigeria V Fani – Kayode (2010) ALL FWLR (Pt. 534) 181. If a customer can obtain payment of his money in any branch of his bank, he can also sue in the state where such a branch is situate if payment is wrongly refused. In a garnishee proceeding, the judgment creditor steps into the shoes of the judgment debtor. It follows therefore that if the judgment debtor/appellant can have repayment of its money in the Makurdi Branch of the garnishee and can sue in Makurdi if there is wrongful refusal of payment, the judgment creditors/respondents having stepped into its shoes, can also have payment in Makurdi and sue thereat if there is wrongful refusal of payment. Counsel for the 2nd garnishee was therefore right in submitting at page 12 par. 5. 01 of her brief of argument that “…in view of giant strides and great technological advancement attained in banking operations in recent times, resulting in innovations of online banking and having regard to the clear provisions of S. 83 (1) of the Sheriffs and Civil Process Act CAP S 6 LFN, 2004, the lower Court had the jurisdiction to issue the garnishee orders subject matter of this appeal. As regards Sections 104 – 107 of the Sheriffs and Civil Process Act which deal with registration of judgment for enforcement in a State other than the one in which it was given, it is my view that they do not apply to the instant matter. This is because the judgment that was sought to be enforced is the judgment of the lower Court and in view of the position I have expressed above regarding the jurisdiction of the Court.” Per JOSEPH EYO EKANEM, JCA NICON INSURANCE PLC v. NASARA & ORS (2019) LPELR-47614(CA) (Pp 14 – 24 Paras D – B) |
Requirements of an applicant in garnishee proceedings; conditions to a valid garnishee proceedings: “Undoubtedly, by virtue of the provisions of Section 83 (1) & (2) of the Sheriffs and Civil Process Act (supra), debts may be attached by a garnishee order duly issued by a Court of jurisdictional competence. Thus, by virtue of Section 83 (1) (supra), it’s not at all in doubt, that a Court of competent jurisdiction can grant garnishee orders Nisi and absolute, to attach the debt owing and due from a third party who is indebted to the judgment debtor, thereby paying such money to the judgment creditor. See CBN VS. AUTO IMPORT EXPORT (2013) 2 NWLR (Pt. 1337) 80, wherein this Court emphatically reiterated the fundamental doctrine thus: For a garnishee proceedings to be valid, it is in arm bent upon the trial Court to ensure that the following conclusions have been duly satisfied:- (i) That the garnishee must be indebted to the judgment creditor within the state and be resident in the state in which the proceedings are to be brought. As such, if the debt is owed by some one outside the state, the proceedings are inapplicable. (ii) The proceedings should be filed, in any Court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate Section or Rule governing civilian magistrates Courts, as the case may be sue the garnishee in respect of the debt. Thus, the Court may not necessarily have to be the one that gave the judgment. It could be a magistrates Court and the fact that the debt exceeds the jurisdiction thereof notwithstanding. (iii) The application for the garnishee order shall be made ex parte. The Court if satisfied that the judgment creditor is distilled to attach the debt, shall make a garnishee order Nisi. See Order 8 Rule 3 (2). (iv) The service of the order nisi thereon finds or attaches the debt in hands of the garnishee. Section 85 of the Sheriffs And Civil Process Act (supra). Per Saulawa, JCA, at 128 paragraphs A – D. See also BLACK’S LAW DICTIONARY, 9th Edition, 2009 at 749 – 750; UBA LTD VS. SGB LTD (1996) 10 NWLR (Pt. 708) 115 at 390; DUNLOP VS HANDALL (19957) 3 ALL ER 344; 347; WEB VS. STENTION (1883) 11 QBD 518; HOLLIBLY VS. HOLDGSON (1889) 24 QBD 103 at 108.” Per IBRAHIM MOHAMMED MUSA SAULAWA, JCA in NIC v. OYEFESOBI & ORS (2013) LPELR-20660(CA) (Pp 27 – 29 Paras C – B) |
Whether when a Garnishee Order is made absolute the Garnishee may appear to show cause why he should not pay to the person who has obtained the judgment: “It is trite that whenever a Garnishee Order is made absolute, the Garnishee may appear to show cause why he should not pay to the person who has obtained the judgment. See UBA PLC VS. EKANEM (2010) 6 NWLR (Pt. 1190) 207.” Per JOSEPH JUDE JELLA, JCA in ECOBANK v. ETTE & ORS (2014) LPELR-23444(CA) (Pp 8 – 9 Paras F – A) |
What constitutes valid discharge of a garnishee order: “Section 91 of the Sheriff and Civil Process Act states that payment made by a garnishee in compliance with a garnishee order absolute constitutes a valid discharge against a judgment debtor to the extent of the amount paid, notwithstanding that the garnishee order or the judgment is subsequently set aside.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in SKYE BANK PLC v. HARUNA & ORS (2014) LPELR-41078(CA) (Pp 55 – 55 Paras D – F) |
Essence of calling upon a garnishee to show cause why an order nisi should not be made absolute: “The essence of calling upon the Garnishee to show cause as in the instant appeal is to determine if the judgment debtor truly has some funds with the Garnishee or that the sum with the Garnishee has not been attached to any other debtor or lien which will take priority to that of the Judgment creditor such as in the instant appeal.” Per ABUBAKAR SADIQ UMAR, JCA in GTB PLC v. GOLD MART INTL LTD & ORS (2021) LPELR-54882(CA) (Pp 23 – 23 Paras C – D) |
Duty of judgment creditor to supply necessary materials to show that a garnishee is indebted to the judgment debtor; whether a garnishee bank can request for the BVN and other details of the judgment debtor: “…I must confess that I struggle with the thought process and the ensuing judicial reasoning of the lower Court. Since the 1st Respondent (qua Judgment Creditor) did not provide any BVN and none is contained in the garnishee order nisi served on the Appellant (qua 13th Garnishee), it is difficult in the extreme to appreciate how the judgment debtor’s identity could be settled by reference to a BVN that was not supplied. Since every account holder has or is expected to have a BVN, it stands to reason that it is if, and only if, the BVN of a particular customer is made available to the bank that his identity can be traced with the aid of that BVN. But where no BVN is supplied as in the instant case, and all the customers of the bank with similar names equally have BVNs, then cadit quaestio! How can BVN settle the issue of identity of any of the customers with similar names? The answer is flying in the wind, and I take the considered view that the lower Court ought to have been a lot more circumspect in order to be reasonably assured, nay satisfied, that the Appellant (13th Garnishee) was actually indebted to that particular judgment debtor [i.e. that the judgment debtor maintains an account with the garnishee] before recording a garnishee order absolute. Whilst the law enjoins a garnishee to make full and frank disclosure of funds of a judgment debtor in his custody, not setting out the different accounts with similar names in the Appellant’s affidavit to show cause per se does not justify the hasty conclusion reached by the lower Court. This is so because the burden to supply necessary materials showing that the Appellant was indebted to the judgment debtor lies on the 1st Respondent but not the Appellant; and given the confidential nature of the banker-customer relationship, no legal duty is imposed on the Appellant to disclose the identity and other details of its several customers with similar names as the judgment debtor. An analogous scenario arose in ACCESS BANK PLC v. CHIDI OBIEFUNA (2020) LPELR-49855(CA) where the appellant (garnishee) requested for the BVN and photograph of the judgment debtor because there were several customers with similar names in its database, but the respondent (judgment creditor) insisted that BVN settled the issue of identity of a bank customer and the garnishee was merely shielding the funds of the judgment debtor in its custody. It was held (per B. M. Ugo, JCA) that the burden of proof, which includes the burden to supply necessary materials showing that the garnishee is indebted to a judgment debtor, rested with the judgment creditor, and that it is only when the judgment creditor discharges that duty by supplying necessary materials such as BVN or photograph to enable the garnishee identify the judgment debtor that the issue of whether the appellant shielded the true state of the said judgment debtor’s account would arise. The Court not only held that a further affidavit of some sort by the respondent (judgment creditor) was expedient if he did not agree with the assertions of the appellant (garnishee) in his affidavit, but described as preposterous the suggestion that the appellant should have produced the photograph and bank details of customers with similar names who are entitled to some secrecy in their dealings with the appellant bank, insisting that it was the respondent’s duty to supply the judgment debtor’s BVN and the lower Court was mistaken to have “turned the burden of proof upside down and reasoned that appellant’s should have sorted out the said accounts with BVN. Tracing of accounts through Bank Verification Number (BVN) even by a Bank cannot be done on a void as suggested by the lower Court; it is common knowledge that it is only when a particular customer’s BVN Number is known that anyone interested in knowing his other accounts can trace them”. I kowtow. I cannot agree less. I cannot agree more.” Per PETER OYINKENIMIEMI AFFEN, JCA in GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 27 – 30 Paras A – D) |
Nature and procedure of garnishee proceedings: “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).” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in ZENITH BANK v. ABAZU & ORS (2021) LPELR-55677(CA) (Pp 30 – 36 Paras E – A) |
Principles governing garnishee proceedings; meaning of a suspense account: “Lord Denning MR aptly explained garnishee proceedings in the English Court of Appeal case of Choice Investments Ltd. v. Jeromnimon (Midland Bank Ltd., garnishee) (1981) 1 All ER 225 at 226 – 227 thus – “The word ‘garnishee’ is derived from the Norman-French. It denotes one who is required to ‘garnish’, that is, to furnish, a creditor with the money to pay off a debt ….. There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman- French. It means ‘unless’. It is an order on the bank to pay the (judgment debt) to the judgment creditor or into Court within a stated time unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for one reason or other. Or if payment to this creditor might be unfair by preferring him to other creditors: see Pritchard v Westminster Bank Ltd [1969] 1 All ER 999, [1969] 1 WLR 547 and Rainbow v Moorgate Properties Ltd [1975] 2 All ER 821, [1975) 1 WLR 788. If no sufficient reason appears, the garnishee order is made absolute, to pay to the judgment creditor, or into Court whichever is the more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer, just as if he himself directed the bank to pay it. ….. As soon as the garnishee order nisi is served on the bank, it operates as an injunction. It prevents the bank from paying the money to its customer until the garnishee order is made absolute, or is discharged, as the case may be. It binds the debt in the hands of the garnishee, that is, creates a charge in favour of the judgment creditor: see Joachimson v Swiss Bank Corpn [1921] 3 KB 110 at 131, [1921] All ER Rep 92 at 102, per Atkin L J. The money at the bank is then said to be ‘attached’, again derived from Norman-French. But the ‘attachment’ is not an order to pay. It only freezes the sum in the hands of the bank until the order is made absolute or is discharged. It is only when the order is made absolute that the bank is liable to pay.” See also the Supreme Court case of Union Bank v. Boney Marcus & 2 Ors. (2012) 1 BFLR 635 which relied on the English Court of Appeal case of Choice Investment Ltd. v. Jeromnimon (supra), per Akintan, J.S.C. (as His Lordship was). A garnishee proceeding is therefore sui generis and is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor; it is on that account a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor. Although garnishee proceedings is an offshoot of the judgment that pronounced the debt owing, the role of a garnishee is, however, to conscientiously and truthfully disclose the judgment debtor’s state of account in the custody of the garnishee and satisfy the Court why the funds in possession of the garnishee belonging to the judgment debtor should not be garnished to pay the judgment debt. Consequently, it is not the garnishee’s business to play the role of and/or to shield and protect the money of the judgment debtor by latching onto the money or asset of the judgment debtor in the custody of the garnishee that does not belong to the garnishee and/or of which the garnishee has no lien over vide C.B.N. v. Interstella Communications Ltd. (2018) 7 NWLR (pt. 1618) 204 following the cases of UBA Plc. v. Ekanem (2010) 6 NWLR (pt. 1190) 207, Oceanic Bank Plc. v. Oladepo (2012) I-PEI-R – 19670; see also Union Bank of Nigeria Plc. v. Boney Marcus Ind. Ltd. (2005) 13 NWLR (pt. 943) 654, GTB Plc. v. Innoson (Nig.) Ltd. (2017) 16 NWLR (pt. 1591) 181. The amount of the judgment debtor’s credit in the 2nd respondent’s bank account with the appellant was accordingly, property of the judgment consisting of a debt, the appellant being the person in debt, and the credit balance therefore properly garnished; because the credit balance consisted a debt payable by the appellant to the 2nd respondent on demand by it and as such service of the attachment or garnishee order on the appellant was a validly sufficient demand to garnish the credit balance in the account vide Flione v. Oladipo In Re Barclays Bank Garnishees (1934) 11 NLR 168. The rationale for garnishee proceedings was stated by Sir Charles Hall, Vice Chancellor. in the Old English case of In Re Cowans Estate – Rapier v. Wright (1880) 14 Ch. Div 638 to the effect that the good sense of it is that such money ought to be of the creditor and that the remedy by attachment ought to receive a favourable construction by enabling the judgment creditor resort to such money. See also Joachimson v. Swiss Bank Corporation (1921) L. R. 3 K.B.D. 110. ‘Suspense account’ is an English phrase. One does not need a witness to orally explain the said English phrase. The Court is also entitled to look up the definition of the phrase ‘suspense account’ in an English Dictionary vide the case of Benjamin v. State (2019) 15 NWLR (pt. 1696) 541 where the Supreme Court held inter alia that a Judge can use any book, authority or any writing relevant to the case to arrive at justice in the case. The fact that one of the parties was in doubt about its definition could therefore, be cleared by looking up the phrase in an English Dictionary. Its definition may be found in Webster Comprehensive Dictionary (International Edition) page 1264, for example, where it is defined as an account in which charges or credits are entered temporarily pending determination of their proper place. There is, in addition, the apt proposition made by Mr. S.A. Talabi in his useful book – Practice of Banking in Nigeria (2009 Edition) at page 142 – to the effect that a suspense account is any money of the judgment debtor put in a suspense account pending its transfer to a beneficiary or awaiting some conditions precedent to its movement to the beneficiary as lawful money of the judgment debtor and; that, a garnishee order against the judgment debtor before the money is effectively transferred to the beneficiary will accordingly, attach such fund in the suspense account relying on the case of Ayuba v. Ogunleye and Sangoranti (Trading as Egbado Co.) v. Bank of America Incorporated (1970) (omitting the full citation). A suspense account is thus an interim or transit or transitional account operated by a customer with his bank. It does not therefore, require oral evidence, nor does it call for an issue of fair hearing to determine the meaning of a ‘suspense account’ as erroneously contended by the appellant.” Per JOSEPH SHAGBAOR IKYEGH, JCA in STANDARD CHARTERED BANK (NIG) LTD v. OLADUNNI & ANOR (2020) LPELR-51659(CA) (Pp 8 – 13 Paras A – D) |
Nature of garnishee proceedings; whether leave of Court is required for a judgment debtor to appeal against a garnishee order nisi: “The first issue in the preliminary objection was the propriety or otherwise of the Appellant’s Notice of Appeal wherein he was said not to be a party to the garnishee proceeding from which the appeal emanated from, and which thereby deny this Court of the requisite jurisdiction to hear the appeal as presently constituted. The Respondent relied heavily on several cited judicial authorities, to press home the assertion that the Appellant herein as a Judgment Debtor cannot appeal the Garnishee Order Nisi as made in the ruling of the lower Court dated 9/7/2012 in the garnishee proceedings instituted by the Respondent as a Judgment Creditor in an earlier judgment of the lower Court delivered on 19/12/2011 which is already a subject of a sister appeal before this Court. The Respondent also argued that the instant appeal is bound to be consigned to the academic realm devoid of any live issue left in it with the institution of the sister appeal in Appeal No CA/L/463M/2012. I view it as incumbent on this Court to commence the resolution of this issue by an examination of how the law “sees” garnishee proceedings, as this has generated lingering contention in legal discourse in recent time. It is to be noted that a garnishee proceeding is a specie of proceeding held to be separate and a distinctive from the substantive suit, it is principally a proceeding between the judgment creditor as “Garnishor” and a third party “the Garnishee” in whose custody is the funds or debt due or accruing to the Judgment Debtor. See: IBETO PETROCHEMICAL IND LTD V TOTAL NIG PLC (2016) LPELR-41457(CA) and STANBIC IBTC BANK V LONG TERM GLOBAL CAPITAL LTD & ORS: (2016) LPELR-40517(CA). In the context of our adjectival principles and practice, a garnishee proceeding is sui generis being in the class of its own. See: FIDELITY BANK PLC V OKWUOWULU & ANOR (2013) 6 NWLR (Pt 1349) p 197. A garnishee proceeding is primarily provided for in the Sheriff and Civil Process Act, Cap S6, LFN 2004, (SCPA), and the Judgment (Enforcement) Rules to the Act. From the combined construction of the foregoing statutes, it is obvious that the garnishee proceeding is a mode prescribed by the Act and the rules of enforcing by judicial process, the recovery of a money judgment by the seizure or attachment of the assets or judgment debts due or accruing to the judgment debtor in the lawful custody of the garnishee who most often is a bank or financial Institution and which forms part of his property in execution of the money judgment against the judgment debtor. Conversely, it could be said to be a process leading to the attachment of judgment debt owed to a judgment creditor by a third party who is indebted to the judgment debtor. See the case of GTB V INNOSON NIG LTD (2017) LPELR-42368(SC) and FIDELITY BANK V ONWUKA (2017) LPELR-42839(CA). The apex Court reiterated that, by the process in garnishee proceeding, the Court has power to order a third party to pay directly to the judgment creditor, the debt due or accruing due from him to the judgment debtor, or as may be sufficient to satisfy the amount of the judgment. See: CITIZENS INTERNATIONAL BANK V SCOA NIG LTD (2006) 18 NWLR (Pt 1011) @ 334. In essence, the proceeding of this nature is to facilitate the judgment creditor’s right to take the benefit in order to enjoy the fruit of his judicial victory on the strength of the judgment in his favour. He is enjoined to take a swift step at achieving this by instituting a garnishee proceeding by way of an Ex parte application. See: Section 83(1) of the Sheriffs & Civil Process Act, (SCPA). As provided in the said Act, two major steps are involved in garnishee proceedings, to wit: the grant of garnishee order nisi; and the subsequent order absolute. Usually, the Order Nisi granted on an Ex-parte application is directed at the third party who is indebted to, or in custody of the judgment debtor’s funds, id est the Garnishee, and the order is to ensure that the said third party holds the sum covered by the application in the interim and usually within a stipulated time pending when the said order may be pronounced absolute upon which it becomes payable to the Judgment Creditor unless the Garnishee is able to show cause why the funds cannot be so deployed into paying the Judgment Creditor, in event of which the Order Nisi is discharged. The garnishee is duty bound only to satisfy the Court, vide Affidavit evidence on a return date, why the funds in its custody belonging to the judgment debtor should not be garnished to pay the judgment debt. See the case of UNION BANK OF NIGERIA PLC V BONEY MARCUS IND LTD. The foregoing is, in my respectful view, the concise highlight of the garnishee proceedings under the Act and the Rules made thereto. I have endeavored to look closely into the records before the Court vis a vis the parties’ arguments on this issue. I am equally not unaware of the raging controversy on this same subject to which series of pronouncements have been made by the appellate Courts and the likelihood of being interpreted diversely. I am of the respectful view that it is high time the issue is settled for certainty in the jurisprudence of judgment enforcement via garnishee proceedings. ?It is well settled that garnishee proceeding, at the first stage, which is the order nisi stage, is between the judgment creditor and the garnishee and no more. See: PPMC LTD V DELPHI PETROLEUM INC (supra). But my Lords, one needs to ask at this stage “whether the judgment debtor like the instant Appellant is intended to be shut out of justice?” In my opinion, the intendment of the law in garnishee proceedings, is to enable the judgment creditor primarily to take the benefit of fruits of his victory by judgment delivered after inter-parte hearing of the suit. See: NAOC LTD V OGINI (supra). It is thus far from being an arm-twisting ploy to unjustly enrich the judgment creditor of undeserved proceeds from his adjudged money judgment. In the specific address to the parties’ argument in the instant appeal, it is important to note again, the provision of Section 83 (2) of the Sheriff and Civil Process Act that, once a garnishee order nisi is granted, a copy of the order as issued, is required to be served on the judgment debtor at least fourteen (14) days before the date of hearing. It is obvious that the service of the order nisi on the judgment debtor is indeed a condition precedent to the subsequent hearing and probably the granting of the order absolute, failure of which may be fatal to the case of the judgment creditor. See the case of CROSS RIVER STATE FORESTRY COMMISSION & ANOR V ANWAN & ORS (2014) All FWLR (Pt 712) 1823 @ 1830. The learned trial judge’s view in his ruling that the judgment debtor is a mere stranger to the garnishee proceeding appears to be acceptable, if only to the point at which the order nisi was to be granted being a statutory Ex parte application. The position however, may be different if the Judgment Debtor was not subsequently served with the order nisi, which should allow him to be heard, if he so desired. See GTB V INNOSON (supra). The service on him is not merely formalistic in order to “fulfill all righteousness”, but an undoubted and a mandatory requirement of the law. See: Section 83(2) of the Sheriff and Civil Process Act, WEMA BANK PLC V BRASTEM-STERR NIG LTD (supra), UBA PLC V EKANEM (supra) and FBN PLC V FCMB PLC (supra). This proposition is also in tandem with the Constitutional provision to uphold the rights of any such litigants to be heard before any determination that will affect his interest is made. See Sections 6 (6) (b) & 36 (1) of the Constitution, 1999 (As Amended). It is to be noted that this Court in its recent judicial decisions, has pronounced emphatically that a judgment debtor is indeed a necessary party in a garnishee proceeding and may take step to seek the protection of Court for his funds which is being attached for the satisfaction of the judgment debt. See: NIGERIAN BREWERIES V DUMUJE (2016) 8 NWLR (Pt 1515) 536 @ 599 and UNIVERSITY OF LAGOS V OLUWASANMI amongst others. For the reason of emphasis, it must be stated that, prior to the stage at which the judgment debtor is served with a copy of order nisi made at the hearing of the Ex parte application as demanded by law, a judgment debtor is not a party to the garnishee proceedings, at that stage as he is not required as a party to show cause. The order is directed at the garnishees in whose custodies are funds owing or accruing to the judgment debtor. Beyond this stage, the judgment debtor may take the opportunity to convince the Court to discharge the order nisi by filing affidavits to that effect. See:N.A.O.C LTD V OGINI (supra). It is instructive to note at this juncture, that the Appellant herein appealed against the order nisi in the garnishee application of the Respondent, and as I have adverted your Lordships’ attention earlier, the Appellant lacks locus to bring such an appeal as of right, being not a party to the garnishee proceeding at that stage when the order nisi was made. The Appellant could only bring this appeal by leave of either the trial Court or that of this Court. See: the provision of Section 243 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) and decision in IBETO PETROCHEMICAL IND LTD V TOTAL NIG PLC (supra). I am inclined to resolve issue one of the Preliminary Objection in favour of the Respondent, in that, the required leave of Court was not obtained to institute the instant appeal, the appeal is not validly brought before the Court. I so hold.” Per GABRIEL OMONIYI KOLAWOLE, JCA in IBRAHIM v. ECOBANK (2019) LPELR-47969(CA) (Pp 13 – 21 Paras C – D) |
What a garnishee proceeding entails; whether the garnishee can contest the merits of the judgment culminating in the judgment debt: “Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. The third party holds the debt or property of the Judgment Debtor. By this process, Court orders the third party to pay directly to the judgment creditor, or to the Court by the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of phrases Legally Defined 3rd Edition Vol.2, pages 313- 314 cited by Akintan, JSC, in his concurring judgment inUNION BANK OF NIGERIA PLC. v. BONEY MARCUS INDUSTRIES LTD. (2005) 13 NWLR (Pt.943) 654 at page 666. Lord Denning, MR, in CHOICE INVESTMENT LTD. v. JEROMINIMON (1981) QB 149 at 154-155, gives a simple illustration of garnishee proceeding thus: “A creditor is owed 100 pounds by a debtor. The debtor does not pay. The creditor then gets judgment against him for the 100 pounds. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank, and that he has 150 pounds at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the [judgment creditor] out of the customer’s 150pounds the 100pounds which he owes to the creditor.” The master of the Rolls went on, in the case, to state further: “There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay 100pounds to the judgment creditor, or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See PRITCHARD V. WESTMINISTER (1969) 1 ALL ER 999 and RAINBOW v. MOORGATE PROPERTIES LTD. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it.” I did this detour for a purpose. That is, to show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to.” Per FATIMA OMORO AKINBAMI, JCA in FBN v. DILLY (2021) LPELR-55833(CA) (Pp 10 – 12 Paras A – D) |
Conditions that must be met for a Court order to be effective as a garnishee order: “Section 83 of the Sheriffs and Civil Process Act Cap S6 Law of the Federation of Nigeria, 2004 which is in pari material with Section 80 of the Sheriffs and Civil Process Law Cap 55 Law of the Cross River State of Nigeria 2004 provides: “The Court may upon a Motion ex-parte application of any person who is entitled to the benefit of a Judgment for the recovery of money person, herein after called the Garnishee to such debtor shall be attached to satisfy the Judgment or order together with the costs of the Garnishee proceedings and by the same or and subsequent order it may be ordered that the Garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such Judgment or order the debt from him to such debtor or so much thereof as may be sufficient to satisfy the Judgment or order together with costs aforesaid” For a Court order to be affective as a Garnishee order vis-a-vis the above provisions of the Act, it must possess the following characteristics. 1. Order the debt owing from a 3rd person, called the Garnishee to a debtor shall be attached to satisfy the Judgment or order and shall by the same or any subsequent order. 2. Order that the Garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such order the debt due to him to such debtor” See the case of U.B.A Ltd. vs. SGB Ltd. (1996) 10 NWLR (Pt.478) 381 at 390.” Per PAUL OBI ELECHI, JCA in FBN v. UDOKA & ORS (2015) LPELR-25835(CA) (Pp 36 – 37 Paras D – E) |
Whether Court can make an order nisi absolute against a garnishee who is not indebted to the judgment debtor: “In law, a Garnishee proceeding is one of the means or ways by which judgment is enforced. The Court below was thus under a legal duty to ensure that such a judgment is enforced in line with the provisions of the law governing Garnishee proceedings and to be satisfied that the Garnishee is indebted to the judgment debtor and which sum is liable to be attached in total or part satisfaction of the judgment debt due to the Garnishor. Once, it is clear to the Court, therefore, on the materials placed before it by a Garnishee, that it is not in any way indebted to the judgment debtor or rather that it is the judgment debtor that is indebted to it, that is the end of the matter as no Court is at liberty to make an order nisi absolute against a Garnishee who is not indebted to the judgment debtor or is rather a creditor also to the judgment debtor. See Wema Bank Plc. V. Brastem Sterr Nigeria Ltd. & Anor (2010) LPELR 9166 (CA). See also Sokoto State Govt. V. Kamdex Nig. Ltd (2004) 9 NWLR (Pt. 878) 345; Re: Diamond Bank Ltd (2002) NWLR (Pt. 795) 120.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in ZENITH BANK v. KANO & ORS (2016) LPELR-40335(CA) (Pp 19 – 20 Paras C – B) |
Whether the consent of the Attorney General is required to attach by Garnishee the funds held in the custody of a public officer: “There is no doubt the requirement that the consent of the Attorney General must first be sought and obtained before commencement of Garnishee proceedings against government has been a contentious aspect of the law and practice of Garnishee proceedings. The legal requirement for the Attorney General’s consent is donated by Section 84(1) of the Sheriffs and Civil Process Act, LFN 2004 which provides: 84(1): “Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order shall not be made under the provisions of the last proceeding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public offices or of the Court in the case of money in custodia legis, as the case may be”. It is patently clear that the Garnishee/Appellant in this matter is the Central Bank of Nigeria, a public service within the intendment of Section 318(1) of the Constitution of the Federal Republic of 1999 (as amended). The Central Bank of Nigeria is a bank to the Federal Republic of Nigeria, ministries, departments and agencies of the Federal Government. It is the official banker of the Federal Government of Nigeria. It is, therefore, imperative that the consent of the Attorney General of the Federation must first be sought and obtained before the money in custody or control of the CBN can be attached by Garnishee proceedings. The consent of the Attorney General of the Federation is a condition precedent to the commencement of the Garnishee proceeding; the CBN being a public officer under Section 318 of the Constitution of the Federal Republic of Nigeria and a public body created and regulated by an Act of the National Assembly. The money in question is in control of a public officer in her official capacity. The consent of the Attorney General is indispensable in the circumstance. Failure to obtain this consent renders the Garnishee nisi order unsustainable.” Per ADEMOLA SAMUEL BOLA, JCA in CBN v. ANWAN & ORS (2021) LPELR-56075(CA) (Pp 14 – 16 Paras F – D) |
Requirements of an applicant in garnishee proceedings; conditions to a valid garnishee proceedings: “There was no basis for the making of the Order nisi absolute. In the first place the facts that must exist to warrant the making of the garnishee Order nisi under S. 83 (1) of the Sheriffs & Civil Process Act Cap 56 Vol. 14 LFN 2004 (S. 82(1) Sheriffs and Civil Process Law 1991 Revised Edition of Laws of Anambra State) did not exist in this case. The said provision states that “the Court may, upon the ex-parte application of any person who is entitled to the benefit of judgment for the recovery of payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, Order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or Order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or Order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or Order together with costs aforesaid.” It is glaring that the fact that must exist to warrant the making of a garnishee Order nisi is that some other person is indebted to the judgment debtor in the sense that the said person holds or custodies funds or monies belonging to the judgment debtor and such person has a duty in law to pay such monies to the judgment debtor. The garnishee process is initiated against the person indebted to the judgment debtor as the garnishee. See UBA PLC V Ekanem & Anor (2009) LPELR 8428 where this Court interpreted and applied the above provision. In CBN V Auto Import Export & Anor (2012) LPELR 7858, this Court held per Saulawa JCA that “it is equally a trite principle that the garnishee order nisi must clearly show that the judgment debtor is the garnishee’s creditor, otherwise it will not bind the garnishee.” Such a factual situation does not exist in this case. There is no evidence that the appellant is indebted to the judgment debtor, Hallmark Bank PLC. In any case, the evidence establishes that Hallmark Bank PLC had ceased to exist and was defunct following its winding up and Liquidation, and that its assets and liabilities became vested in the NDIC. The fact that the appellant purchased from NDIC, some of the assets and liabilities of the defunct Hallmark Bank PLC, did not render it a debtor to the judgment debtor. The purchase of the judgment debtor’s indebtedness to the judgment creditor will render the purchaser of such debt indebted to the judgment creditor and not to the judgment debtor. Such a buyer of the judgment debtor’s judgment debt steps into the shoes of the judgment debtor and becomes the judgment debtor.” Per EMMANUEL AKOMAYE AGIM, JCA in ECO BANK v. MBANEFO & BROS LTD (2014) LPELR-41106(CA) (Pp 40 – 43 Paras F – C) |
Conditions that must be met for a Court order to be effective as a garnishee order: “Section 83 of the Sheriffs and Civil Process Act Cap S6 Law of the Federation of Nigeria, 2004 which is in pari material with Section 80 of the Sheriffs and Civil Process Law Cap 55 Law of the Cross River State of Nigeria 2004 provides: “The Court may upon a Motion ex-parte application of any person who is entitled to the benefit of a Judgment for the recovery of money person, herein after called the Garnishee to such debtor shall be attached to satisfy the Judgment or order together with the costs of the Garnishee proceedings and by the same or and subsequent order it may be ordered that the Garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such Judgment or order the debt from him to such debtor or so much thereof as may be sufficient to satisfy the Judgment or order together with costs aforesaid” For a Court order to be affective as a Garnishee order vis-a-vis the above provisions of the Act, it must possess the following characteristics. 1. Order the debt owing from a 3rd person, called the Garnishee to a debtor shall be attached to satisfy the Judgment or order and shall by the same or any subsequent order. 2. Order that the Garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such order the debt due to him to such debtor” See the case of U.B.A Ltd. vs. SGB Ltd. (1996) 10 NWLR (Pt.478) 381 at 390.” Per PAUL OBI ELECHI, JCA in (Pp 36 – 37 Paras D – E) |
Whether a garnishee duly served with an order nisi can tamper with the funds in the account of the judgment debtor in its custody: “Fundamentally, Court orders are meant to be obeyed. Service of an attachment order on a garnishee in a judgment enforcement proceeding is sufficient demand to garnishee any amount standing to the credit or the judgment debtor in the custody or domicile of the gamishee, CBN v. Auto Import Export Anor (2012) LPELR-7858(CA). The duty of the garnishee is to conscientiously and truthfully appear before the Court in order to disclose the state of account of the judgment debtor in its custody; CBN v. Interstella Communications Limited & Ors (2017) LPELR-43940(SC). A garnishee, who has been duly served with the Order Nisi, cannot seek to circumvent the subsisting order of Court by tampering with the funds in the account of the judgment debtor in its custody under any guise, more so before responding to the order to show cause; GTB v. Innoson Nigeria Ltd (2017) LPELR-42368(SC); Oceanic Bank Plc v. Oladepo & Anor (2012) LPELR – 19670(CA). The garnishee simply cannot tamper with the funds of the judgment debtor in his custody without a discharge of the attachment order already served. Per ONYEKACHI AJA OTISI, JCA in GTB PLC v. GOLD MART INTL LTD & ORS (2021) LPELR-54882(CA) (Pp 28 – 29 Paras A – A) |
Whether terminal benefits due to a party from a Garnishee is amenable to garnishee proceedings: “I should point out, first, that terminal benefits due to the 2nd respondent from the Garnishee, if any and due to him, could be properly described as ‘debt’ within the meaning of Section 83(1) of the Sheriff and civil Process Act and so amenable to Garnishee proceedings.” Per BOLOUKUROMO MOSES UGO, JCA in THE BAM MULTIPURPOSE COOPERATIVE SOCIETY LTD v. FBN & ANOR (2019) LPELR-48394(CA) (Pp 6 – 6 Paras B – C) |
Status of the debt due or accruing to a judgment creditor upon service of the 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 Gamau (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.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in ZENITH BANK v. ABAZU & ORS (2021) LPELR-55677(CA) (Pp 39 – 40 Paras B – C) |
Whether the consent of the Attorney General is required to attach by Garnishee the funds held in the custody of a public officer: “There is no doubt the requirement that the consent of the Attorney General must first be sought and obtained before commencement of Garnishee proceedings against government has been a contentious aspect of the law and practice of Garnishee proceedings. The legal requirement for the Attorney General’s consent is donated by Section 84(1) of the Sheriffs and Civil Process Act, LFN 2004 which provides: 84(1): “Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order shall not be made under the provisions of the last proceeding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public offices or of the Court in the case of money in custodia legis, as the case may be”. It is patently clear that the Garnishee/Appellant in this matter is the Central Bank of Nigeria, a public service within the intendment of Section 318(1) of the Constitution of the Federal Republic of 1999 (as amended). The Central Bank of Nigeria is a bank to the Federal Republic of Nigeria, ministries, departments and agencies of the Federal Government. It is the official banker of the Federal Government of Nigeria. It is, therefore, imperative that the consent of the Attorney General of the Federation must first be sought and obtained before the money in custody or control of the CBN can be attached by Garnishee proceedings. The consent of the Attorney General of the Federation is a condition precedent to the commencement of the Garnishee proceeding; the CBN being a public officer under Section 318 of the Constitution of the Federal Republic of Nigeria and a public body created and regulated by an Act of the National Assembly. The money in question is in control of a public officer in her official capacity. The consent of the Attorney General is indispensable in the circumstance. Failure to obtain this consent renders the Garnishee nisi order unsustainable.” Per ADEMOLA SAMUEL BOLA, JCA in CBN v. ANWAN & ORS (2021) LPELR-56075(CA) (Pp 14 – 16 Paras F – D) |
Nature and procedure of garnishee proceedings: “By way of prefatory observations, garnishee proceedings are a procedure of enforcing a monetary judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is, therefore, a specie of execution of debts for which the ordinary methods of execution are inapplicable. By dint of this process, the Court has the power to order a third party to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the judgment debt and the costs of the garnishee proceedings. In practice, applications for garnishee proceedings are made to the Court by the judgment creditor, the garnishor, and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word which connotes “Unless”. It is, therefore, an order made, at that stage, that the judgment debt sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is sufficient reason offered by the party on whom the order is directed why the payment ordered should not be made. If no sufficient reason is proffered, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute made is made, the garnishee, is liable to pay the amount specified in the order to the judgment creditor. UBN Plc v. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654; GTB Plc v. Innoson Nig. Ltd. (2017) 16 NWLR (t. 1591) 181, Section 83(1), of the Sheriffs and Civil Process Act (SCPA).” Per OBANDE FESTUS OGBUINYA, JCA in NEWS AGENCY OF NIG. v. ODUNWO & ORS (2021) LPELR-54657(CA) (Pp 29 – 31 Paras F – B) |
Whether a garnishee order nisi can lie to attach a judgment debtors fund in its custody: “By virtue of the clear provisions of S. 83 (1) of Sheriffs Act, a garnishee order nisi cannot lie to attach a judgment debtor’s fund or money in its hand or custody. As held by this Court in UBA PLC V. Ekanem (supra) “it is only against the garnishee that execution under the garnishee proceeding could be levied and not against the judgment debtor.” See also CBN V Auto Import Export (supra).” Per EMMANUEL AKOMAYE AGIM, JCA in ECO BANK v. MBANEFO & BROS LTD (2014) LPELR-41106(CA) (Pp 43 – 43 Paras C – E) |
Ways in which a garnishee can react to a garnishee order nisi: “By Section 86 of the Act, a garnishee can react to the garnishee order nisi in any of the following three ways: 1. Pay into Court the amount due from him to the Judgment Debtor; 2. By an affidavit show cause or; 3. Appear in Court, failing which the order nisi is made absolute. See CITIZENS INTERNATIONAL BANK LTD V SCOA (2006) 19 NWLR PT 1102 333.” Per ABUBAKAR SADIQ UMAR, JCA in GTB PLC v. GOLD MART INTL LTD & ORS (2021) LPELR-54882(CA) (Pp 24 – 25 Paras E – A) |
Whether a garnishee proceeding shall be instituted where the defendant resides or carry out business: “On Issue 6 of appellant, which is whether the lower Court had jurisdiction to grant Garnishee Order Absolute attaching the funds of appellants who are not resident in Kwara State, again the provisions of Section 83 of the Sheriffs and Civil Process Act Laws of Federation of Nigeria 2004 are relevant. The words of that provisions are: “…any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment ……” In other words, it is a precondition to a proper garnishee proceeding that the garnishee be resident in the very State where the order is sought: see Central Bank of Nigeria v. Auto Import Export (2013) 2 NWLR (PT 1337) 80 @ 128. In this case, by first respondent’s own showing in his application of 20/2/2015, appellants were resident in Oyo State, outside the jurisdiction of the lower Court, hence his application for them to be served there. They were thus beyond the reach of a garnishee proceedings from the High Court of Kwara State. Issue 6 is also accordingly resolved in favour of appellants.” Per BOLOUKUROMO MOSES UGO, JCA in DARSEY DIGITAL PRESS LTD & ANOR v. AYO & ANOR (2018) LPELR-44488(CA) (Pp 28 – 29 Paras C – B) |
Conditions for validity of enforcement of judgment of Courts by garnishee proceedings: “Section 287 (3) of the Constitution of Nigeria, 1999 (as amended) provides that “The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by Court with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts respectively”. In Onjewu V Kogi State Ministry of Commerce and Industry supra, this Court held that “It is apparent from the language of Section 287(3) of the Constitution that it has left it to legislation by the National Assembly … to give effect to the right of enforcement of the decisions of those enumerated Courts … this provision of the law is not self – executing i.e. it leaves it to some other authority to enact legislation to put in flesh by way of another legislative enactment setting out the conditions and procedure by which the abstract right to enforce the decisions of the Courts granted by Section 287(3) shall be implemented … In my respectful view, that legislation is to be found in the Sheriffs and Civil Process Act, Cap 407 LFN, 1990″. Sections 83 – 92 of the Sheriffs and Civil Process Act and Order VII of the Judgment (Enforcement) Rules set out provisions for the enforcement of judgment of the relevant Courts by garnishee proceedings. For garnishee proceedings to be valid the following factors must be present; (i) the garnishee must be indebted to the judgment debtor within the state and be resident in the state in which the proceedings are brought; (ii) the proceedings should be filed in any Court in which the judgment debt could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in Magistrate Court, as the case may be, sue the garnishee in respect of the debt; (iii) the application for garnishee order shall be made ex-parte. The Court if satisfied that the judgment creditor is entitled to attach the debt shall make a garnishee order nisi; (iv) the service of the order binds or attaches the debt in the hands of the garnishee. See Central Bank of Nigeria v. Auto – Import Export (2013) 2 NWLR (Pt. 1337) 60.” Per JOSEPH EYO EKANEM, JCA in CBN v. IGBADOO & ORS (2017) LPELR-44591(CA) (Pp 35 – 37 Paras C – B) |
Procedure for instituting garnishee proceedings: “Judgment Creditor who desires to recover a Judgment debt from a Judgment debtor by a Garnishee proceeding, ignites or kick starts the process by an application ex-parte made to the Court supported by an affidavit for the issuance of a Garnishee Order Nisi against the Garnishee in which the Judgment debtor is joined as a Respondent though not a necessary party to the proceedings as he is only a nominal party, see P.P.M.C. LTD V. DELPHI INC (2005) 8 NWLR (Pt. 928) 458, UBA PLC V. EKANEM (MD PARAGON ENG LTD) & ANOR (2009) LPELR – 8428 (CA). The application is supported with an affidavit disclosing the facts upon which the Court can rely to issue the Order Nisi. If the Court is satisfied that the Judgment Creditor/Garnishor is entitled to attach the debt and the debt is owing from the Garnishee, an Order Nisi is issued. See Section 83(1) of the Sheriffs and Civil Process Act, STB LTD v. CONTRACT RESOURCES LTD (2001) 6 NWLR (Pt. 708) 115 and CBN V. AUTO IMPORT EXPORT & ANOR (2012) LPELR – 7858 (CA). The Order Nisi for the attachment of the debt once issued and served on the Garnishee, binds the debts in the hands of the Garnishee and the Garnishee cannot release any part of the attached sum to the Judgment Debtor or to any other person without an express Order from the Court. See Section 85 of the Sheriffs and Civil Process Act. SOKOTO STATE GOVT. V. KAMDEI NIG LTD (2004) 9 NWLR (Pt. 878) 345 CA. This Garnishee Order Nisi is the first stage of the two installmental orders made by the Court. It is at that stage, the Judgment debt covered by the application be paid into the Court to the Judgment Creditor within the prescribed time unless there is a good reason, excuse or explanation emanating from the party on whom the order is served or made why the order should not be made absolute; otherwise, the Order becomes absolute. CITIZENS INT. BANK V. SCOA (NIG) LTD (2006) 16 NWLR (pt. 1011) LPELR – 5509 (CA), UBN v. MARCUS (Supra). The operative word is “unless” the Judgment Creditor shows good cause why the Order Nisi should not be made absolute. The Norman- French word ” Nisi is synonymous with the English word “unless” and it means that except upon the condition that the Garnishee shows sufficient reason, the Order Nisi should be made absolute because at that stage the 2nd installmental Order becomes due without anything more in the absence of a good cause been shown. The only condition that would forestall the order being made absolute is the absence of personal service or the showing of good cause.” Per AMINA AUDI WAMBAI, JCA in SKYE BANK PLC v. DAVID & ORS (2016) LPELR-41548(CA) (Pp 22 – 24 Paras B – B) |
Who determines the question of the judgment creditor establishing that the garnishee is within jurisdiction: “The question of the judgment creditor establishing that the Garnishee is within jurisdiction is not for the judgment debtor to determine but the Court. The motion that brings in the order Nisi is ex – parte. In any case, the parties were served within the jurisdiction of the Court as no application for leave to serve the 2nd Respondent out of jurisdiction is in the record of appeal. The Appellants can only appeal against the process that gave rise to the order Nisi as an interested party. In this case the Garnishee who should have challenged the ruling of the Court did not do so. The right of appeal inures to the Garnishee not the Appellants. It is the product of a proceedings to which the Appellants are not a party and it is therefore not in the place of the Appellants to raise the issue of the garnishee/2nd Respondent being within the jurisdiction of the Court.” Per YARGATA BYENCHIT NIMPAR, JCA in SCOA (NIG) PLC & ANOR v. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA & ANOR (2016) LPELR-40192(CA) (Pp 11 – 12 Paras C – A) |
Whether the National Industrial Court has jurisdiction to enforce a judgment by garnishee proceedings in banking or fiscal matters: “The exclusive jurisdiction given to the National Industrial Court by Section 254 c(1), (2) (4) and (5) of the Constitution does not include matters set out in Section 251(1) (d) of the Constitution. The appellant (Central Bank of Nigeria) is established by Section 1(1) of the Central Bank (Establishment) Act 2007 to serve, inter alia, as a banker to the government and is vested with certain powers in relation to other banks including acting as banker to other banks in Nigeria and abroad (Section 41). Banks are required to maintain cash reserves, special deposits and reserve funds with the appellant by virtue of Section 45(1) (a) and (c) of the Central Bank (Establishment) Act and Sections 15 (1) and 16 (1) of the Banks and Other Financial Institutions Act. Whatever cash deposits, monies, and cash reserves the judgment debtor has or maintains with the appellant is a statutory requirement and not contractual nor is it governed by the common law. It is governed by statute and is a banking or fiscal measure. Any civil dispute arising from it between the judgment debtor and the garnishee falls within the exclusive jurisdiction of the Federal High Court. It is not a matter that can be adjudicated upon by the National Industrial Court. In other words if the judgment debtor were to sue the judgment creditor for such money, it is the Federal High Court that would have exclusive jurisdiction over such a cause or matter. It follows therefore that since the 1st and 2nd respondents sought to attach the money in the 3rd respondent’s account with the garnishee, it is only the Federal High Court that has the jurisdiction to adjudicate on the matter. In Central Bank of Nigeria v Kakuri supra. Agim, JCA, stated as follows: “…garnishee proceedings can be brought in only a Court where the judgment debtor can sue the garnishee for the debt. I agree with the Learned Counsel for the appellant that the Court where the … (2nd judgment debtor) can sue the Central Bank of Nigeria (garnishee) for the funds in the custody of the appellant attached by garnishee is the Federal High Court of Nigeria and not Federal Capital Territory High Court… and Section 251(1)(d) of the 1999 Constitution vests exclusive jurisdiction over such suits in the Federal High Court of Nigeria.” See also Central Bank of Nigeria v Auto – Import Export, supra and NIC v. Oyefesobi (2013) LPELR – 20660. The distinction that counsel for the 1st and 2nd respondents sought to make between the cases cited above and the instant matter on the basis that those cases emanated from either the High Court of the Federal Capital Territory or State High Court is a distinction without a difference. This is because the jurisdiction granted to the Lower Court by Section 254C of the Constitution does not by any stretch of imagination include jurisdiction over the appellant in banking or fiscal matters. It therefore does not matter which Court the garnishee proceedings was instituted. It was argued by 1st and 2nd respondents’ counsel that the issues involved in the garnishee proceedings do not include the determination of civil rights and obligations of the appellant with regard to the cause and matters referred to in Section 251 of the Constitution and that Sections 83 -91 of the Sheriffs and Civil Process Act under which the proceedings were initiated only set out the procedure by which the judgment of a Court can be enforced vide garnishee proceedings, and that they do not create any cause of action as envisaged by Section 251(1) of the Constitution. The case of Bakare V Attorney-General of the Federation supra was cited by him in support. The argument summarized above overlooks the fact that garnishee proceedings are a separate and distinct action or proceedings between the judgment creditor and the garnishee though it flows from the judgment that pronounced the debt owing. See Diamond Bank Ltd v Ndubuisi (2002) FWLR (Pt.105) 727 and Denton – West v Muoma (2008) 6 NWLR (Pt.1083) 418, 442. Being a separate and distinct action or proceedings between the judgment creditor and the garnishee the issue of jurisdiction, in this instance Section 251(1) (d) of the Constitution, comes into play. This is because the judgment creditor steps into the shoes of the judgment debtor to sue for the money due and owing to the judgment debtor from the garnishee. In Nwadialo’s Civil Procedure in Nigeria, 2nd Ed. page 2013, it is stated that “The garnishor, vis-a-vis the garnishee, stands in the shoes of the original judgment debtor”. It follows inexorably that such proceedings can only be brought in a Court in which the judgment debtor could sue the garnishee. Order VIII Rule 2 of the Judgment (Enforcement) Rules which provides that the garnishee proceedings may be taken in any Court in which the judgment debtor could sue the garnishee in respect of the debt is only a re-statement of the above stated position of the law and does not establish a new principle of law. I say so because rules of procedure cannot confer or detract from jurisdiction. They only specify how jurisdiction conferred aliunde is to be exercised. Counsel for the 1st and 2nd respondents referred to Central Bank of Nigeria v Ubana supra. (also reported in (2017) 15 NWLR (pt.1587) 151 where this Court held that Section 251(1) (d) of the Constitution is inapplicable to garnishee proceedings. It seems to me that the attention of the Court in that case was not drawn to its previous decision to the contrary referred to earlier in this judgment., viz; Central Bank of Nigeria V Okeb (Nig) Ltd (2014) LPELR 23162. Furthermore, the decision of this Court in Central Bank of Nigeria v Kakuri supra, is later in time than the decision in Central Bank of Nigeria V Ubana supra. I will therefore be guided by the decision in Central Bank of Nigeria v Kakuri supra and several decisions of this Court referred to before now. 1st and 2nd respondents’ counsel referred to Section 10 of the National Industrial Court Act which provides that, “The Court shall have the power to enforce its judgment…” It was his submission that the provision was enacted pursuant to the power of the National Assembly to grant the National Industrial Court additional jurisdiction. I think the counsel failed to make a distinction between jurisdiction and judicial powers which is the focus of Section 10 supra. The distinction is clearly brought out in Okwuosa v. Gomwalk (2017) 9 NWLR (Pt.1570) 259, 276 – 27 by the Supreme Court as follows: “Where a Court has no jurisdiction with respect to a matter before it, the judicial basis for the exercise of any power with respect to such matter is also absent. The reason is obvious. Power can only be exercised by a Court where it has jurisdiction to do so…Power and or jurisdiction are not the same. Whereas jurisdiction is the right the Court has in law to hear and determine the dispute between the parties, power on the other hand is the authority it has to take decisions and make binding orders with respect to the matter before it.” In other words, a Court must first and foremost have jurisdiction over the subject matter of a suit before it can exercise any judicial power over the suit or matter. See Sha’aban v Sambo (2010) 9 NWLR (Pt.1226) 353, 362. The implication is that the Lower Court must first have jurisdiction over the garnishee in banking or fiscal matters as in this instance before it can exercise its inherent or statutory powers to enforce its judgment by garnishee proceedings against the appellant. It does not possess such jurisdiction and so the idea of its exercising power in regard to the garnishee proceedings does not arise.” Per JOSEPH EYO EKANEM, JCA in CBN v. IGBADOO & ORS (2017) LPELR-44591(CA) (Pp 38 – 45 Paras C – A) |
Whether a Court can set aside its own order nisi in a garnishee proceedings: “The first issue is whether the learned trial Judge has the power and was right to have set aside the garnishee order nisi made on the 18th of January, 2001. As a general principle of law, a Court has no legal competence to reverse itself or set aside its previous order or judgment except where such order or judgment is a nullity. A Court order can be regarded as a nullity where, for instance, the Court has acted without jurisdiction or the judgment or order was obtained by fraud or where there has been non-compliance with a fundamental procedural rule and this has led to breach of fundamental right to fair hearing. See Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt. 200) 659; Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275. In the instant case, the respondent has contended that as at 18/1/2001 when the lower Court made the order of garnishee nisi against it for the sum of US$166,353,090.19, it lacked the jurisdiction to make such order because there was an application for stay of execution of the judgment filed on 12/1/2001 and the consent of the State Attorney-General was not obtained, contrary to the provision of Sections 83 and 84 of the Sheriffs and Civil Process Act. And therefore that the learned trial Judge was right to have set aside the garnishee order nisi. With due respect to the learned trial judge, upon the evidence before him, I do not think he has jurisdiction to set aside the garnishee order nisi. The general principle of law I have earlier set out above as to when a Court has legal competence to reverse itself or set aside its previous order or judgment finds support in the statement of learned authors of Volume 26 of the 4th edition of Halsbury’s Laws of England at paragraph 556 on page 279 thus: “As a general rule, except by way of appeal, no Court, Judge or master has power to rehear, review, alter or vary any judgment or order after it has been entered either in an application made in the original action or matter or in a fresh action brought to review the judgment or order. The object of the rule is to bring litigation to finality, but it is subject to a number of exceptions. For example, a clerical error or an error arising from an accidental slip or omission may be corrected under Rules of Court or the Court’s inherent jurisdiction. The Court has inherent jurisdiction to vary or clarify an order so as to carry out the Court’s meaning or make the language plain, or to amend it where a party has been wrongly named or described unless this would change the substance of the judgment. The Court will treat as a nullity and set aside, of its own motion if necessary, a judgment entered against a person who was in fact dead or a non-existent company or, in certain circumstances, a judgment in default, or a consent judgment. Where there has been some procedural irregularity in the proceedings leading up to the judgment or order which is so serious that the judgment or order ought to be treated as a nullity, the Court will set it aside…” I am of the opinion that the only possible ground upon which the lower Court could have entertained the application of the judgment debtor, and set aside the garnishee order nisi was that there had been some procedural irregularity in the proceedings of such serious nature that the order ought to be treated as a nullity. The factual basis of any such contention on the part of the appellant could only be the pendency of an application for stay of execution of the judgment. The complaint of about the breach of provisions of Section 84 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990 can only be addressed by way of appeal. Could it be said that upon the material before the learned trial Judge there had been some procedural irregularity so serious that the order of garnishee nisi ought to be treated as a nullity and be set aside? It has been observed that the premise upon which the judgment debtor approached the Court for an order setting aside the garnishee order nisi was two-fold: Firstly, it was contended that an application for stay of execution of the judgment of the lower Court was pending at the time the garnishee order nisi was granted. This being so, and based on a number of reported cases starting with the classicus case of Vaswani Trading Co. v. Savalakh & Company (1972) 12 SC 77; the judgment creditor ought not to have proceeded to seek and obtain the garnishee order nisi with the express knowledge of the pendency of the application for stay of execution. Secondly, that under the provisions of Section 84(1) of the Sheriffs and Civil Process Act, monies in accounts in the name of the Lagos State Government were under the control of the Accountant-General of Lagos State, a public officer and therefore such monies cannot be attached under a garnishee. ?I must say that the basis for the exercise by the Court of its inherent jurisdiction to set aside its own order in the circumstances of this case, is that the appellant has with the knowledge the pendency of the respondent’s application to stay execution of judgment, yet proceeded to execute the judgment. It is clear that the basis for the exercise of the lower Court’s jurisdiction is the fact of the knowledge on the part of the respondent. It is my respectful view that in this case, there was no evidence, other than of the fact that notice of the pending application had been served on the office of the judgment creditor’s counsel. Curiously enough, the lower Court was not aware of the pending application. In I.B.W.A. Ltd. v. Pavex Int. Co. (Nig.) Ltd. (2000) 7 NWLR (Pt. 663) p. 105, a case cited by the learned counsel for the appellant, the Supreme Court in a unanimous decision upheld the decision of the Court of Appeal that in a similar circumstances such as in the instant case, that there had been no abuse of Court process and therefore, there was no basis for the exercise of the lower Court inherent jurisdiction to set aside the execution that had taken place in that case. It is my respectful view that the learned trial Judge lacked the jurisdiction and power to set aside the garnishee order nisi previously made on 18/1/2001. Again, given the distinction that exists between execution and garnishee proceedings for the enforcement of a judgment, I do not think the existence of an application seeking for an order staying execution of a judgment does preclude a judgment creditor from seeking to use some other legal method to enforce judgment. There is clear distinction between execution of judgments and other methods of enforcing judgments, such as garnishee proceedings. The distinction is brought out by the definition of ‘writ of execution’ in Section 19 of the Sheriffs and Civil Process Act, Cap. 407, Laws of Federation, 1990. Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration. It excludes a garnishee proceeding. The distinction is further made clear by the learned authors of Atkin’s Court Forms Volume 19, 2nd edition paragraph 21 on page 47 thus: “Garnishee proceedings or attachment of debts is a method auxiliary to that of execution for the enforcement of a judgment or order for the payment of money which is not for payment of money into Court enabling the judgment creditor to attach money due to the judgment debtor from a third person called the garnishee, who must be within jurisdiction.” In the respondent’s brief reference is made to Order VIII Rule 7(1) of the Judgments (Enforcement) Rules. The Rule demonstrates the clear difference and distinction between the two modes of enforcement. This Rule clearly provides for garnishee proceedings. Rule 7 of the Order makes specific provisions for writs of execution to issue against the garnishee. It makes it clear that in the scheme of enforcement of judgments established under the Judgments (Enforcement) Rules of the Sheriffs and Civil Process Act, enforcement by execution is not the same thing as enforcement by garnishee proceedings. Where that to be the position, then there would be no need for express provision that execution could issue against garnishee. If the submission of the learned counsel for the respondent were correct, the provision enabling execution to issue against a garnishee would be superfluous. It means that once a garnishee order is made absolute then execution would follow automatically, if the respondent were correct. The provision therefore not being superfluous, there is need for enforcement by writ of execution against the garnishee. Execution of a judgment entails the seizure and sale of chattels of the judgment debtor under warrant of Court. This is different from attachment of debt owed to a judgment debtor by a third party, who is indebted to the judgment debtor and not proceedings against the judgment debtor directly. It is my view therefore that the arguments proffered by the learned counsel for the respondent on this issue lack merit.” Per SULEIMAN GALADIMA, JCA in PURIFICATION TECHNIQUES (NIG) LTD v. AG OF LAGOS STATE (2004) LPELR-7424(CA) (Pp 5 – 13 Paras A – A) |
Whether in a garnishee proceeding, a bank has the right to consolidate all the accounts of a judgment debtor and set off any sums standing to its credit towards the satisfaction of any liabilities it owes: “The facts of this matter are not convoluted. The judgment debtor, Storm berg Engineering Co. Ltd is a customer of the Respondent. It maintains four accounts with the Respondent. The Respondent offered a loan facility of N7.5 billion to the judgment debtor. There is outstanding and due from the judgment debtor to the Respondent the sum of over N6 billion. One of the judgment debtor’s accounts with the Respondent has a credit balance of about N43 million. Upon the Appellant obtaining judgment against the judgment debtor and commencing garnishee proceedings to enforce the said judgment, the Appellant obtained an order nisi against the Respondent. The Respondent, contending that it has no funds of the judgment debtor which can be attached in satisfaction of the judgment sum since it has a lien on the funds, applied for the garnishee order nisi to be set aside. The lower Court granted the application and the Appellant contends in this appeal that any lien of the Respondent was subservient to the judgment of the Court. Now, a garnishee proceeding is one of the means by which the judgment of a Court is enforced. Any debt owed to a judgment debtor by any other person within the jurisdiction of the Court can be recovered by the judgment creditor towards the satisfaction of his judgment by the process known as Attachment of Debts Garnishee Order. See SOKOTO STATE GOVT vs. KAMDAX (NIG) LTD (2004) 9 NWLR (PT 878) 345 at 375 and NIGERIAN BREWERIES PLC vs. DUMUJE (2015) LPELR (25583) 1 at 162. The Respondent disputed its liability to the Appellant, the garnishor, on the grounds that it had a lien on the funds of Judgment debtor in its possession and that it had set off the funds against the huge debt which the judgment debtor owed to it. It cannot be confuted that a bank has the right to consolidate and combine accounts held by its customer in order to set off any debt owed to it. See JOE GOLDAY CO. LTD vs. CO-OP DEVELOPEMT BANK PLC (supra). The quodlibet in this matter is whether the Respondent rightly exercised its right to set off in the circumstances of this matter, against the background of the Appellant’s contention that the right to set off is precluded where there exists an agreement between the parties that prevents the debt being set off. The judgment debtor by Exhibit OK4 to the Respondent’s application (see page 189 of the Records) authorised the Respondent to combine or consolidate all its accounts and to set off any sums standing to its credit towards the satisfaction of any liabilities it owes. So there is a clear mandate and instruction for the Respondent to consolidate and set off. The next pertinent issue based on the Appellant’s contention is whether there exists an agreement which precludes the Respondent from consolidating the accounts and setting off any indebtedness. In this wise, Exhibit OK1 of the Respondent’s application, the Letter of Offer of Banking Facilities to the judgment debtor is relevant (See pages 145-152 of the Records). Under ‘Events of Default’ at page 149 of the Records, it is stated as follows: “Without prejudice to the Bank’s right to demand repayment of any outstanding sum under the facility at any time, the Bank reserves the right to call in the lending should any of the following events occur: – … – … – … – If the borrower’s creditors obtain a Court order or injunction on the borrower’s credit balances with the Bank or any other financial institution” The above stipulation is limpid. It allows the Respondent to call in the facility if a Court order is obtained against the judgment debtor for the recovery of any funds standing to its credit with the Respondent. An integral reading of this stipulation and the letter of set off, Exhibit 0K4, makes it translucent that the right to set off crystallises and the debt called in immediately there is any Court order or injunction on the funds standing to the credit of the judgment debtor. Without a doubt, the garnishee order nisi is a Court order directed at the judgment debtor’s credit. Upon the said garnishee order nisi being made, and I dare say even before the garnishee order nisi was served on the Respondent, the right to call in the loan, combine, consolidate and set off the credit against the indebtedness crystallized. Resultantly, at the time the garnishee order nisi was served on the Respondent, the combination, consolidation and set off of the accounts had already activated and the judgment debtor had no funds standing to its credit with the Respondent. Put differently, the Respondent was not indebted to the judgment debtor and the Respondent did not have any funds standing to the credit of the judgment debtor which could be attached in satisfaction of the judgment sum due to the Appellant and sought to be enforced by the garnishee proceeding. See PPMC LTD vs. DELPHI PETROLEUM INC. (2005) 8 NWLR (PT 928) 548 and Section 85 of the Sheriffs and Civil Process Act. It was not an issue of whether the judgment was subservient to the lien; rather, it was the factual situation that there were no funds standing to the credit of the judgment debtor in the custody of the Respondent. In the light of the, stipulations of the ‘Events of Default’ clause, the right to call in the loan crystallized when the order nisi was made, as opposed to when the order nisi was served. Therefore, in the diacritical circumstances of this matter, the stipulations of Exhibits OK1 and OK4 promotes rather than hinders the Respondent’s right to combine, consolidate and set off the accounts immediately the garnishee order nisi was made. The lower Court after due evaluation of the affidavit evidence and correctly holding that the Respondent was not indebted to the judgment debtor (See page 301 of the Records), affirmed the Respondent’s right to consolidate, combine, transfer or set off the accounts of the judgment debtor in the following words at pages 304-305 of the Records: “I agree with Learned Counsel to the 4th garnishee that the letter of set-off and the Company mandate empower the garnishee to combine and consolidate all the accounts maintained by the Judgment debtor with the 4th garnishee and set-off and transfer any sum or sums standing to the credit of the Judgment debtor towards satisfaction of any liability of the Judgment debtor to the 4th garnishee. Learned Counsel to the 4th garnishee submitted that the effect of Exhibit OK4 is that the 4th garnishee has a lien over any sum standing to the credit of the Judgment debtor with the 4th garnishee. Lien is defined in Black’s Law Dictionary 9th Edition as ‘Right to retain property for payment of debt on demand.’ Lien by operation of law is created where the law without stipulation of the parties raises a lien as an implication or legal consequence from the relationship of the parties or the circumstance of their dealings. Such lien by operation of common law recognises a Banker’s lien. A banker’s lien is one which a banker has by virtue of which he can appropriate any money as property in his possession belonging to a customer to the extinguishment of any matured debt of such customer to the bank provided such money or property has not been charged with a subservience of a special burden. See Gateway Bank of Nig Plc V.s Abosede (2001) FWLR 1316 at 1322; Afrotech Technical Services Nig Ltd Vs Mia & Sons Ltd (2 000) NLWR (PT 692) 730. It is noteworthy that the maturity date of the term loans in Exhibit OK1 is 31st March, 2011. The 4th garnishee has no lien on the Judgement debtor’s money or property until 31st March 2011 when the loans are matured and become due. The 4th garnishee cannot consolidate and combine the Judgment debtors account until the loan is due and the Judgment debtor is in breach of its payment obligations. However, Events of Default clause in Exhibit OK1 duly signed by the garnishee and Judgment debtor provides: ‘Without prejudice to the Bank’s right to demand repayment of any outstanding sum under the facility at any time, the Bank reserved the right to call in the lending should any of the following events occur.” 4. ‘If the borrower’s creditors obtain a Court order of injunction on the borrower’s credit balances with the Bank or any other financial institution.’ Judgment was delivered in this Suit on 3rd December 2010 in favour of the Judgment credit against the Judgment debtor. The Judgment creditor (borrower’s creditor) obtained garnishee order nisi against the Judgment debtor on 2nd February 2011 and the order nisi was served on the 4th garnishee on 9th February 2011. It is not in doubt that the Judgment creditor obtained an order against the Judgment debtor’s credit balance with the Bank and the garnishee order nisi came to the notice of the 4th garnishee on 9th February 2011. By virtue of the Events of Default clause 4 the garnishee has the right to call in the lending on 9th February 2011 in view of the garnishee order nisi. From the uncontroverted affidavit Evidence and Exhibits OK2 and OK4 the three loan accounts of the Judgment debtor has a total debt balance sum of N6,008,858.,575.53 (Six Billion, Eight Million, Eight Hundred and Fifty Eight Thousand, Five Hundred and Seventy Five Naira, Fifty Three Kobo) while the loan operating account No. 2482030005159 has a debit balance of N8,902,486.14 (Eight Million, Nine Hundred and Two Thousand, Four Hundred and Eight Six Naira Fourteen Kobo) and project funds/loan operating account No. 2342030004657 has a credit balance of N43,641,236.78 (Forty Three Million, Six Hundred and Forty One thousand, Two Hundred and Thirty Six Naira, Seventy Eight Kobo). In view of the above, I find and hold that the 4th garnishee’s right to consolidate and combine, transfer, or set-off the accounts of the Judgment debtor has become exercisable and exercised as at 9th February 2011.” The above finding is unimpeachable. Concomitantly, there is no basis on which the correct decision of the lower Court can be interfered with.” Per UGOCHUKWU ANTHONY OGAKWU, JCA in WORKSCOPE PROJECT LTD v. FIRST BANK (2019) LPELR-50150(CA) (Pp 7 – 16 Paras F – C) |
Duty on a garnishee upon service of an order nisi: “Upon the service of an Order Nisi on a Garnishee, the Garnishee out of due observance with the order served on it, is expected to stay all actions in respect of the funds belonging to the Judgment Debtor in its possession.” Per ABUBAKAR SADIQ UMAR, JCA in GTB PLC v. GOLD MART INTL LTD & ORS (2021) LPELR-54882(CA) (Pp 23 – 23 Paras A – B) |
Instance(s) in which a garnishee will be held to have denied/disputed its liability/indebtedness to the judgment debtor: “Now, the chapeau of S. 87 SCPA reads: “If the Garnishee appears and disputes his liability”. The word “dispute” in this context is a verb and not a noun. As such, the reference in the Appellant’s Brief to Black’s Law Dictionary (which defines ‘dispute’ as a noun: “A conflict or controversy, esp. one that has given rise to a particular lawsuit”) is inapposite. The Chambers 21st Century Dictionary (Revised Edition) defines the verb as: To question or deny the accuracy or validity of (a statement, etc); to quarrel over rights to or possession of something; to argue about something. Thus, a garnishee who questions or denies being indebted to the judgment debtor is said to dispute his liability. In the instant case, by deposing in the affidavit to show cause that ‘a search conducted on its records revealed several customers with names similar to that of the judgment debtor and further particulars such as middle name, specimen signature, photo identification and address are required in view of the multiplicity of names similar to that of the Judgment Debtor and the possibility that the owners of the said accounts may be different from the judgment debtor’, it seems to me that the Appellant has questioned or denied being indebted to the judgment debtor. What the Appellant is saying in essence is that: ‘Without the further particulars I request of you, I am unable to confirm from my records if the judgment debtor has any account(s) with me out of which any funds can be paid over to you in satisfaction of the judgment debt’. To my mind, this constitutes denial of liability within the meaning and intendment of S. 87 SCPA. The 1st Respondent’s insistence that S. 87 SCPA contemplates a dispute as to whether the garnishee is liable to a judgment debtor in the sum sought to be garnished in its custody and not whether the particulars of a judgment debtor are insufficient to determine his identity seems to me a curious argument. Pray, if the particulars supplied by the judgment creditor or information available to the garnishee are such that the identity of the judgment debtor cannot be readily ascertained, how then can the garnishee confirm whether he has monies standing to the credit of that judgment debtor which can be paid over to the judgment creditor in satisfaction of the judgment debt? Especially is this so as the garnishee order nisi served on the Appellant did not contain any account number or other particulars of the judgment debtor with which his account with the garnishee (if any) could have been traced.” Per PETER OYINKENIMIEMI AFFEN, JCA in GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 23 – 26 Paras F – A) |
Whether judgment creditor is at liberty to proceed against third party/garnishee not shown to be indebted to the judgment debtor; attitude of Court to practice of suing all banks operating in Nigeria without details of the account of the judgment debtor: “The point was made at the outset that the attractiveness of garnishee proceedings is fast becoming its bane in our jurisprudence. There is a growing tendency to commence garnishee proceedings against all banks licensed by the Central Bank of Nigeria to operate in the country as in the instant case where nineteen banks were listed as garnishees; and the deponent of the affidavit in support of the ex parte application merely averred that he was informed by the judgment creditor that the judgment debtor “maintains an account with the garnishees to satisfy the judgment sum of N35,000,000” without supplying the number or other details of the “account” the judgment debtor allegedly maintains with all the garnishees. The reason often advanced for this practice is that the confidential nature of the banker-customer relationship prevents judgment creditors from having ready access to bank details of judgment debtors. Whilst the difficulty of ascertaining the account details of judgment debtors is appreciated, that does not seem to me a valid basis for Courts of law to condone the insidious practice of initiating garnishee proceedings against all banks operating in Nigeria merely on the say-so of a judgment creditor that the judgment debtor maintains an account(s) with the garnishees without providing any basis for that assertion. The point to underscore is that just as “the cause of action accruable to a garnishee in garnishee proceedings is quite a limited one” which does not permit him to fight the cause of the judgment debtor [see GTB v INNOSON [2018] LPELR-423368(SC)], it equally occurs to me that the right of a judgment creditor to recover a money judgment by means of garnishee proceedings is not at large but one that lies within defined parameters. Indeed, ‘the terrain of garnishee proceedings is not that much loose and free of any duty, rather it is well guarded by some conditions inherent in S. 83(1) of the Sheriffs and Civil Process Act’. See ECOBANK v. UDOFIA [2018] LPELR-45164(CA) 1 at 10 -per Adah JCA. The section provides thusly: “The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied as to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid” (Underlining supplied). The above provision enjoins the judgment creditor (applicant) or his legal practitioner to inter alia show in the affidavit in support of the ex parte application by which garnishee proceedings are commenced that “any other person is indebted to such debtor”. To my mind, what this means is that the affidavit must disclose the fact of indebtedness of the third party to the judgment debtor, and not merely that the third party is likely to be indebted. The basic premise of garnishee proceedings is that it can only lie against a debtor to the judgment debtor, hence a judgment creditor has no right whatsoever to proceed against any person who is not shown to be indebted to the judgment debtor in the supporting affidavit. As stated hereinbefore, even though garnishee proceedings are a means of enforcing a money judgment, it is a fresh enforcement action, a separate and independent proceeding from the original action that generated the judgment debt and which can be brought in any Court the judgment creditor can ordinarily sue the garnishee, and this need not be the Court that gave the judgment. See Order VIII Rules 3(b) and 9 of the Judgment Enforcement Rules. In the scheme of legal proceedings, the existence of a cause of action is a prelude to every Court action: the very foundation for the writ issued. A claimant without cause of action cannot by any ingenuity sustain the action. See ATTORNEY-GENERAL, ANAMBRA & ORS v. OKAFOR & ORS [1992] 2 NWLR (PT. 224) 296, (1992) LPELR-3156(SC) 1 at 47-48 -per Olatawura, JSC. Garnishee proceedings are not an exception. Cause of action is the factual basis that gives rise to an enforceable claim; the wrongful action or inaction on the part of the defendant that donates to the claimant a legal basis for complaint. See THOMAS v. OLUFOSOYE [1986] 1 NWLR (PT. 18) 669. A cause of action must be shown to have arisen at the commencement of the action, not subsequently. In the context of garnishee proceedings, the ‘wrongful action’ that gives the judgment creditor a basis to sue the third party (i.e. garnishee) is the fact that he is indebted to the judgment debtor. Thus, the judgment creditor’s cause of action under S. 83(1) SCPA is one that is severely limited. There is no actionable wrong where the garnishee is not indebted to the judgment debtor and the judgment creditor is not at liberty to proceed against a third party (including a bank) that is not shown to be indebted to the judgment debtor. To put it bluntly, a judgment creditor does not have an untrammeled right of action to proceed against any person who catches his fancy: he is only entitled to sue a person indebted to the judgment debtor. Prima facie, suing all banks operating in the country is a clear pointer to the fact that the judgment creditor is unsure of the bank(s) indebted to the judgment debtor and the bank(s) not so indebted. Such an action is a fishing expedition by the judgment creditor initiated in the hope that one or more of the banks could be caught by his dragnet. It is hardly necessary to state that this is prone to capricious abuse and ought to be reined in by the eternal vigilance of the Courts. In this regard, it seems to me that the English practice, as contained in Rule 72.3 of “Practice Direction 72 – Third Party Debt Orders”, offers a useful guide: “Application notice – Rule 72.3 1.1 An application for a third party debt order must be made by filing an application notice in Practice Form N349. 1.2 The application notice must contain the following information – (1) the name and address of the judgment debtor; (2) details of the judgment or order sought to be enforced; (3) the amount of money remaining due under the judgment or order; (4) if the judgment debt is payable by instalments, the amount of any instalments which have fallen due and remain unpaid; (5) the name and address of the third party; (6) if the third party is a bank or building society – (a) its name and the address of the branch at which the judgment debtor’s account is believed to be held; and (b) the account number; or, if the judgment creditor does not know all or part of this information, that fact; (7) confirmation that to the best of the judgment creditor’s knowledge or belief the third party – (a) is within the jurisdiction; and (b) owes money to or holds money to the credit of the judgment debtor; (8) if the judgment creditor knows or believes that any person other than the judgment debtor has any claim to the money owed by the third party – (a) his name and (if known) his address; and (b) such information as is known to the judgment creditor about his claim; (9) details of any other applications for third party debt orders issued by the judgment creditor in respect of the same judgment debt; and (10) the sources or grounds of the judgment creditor’s knowledge or belief of the matters referred to in (7), (8) and (9). 1.3 The Court will not grant speculative applications for third party debt orders, and will only make an interim third party debt order against a bank or building society if the judgment creditor’s application notice contains evidence to substantiate his belief that the judgment debtor has an account with the bank or building society in question. See also Halsbury’s Laws of England (4th ed. Reissue), Vol. 17(1), para. 257 as well as Order 51 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which prescribes the content of an affidavit filed in support of ex parte application for garnishee proceedings. The case of OCEANIC BANK PLC v OLADEPO supra at 22 – 23 donates the proposition that garnishee proceedings against a bank is “not speculative simply because the account number and exact amount [standing] to the credit of the judgment debtor were not stated”. But whilst it would seem that S. 83(1) SCPA does not impose a strict obligation to provide the account details of a judgment debtor as a precondition for initiating garnishee proceedings against a bank, the provision enjoins the judgment creditor/applicant or his legal practitioner to show upon affidavit that the third party (bank) is indebted to the judgment debtor. What this means is that the applicant is required to show that the judgment debtor maintains an account with the bank. The point has already been made that one can readily appreciate that banker-customer privilege makes it difficult, if not impossible, for a judgment creditor/applicant to ascertain the number and other details of the judgment debtor’s bank account. Nevertheless, a judgment creditor/applicant should, at the very minimum, show that his judgment debtor maintains an account with a particular bank before naming it as a garnishee. A routine search at the Corporate Affairs Commission (CAC) will disclose the banker(s) of judgment debtors that are companies or other corporate entities required by law to file annual returns. In the case of individuals, basic enquiries in the course of dealings between the parties will reveal their banker(s) in most cases. It seems to me therefore that listing all banks operating in the country as garnishees is a signpost of failure or neglect to satisfy this basic requirement, and the ex parte application for garnishee order nisi ought to be refused; or granted if, and only if, the applicant gives an undertaking as to damages [or to pay costs on full indemnity basis] where it turns out that the judgment debtor does not maintain an account with the garnishees or any of them. The legal basis for this is that a garnishee order nisi is a specie of injunctive order made on an ex parte application for which binding case law imposes a duty on the hearing Court to extract an undertaking as to damages (being the quid pro quo offered by the applicant) as a precondition for granting such ex parte applications. See KOTOYE v. CBN [1989] 1 NWLR (PT. 98) 419 at 449-450 -per Nnaemeka-Agu JSC, and 456 -per Nnamani JSC. The emerging practice of routinely listing all banks operating in the country as garnishees (as in the instant case) and thereby exposing them to needless expense without the slightest effort to first show the particular bank(s) indebted to the judgment debtor is one that should not be encouraged for its deleterious effect. The far-reaching implications of allowing all banks operating in this country to be dragged to Court willy-nilly to answer to garnishee proceedings at the instance of every litigant who obtains a favourable money judgment from all Courts in Nigeria can only be imagined. It is akin to a scenario in which a claimant who has obtained a favourable money judgment against a defendant to whom an unidentified Kaduna-based lawyer is [or likely to be] indebted, takes liberty to initiate garnishee proceedings against all lawyers based in Kaduna in the hope that someone might turn out to be that lawyer. It is as ridiculous as that! The Court, as custodian of the law, has the final say where the interest of justice is at stake and must be acutely aware of the economic impact of judicial decisions. See Shimmon Shereet & Sophie Turenne, Judges On Trial: The Independence and Accountability of the English Judiciary, 2nd ed., (Cambridge University Press, 2013), p. 48. Whilst the Courts ‘do not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances’ [see VASWANI TRADING CO v. SAVALAKH & CO (1972) 12 SC 77 and THE ANNOT LYLE (1886) 11 P.D. 114 at 116 -per Bowen, LJ] and would readily lend judicial aid in the enforcement of Court judgments, I reckon that this judicial disposition ought to be balanced against the imperative of protecting citizens from being harassed by unprovoked litigation or other Court proceedings initiated without any demonstrable cause of action, which is consistent with the Court’s bounden duty to weigh the competing rights of parties. The point being made here is that, as a matter of practice, once a garnishee order nisi is issued against all banks upon penalty of the order being made absolute if they fail or neglect to appear before the Court on the return date to show cause, the banks are constrained to engage the services of legal counsel to represent each of them in the proceedings, only for all but one or two of the banks to be routinely discharged at the end of the day for not being indebted to the judgment debtor (which is actually an euphemism for non-disclosure of cause of action against the discharged banks) usually without any form of compensation by way of costs. And even on those rare instances where costs are awarded, the rather frugal attitude of the Courts (which is inconsistent with the principles to be observed in fixing costs as provided in the various rules of Court) only serves to ensure that the amount often awarded [arbitrarily] as costs scarcely makes up for expense incurred by the discharged banks. It seems to me therefore that allowing this unwholesome practice to gain traction without any checks is to overstretch the banks unjustifiably by imposing on them the gratuitous burden of defending a deluge of farfetched garnishee proceedings day after day from Court to Court across the entire length and breadth of the country with grave implications for our economy that is already being asphyxiated on many fronts. It must not be!” Per PETER OYINKENIMIEMI AFFEN, JCA GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 31 – 44 Paras E – B) |
Who are the proper parties in a garnishee proceedings: “A garnishee is a debtor to the judgment debtor. A garnishee is essentially a third party, who being indebted to the judgment debtor or having custody of the judgment debtor’s money, is, at the instance of the judgment creditor, called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the credit of the judgment debtor in an account with the garnishee/third party vide SKYE BANK PLC V. COLOMBARA (2015) 5 NWLR (PT 1453) 538; BARBEDOS VENTURES LTD V. F.B.N PLC (2018) 4 NWLR (PT 1609) 241 @ 271.” Per JOSEPH SHAGBAOR IKYEGH, JCA in STANBIC IBTC BANK PLC v. LONGTERM GLOBAL CAPITAL LTD & ANOR (2021) LPELR-54833(CA) (Pp 16 – 16 Paras A – C) |
Duty of Court to ensure that a judgment debtor maintains an account with a garnishee bank before making an order nisi absolute: “It is settled law that before a trial Court grants an Order absolute, it must ensure that the Judgment debtor in fact maintains an account with the garnishee. The trial Court should not rely on speculation but it must satisfy, itself that indeed it is the Judgment debtor who maintains an account with the garnishee. This becomes necessary especially where the deposition in the garnishee’s affidavit to show cause reveals that there are several customers with names similar to that of the judgment debtor. The lower Court was therefore in error to have granted an order absolute against the garnishee/appellant without ensuring that the judgment debtor in fact maintains an account with the Appellant.” Per ABUBAKAR MAHMUD TALBA, JCA in GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 45 – 46 Paras F – D) |
Whether garnishee proceedings are competent despite the pendency of a motion for stay of execution: “Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not prelude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment. This issue raises the vexed question of whether garnishee proceedings should be allowed to continue when there is a pending application for stay of execution of the judgment which is being enforced by the garnishee proceedings and the pendency of which has been brought to the notice of the Court. It cannot be disputed that a garnishee proceeding is one of the means by which the judgment of a Court is enforced. Any debt owed to a judgment debtor by any other person within the jurisdiction of the Court can be recovered by the judgment creditor towards the satisfaction of his judgment by a process known as Attachment of Debts Garnishee Order. See SOKOTO STATE GOVT. v. KAMDAX (NIG.) LTD. (2004) 9 NWLR (Pt. 878) 34 at 375. Consequently, it follows that entire essence of the garnishee proceedings is to realize the fruits of a judgment, whether it be termed enforcement of the judgment or execution of the judgment. It is pertinent to recall the sapient legal position laid down in the case of VASWANI v. SAVALAKH (1972) 12 SC 77, which abhors any situation that will thrust a fait accompli or situation of complete helplessness on a Court in its consideration of a matter before it. Where an application for stay of execution is pending and the judgment creditor by means of garnishee proceedings proceeds to enforce and recover the judgment sum, it definitely overreaches the pending application for stay of execution. This is no because enforcement or execution of the judgment having been achieved by the garnishee proceedings, there will be nothing left for the Court to consider in the pending application for stay of execution since a fait accompli had thrust upon it. Mark that I have thus far used the words enforce and execute interchangeably, the reason for this will soon become evident. The lower Court at page 83 of the Records concluded as follows: “The grant of an order absolute will not prejudice the application for stay of further execution now pending at the Court of Appeal.” Now, how can this be so? What will be left for the Court of Appeal to consider on the application for stay of execution when the judgment sought to be stayed has been executed and enforced by the garnishee order absolute. The thinking that garnishee proceedings can be contained even in the face of a pending application for stay of execution seems to emanate from the decisions of this Court to the effect that there is a clear distinction between execution of judgment and other methods of enforcing judgment, such and garnishee proceedings. See for instance the cases of PURIFICATION TECHNIQUES NIG. LTD. v. A.G. LAGOS STATE (2004) 9 NWLR (Pt. 879) 665 at 678 E-G, N.A.O.C. v. OGINI (2011) 2 NWLR (Pt. 1230) 131 at 147 D-G, UBA v. EKANEM (2010) 6 (Pt. 1190) 207 at 224 C-E and NITEL v. I.C.I.C. (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR (Pt. 1167) 356 at 388 D to mention but a few. The perduring question however is whether indeed there is any distinction. The purpose of executing a judgment is to obtain the fruits of the judgment. The goal of enforcing a judgment by garnishee proceedings is to obtain the fruits of the judgment. So whatever the nomenclature, whether execution of judgment or enforcement of judgment, the aim is the same; reaping the fruits of the judgment. The learned counsel in this matter have argued that the distinction being made is one without a difference. I cast my lot with them. I will demonstrate why I am at one with them on this. This reasoning behind there being a distinction between execution and garnishee proceeding as stated by Galadima, J.C.A. (as he then was) in PURIFICATION TECHNIQUES NIG. LTD. v. A.G. LAGOS STATE (supra) at page 678 “is brought out by the definition of ‘writ of execution” in Section 19 of the Sheriffs and Civil Process Act…”. The said provision reads: “Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration.” Immediately apparent is that this provision employs the word includes in defining a writ of execution. This clearly shows that the definition therein is not exhaustive and does not allow for the operation of the maxim expressio unis est exclusio alterius – the express mention of one thing is to the exclusion of the other. In UHUNMWANGHO v. OKOJIE (1989) 5 NWLR (Pt. 122) 471 at 490, Nnaemeka-Agu, JSC stated: “The word include is of course used in order to enlarge the meaning of the words and phrases occurring in the body of the statute. It means that the types of orders contemplated must be construed as comprehending not only the tree types orders enumerated in the definition but also other similar orders.” See also PORTS AND CARGO HANDLING SERVICES CO. LTD. v. MIGFO NIG. LTD. (2010) 18 NWLR (Pt. 1333) 555 at 593 G-H. It appears to me that it will consequently follow that writ of execution as defined in Section 19 of the Sheriffs and Civil Process Act is not limited to the process therein mentioned, namely, writ of attachment and sale, writ of delivering, writ of possession and writ of sequestration. The definition is expansive and can be enlarged to include garnishee proceedings, since the provision does not expressly exclude it. As already stated, garnishee proceedings is one of the means by which to reap the fruits of a judgment. It is my deferential opinion that the semantics of the words execute and enforce is really the polemics of the half-full glass and the half-empty glass. The word execute is defined in the Dictionary.com, LLC online dictionary as, inter alia, in respect of law, to give effect or force to (a law, decree, judicial sentence, etc.). It further defines the word enforce as to obtain (payment, obedience etc.) by force or compulsion. From the dictionary meaning of these two English words it does not appear to me that whether it is termed to execute judgment by a writ of execution or to enforce judgment by garnishee proceedings, the execution and enforcement of the judgment is the same thing as they both connote obtaining the fruits of the judgment by coercion, consequent upon the failure by the judgment debtor to willingly and voluntarily comply with the terms of the judgment. In RE: OVERSEAS AVIATION ENGINEERING (G.B.) LTD (1962) 3 ALL E.R. 12 at 16, Lord Denning gave the meaning of execution in the following words: “Execution means, quite simply, the process for enforcing or giving effect to judgment of the Court and it is ‘completed’ when the judgment creditor gets the money or other thing awarded him by the judgment.” By this dictum, to execute a judgment is to enforce the judgment. Where then is the distinction? I fail to see any. Therefore I once again, most humbly assert my agreement that the distinction between execution of judgment and garnishee proceedings is one without a difference. In so far as recovering the fruits of a judgment are concerned, execution of judgment and garnishee proceedings are two sides of the same coin. They are complementary; being complementary and aimed at the same goal, it will definitely be wrong to allow garnishee proceedings to continue in the face of a pending application for stay of execution.” Per UGOCHUKWU ANTHONY OGAKWU, JCA in NIGERIAN BREWERIES PLC v. DUMUJE & ANOR (2015) LPELR-25583(CA) (Pp 122 – 129 Paras E – C) |
Essence of a garnishee order; crucial tests for determining whether a debt is due or accruing and thus attachable: “… What is obvious from the above statements is that the essence of a garnishee order is 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. It is settled that the amount at the judgment debtor’s credit in his bank account is the property of the judgment debtor and it constitutes a debt, with the bank being the person indebted. The credit balance constitutes a debt payable by the bank to the customer on demand and as such it can be attached by garnishee proceedings. It is essential to understand that it is not every debt that is attachable and that for a debt to be attachable by a garnishee proceedings, it must be due or accruing to the judgment debtor at the time of the garnishee order nisi – Central Bank of Nigeria Vs Auto Import Export (2013) 2 NWLR (Pt 1337) 80, Guaranty Trust Bank Plc Vs Innoson Nigeria Ltd (2014) LPELR – CA/I/258/2011. The crucial tests for determining whether a debt is due or accruing and thus attachable, are whether the amount of the debt is certain and the judgment debtor has a vested immediate legal right to the money – Osibamowo Vs Shadeko (1967) LLR 7 and Central Bank of Nigeria Vs Auto Import Export supra. Of course, if the judgment debtor could sue the garnishee for the amount and recover it, it is plain that there would be an attachable debt – Greg Vs Bromley (1912) 3 KB 474, Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162 (CA). A judgment creditor cannot by means of attachment, stand in a better position as regards the garnishee than the judgment debtor did; “he can only obtain what the judgment debtor could honestly give him” – Re: General Horticultural Co, ex parte Whitehouse (1886) 32 Ch. D 512.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in UBA v. SAS & ORS (2015) LPELR-40394(CA) (Pp 28 – 29 Paras C – E) |
What it means to show cause in a garnishee proceeding; whether a garnishee can contend that the jurisdiction of the Court was not properly invoked to require it show cause: “I shall commence the determination of the two issues with the contention of the 1st and 2nd Respondents’ counsel that the Appellant as a garnishee lacks the competence to question the jurisdiction because as a garnishee, its only duty is to show cause why the account of the 3rd Respondent should not be attached. This argument to me exposes a misconception by the Respondents of what it means to show cause as provided in Section 83 of the Sheriffs and Civil Process Act, in relation to the circumstances in this appeal. It is instructive to reproduce the provision of Section 83 of the Sheriffs and Civil Process Act, which is as follows: “83. (1) The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the Applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. (2) 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” Black’s Law Dictionary, 12th Edition defines, “show cause” in the following words: “To produce a satisfactory explanation or excuse, usu. In connection with a motion or application to a Court,” “order to show cause” or “show-cause order” – is thus defined: “An order directing a party to appear in Court and explain why the party took (or failed to take some action) or why the Court should or should not impose some sanction or grant some relief”. It is in my view restrictive to hold that all that a garnishee is required to do is give reasons why the account should not be attached, which is what I understand the Respondents to be saying. While a garnishee, on which an order to show cause pursuant to Sections 83 and 84 of the Sheriffs and Civil Process Act, is not permitted to question the indebtedness or the amount attached it is quite in order to contend that, the jurisdiction of the Court was not properly invoked to require it to show cause why the money of the judgment debtor in its custody cannot be attached. This is what I believe the Appellant is contending in its argument. This situation in my view is distinguishable from the situation in the cases cited by the 1st and 2nd Respondents’ counsel; to wit, UBA PLC V. Option One Agritrade (Nig) Ltd & 1 Or (2018) LPELR-43865 (CA), pp. 14-15, paras D-A, and GTB PLC V. Innoson (Nig) Ltd (2017) LPELR-42368 (SC) per Eko, JSC.” Per JAMES GAMBO ABUNDAGA, JCA in CBN v. FOLUSO & ORS (2021) LPELR-54879(CA) (Pp 8 – 11 Paras D – B) |
Step or procedure to be adopted by a trial Court where the garnishee appears and disputes his liability for the judgment debt: “In a garnishee proceeding, where the garnishee is served with an order nisi, he can either pay the amount of the debt or dispute it. Where disputed as in the instant case, he will appear in Court on the return date and dispute his liability. The Court may then order that any issue or question necessary in determining his liability be determined or tried in any manner or may refer the matter to a referee. It is my respectful opinion that the Appellant has by its 2 affidavits to show cause dated 31/3/2008 and filed same date, and 1/4/2008 and filed on same date contained at pages 11-14 of the records; and particularly the further and better affidavit dated 14/4/2008 and filed on same date; have fully disputed liability and custody of the said judgment debt of the 1st and 2nd Respondents wherein at page 15 of the records, it disputed liability vide. Exhibit “A”, being the statement of account showing only a credit balance of N55,451.98 to the credit balance of the 3rd Respondent. Yet, the order nisi was made absolute by the trial Court. To my humble mind, this is laughable especially in the midst of non-contest of the said fact! The step or procedure at least to have been taken by the trial Court was to direct for the liability of the garnishee to be determined in any manner or refer the matter to a referee. This is so provided by Section 87 of the Sheriffs and Civil Process Act thus: “If the garnishee appear 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.” The Court in interpreting Section 87 of the Sheriffs and Civil Process Act, in NIGERIA HOTELS LTD v. NZEKWE (1990) 5 NWLR (Pt.149) 187 AT 197 PARAS E-F, amongst other things held that: “…when liability is denied and which the trial Judge should have done instead of making an order that execution shall issue, was either to order that the issue or question necessary for determining liability be tried or determined in any manner in which any issue or question in any proceedings might be tried or determined or to refer the matter to a referee.” Again, in UBA LTD V. SGB LTD (1996) 10 NWLR (PT.478) 381 AT 390, the Court held: “In the case of doubt whether any amount is owing by the garnishee to the judgment debtor, or that any money due or which has accrued to the judgment debtor is in the possession of the garnishee, the proper order under Section 78 of the Law and Order 8, R.8 (2) of the Judgments (Enforcement) Rules, is for the Court to direct an inquiry to establish the said amount. With due respect to the above directive however, the instant case does not even call for that step or procedure. The Appellant has factually, sufficiently and abundantly disputed liability that warranted a discharge of the garnishee rather than the unfounded decision of trial Court at page 22 of the records to the effect that the Appellant “…disclose no tenable facts or evidence preventing this Court from making its address absolute.” I sincerely cannot stamp or give my credence to such an unsupportable decision of the trial Court! Would a Bank or garnishee be made to pay for money of the 3rd Respondent which it is not in custody of or liable to after the efforts it has made to file 3 affidavits to show cause as evidenced at pages 11-17 in the records of appeal? How else or in what manner is a garnishee supposed to show cause or dispute its liability to the judgment debt? I equally cannot see even any reason why this matter should be referred to a referee or even to resolve conflicts in the affidavit as opined and argued by the learned silk to the Appellant. The facts in this appeal are straight and the Appellant has to my satisfied opinion disputed liability and as such ought to have been discharged. The role of the garnishee is simple: The Garnishee disputes liability by denying indebtedness to the Judgment Debtor. See VINALL v. DE PASS (1892) AC 90. Furthermore, it is in records that the affidavits to show cause of the garnishee were never challenged by the Respondents, hence it is deemed admissible. See N.P.A. V. A.I.CO (2010) 3 NWLR (PT.1182) 487 AT 500 PARAS G.H.” Per UWANI MUSA ABBA AJI, JCA UBA v. SAS & ORS (2015) LPELR-40394(CA) (Pp 18 – 21 Paras B – F) |
Whether the Court can award cost in a garnishee proceeding: “Sections 83 (1) earlier had earlier been set out in this judgment while Section 86 of the Sheriffs and Civil Processes Act (supra) states as follows: 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. The operative word in each of the said provisions is “may”. While this word could in special circumstances be mandatory, it seems evidently clear to me however that in the sense used in these sections, it is permissive, allowing for the discretion of the Court attending to the garnishee application. See ANOCHIE v. OBICHERE & ORS 1 EPR 406 at 423.” Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA in UWAK & ORS v. SAMPSON & ORS (2016) LPELR-41216(CA) (Pp 23 – 24 Paras B – B) |
Whether a court can entertain an application to stay the execution and in fact order a stay of execution of a garnishee order absolute it had earlier issued: “The authorities are replete on the position of and/or effect of an Order Absolute, made by a Court in a Garnishee Proceedings; that it amounts to an Order of execution of the Judgment, which the Judgment creditor applied to enforce by means of the garnishee process. In the case of Zenith Bank Plc Vs John & Ors (2015) 7 NWLR (Pt.1458) 393 (which was cited and relied upon at the Lower Court), the Supreme Court held: “It is stating the obvious, that a Garnishee Order Absolute means an executed judgment, and being a complete act, one wonders how an order of stay can either be ordered or carried out. In this regard, I refer to the A.G. Anambra State Vs Okafor (1992) 2 NWLR (Pt.224) at 430; Badejo Vs Fed. Minister of Education (1996) 8 NWLR (Pt.464) 15.” Per Mary Peter – Odili JSC In the said judgment above (Zenith Bank Plc Vs John (supra), my lord, Onnoghen JSC (as he then was, later CJN) said: “It is not in dispute that a garnishee proceeding is one of the modes or methods of enforcement of a judgment debt, and that a Garnishee Order Absolute had been made by a Court of competent jurisdiction in this matter. Also, not in dispute, is the basic fact that there is no appeal against the said order absolute, pending in the Court below. It is settled law that once an execution is completed, you cannot order a stay of execution of the judgment, already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine, intended to cure his ailment. Put the other way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law, which does nothing in vain. In a situation where execution had been levied, the proper application is for an order of Court setting aside the writ of attachment or execution, if actual execution had not been carried out.” In the same way, Mohammed JSC in that case said: “The underlining principle that must inform our decision, in this matter, is that an injunction or stay does not proceed against a completed event; the order the application herein seeks to stay is a Garnishee Order Absolute, which by its very tenor, denotes that execution has already been levied against the property to which the order being sought, relates. The money with the Garnishee Order being made absolute becomes wholly attached…” The above case (Zenith Bank Plc Vs John (supra)) was cited and relied upon at the Lower Court, together with other relevant cases, relied upon by Appellants in this Appeal, but surprisingly, the learned trial Court appeared not to have adverted its mind to them, and therefore embarked on making an order which amounts to a complete nullity, and ridicule of its Court, as the order the Court made is an impossibility, incapable of any enforcement. This is because the said judgment in HOW/616/2012, having been enforced by the Garnishee Order absolute, which the Court made on 19/10/2017, has become a completed act. As stated by my lord Onnoghen JSC (later CJN) in the case of Zenith Bank Plc Vs John (supra): “it is settled law that, once an execution is completed, you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment…” There is consensus in the decisions of the apex Court, that: “a garnishee proceeding is one of the modes or methods of enforcement of a judgment debt and that a Garnishee Order Absolute, once made… by its very tenor, denotes that execution has already been levied against the property to which the order being sought, relates. The money, (in custody of the Garnishee), with the Garnishee Order being made absolute, becomes, wholly, attached.” See Zenith Bank Plc Vs John & Ors (2015) 7 NWLR (Pt.1458) 393. In that situation, the Lower Court became functus officio in the Garnishee proceedings (HOW/51M/2017), having made its final order (the Garnishee order absolute) on 19/10/2017. The judgment Debtors/Respondents (who were parties at the Court below, had no competence to seek to reopen the case again by their motion(application) for stay of the Garnishee Order Absolute, feigning absence of jurisdiction in the trial Court, to make the Garnishee Order Absolute. I think the Judgment Debtors were embarking on a course to abuse the Court process, and the learned trial Judge got trapped by the allegation of appeal and/or issue of jurisdiction, to make the illegal orders, in vain, as it cannot be enforced. In the case of Union Bank of Nigeria Plc Vs Boney Marcus Ind. Ltd (2005) LPELR – 3394; (2005) 13 NWLR (Pt.943) 654 (which was referred to by Mohammed JSC in the above case of Zenith Bank Plc Vs John (supra), it was held: “In the circumstance, this Court has become functus officio. The Latin Phrase, “functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. A Court is said to be functus officio in respect of a matter, if the Court had fulfilled or accomplished its function in respect of that matter, and therefore lack the potency to review, reopen or revisit the matter. Thus, once a Court delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment, except under certain conditions.” Per Akintan JSC. In the case of Dingyadi Vs INEC (2011) 10 NWLR (Pt.1255) 347 at 393, the Supreme Court held: “During the period between when an Order nisi and order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties, as far as proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at the stage, being interlocutory would therefore not arise.” Per Adekeye JSC The above decision, (like the case of Zenith Bank Plc Vs John (supra)) is applicable to this Appeal. I therefore hold that the act of entertaining the application to stay the Garnishee Order Absolute that resulted in the Ruling, in this appeal (and the entire decision of the Court below) was a misadventure, an exercise in futility, incapable of any legal effect, in the circumstance.” Per ITA GEORGE MBABA, JCA in ODOR & ANOR v. GOV OF IMO STATE & ORS (2020) LPELR-50618(CA) (Pp 12 – 17 Paras A – D) |
Whether a garnishee order absolute attaching the salaries and current account of a judgment debtor with a garnishee/bank is well founded: “The main issue in this appeal in my opinion is whether the garnishee order absolute attaching the salaries and current account of the Judgment Debtor/2nd Respondent with the garnishee appellant was well founded. But first, let me attend to appellant’s complaint that its right to fair hearing was breached by the lower Court’s comment that its counsel cited cases without providing them and that meant that it abandoned the said cases, which comment appellant said implies that its affidavit to show cause was not also considered by the lower Court and its right to fair hearing breached. Much as I find, I am unable to agree with the lower Court that reported cases cited by counsel in Court are deemed abandoned if not supplied to the Court by counsel, I fail to see with appellant on its complaint of breach of fair hearing. When the lower Court said that “counsel to garnishee cited authorities without providing the authorities and so abandoned the said authorities”, it did not by any stretch of imagination mean that appellant’s counsel had also abandoned its affidavit so it would not look at it. If anything at all, the lower Court, immediately after that comment, went on to say that it was after “perusing the submission (of appellant’s counsel) and considering appellant’s second prayer and Exhibit R1 attached to the Counter Affidavit” that it felt the application should be granted. That takes me to the central issue in the appeal, which is the validity of the order of attachment made by the lower Court. Attachment of debt as a means of execution of judgment is sanctioned by Section 83(1) of the Sheriffs and Civil Process Act, Laws of Federation of Nigeria, 2004. It is a process by which a judgment creditor is enabled to reach money due to the judgment debtor which is in the hands of a third person to order such third person to pay to the judgment creditor the debt due from him to the judgment debtor or as much of it as may be sufficient to satisfy the judgment creditor’s claim. In this connection, the third person in whose hands is the money sought to be attached is called the garnishee, the requisite proceedings are known as garnishee proceedings and the necessary order is called a garnishee order. To be capable of attachment, however, there must be in existence at the date the attachment becomes operative a debt. A debt is a sum of money which is payable now or will become payable in the future by reason of a present obligation (see Webb v. Stenton 11 QBD 518) – emphasis on ‘present obligation.’ In other words, the debt must be already due and payable and actually existing and not merely a debt which might or might not become due. Where the existence of a debt depends upon performance of a condition, for instance like salaries that are yet to be worked for and earned, there is no attachable debt. An existing right under which something is accruing that will probably become a debt at some future date is not sufficient notwithstanding that the amount to become due is capable of being calculated with precision. To constitute a debt capable of attachment by garnishee proceeding, the relationship of creditor and debtor must exist between the judgment debtor and garnishee. The debt must be one which the judgment debtor can himself enforce within the jurisdiction for his own benefit; for the creditor acquires no larger rights than those of the debtor. For all this, see Halsbury’s Laws of England, 3rd Edition, p. 79 – 83, and Sakar’s Code of Civil Procedure, 11th Edition, Reprint 2012, by Sudipto Sakar and V.R. Manohar, Vol. 2, p. 1704. In the light of all the above, it cannot be said that the future salaries of 2nd respondent which he is yet to earn, and so not yet even payable let alone get deposited in his account with the garnishee, is a debt owing him by appellant and capable of attachment pursuant to Section 83(1) of the Sheriffs and Civil Process Act, 2004. See also Hall v. Pritchett (1877) 3 Q.B.D. 215. The lower Court’s Order of attachment on 17/3/2016, if at all, can only reach the paltry credit balance of ?218.00 (Two Hundred and Eighteen Naira) in 2nd Respondent/Judgment Debtor’s current account (Exhibit R1) and not his judgment debt of ?424,470.00 which the garnishee owes no obligation to pay him; accordingly, it was in error when it ignored the contents of 2nd Respondent/Judgment Debtor’s Current Account No. 2668420018 with appellant and proceeded to make, as prayed by 1st Judgment Creditor in his application, “An order nisi and absolute attaching the sum of money of the judgment debtor at the respondent (appellant) bank to the sum of ?424,470.00 attaching = viz: Tanimu B. Usman Bank FCMB, Gombe Branch, Account No. 2668420018.” Since no such sums were in that account or even owed to the Judgment Debtor by the garnishee, the order of attachment effectively amounts to compelling appellant to use its own resources to offset 2nd respondent’s indebtedness to 1st appellant. Such is not the intendment of Section 83(1) of the Sheriffs and Civil Process Act 2004 and the powers vested by it on the Court to make orders of attachment. See again Hall v. Pritchett (1877) 3 Q.B.D. 215 at 217 where it was said (Corkburn, C.J., and Mellor, J.) that: ‘We think that the future salary cannot be attached, and that the appeal against the order must be allowed.” This appeal is accordingly allowed and the garnishee Orders, Nisi and absolute, made by Pindiga, J., of the High Court of Gombe State against the garnishee/appellant Bank, First City Monument Bank Plc, are hereby discharged.” Per BOLOUKUROMO MOSES UGO, JCA FCMB v. ADAMU & ANOR (2019) LPELR-49995(CA) (Pp 5 – 10 Paras C – A) |
What determines the jurisdiction of the trial Court in garnishee proceedings: “Appellants relied on Section 83(1) of the Sheriffs and Civil Process Act which states thus: “The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and any other person is indebted to such debtor and is within the state, order that debts owing from such third person, herein after called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.” This provision was considered in the case of SOKOTO STATE v. KAMDEX (NIG) LTD (2004) 9 NWLR Pt. 878 345 where the Court held as follows: “The long established principle in garnishee proceeding is that where the debt is situate determines the jurisdiction of the trial Court; and it is a guide to garnishee proceeding leading eventually to the attachment of the credit balance of the third party.” Per YARGATA BYENCHIT NIMPAR, JCA in SCOA (NIG) PLC & ANOR v. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA & ANOR (2016) LPELR-40192(CA) (Pp 6 – 7 Paras D – E) |
Whether a garnishee order made absolute by the Court is an interlocutory or final order: “An order of a trial Court refusing to discharge its garnishee order nisi and making it absolute is a final order and is appealable as of right. The only way by which a garnishee can express dissatisfaction with the order absolute is to appeal against it. See In Re: Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 12.” Per JAMES SHEHU ABIRIYI, JCA in ECOBANK v. AKAEHOMEN (2017) LPELR-43058(CA) (Pp 12 – 12 Paras A – B) |
Instance(s) in which a garnishee order nisi will not be made absolute: “As noted in GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR supra, a garnishee order nisi will not be made absolute where a garnishee shows that he is not holding any money belonging to the judgment debtor, or that money belonging to the judgment debtor in his possession is the subject of litigation or has been assigned to a third party or any other legal and reasonable excuse.” Per PETER OYINKENIMIEMI AFFEN, JCA in GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 30 – 30 Paras D – F) |
Whether the Court has a duty to hear an objection raised by a judgment debtor to the jurisdiction of the Court to entertain garnishee proceedings: “… Therefore where there is a challenge to the jurisdiction of the Court to entertain the garnishee proceedings either by the garnishee or the judgment debtor the Court has a duty to hear and determine the issue of jurisdiction before taking any further step in the proceedings.” Per ABUBAKAR MAHMUD TALBA, JCA in LODIGIAN (NIG) LTD v. A.G., ZAMFARA STATE & ORS (2021) LPELR-55645(CA) (Pp 7 – 8 Paras F – A) |
Whether an appellant appealing against a decision in garnishee proceedings must state in the ground(s) of appeal the part of decision appealed against: “It is submitted for the respondents that the notice of appeal failed to state what part of the decision of the lower Court the appellant is complaining about, in violation of Order 2 Rule 2 (1) of the Rules of this Court, by appealing against entire garnishee proceedings when there are 18 other garnishees who have not appealed against the final decision; as the absence of specific complaint goes to the root and essence of the appeal and renders the appeal incompetent for lack of locus standi. It is submitted in response that the rule of Court in issue simply gives an appellant an option to indicate whether he is appealing against the entire decision or against a part, because there may be pronouncements which favour an appellant as well as those which do not favour an appellant. That it is intended to avoid the incongruity of a party appealing against a decision which enures in his favour that he is expected to indicate the part which he has appealed against in order not to be appealing against part of the decision which ensures to him. The argument for the respondents, with due respect appears to have lost sight of the fact that a garnishee proceeding is to all intents and purposes directed at a particular garnishee not necessarily joint proceeding; and each garnishee is expected to show cause, failing which he is compelled to comply by attachment of funds in its custody. The various garnishees do not become joint parties, every one of them sinks or swims on his own; and that being so, the grouse is in respect of the garnishee proceedings. I cannot help but agree with learned counsel to the appellant that even where an appellant indicates that he is appealing against the whole decision, that is still subject to the grounds of appeal framed after all, and that explains why a decision in a judgment which is not appealed is binding on that party. The essence of Order 2 Rule (1) of the Court of Appeal Rules it has to be said is to give an appellant the option of appealing against the whole decision or part thereof, so that a party does not go through appealing parts of a decision that in fact is in its favour. It is for these reasons that I resolve this ground in favour of the appellant, against the respondents.” Per MOHAMMED MUSTAPHA, JCA in FIRST BANK v. NAZIA & BROTHERS (NIG) LTD & ORS (2018) LPELR-46197(CA) (Pp 4 – 6 Paras B – A) |
Whether Court must dispose of an application for stay of execution of judgment before considering an ex-parte garnishee application: “…It is true, as argued by learned counsel for the 1st Respondent, that garnishee proceedings is distinct since it is between the judgment creditor and the garnishee and a judgment debtor who has appealed against the decision which led to the ex parte garnishee application by the judgment creditor can appeal as an interested party against the order nisi. However I am still at a loss as to the reasonableness of a Court ignoring to deal with a pending application for stay of execution of the judgment and proceed to grant the ex parte garnishee application. I feel strongly that it is always better for the Court to dispose of the application for stay of execution of the judgment before considering the ex-parte garnishee application. After all the granting or refusal of stay of execution is discretionary. In view of this I prefer the decision in STANDARD TRUST BANK LTD. v. CONTRACT REOURCES NIG. PLC and FIRST INLAND BANK PLC v. EFFIONG supra to PURIFICATIONS TECHNIQUES LTD. v. A-G, LAGOS STATE & ORS. (2004) 9 NWLR (pt. 879) 665 and DENTON -WEST v. MUOMA (2008) 6 NWLR (pt. 1083) 418. Mr. Agi, learned senior counsel for the Applicants sought to draw distinction between the DENTON WEST’s case and the present application. The present application is being made when the appeal has been entered and before the order nisi becomes absolute and so any proceedings still pending before the lower Court can no longer be entertained before the lower Court. They either abate or must await the outcome of the appeal to this Court. See Order 4 Rule 11 Court of Appeal Rules, 2007 which provides that – “After an appeal has been entered and until it has been finally disposed of the Court shall be seised of the whole of the proceedings as between the parties thereto, except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.” I do not intend to take the extreme position of nullifying the garnishee order nisi granted while the motion for stay of execution was pending but would direct that in future such application should be taken before considering the ex parte application. The position of the order nisi can only be made absolute in this Court but since the appeal has been entered, the application to make the garnishee order nisi absolute should await the period provided for the filing of the appellants’ brief and if the appellants fail to file their brief within time, the application to make the order nisi absolute can be heard immediately thereafter.” Per KUMAI BAYANG AKA’AHS, JCA in WAEC & ORS v. IKANG & ORS (2011) LPELR-24699(CA) (Pp 5 – 7 Paras E – F) |
Position of the law where a judgment debtor is indebted to the garnishee: “In respect of this issue, I also agree that where a Bank is entitled in law to consider the sums or money of a customer in its vault as a loan to it to be dealt with, subject to its been paid over on call or in accordance with the Banking Regulations and contract that may have been entered into between the parties, such sums, in different accounts of the same holder, may be considered as one same Account for the purpose of settling liability due from the customer in favour of the Banker. In this case therefore, the Bank was perfectly right even as a garnishee to have protected its right (which enjoyed priority in creation, and equity) to the sums in the Account that was said to be on credit. This is necessarily so, because an order nisi only created an equitable charge over the funds in favour of the Judgment creditor. See the old provisions of Order 45 Rule 2 of the Rules of the Supreme Court 1983. Being an equitable charge, it necessarily means that in competition with the Banker’s equity, the first in time must prevail. The word “Nisi” means, “unless”‘ Hence a garnishee order “Nisi” accordingly takes effect at a stated date and time unless something happens to prove that the Court order should not be enforced. In the absence of evidence to stop the proceedings, the order will be made absolute and the second step is thereby completed. At this level, payments may be made. However, as stated by Deolu Oluyinka, ACIB in his book entitled Practice of Banking, Vol. 1 (2004) at page 123. “If the Garnishee (the Bank) has the money available due to the debtor, he will be compelled to pay it over to the Court for the benefit of the garnishor. (The Judgment creditor)” In other words if the money is not there, it cannot be paid. Indeed since the service of a garnishee order determines the banker’s right to pay cheques, it also entitled the Bank to set off credit balances of the customer against any of his actual (not contingent) indebtedness to the Bank, to determine the net balance, if any, accruing, due and owing by the Bank to the customer and thereby attached by the garnishee order. See Deolu Oluyinka, ACIB, Practice of Banking supra at page 134. Indeed the Account that was in debit as a result of overdraft facility granted by the Garnishee to the Debtor automatically must be related and tied back to the affluent Account in protection of the Banker/Garnishee. That being the case, I hold that there were no funds belonging to the Debtor in existence to be attached by an order absolute for the benefit of the Judgment Creditor herein. The trial Judge was therefore wrong in granting an order of Decree Absolute in the circumstances.” Per MOHAMMED AMBI-USI DANJUMA, JCA in FIDELITY BANK PLC v. OKWUOWULU & ANOR (2012) LPELR-8497(CA) (Pp 31 – 32 Paras B – F) |
Whether leave of Court is required for a judgment debtor to appeal against a garnishee order: “On whether or not the appellant must obtain the leave of the Court before appealing in a garnishee proceedings, Section 243 (1) of the 1999 Constitution, as amended states that any right of appeal from decisions of the Federal High Court or a State High Court conferred by the Constitution shall be exercisable in civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter. The question here, is the appellant who is a judgment debtor a party who does not require leave to appeal? I am not unmindful of the fact that 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 jurisdiction of the Court to satisfy the judgment debt – NGUGUISI v. JOPAN PUTRA INRE: DIAMOND BANK LTD (2002) 17 NWLR (prt. 795) 120, SOKOTO STATE GOVERNMENT V. KAMDEX NIG LTD (2004) 9 NWLR (prt. 878) 345, PIPELINE AND PRODUCTS MARKETING COMPANY V. MESSRS DELPHI PETROLEUM INCORPORATION (2005) 8 NWLR (prt 928) 458 and DENTON WEST V. MUOMA (2008) 6 NWLR (prt. 1083) 418. The purpose of enforcing a judgment by garnishee proceedings is to obtain the fruits of the judgment. A garnishee proceedings, as a separate action, cannot be divorced from the validity of the judgment. See BAUCHI STATE GOVERNOR & ANOR V. YUSGATE (NIG) LTD & ORS (2017) LPELR – 43306 (CA). By virtue of Order 8 Rule 8 (1) of the Judgment Enforcement Rules, if no amount is paid into Court, the Court; instead of making an order that execution shall issue, may after hearing the judgment creditor, the garnishee and the judgment debtor or such of them as appear determine the question of the liability of the garnishee. In FAWEHINMI V. NBA (No 1) (1989) 2 NWLR (prt.105) 494 at 550 – a person is defined as follows:- “A party to an action is a person whose name is designated on record as plaintiff or defendant, the term party refers to that person(s) by or against whom a legal suit is sought whether natural or legal persons but all others who may be affected by the suit indirectly or consequently are persons interested and not parties.” There is no denying the fact that garnishee proceedings being a separate and distinct proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. To that extent, a judgment debtor cannot appeal against a garnishee order made by the lower Court as of right. This is the position decided in plethora of cases such as DOKUBO & ORS V. MOBIL PRODUCING NIGERIA UNLIMITED & ANOR (2013) LPELR 21951 (CA), DENTONWEST V. MUOMA (supra) and PURIFICATION TECH. (NIG) LTD V. ATTORNEY GENERAL, LAGOS STATE (2004) 9 NWLR (prt. 879) 665. The foregoing still represent the correct position of the law in so long as the proceedings relates to garnishee order nisi which is initiated ex-parte as the decision at that initial stage does not affect the judgment debtor. However, where the proceedings are with respect to garnishee order absolute; tripartite party arrangement is put in place whereby the judgment debtor by law becomes an active participant by virtue of Section 83 (2) of the Sheriffs and Civil Process Act read in conjunction with Order 8 Rule 8 (1) of the Judgments (Enforcement) Rules. See NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8 NWLR (prt 1515) 536 and STANBIC IBTC BANK V. LONGTERM GLOBAL CAPITAL LTD (supra). In GWEDE V. DELTA STATE HOUSE OF ASSEMBLY (2019) 8 NWLR (prt 1673) 30 at 54 – 55, the apex Court held that it is not in all cases that a judgment debtor cannot be heard in garnishee proceedings. Thus, it is the Court that would determine whether he should be heard or not. If the application of the judgment debtor before the Court is to reopen issues settled in the judgment, he would not be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard. In the instant case, the appellant is alleging that the garnishee order absolute was granted in flagrant violation of its right to fair hearing and also been a party to the tripartite arrangement, does not require any leave of Court to appeal against a decision which is in the nature of a final decision. The respondent’s objection to the competence of this appeal is by and large lacking in merit and it is accordingly overruled.” Per MUHAMMED LAWAL SHUAIBU, JCA in APC v. ZENITH BANK & ORS (2021) LPELR-53074(CA) (Pp 11 – 15 Paras D – D) |
Position of the law where a judgment debtor is indebted to the garnishee: “In respect of this issue, I also agree that where a Bank is entitled in law to consider the sums or money of a customer in its vault as a loan to it to be dealt with, subject to its been paid over on call or in accordance with the Banking Regulations and contract that may have been entered into between the parties, such sums, in different accounts of the same holder, may be considered as one same Account for the purpose of settling liability due from the customer in favour of the Banker. In this case therefore, the Bank was perfectly right even as a garnishee to have protected its right (which enjoyed priority in creation, and equity) to the sums in the Account that was said to be on credit. This is necessarily so, because an order nisi only created an equitable charge over the funds in favour of the Judgment creditor. See the old provisions of Order 45 Rule 2 of the Rules of the Supreme Court 1983. Being an equitable charge, it necessarily means that in competition with the Banker’s equity, the first in time must prevail. The word “Nisi” means, “unless”‘ Hence a garnishee order “Nisi” accordingly takes effect at a stated date and time unless something happens to prove that the Court order should not be enforced. In the absence of evidence to stop the proceedings, the order will be made absolute and the second step is thereby completed. At this level, payments may be made. However, as stated by Deolu Oluyinka, ACIB in his book entitled Practice of Banking, Vol. 1 (2004) at page 123. “If the Garnishee (the Bank) has the money available due to the debtor, he will be compelled to pay it over to the Court for the benefit of the garnishor. (The Judgment creditor)” In other words if the money is not there, it cannot be paid. Indeed since the service of a garnishee order determines the banker’s right to pay cheques, it also entitled the Bank to set off credit balances of the customer against any of his actual (not contingent) indebtedness to the Bank, to determine the net balance, if any, accruing, due and owing by the Bank to the customer and thereby attached by the garnishee order. See Deolu Oluyinka, ACIB, Practice of Banking supra at page 134. Indeed the Account that was in debit as a result of over draft facility granted by the Garnishee to the Debtor automatically must be related and tied back to the affluent Account in protection of the Banker/Garnishee. That being the case, I hold that there were no funds belonging to the Debtor in existence to be attached by an order absolute for the benefit of the Judgment Creditor herein. The trial Judge was therefore wrong in granting an order of Decree Absolute in the circumstances.” Per MOHAMMED AMBI-USI DANJUMA, JCA in FIDELITY BANK PLC v. OKWUOWULU & ANOR (2012) LPELR-8497(CA) (Pp 31 – 32 Paras B – F) |
Whether a garnishee order absolute is a completed act, the execution of which cannot be stayed: “Let me now deal with the issue of whether a garnishee order absolute is a completed act and so its execution having been completed cannot be stayed. The execution of a judgment ordering the payment of a specific sum of money does not end with the attachment of the property of the judgment debtor. It ends when the judgment sum is finally paid to the judgment creditor. Until the judgment sum is paid to the judgment creditor the process of execution of the judgment can be stayed or suspended for legally recognized reasons. One of such reasons is that there is a pending appeal against the said judgment or order and that if the money is paid to the judgment creditor while the appeal is pending, it will render nugatory the process and result of the appeal. The appellant in an appeal against a judgment has a right to protect the appeal from being rendered nugatory and therefore has the right to employ the appropriate legal and equitable process to protect the appeal from being negated. One of such process is an application for an order of Court staying the execution of the judgment the determination of the appeal. It is part of the compendium of the appellant’s right of appeal to be able to protect the exercise of that right from being rendered illusory. It is equally the duty of the Court to protect the appeal from being rendered nugatory. As held by the Supreme Court in SPDC (Nig) Ltd v. Amadi & Ors (Supra) “… In an application for stay of execution, the Court has a primary duty to protect the res from being destroyed, annihilated or demolished. The Court has a duty to ensure that the res is intact, not necessarily for posterity, but for the immediate benefit and pleasure of the party who is finally in victory in the litigation process. This is necessary because if the res is destroyed in the course of litigation before the party gets judgment, then he has no property to make use of in the way he wants as the owner and the direct result in such a circumstance is that the victor has on his land a barren victory, a victory without a difference, an empty victory. He leaves the Court empty handed. In real fact he leaves the Court in victory without victory. If the res is destroyed, annihilated or demolished before the matter is heard on appeal, then this Court will be reduced to a state of hopelessness and that will be bad, very bad indeed. This Court, like every other Court cannot give an order in vain. The Court will then be reduced to a situation where it can bark by the use of its judicial powers under Section 6 (6) of the 1979 Constitution but cannot bite.” The proposition or notion that an appellant in an appeal against a garnishee order absolute cannot apply for an order to stay or suspend the payment of the sum of money attached by the garnishee order absolute pending the determination of the appeal is therefore wrong.? In the present case, the sums of money in the accounts of the 7th judgment debtor with the 14th garnishee attached by the order absolute of 19-6-2019 has not been paid to the judgment creditor till now. In reality, the execution of the order to pay the attached funds to the judgment creditor has not been completed as he has not received the attached funds. The decision of the Supreme Court in Zenith Bank Plc v. John (supra) is not applicable here because in that case, there was no appeal against the garnishee order absolute. There was no pending appeal whose res needed protection by an order of stay of execution. By not appealing against the garnishee order absolute, the garnishee and the judgment debtor accepted it as valid, binding and conclusive. It was in that context that the Supreme Court held that the garnishee order absolute could not be stayed as it had become conclusive and binding and there was nothing left for the Court to determine. The decision of this Court in UBA Plc v. Boney Marcus Industries Ltd & Ors (supra) is not applicable to this case because the issue dealt with in that the case is whether a garnishee order absolute is an interlocutory or final decision. It held that it was a final decision. This Court in that case did not decide the issue of whether an order of garnishee absolute is a completed act of execution of judgment. The decision in UBA Plc v. Ekanem (2010) 2 NWLR (Pt. 177) 181 at 196 is not applicable to this case because the facts of that case are different from those of the present case. The execution of the judgment by a writ of attachment had commenced. The judgment debtor had even started paying the judgment sum after notice of attachment was served on it by issuing a bank draft to the judgment creditor. However it refused to give value to the draft and applied to the trial Court for permission of the Court not to give value to the bank draft in the sum of N5 million naira it issued to the bailiff and secondly that the sum of N500 it paid to the bailiffs be returned to it pending the determination of the motion for stay of execution of the main judgment and the one for stay of execution of execution of a subsequent garnishee order absolute in execution of the same judgment. In that case, there was no pending appeal against the garnishee order absolute.” Per EMMANUEL AKOMAYE AGIM, JCA in KOGI STATE HOUSE OF ASSEMBLY v. SANI & ORS (2019) LPELR-48463(CA) (Pp 29 – 33 Paras C – E) |
Whether an appellant appealing against a decision in garnishee proceedings must state in the ground(s) of appeal the part of decision appealed against: “It is submitted for the respondents that the notice of appeal failed to state what part of the decision of the lower Court the appellant is complaining about, in violation of Order 2 Rule 2 (1) of the Rules of this Court, by appealing against entire garnishee proceedings when there are 18 other garnishees who have not appealed against the final decision; as the absence of specific complaint goes to the root and essence of the appeal and renders the appeal incompetent for lack of locus standi. It is submitted in response that the rule of Court in issue simply gives an appellant an option to indicate whether he is appealing against the entire decision or against a part, because there may be pronouncements which favour an appellant as well as those which do not favour an appellant. That it is intended to avoid the incongruity of a party appealing against a decision which enures in his favour that he is expected to indicate the part which he has appealed against in order not to be appealing against part of the decision which ensures to him. The argument for the respondents, with due respect appears to have lost sight of the fact that a garnishee proceeding is to all intents and purposes directed at a particular garnishee not necessarily joint proceeding; and each garnishee is expected to show cause, failing which he is compelled to comply by attachment of funds in its custody. The various garnishees do not become joint parties, every one of them sinks or swims on his own; and that being so, the grouse is in respect of the garnishee proceedings. I cannot help but agree with learned counsel to the appellant that even where an appellant indicates that he is appealing against the whole decision, that is still subject to the grounds of appeal framed after all, and that explains why a decision in a judgment which is not appealed is binding on that party. The essence of Order 2 Rule (1) of the Court of Appeal Rules it has to be said is to give an appellant the option of appealing against the whole decision or part thereof, so that a party does not go through appealing parts of a decision that in fact is in its favour. It is for these reasons that I resolve this ground in favour of the appellant, against the respondents.” Per MOHAMMED MUSTAPHA, JCA in FIRST BANK v. NAZIA & BROTHERS (NIG) LTD & ORS (2018) LPELR-46197(CA) (Pp 4 – 6 Paras B – A) |
FOURTEEN DAYS NOTICE: Effect of failure to give the 14 days notice to the judgment debtor as provided for in Section 83(2) of the Sheriff and Civil Process Act before hearing a motion for garnishee order nisi to be made absolute: “… the main grouse of the appellant is that by virtue of the provision of Section 83 (1) and (2) of the Sheriffs and Civil Process Act, it is by law entitled to be served with an order nisi at least 14 days before an order absolute be made. Thus, the order absolute made in the instance case clearly contravened the mandatory provision of Section 83 (1) and (2) of the Sheriffs and Civil Process Act. The said Section 83(1) and (2) of the Act read as follows:- “83. (1) The Court may, upon the expart application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. (2) 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. ?It is pertinent to state here in an unequivocal terms that the garnishee order nisi made pursuant to the provision of Section 83 (1) of the Sheriffs and Civil Process Act was an exparte order directed at the Garnishee and to which the judgment debtor is not a party who could invoke the right of appeal against same, as of right. Though as judgment debtor whose funds may be the subject of the exparte, order; his interest in the funds was in no legal way affected or even interfered with by the order at that stage same being directed only to the holder of the funds, that is, the garnishee, who the law considers to be the debtor of the judgment creditor. Thus, the garnishee order nisi is directed to the Garnishee to appear before the Court to show reasons why the funds, if available should not be paid to the judgment creditor. However, the situation changes after service of the order nisi on the judgment debtor pursuant to Section 83 (2) of the Act. I have stated earlier in this judgment that at this stage of the proceedings, a tripartite party arrangement is thereby created and the service of the order nisi on the judgment debtor at least fourteen (14) days before hearing whereas the order nisi will be made absolute. And since the Section makes it mandatory for service of the order nisi on the judgment debtor, the judgment debtor becomes a necessary party to be heard in this latter proceedings. Consequently, the right of appeal would inure to a judgment debtor from a decision by the Court at this latter or second stage of the proceedings. In the instant case, the appellant was served on the 16th of June, 2010 while the order nisi was made on the 29th day of June, 2010. To compute fourteen (14) days from the 17th day of June, 2010 for the motion on notice for the order absolute to be set down for hearing means that the fourteen days stipulated by Section 83 (2) of the Sheriffs and Civil Process Act did not crystallizes. It is also pertinent to observe for the umpteenth time that the issue of lack of service or failure to serve relates to denial of fair hearing and queries the jurisdictional competence of the adjudicating authority; Therefore, such issue can be raised at any time of the proceeding without leave. See ELUGBE V. OMOKHAFE (2004) 18 NWLR (prt. 905) 319, MOSES V. STATE (2006) 11 NWLR (prt 992) 458 and I.B.W.A. V. SASEGBON (2007) 16 NWLR (prt 1059) 195. In SUNNET SYSTEMS LTD V. NIGERIA ELECTRICITY REGULATORY AUTHORITY COMMISSION & ANOR (2014) LPELR – 223967 (CA) it was held that where a garnishee order nisi and absolute are made without jurisdiction of the lower Court, it within its jurisdiction to set these orders aside on the application of an aggrieved party. It is thus my respectful view that the failure to serve the appellant the garnishee order nisi at least fourteen days before an order nisi be made absolute robbed the trial Court of jurisdiction.” Per MUHAMMED LAWAL SHUAIBU, JCA in APC v. ZENITH BANK & ORS (2021) LPELR-53074(CA) (Pp 18 – 22 Paras B – A) |
Who can exercise a right of appeal against a garnishee order: “With regard to the applicant’s prayer to set aside the garnishee proceedings, I must observe this. The garnishee proceedings are legitimate exercise of his right to employ auxiliary methods to enforce the judgment obtained in his favour and they are competent notwithstanding the pendency of a motion for stay of execution. See Vaswani Trading Co. Ltd. v. Savalakh & Co. (1972) 12 SC 77; Purification Techniques (Nig.) Ltd. v. A-G., Lagos State (2004) 9 NWLR (Pt.879) 665 at 677. I am however of the view that by virtue of Order 4 Rule 11 of the 2007 Rules, when an appeal has been entered in this Court, any complaint regarding steps taken towards the enforcement of the judgment appealed against, could only be ventilated in this Court. See I.B.W.A v. Pavex Int’l (Nig.) Ltd. (supra). There must however be an appeal filed by the applicant. The question is whether the applicant herein is the proper party to complain about the garnishee orders nisi granted by the lower Court. It has been noted that garnishee proceedings are separate proceedings between the judgment creditor and the party who has custody of the assets of the judgment debtor, even though the steps taken in the proceedings flow from the judgment that pronounced the debt being owed. See In Re: Diamond (supra) and Purification Techniques (Nig.) Ltd. v. A-G., Lagos State (supra). However, Section 243(a) of the 1999 Constitution provides for the right of appeal from the lower Court to this Court to be exercised at the instance of the party or person having an interest in the matter. As tightly noted by the learned counsel for the respondent, and I agree with him that there is no appeal against the orders of Okocha, J. made on 25/7/07. There is no application either before the trial Court or this Court for leave to appeal against the Orders as an interested patty. In garnishee proceedings, is the garnishee who is in custody of or holding the assets of the judgment debtor that could be said to have been aggrieved and therefore competent to appeal against the order. See P.P.M.C. v. Delphi Pet. Incorp. (2005) 8 NWLR (Pt. 928) 458 at 486.” Per SULEIMAN GALADIMA, JCA in DENTON-WEST v. MUOMA (2007) LPELR-8172(CA) (Pp 30 – 31 Paras D – F) |
What determines the jurisdiction of the trial Court in garnishee proceedings: “Order VIII Rule 2 of the Judgment (Enforcement) Rules provide for the Court in which garnishee proceedings can be brought. It provides thusly: “(a) in any Court in which the judgment debtor could, under the High Court (Civil procedure) Rules or under the appropriate Section or rule governing civil procedure in Magistrates’ Courts, as the case may be, sue the gainishee in respect of the debt; or (b) where the debt is not yet payable, or is for an amount exceeding the jurisdiction of such Court, in any Court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable or had not exceeded the jurisdiction.” So garnishee proceedings can be brought in only a Court where the Judgment debtor can sue the garnishee for the debt. I agree with the Learned Counsel for the appellant that the Court where the Police Service Commission (2nd Judgment debtor) can sue the Central Bank of Nigeria (garnishee) for the funds in the custody of the appellant, attached by garnishee order is the Federal High Court of Nigeria and not Federal Capital Territory High Court. This is because that would be a suit against the Central Bank of Nigeria arising from the fiscal measure of custodying funds belonging to government and their agencies and the resulting transactions between the government or its agency and S. 251 (1) (d), of the 1999 Constitution vests exclusive jurisdiction over such suits in the Federal High Court of Nigeria. The said S.251 (1) (d) provides that: “(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters:- (d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures.” So the Federal Capital Territory High Court had no jurisdiction to make the order absolute. The order made is therefore a nullity. The decisions of this Court in CBN V. Okeb Nig. Ltd. (Supra) and CBN V. Auto Import Export (Supra) cited by Learned Counsel for the appellant correctly stated the law on this point.” Per EMMANUEL AKOMAYE AGIM, JCA in CBN v. KAKURI (2016) LPELR-41468(CA) (Pp 24 – 27 Paras F – A) |
Whether stating of the judgment debtors account with the garnishee is a precondition for the attachment of debt by garnishee order: “Furthermore, with regards to whether the applicant must state the judgment debtors account with the garnishee as a precondition, this Court in the case of Oceanic Bank Plc vs Michael Olusegun Oladepo & Anor, (2012) LPELR 19670 (CA) per Mbaba JCA, held that:- “I have already stated in this judgment that the relevant particulars required by Section 83(1) of the Sheriff and Civil Process Act, for the purpose of garnishee proceedings, had been satisfied by the 1st respondent and that the application at the lower Court was not speculative, simply because the account number and the exact amount to the credit of the judgment debtor were not stated by the 1st respondent. Of course, the information as to the account number and the exact amount in the account were information within the exclusive knowledge of the appellant and the 2nd respondent, and by banking confidentiality divulges on of such information is not permitted to a third party.” Per HAMMA AKAWU BARKA, JCA in NUHU v. DSS KWARA STATE COMMAND (2017) LPELR-42351(CA) (Pp 14 – 15 Paras D – B) |
Meaning and intendment of garnishee proceedings: “On what a “GARNISHEE PROCEEDINGS” is, the following cases are apposite viz:- 1. GUARANTY TRUST BANK PLC VS INNOSON NIGERIA LIMITED (2017) 16 NWLR (PART 1591) 181 AT 197 F-H TO 198 A – H per EKO, JSC who said:- “Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which form part of his property available in execution. The third party holds the debt or property of the judgment debtor. By this process, the Court orders the third pay directly to the Judgment Creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of Phrases Legally Defined 3rd Ed. Vol.2, pages 313-314 cited by Akintan, JSC, in his concurring judgment in Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd. (2005) 13 NWLR (Pt.943) 654 at page 666. Lord Denning, MR. in Choice Investment Ltd. v. Jerominimon (1981) QB 149 at 154-155, gives a simple illustration of garnishee proceeding thus: “A creditor is owed Per PETER OLABISI IGE, JCA in DELTA STATE HOUSE OF ASSEMBLY v. GWEDE & ANOR (2018) LPELR-51280(CA) (Pp 53 – 58 Paras D – G) |
Whether two courts can make garnishee orders absolute in respect of the same account of a judgment debtor: “While nothing stops two Courts from making garnishee orders absolute in respect of the same account of a judgment debtor, a Court whose attention has been drawn to a previous garnishee order absolute that has attached the entirety of the amount in the account, has no business to make a garnishee order absolute of its own in respect of that account. The lower Court whose attention was drawn to the garnishee order absolute in suit No. KDH/KAD/30/2013 which order had attached the entire amount in the judgment debtor’s account No. 0051591337, had no business to make its garnishee order nisi absolute in respect of money in that same account No. 0051091337. By doing so, it made an order that is incapable of being carried out. Courts are not in the business of making inefficacious orders. It is settled law that a Court of justice will not issue an order which is unenforceable. See EKPENYONG & ORS V NYONG (1975) 2 SC (Reprint) 65. A Court cannot make an order in vain. See CCB (NIG) PLC V OKPALA (1997) 8 NWLR PART 518; (197) LPELR-6278 (CA). That a Court should not make an order in vain is so as to protect the integrity of its decision. Contrary to the flippant saying that the law is an ass, a statement credited to a character in the hugely popular literary work, Oliver Twist by Charles Dickens, the law is not an ass. Courts being custodians of the law must refrain from making unenforceable orders. They must not lend themselves to be ridiculed by the likes of the character in Oliver Twist who may be tempted to call the Court an ass because of decisions made in vain. Equity, it has to be remembered, does not require an idle gesture. Equity will not compel a Court to do a vain and useless thing.” Per OBIETONBARA OWUPELE DANIEL-KALIO, JCA in ACCESS BANK v. SEKAV & ORS (2017) LPELR-45061(CA) (Pp 17 – 18 Paras C – F) |
Whether a Court can make a Garnishee Order absolute when there is subsisting order(s) of Mareva Injunction made by another judge of coordinate jurisdiction on the same accounts maintained by the Judgment Debtor with the Garnishee: “With all due respect, the Respondent’s arguments on which order is interlocutory and which one is final and which order takes precedence over which is grossly misconceived. In so far as an order is made by a Court, another Court of coordinate jurisdiction cannot overrule or review it. It may be set aside by the Court that made the order only if the necessary preconditions for setting aside the order have been established, which is a non-issue in the instant case. The scenario here is a situation where a final order of attachment that is Garnishee Absolute was made by a Court of coordinate jurisdiction notwithstanding cause shown why such order ought not to have been made due to a live and subsisting order of mareva injunction made by another judge of coordinate jurisdiction on the same accounts maintained by the 2nd Respondent with the Appellant.It is trite law that no Court can ignore an order made by another Court of competent jurisdiction. In the case of NNAJI V ANEKE 1996 2 NWLR PT 430 269 C.A. at page 276 para A, this Court held thus: “The Court of Appeal or any other Court cannot ignore any order properly made by a Court of competent jurisdiction. However, such order would be rejected or set aside if it is shown to be an abuse of the process of Court. In the instant case the argument by the Appellant’s Counsel that for the purpose of determining the present appeal the later order of the learned trial judge should not be given recognizance cannot be right”. This Court similarly held in UBA LTD V ONAGORUWA 1996 3 NWLR PT 439 700 C.A. 703 at page 709 para F that: “As long as the order of Fernandez J making Mrs. R.F Onagoruwa a necessary signatory to the account in question subsists, Alabi J cannot ignore it”. In the case of EMODI V KWENTOH 1996 2 NWLR PT 433 656 S.C. p 659 at p 681 paras A – B, the Supreme Court aptly held thus: “A Judge is not competent to overrule the decision or ruling of another Judge or sit in judgment over the decision of another Judge of co-ordinate jurisdiction”. In the instant case, it suffices to say that the subsisting orders made by Hon. Justice M.B. Idris of the Federal High Court, Lagos, on the 1st of November, 2011 as stated in the Affidavit of show of cause ought not to have been ignored by Hon. Justice O. A Taiwo of High Court of Lagos in making the Garnishee Order Nisi Absolute on 8th April 2016 inspite of drawing the attention of the Court below to the subsisting orders vide the affidavit to show cause which the Appellant filed on the 26th February 2016. It is glaringly clear that, at the time Hon Justice O.A Taiwo of Lagos High Court made the Garnishee nisi absolute, the order of Mareva Injunction made by Hon. Justice M.B. Idris of the Federal High Court Lagos on the 1st November 2011 was still valid and subsisting though varied on 17th November 2011 but was never vacated. In fact, the Appellant at the point of filing its Affidavit of show of cause, disclosed all these facts to the Court below and also attached both the 1st and second orders made by Hon. Justice M.B. Idris of the Federal High Court (as he then was). These facts were clearly stated in the Affidavit to show cause filed by the Appellant (9th Garnishee). For the avoidance of doubt, paragraph 3 (a) – (f) of the Appellant’s Affidavit showing cause filed at the lower Court is reproduced as follows: “3. That I was informed by Silas Nwaulune, a Legal Officer in the Legal Department of the 9th Garnishee herein, in our office on the 11th February, 2016 at about 1.30p.m and I verily believed him as follows: (a) That on the 16th December 2015, a garnishee order nisi was made by Hon. Justice O.A. Taiwo of the High Court of Lagos State sitting in Lagos and served on the 9th Garnishee on the 11th of February, 2016. (b) That upon the receipt of the said order nisi a bank wide search was conducted into the record of the bank to ascertain whether the 9th Garnishee holds account(s) in favour of the Judgment Debtor/Defendant. (c) That further to the search as conducted; the 9th Garnishee hereby confirms that the Judgment Debtor maintains two accounts with the 9th Garnishee. The two accounts are as follows: Account Number 4010779717 with a credit balance of N6,912,817.64 and Account Number 4010020172 with a balance of N5, 026,805.70. The Account Statements evidencing this fact is hereby attached and marked as EXHIBIT A. (d) That further to the fact as disclosed above, the stated accounts are currently subject to and attached by the order of Mareva Injunction dated 1st November, 2011 made by Hon. Justice M.B. Idris of the Federal High Court, Lagos freezing all the bank accounts of the Judgment Debtor for the benefit of Assets Management Corporation of Nigeria (AMCON). The copy of the said order is hereby attached and marked as EXHIBIT B. (e) That by another order by same Court on 17th November, 2014 the Court varied the initial order stated above and authorized the customer to pay in cheques, draw money up to the limit of N120 Million per month to meet the day to day operational needs of the company only. A copy of the said order is hereby attached and marked EXHIBIT C. (f) That on the strength of the above, the credit balances in the Judgment Debtors account with the 9th Garnishee are already attached by the subsisting orders of the Federal High Court. As the Judgment Debtor is only permitted to take from the account for a particular purpose to meeting the day to day operational needs of the Judgment Debtor (see pages 71 – 72 of Record of Appeal). One wonders what more cause could suffice to discharge the Garnishee Order Nisi against the Appellant instead of making it Absolute on the face of the foregoing depositions showing that the Order of Mareva Injunction made by Hon. Justice M.B. Idris was still valid and subsisting at the time the lower Court made the Garnishee Nisi Absolute. The variation of the 1st order by the 2nd order of 17th November, 2011 as stated in Affidavit of show of cause, did not in any way extinguish the order of Mareva Injunction of 1/11/12 made by Justice M.B. Idris J (as he then was). The funds in the two accounts having been attached were no longer attachable by a garnishee order. Thus in the case of GOV OYO STATE V AKINYEMI 2003 1 NWLR PT 800 1 C.A. 9 at p 20 paras A – B, this Court held that: “An Order of Court subsists until set aside.” The Garnishee Order Absolute made on the 8th of April 2016 by Hon. Justice O. A. Taiwo of High Court of Lagos State, was therefore erroneous and liable to be upturned.” Per HUSSEIN MUKHTAR, JCA in FIDELITY BANK v. MCL SOLUTIONS LTD & ANOR (2021) LPELR-53478(CA) (Pp 7 – 13 Paras E – B) |
Requirement of the law with respect to when a judgment debtor is served; whether a judgment debtor is not a necessary party in garnishee proceedings: “There are conflicting decisions of this Court on whether a judgment debtor who is named as a party in a garnishee proceedings can appeal as of right or can only do so with the leave of Court. Decisions of this Court in cases like the one in STAR DEEPWATER PETROLEUM LTD. V. AIC LTD & ORS (2010) LPELR-9165 (CA) are to the effect that a judgment debtor is not a necessary party and cannot appeal as of right. On the other hand, the decision of this Court in the case of NIGERIAN BREWERIES PLC V. DAMUJE (Supra) is to the effect that a judgment creditor is a necessary party and can appeal as of right since a garnishee order absolute is a final order. The position of the law is that when there are conflicting decisions of this Court, this Court can decide on which of the conflicting decisions to follow. See SILAS BOUNWE V. RESIDENT ELECTORAL COMMISSIONER, DELTA STATE AND ORS (2006) 1 NWLR PART 961 p. 286. I am not inclined to accept the decision in NIGERIAN BREWERIES PLC v. DAMUJE (supra). Section 83 of the Sheriffs and Civil Process Act provides:- 1. The Court may upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon Affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order together with the costs of the garnishee proceedings and by the same or any subsequent order, it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. 2. 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. From the above provisions, it is my view that the only necessary party to an action by the person who has obtained the judgment, is the garnishee and not the judgment creditor. This is because it is the garnishee that:- “shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment…” The only business that the judgment debtor has according to Section 83(2) above is that he is required to be served with a copy of the order nisi at least 14 days before the day of hearing. A party that is merely entitled to be served with a copy of the order nisi cannot be a necessary party. At best, he can only be an interested party. A necessary party is one who is not only interested in the subject matter of the proceedings but also who in his absence, the proceedings cannot be fairly dealt with. See GREEN v. GREEN (1997) NWLR PART 61 p.481. In the absence of the judgment debtor the proceedings can certainly be fairly dealt with. The judgment debtor i.e. the Appellant having not sought the leave of Court to appeal, its appeal is incompetent and this Court has no jurisdiction to hear an incompetent appeal. See KASHADADI v. NOMA (2007) 13 NWLR PART 1052 p. 510.” Per OBIETONBARA OWUPELE DANIEL-KALIO, JCA in DANGOTE SUGAR REFINARY v. VINAN PET. LTD & ANOR (2017) LPELR-43189(CA) (Pp 16 – 19 Paras A – A) |
Procedure for instituting garnishee proceedings: “To “garnish” is “1. To warn (2) To extract money from prisoners.” A “garnishee” is “a person who has been warned not to pay a debt to anyone other than the third party who has obtained judgment against the debtor’s own creditor” hence “garnishee proceeding(s)” are “A procedure by which a judgment creditor may obtain a Court order against a third party who owes money to, or holds money for, the judgment debtor. It is usually obtained against a bank requiring the bank to pay money held in the account of the debtor to the creditor.” See Osborn’s Concise Law Dictionary, 9th edition, page 181. Writes the learned authors of Black’s Law Dictionary, 9th edition, page 749: “Garnish, Hist. Money exacted from a new prisoner by other prisoners or as a jailer’s fee. This practice was banned in England in 1815. Garnish (Old French garnir “to warn” “to prepare”). 1. Hist. To notify or warn (a person) of certain debts that must be paid before the person is entitled to receive property as an heir. 2. To subject (property) to garnishment; to attach (property held by a third party) in order to satisfy a debt. 3. To notify (a person, bank, etc.) that a garnishment proceeding has been undertaken and that the one receiving notice may be liable as stakeholder or custodian of the defendant’s property. – Also termed garnishee… Garnishee …A person or institution (such as a bank) that is indebted to or is liable for another whose property has been subjected to garnishment. – Also termed garnishee-defendant (as opposed to the “principal defendant,” i.e., the primary debtor)…” In Choice Investments Ltd. vs. Jeromnimon (1981) 1 All E.R. 225, Lord Denning, M.R. held at pages 226-227 as follows: “The word “garnishee” is derived from the Norman French. It denotes one who is required to “garnish”, that is, to furnish a creditor with the money to pay off a debt. A simple instance will suffice. A creditor is owed 100 pounds by a debtor. The debtor does not pay. The creditor gets judgment against him for the 100 pounds. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and has 150 pounds at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into Court or direct to the creditor – out of its customer’s 150 pounds – the 100 pounds which he owes to the creditor. There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay the 100 pounds to the judgment creditor or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some reason or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See Pritchard vs. Westminster Bank Ltd and Rainbow vs. Moorgate Properties Ltd. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into Court: whichever is the more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it. If it is a deposit on seven days’ notice, the order nisi operates as the notice. As soon as the garnishee order nisi is served on the bank, it operates as an injunction. It prevents the bank from paying the money to its customer until the garnishee order is made absolute, or is discharged, as the case may be.” See also Foley vs. Hill 9 E.R. 1002; Balogun vs. National Bank of Nigeria (1978) NNLR 63 at 69 and Union Bank of Nigeria Ltd. vs. Muroye (1990) NWLR (Pt.130) 69 at 77. If there has been any relationship between the appellant, namely the garnishee and the Anambra State Government (the judgment debtor), it is that of a banker and a customer, founded on contract. In Banker and Customer by W.W. Wood, 3rd edition, Revised by James Russell appears at pages 14 to 15 the following write-up: “Primarily the relationship is one of contract. There is in the mere receiving of money to be credited to a customer’s account the essential element of contract-namely, offer and acceptance: offer by the customer on his part of the money as a loan, despite the fact that the motive of deposit for safe keeping may be present, and acceptance of the money by the bank under the implied condition that it will be repaid on demand to the customer’s order. When a person opens an account at a bank he does not, apart from a simple opening form, sign any document setting out the conditions on which his account will be kept. The relationship between banker and customer has not been reduced to formal terms as it is in most other legal relationships – e.g., in a lease or a bill of lading. The contract, however, is not restricted to the relationship of debtor and creditor above mentioned, but extends to all the other functions and services of banks connected with the customer’s affairs. Often the banker acts as his customer’s agent or as custodian, and on occasion he assumes the role of principal as, for example, when he enters into contracts of guarantee or indemnity at the request of his customer. Many of these other functions are referred to throughout this handbook, but briefly they are as follows:- (1) The collection of cheques, bills, and other documents; (2) Intermediary for foreign exchange control purposes; (3) Mandatory of customers’ dividends, interest, and other payments; (4) Agency for remittances to all parts of the world; (5) The issue of letters of credit and travellers’ cheques; (6) Custody of securities, documents, and valuables; (7) The purchase and sale of stocks and shares, generally through brokers, on a recognized stock exchange; (8) Trade and investment inquiry services; (9) The granting of guarantees and indemnities; (10) Acting as executors and trustees under wills and settlements; and (11) The provision of an investment management service. Other functions include: taxation, cheque card and credit card facilities, share registration for company customers, a wide variety of computer services, insurance advice often through a subsidiary company, and highly sophisticated financial advice to the larger customer frequently in consultation with a Merchant Bank. While the contract between banker and customer has not been formulated, certain aspects have been settled by law, especially in regard to the conduct of accounts. Reference has already been made to the case of Foley vs. Hill, in which the relationship of debtor and creditor was established with the superadded obligation to honour cheques. Many of the implications of the contract, however, have been admirably described by Lord Atkin in Joachimson vs. Swiss Bank Corporation, summarized in the next section, in which the duties of the parties to the contract are discussed. DUTIES OF THE BANKER: The contract between banker and customer, as has been noticed, rests mainly on implication established by a series of legal decisions. In the case of Joachimson vs. Swiss Bank Corporation, 1921, Lord Atkin summarized the position thus: “The bank undertakes to receive money and to collect bills for its customer’s account. The proceeds so received are not to be held in trust for the customer, but the bank borrows the proceeds and undertakes to repay them. The promise to repay is to repay at the branch of the bank where the account is kept, and during banking hours. It includes a promise to repay any part of the amount due against the written order of the customer addressed to the bank at the branch, and as such written orders may be outstanding in the ordinary course of business for two or three days. It is a term of the contract that the bank will not cease to do business with the customer except upon reasonable notice. The customer on his part undertakes to exercise reasonable care in executing his written orders so as not to mislead the bank or to facilitate forgery. I think it is necessary a term of such a contract that the bank is not liable to pay the customer the full amount of his balance until he demands payment from the bank at the branch at which the current account is kept.” This is an excellent exposition so far as concerns the receipt and payment of money on behalf of the customer, but the duties and responsibilities are more extensive.”? The duty of a judgment creditor is to commence proceedings against the bank (garnishee) or any person, institution or authority, etc, having custody of the judgment debtor’s moneys by way of an exparte application in order to show how the judgment debtor is indebted to him and further showing that the judgment debt was partially recovered but there is still an outstanding balance or a fixed or ascertainable amount and “…that any other person is indebted to such debtor and is within the State” as provided under Part (a) of Section 83(1) of the Sheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004. Upon proof of how the judgment debt arose, the judgment creditor/applicant usually prays in the same exparte application that the Court should “…order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.” See Part (b) of Section 83(1) of the Act (supra). The exparte order the applicant/judgment creditor obtains against the garnishee is called an “order nisi” under Section 83(2) of the Act (supra). The provision reads as follows: “(2) 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.” A garnishee on whom an order nisi has been served to appear and show cause why an order absolute should not be made may, depending on the circumstances of each case, invoke statutory defences that are provided under Sections 84 and 85 of the Sheriffs and Civil Process Act Cap. S.6 to wit: “84. Consent of appropriate officer or Court necessary if money is held by public officer or the Court: (1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last preceding Section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodia legis, as the case may be. (2) In such cases the order of notice must be served on such public officer or on the registrar of the Court, as the case may be. (3) In this Section, “appropriate officer” means:- (a) In relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation. (b) In relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State. 85. Order for attachment to bind debt: 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.” The garnishee may file an affidavit to deny that it is not in the custody of the moneys of the judgment debtor, or that the judgment debtor is not a customer, etc, and that becomes a triable issue. Sections 87-89 of the Act provides as follows: “87. Trial of liability of garnishee: 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. 88. Lien or claim of third person on debt: Whenever in any proceedings to obtain an attachment of a debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person or that any third person has a lien or charge upon it, the Court may order such third person to appear and state the nature and particulars of his claim upon such debt. 89. Order may be made if third person does not appear: If the third person as described in the last preceding Section does not appear, the Court on proof of service of a copy of the order may proceed to make an order as if such person has appeared.” Had the appellant denied that the Government of Anambra State was not its customer, nor, though a customer, had no moneys in her accounts with the bank, etc, the onus would have shifted to the judgment creditor/respondent to establish otherwise, for he who asserts has the onus of proof. A garnishing bank, person or authority served notice of a garnishee proceedings that does not want or intend to be saddled with unnecessary or costly litigation may do well to put the judgment debtor/customer on notice to avoid paying the cost of the proceedings. Sections 90-92 of the Act provides as follows: “90. Procedure upon appearance of claimants: Upon the appearance of such third person, after hearing his allegations and those of any other person who the Court may order to appear, the Court may order execution to issue to levy the amount due from the garnishee, or any issue or question to be tried and determined, and may bar the claim of such third person, or may make such other order, upon such terms with respect to any lien or charge or otherwise, as the Court shall think just. 91. Garnishee Discharge: Payment made by or execution levied upon a garnishee under any such proceedings shall be a valid discharge to him against the debtor liable under a judgment or order, to the amount paid or levied, even although such proceeding may be set aside or the judgment or order reversed. 92. Private alienation after attachment void: After an attachment shall have been made by actual seizure or by written order as aforesaid and in case of attachment by written order, after it shall have been duly intimated and made known in manner aforesaid, any alienation without leave of the Court of the property attached, whether by sale, gift or otherwise and any payment of any debt or debts or dividends or shares to the judgment debtor during the continuance of the attachment, shall be null and void.” Rather than complying with the order nisi the appellant became evasive and has assumed the role of a defender of the Anambra State Government/judgment debtor. All that the judgment creditor/respondent in this Court had to establish was that the garnishee was “…indebted to such debtor and is within State” for the Court to order that “debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order…” See Section 83(1) Part (b) of the Act.” Per JOSEPH TINE TUR, JCA in FIDELITY BANK v. ONWUKA (2017) LPELR-42839(CA) (Pp 26 – 39 Paras A – E) |
Nature and procedure of garnishee proceedings: “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 and First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199, Gwede Vs Delta State House of Assembly (2019) 8 NWLR (Pt 1673) 30.” (Dissenting) Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in CBN v. APRIMPEX ENTERPRISES LTD & ORS (2021) LPELR-55546(CA) (Pp 17 – 18 Paras B – F) |
Essence of commencing a garnishee proceeding in the High Court where the garnishee resides: “On the issue of jurisdiction, the Appellant’s contention that it is the Federal High Court by virtue of Section 251 of the Constitution that should hear the matter; The Court, on pages 346- 347 of the Record and rightly in my view humbly, firstly noted the need to consider the peculiar facts and the issue in the 1st Respondent’s case in order to do justice and substantial one at that. It then went on and held correctly too that, what was at stake was not sourced from the Government revenue in any budgetary allocation as in the case relied upon by the Appellant. That, the judgment in suit No. FHC/ABJ/CS/130/13 between LINAS INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS was only for enforcement. Furthermore, as instructively held in the CBN V. INTERSTELLA case supra, which in my considered view and humbly ought to be the pursuit for substantial justice and the true intendment of the provision in focus as follows, that, the purport of Section 83 of the SCPA simply revolves around the essence of commencing a Garnishee Proceedings in the High Court of the State where the Garnishee resides. As held in CBN V. INTERSTELLA the philosophy behind the said foregoing provision with regard to a debtor residing within the State is basically for convenience and effective enforcement by the Court. In other words, where the action is not commenced in the jurisdiction or High Court wherein the Garnishee is resident, it will be difficult to enforce the judgment of the Court obtained from another jurisdiction on him.” Per ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA in CBN v. NEUTRAL RESOURCES LTD & ANOR (2021) LPELR-52903(CA) (Pp 17 – 19 Paras E – A) |
Whether the refusal of a court to hear and pronounce on the application of a judgment debtor before proceeding to grant an order absolute in a garnishee proceeding amounts to breach of fair hearing: “The core argument here is that the Lower Court did not consider some pending applications before the Court made the Garnishee Order Nisi absolute. The decision of the Lower Court complained of was that given on the 17th day of February, 2016. The proceeding for that day is copied in to pages 412 to 418 of the Record of Appeal. The Lower Court at page 415 of the Record stated as follows: “Today, neither the Garnishee nor its Learned Counsel is in Court. There is no record of the Counsel but Mr. Imhanze informed the Court that a lawyer who introduced himself to him on phone as a lawyer for the Garnishee told him that he was held up somewhere at Port Harcourt as at 9.55am was on his way. No letter was sent to this Court and no oral message was even sent and Mr. Imhanze did not say he was sent to inform the Court. Even at that the Court still stood down the matter to wait for him………… …..since there is nothing before this Court to stop the Court from making its Order Nisi absolute, the Order Nisi made on 27 January, 2016 is hereby made Absolute forthwith on the Application of the Judgment Creditors/Applicants. The Garnishee is hereby also ordered not to tamper with the 2nd Judgment Debtor/Respondent’s sum of money kept with it. The Judgment debt in suit number FHC/UY/CS/53/2003 pertaining to the 2nd Judgment Debtor/Respondents, that is Mobil Producing Nigeria Unlimited should be paid to the Judgment Creditors/Applicants from their account number 1010933461 domiciled with the Garnishee forthwith. By consent of all the parties present in Court, this case is hereby adjourned to Thursday 25th January, 2016 for the hearing of all pending applications. I so hold.” (underlining mine for emphasis). It is amazing, I must say, that the Lower Court here said there was nothing before the court to stop that court from making its order Nisi absolute yet he adjourned the case for hearing of all pending applications. Those pending applications, from the record before us, were the motions filed by the Appellant and the Garnishee at the Lower Court. The motion dated 8th February, 2016 was filed on 9th February, 2016 and it is copied in to pages 63 to 65. The motion was filed by the Judgment Debtor Mobil Producing Nigeria Unlimited and the reliefs sought were two main reliefs namely: 1.An order setting aside the order Nisi made on January 27th, 2016 by this Honourable Court on the ground that the Order was obtained by fraud and without jurisdiction in view of the pending Appeal No.CA/C/323/2014; 2. An order striking out the Garnishee proceeding herein for want of jurisdiction. Although the Garnishee order Nisi was directed at the Garnishee, the Judgment Debtor who was served and who was the owner of the money in custody of the Garnishee put in the application to challenge the jurisdiction of the Lower Court. The main issue is not whether the 2nd Respondent was properly a party before the Lower Court or not. The issue is that he had a pending application. If the opinion of the Lower Court is that the Judgment Debtor was not capable of bringing the application to the Lower Court let that be the plank of his decision to clear the way for the order nisi to be made Absolute if there is the justification for that. It is absolutely wrong and offensive to our norm of justice for Court of Record to leave motions filed in a Court to challenge a process to be hanging there while the process is dealt with conclusively. The issue of Garnishee proceedings have been subjected to judicial scrutiny in several decisions of this Court and the Supreme Court. It is expected that by now the Courts of all jurisdiction ought to have mastery of the nature of Garnishee proceedings. But this is far from what we normally confront in this Court. In the case of U.B.N VS. BONEY MARCUS IND, LTD. & ORS. (2005) 13 NWLR (PT. 943) 654, Akintan, JSC held on the principles governing Garnishee proceedings as follows: “Applications for Garnishee proceedings are made to the Court by the Judgment Creditor and the orders of the Court usually come in two steps. The first is a Garnishee Order Nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid in to Court or to the Judgment Creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the Garnishee Order is then made absolute and that ends the matter in that the party against whom the Order absolute is made is liable to pay the amount specified in the Order to the Judgment Creditor. The Court thereafter becomes functus officio as far as that matter is concerned in that the judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him, See CHOICE INVESTMENTS LTD. VS. JEROMNIMON (MIDLAND BANK LTD. GARNISHEE) (1981) 1 ALL ER 225 AT 328; AND WORDS & PHRASES LEGALLY DEFINED 3RD EDITION VOL.2, PAGES 313-314.” His Lordship Akintan, JSC explained the position further when he held in the said judgment that: “During the period between when the Order Nisi and the order absolute are made, the maker would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the Order absolute are made, there would be nothing left before the Court in the matter. The Court has, at that stage completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings, at that stage, being interlocutory would therefore not arise.” This is clearly the position of the law in Garnishee proceedings. The Court hearing the application starts with a Garnishee Order Nisi. This is the first step. After this step, the Garnishee is given the opportunity to show cause why the order should not be made absolute. In the interlude between the Order Nisi and the Order absolute any contention by way of any application filed either erroneously or otherwise by any of the parties, must be dealt with one way or the other to clear the road for the Court to consider whether to make the Garnishee Order Nisi absolute. It is not allowed in our procedural laws for a Court to ignore or defer pending motions in a Garnishee proceeding till the Order Nisi is made absolute. It is absurd to leave motions hanging in this situation. This is so because once the Order Nisi is made absolute, the case is over, the judge becomes functus officio. He cannot reopen the case to determine any pending application. It is therefore within the expectation of the law that those pending applications to be treated or dealt with one way or the other before the Order absolute is rolled out. It is my understanding that no one comes to law and he is kept in limbo. It is fundamentally, a cardinal principle of administration of justice to let a party know the fate of his application pending in Court whether properly or improperly brought. SeeFIRST BANK OF NIGERIA PLC vs. T.S.A. INDUSTRIES LTD (2010) 15 NWLR (PT. 1216) 247) Since the Lower Court did not consider those pending applications before making the Order absolute, the simple truth is that the learned trial judge had become functus officio and those applications have become otiose or academic. The case after the order absolute in a garnishee proceeding, can never be reopened for any other consideration. Thus, the right of the Appellant to fair hearing has been breached in this case. The basic criteria and attributes of fair hearing are: (a) That the Tribunal or Court must hear both sides not only in the case but also on all material issues in the case before reaching a decision; (b) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. The right to fair hearing is a fundamental constitutional right guaranteed by Section 36(1) of the 1999 Constitution; any breach of it particularly in trials renders same null and void. Breach of the fundamental right to fair hearing is a serious issue. In the case of MOBIL PRODUCING (NIG) UNLIMITED VS. MONOKPO (2003) 18 NWLR (PT. 852) 946, Uwaifo, JSC held: “A refusal of a Court to hear a motion is a breach of the right to a fair hearing guaranteed under the Constitution and an essence of the audi alteram partem rule of natural justice. It is perhaps important to add that if a judge or Court were at liberty to decide to ignore any motion filed in Court it would raise a fundamental issue.” A core theme in the administration of justice is to avoid arbitrariness and every appearance of injustice. A situation where a Court arbitrarily chooses which motion to ignore against all norms is nothing but an exhibition of tyranny and a rape of the right of the party involved to fair hearing. This is not allowed under our Constitution. In the case of FIRST BANK OF NIGERIA PLC VS. T.S.A. (supra), Adekeye, JSC held: “The right to fair hearing is a right guaranteed by Section 36 of the 1999 Constitution, the supreme law of the country to every citizen of Nigeria. It cannot be waived neither can its breach acquiesced in. The right to fair hearing is a fundamental and constitutional right of a party to a dispute to be affirmed on opportunity to present his case to the adjudicating authority. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case. As reasoned in the case of OTAPO & ORS. VS. SUNMONU & ORS. (1987) 2 NWLR PT.58 PG.587 AT PG. 605 – the Supreme Court held that – “A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is hearing. Without fair hearing, the principle of natural justice are (sic) abandoned”. OGUNDOYIN VS. ADEYEMI (2001) 13 NWLR PT.750, PG. 430; U.B.A, LTD. VS. ACHONU (1990) 6 NWLR PT.156, PG.254; MOHAMMED VS. KANO NATIVE AUTHORITY (1968) 7 ALL NLR PG.424; SALU VS. EGEIBON (1994) 6 NWLR PT. 348 PG 23; MOHAMMED VS. OLAWUNMI (1990) 2 NWLR PT.133 PG. 458; UNION BANK OF NIGERIA VS. NWAOKOLO (1995) 6 NWLR PT.400 PG.727; BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) PG 290; OKAFOR VS. A-G ANAMBRA STATE (1991) 3 NWLR (PT 200) PG 59.” Per STEPHEN JONAH ADAH, JCA in MOBIL PRODUCING (NIG) UNLTD v. EDU & ORS (2017) LPELR-45405(CA) (Pp 17 – 26 Paras E – E) |
On whom lies the burden of proof in a garnishee proceeding: “The Judgment/Creditor contended that the Garnishee who asserts that the account it keeps belongs to a third party has the burden of proving what it asserts. On the other hand, the Garnishee maintains that since it has denied that the account it holds belongs to the Judgment/Debtor, the burden is on the Judgment/Creditors to prove the contrary. Even in Proceedings other than Garnishee proceedings, there is a world of difference between an assertion that a fact or state of affairs exists and Proof of that assertion. Proof is a function of evidence. The averment in an affidavit that fact exists is no proof of the existence of that fact. It is more or less in the nature of averment in pleadings which has to be proved if it is denied by the adverse party. S.139 of the Evidence Act invoked by the Judgment/Creditors provides “The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence but the burden may in course of a case be shifted from one side to the other…..” It is the Judgment/Creditors who want the Court to believe that the account with the Garnishee is that of the Judgment/ Debtor. If the assertion is denied the burden is on them to prove what they want the Court to accept as a fact.” Per NWALI SYLVESTER NGWUTA, JCA in UBA PLC v. UBOKULO & ORS (2009) LPELR-8923(CA) (Pp 12 – 13 Paras D – D) |
Whether a Court can make a Garnishee Order absolute when there is subsisting order(s) of Mareva Injunction made by another judge of coordinate jurisdiction on the same accounts maintained by the Judgment Debtor with the Garnishee: “With all due respect, the Respondent’s arguments on which order is interlocutory and which one is final and which order takes precedence over which is grossly misconceived. In so far as an order is made by a Court, another Court of coordinate jurisdiction cannot overrule or review it. It may be set aside by the Court that made the order only if the necessary preconditions for setting aside the order have been established, which is a non-issue in the instant case. The scenario here is a situation where a final order of attachment that is Garnishee Absolute was made by a Court of coordinate jurisdiction notwithstanding cause shown why such order ought not to have been made due to a live and subsisting order of mareva injunction made by another judge of coordinate jurisdiction on the same accounts maintained by the 2nd Respondent with the Appellant.It is trite law that no Court can ignore an order made by another Court of competent jurisdiction. In the case of NNAJI V ANEKE 1996 2 NWLR PT 430 269 C.A. at page 276 para A, this Court held thus: “The Court of Appeal or any other Court cannot ignore any order properly made by a Court of competent jurisdiction. However, such order would be rejected or set aside if it is shown to be an abuse of the process of Court. In the instant case the argument by the Appellant’s Counsel that for the purpose of determining the present appeal the later order of the learned trial judge should not be given recognizance cannot be right”. This Court similarly held in UBA LTD V ONAGORUWA 1996 3 NWLR PT 439 700 C.A. 703 at page 709 para F that: “As long as the order of Fernandez J making Mrs. R.F Onagoruwa a necessary signatory to the account in question subsists, Alabi J cannot ignore it”. In the case of EMODI V KWENTOH 1996 2 NWLR PT 433 656 S.C. p 659 at p 681 paras A – B, the Supreme Court aptly held thus: “A Judge is not competent to overrule the decision or ruling of another Judge or sit in judgment over the decision of another Judge of co-ordinate jurisdiction”. In the instant case, it suffices to say that the subsisting orders made by Hon. Justice M.B. Idris of the Federal High Court, Lagos, on the 1st of November, 2011 as stated in the Affidavit of show of cause ought not to have been ignored by Hon. Justice O. A Taiwo of High Court of Lagos in making the Garnishee Order Nisi Absolute on 8th April 2016 inspite of drawing the attention of the Court below to the subsisting orders vide the affidavit to show cause which the Appellant filed on the 26th February 2016. It is glaringly clear that, at the time Hon Justice O.A Taiwo of Lagos High Court made the Garnishee nisi absolute, the order of Mareva Injunction made by Hon. Justice M.B. Idris of the Federal High Court Lagos on the 1st November 2011 was still valid and subsisting though varied on 17th November 2011 but was never vacated. In fact, the Appellant at the point of filing its Affidavit of show of cause, disclosed all these facts to the Court below and also attached both the 1st and second orders made by Hon. Justice M.B. Idris of the Federal High Court (as he then was). These facts were clearly stated in the Affidavit to show cause filed by the Appellant (9th Garnishee). For the avoidance of doubt, paragraph 3 (a) – (f) of the Appellant’s Affidavit showing cause filed at the lower Court is reproduced as follows: “3. That I was informed by Silas Nwaulune, a Legal Officer in the Legal Department of the 9th Garnishee herein, in our office on the 11th February, 2016 at about 1.30p.m and I verily believed him as follows: (a) That on the 16th December 2015, a garnishee order nisi was made by Hon. Justice O.A. Taiwo of the High Court of Lagos State sitting in Lagos and served on the 9th Garnishee on the 11th of February, 2016. (b) That upon the receipt of the said order nisi a bank wide search was conducted into the record of the bank to ascertain whether the 9th Garnishee holds account(s) in favour of the Judgment Debtor/Defendant. (c) That further to the search as conducted; the 9th Garnishee hereby confirms that the Judgment Debtor maintains two accounts with the 9th Garnishee. The two accounts are as follows: Account Number 4010779717 with a credit balance of N6,912,817.64 and Account Number 4010020172 with a balance of N5, 026,805.70. The Account Statements evidencing this fact is hereby attached and marked as EXHIBIT A. (d) That further to the fact as disclosed above, the stated accounts are currently subject to and attached by the order of Mareva Injunction dated 1st November, 2011 made by Hon. Justice M.B. Idris of the Federal High Court, Lagos freezing all the bank accounts of the Judgment Debtor for the benefit of Assets Management Corporation of Nigeria (AMCON). The copy of the said order is hereby attached and marked as EXHIBIT B. (e) That by another order by same Court on 17th November, 2014 the Court varied the initial order stated above and authorized the customer to pay in cheques, draw money up to the limit of N120 Million per month to meet the day to day operational needs of the company only. A copy of the said order is hereby attached and marked EXHIBIT C. (f) That on the strength of the above, the credit balances in the Judgment Debtors account with the 9th Garnishee are already attached by the subsisting orders of the Federal High Court. As the Judgment Debtor is only permitted to take from the account for a particular purpose to meeting the day to day operational needs of the Judgment Debtor (see pages 71 – 72 of Record of Appeal). One wonders what more cause could suffice to discharge the Garnishee Order Nisi against the Appellant instead of making it Absolute on the face of the foregoing depositions showing that the Order of Mareva Injunction made by Hon. Justice M.B. Idris was still valid and subsisting at the time the lower Court made the Garnishee Nisi Absolute. The variation of the 1st order by the 2nd order of 17th November, 2011 as stated in Affidavit of show of cause, did not in any way extinguish the order of Mareva Injunction of 1/11/12 made by Justice M.B. Idris J (as he then was). ?The funds in the two accounts having been attached were no longer attachable by a garnishee order. Thus in the case of GOV OYO STATE V AKINYEMI 2003 1 NWLR PT 800 1 C.A. 9 at p 20 paras A – B, this Court held that: “An Order of Court subsists until set aside.” The Garnishee Order Absolute made on the 8th of April 2016 by Hon. Justice O. A. Taiwo of High Court of Lagos State, was therefore erroneous and liable to be upturned.” Per HUSSEIN MUKHTAR, JCA in FIDELITY BANK v. MCL SOLUTIONS LTD & ANOR (2021) LPELR-53478(CA) (Pp 7 – 13 Paras E – B) |
On whom lies the burden of proof in a garnishee proceeding: “The Judgment/Creditor contended that the Garnishee who asserts that the account it keeps belongs to a third party has the burden of proving what it asserts. On the other hand, the Garnishee maintains that since it has denied that the account it holds belongs to the Judgment/Debtor, the burden is on the Judgment/Creditors to prove the contrary. Even in Proceedings other than Garnishee proceedings, there is a world of difference between an assertion that a fact or state of affairs exists and Proof of that assertion. Proof is a function of evidence. The averment in an affidavit that fact exists is no proof of the existence of that fact. It is more or less in the nature of averment in pleadings which has to be proved if it is denied by the adverse party. S.139 of the Evidence Act invoked by the Judgment/Creditors provides “The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence but the burden may in course of a case be shifted from one side to the other…..” It is the Judgment/Creditors who want the Court to believe that the account with the Garnishee is that of the Judgment/ Debtor. If the assertion is denied the burden is on them to prove what they want the Court to accept as a fact.” Per NWALI SYLVESTER NGWUTA, JCA in UBA PLC v. UBOKULO & ORS (2009) LPELR-8923(CA) (Pp 12 – 13 Paras D – D) |
Whether a bank has the right to consolidate and combine accounts held by its customer in order to set off any debt owed to it; position of the law where a garnishee proves that he does not have any funds standing to the credit of the judgment debtor: “Now, it seems trite law that a bank has the right to consolidate and combine accounts held by its customer in order to set off any debt owed to it: JOE GOLDAY CO LTD vs. CO-OPERATIVE DEVELOPMENT BANK PLC (2003) 2 SC 1 at 15-16. The Appellant deposed on the balance in the various accounts of the 2nd Respondent (Debit and Credit balances) in paragraphs 5, 6 and 7 of the Affidavit to show cause. Having so deposed, in a manner showing that the debit balance far outweighed the credit balance, the Appellant then deposed in Paragraph 8 that it was unable to attach any sum in the 2nd Respondent’s account as ordered by the lower Court. It seems to me effulgent that an integral reading of the said paragraphs of the affidavit to show cause makes it limpid that the Appellant consolidated the said accounts on account of which it deposed that there were no funds standing to the credit of the 2nd Respondent which could be attached in satisfaction of the judgment debt. Howbeit, it has not been confuted that the 2nd Respondent is indebted to the Appellant. It is abecedarian law that a garnishee is entitled to set off any debt due to him from the judgment debtor at the date when the order nisi was served on him. By this settled state of the law, the Appellant was entitled to set off the N3.2Million standing to credit of the 2nd Respondent against the N785Million which the 2nd Respondent owed it. Upon this set off being done, it is as clear as crystal that the Appellant was not indebted to the 2nd Respondent and did not have any funds standing to the credit of the 2nd Respondent which could be attached in satisfaction of the judgment sum due to the 1st Respondent and sought to be enforced by the garnishee proceeding. See Section 85 of the Sheriffs and Civil Process Act and the case of PPMC LTD vs. DELPHI PETROLEUM INC. (2005) 8 NWLR (PT 928) 548. In FIDELITY BANK vs. OKWUOWULU (2012) LPELR (8497) 1 at 22-23, Ogunwumiju, JCA (now JSC) stated the legal position in the following words: “The authorities are of the view that a garnishee is entitled to set off any debt due to him from the judgment debtor at the date when the order nisi was served upon him and the garnishee is equally entitled to a counter claim against the judgment debtor, at any rate where it arises out of the same transaction as the debt sought to be attached. See Tapp v. Jones (1975) LR 10 QB 591 at 593, see also Hale v. Victoria Plumbing Co. Ltd (1966) 2 QB 746. However, the garnishee cannot set off debts accruing after service of the garnishee order nisi, nor can he set off a debt due to him from the judgment creditor. See the case of Sampson v. Seaton RLY Corp. (L874) LR QB 28, See also the case of O.A.U. v. Olanihun. …the Garnishee has a right of set off in respect of a liquidated sum in its custody. It may exercise this right in respect of a different transaction in which it is a party or in respect of any assignment to another party of the garnisheed sum by the judgment debtor.” In his contribution at pages 31-32, Danjuma, JCA opined: “In respect of this issue, I also agree that where a Bank is entitled in law to consider the sums or money of a customer in its vault as a loan to it to be dealt with, subject to its been paid over on call or in accordance with the Banking Regulations and contract that may have been entered into between the parties, such sums, in different accounts of the same holder, may be considered as one same Account for the purpose of settling liability due from the customer in favour of the Banker. In this case therefore, the Bank was perfectly right even as a garnishee to have protected its right (which enjoyed priority in creation, and equity) to the sums in the Account that was said to be on credit. This is necessarily so, because an order nisi only created an equitable charge over the funds in favour of the Judgment creditor… Being an equitable charge, it necessarily means that in competition with the Banker’s equity, the first in time must prevail. The word “Nisi” means, ‘unless’. Hence a garnishee order ‘Nisi’ accordingly takes effect at a stated date and time unless something happens to prove that the Court order should not be enforced. In the absence of evidence to stop the proceedings, the order will be made absolute and the second step is thereby completed. At this level, payments may be made. However, as stated by Deolu Oluyinka, ACIB in his book entitled Practice of Banking, Vol. 1 (2004) at page 123. ‘If the Garnishee (the Bank) has the money available due to the debtor, he will be compelled to pay it over to the Court for the benefit of the garnishor. (The Judgment creditor)’ In other words if the money is not there, it cannot be paid. Indeed since the service of a garnishee order determines the banker’s right to pay cheques, it also entitled the Bank to set off credit balances of the customer against any of his actual (not contingent) indebtedness to the Bank, to determine the net balance, if any, accruing, due and owing by the Bank to the customer and thereby attached by the garnishee order. See Deolu Oluyinka, ACIB, Practice of Banking supra at page 134. Indeed the Account that was in debit as a result of overdraft facility granted by the Garnishee to the Debtor automatically must be related and tied back to the affluent Account in protection of the Banker/Garnishee. That being the case, I hold that there were no funds belonging to the Debtor in existence to be attached by an order absolute for the benefit of the Judgment Creditor herein. The trial Judge was therefore wrong in granting an order of Decree Absolute in the circumstances.” See also ZENITH BANK PLC vs. KANO (2016) LPELR (40335) 1 at 15 and ZENITH BANK PLC vs. OMENAKA (2016) LPELR (40327) 1 at 26-27. Section 83 (1) of Sheriffs and Civil Process Act provides: “The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.” The above stipulation is clear that the money which can be attached to satisfy a judgment debt is the debt which a third party owes the judgment debtor. The affidavit to show cause filed by the Appellant was neither challenged nor controverted. The lower Court was obligated to give full weight and value to the depositions therein as establishing that the Appellant was not indebted to the 2nd Respondent and did not have any funds standing to the credit of the 2nd Respondent which could be attached in satisfaction of the judgment debt which the 2nd Respondent owed the 1st Respondent. The depositions in the affidavit to show cause which were authenticated by the statements of account showing the balances in the various accounts are not wilfully or corruptly false, improbable or manifestly incredible. The lower Court was therefore wrong not to have acted on them: NEKA B.B.B. MANUFACTURING CO. LTD vs. A.C.B. LTD (2004) 2 NWLR (PT 858) 520 at 550 -551, LAWSON-JACK vs. SHELL (2002) 12 MJSC 114 at 125 and OBASANJO FARMS vs. MUHAMMAD (2016) LPELR (40199) 1 at 41-42. The failure by the lower Court to act on and accredit the unchallenged affidavit to show cause resulted in the lower Court arriving at the perverse decision of making the garnishee order absolute. A decision is said to be perverse where it is persistent in error, different from what is reasonable or required, against the weight of evidence. A decision may be perverse where the Court took into account matters which it ought not to have taken into account or where, as in this case, the Court shuts its eyes to the obvious: ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 31, IWUOHA vs. NIPOST (2003) LPELR (1569) 1 at 39-40 and GONZEE NIG LTD vs. NERDC (2005) LPELR (1332) 1 at 22. In the circumstances, it behoves this Court to intervene and set aside the perverse decision of the lower Court in order to obviate miscarriage of justice, especially as the evidence in question is affidavit and documentary evidence and does not involve the credibility of witnesses vide GONZEE NIG LTD vs. NERDC (supra), IWUOHA vs. NIPOST (supra) and MOMOH vs. UMORU (2011) LPELR (8130) 1 at 38. In a coda, the affidavit to show cause clearly established that the Appellant did not have any funds standing to the credit of the 2nd Respondent. The lower Court was consequently in error when it made the garnishee order absolute.” Per UGOCHUKWU ANTHONY OGAKWU, JCA in GTB PLC v. INCORPORATED TRUSTEES OF THE M.M.M. NIG. & ANOR (2020) LPELR-51628(CA) (Pp 14 – 22 Paras F – E) |
Stages of garnishee proceedings; whether an issue of jurisdiction can be raised and decided upon by Court at the stage of issuing an order nisi: “I now turn my attention to the contention by 1st and 2nd respondents’ counsel that the Lower Court had determined the issue of its jurisdiction when issuing the order nisi and so that issue could not be validly raised before it again. I think, with due respect, that this is a misconception of the dynamics of garnishee proceedings. As rightly pointed out by appellant’s counsel, garnishee proceedings are in two stages (i) the first stage; namely the application ex-parte for the order nisi which is granted if a prima facie case is made out; and (ii) the second stage; namely for the garnishee to show cause why the attached sum should not be paid. At the first stage, the garnishee does not and cannot feature because it is ex – parte, and so there could be no challenge to the jurisdiction of the Court entertaining the proceedings. The idea of the Court deciding or finally deciding the issue of jurisdiction does not arise at the first stage. In the proceedings of 13/12/2016 (moving of the application ex – parte for an order nisi) counsel for the 1st and 2nd respondents briefly moved his application for an order nisi to be issued. The Lower Court obliquely referred Section 84 of the Sheriffs and Civil Process Act (regarding the consent of the Attorney-General of the Federation) and without considering and deciding on the point ruled that “the application for garnishee Order Nisi is meritorious and it is accordingly granted as prayed”. How can any dispassionate reader say that the issue of the Lower Court’s jurisdiction was thereby decided thus rendering the Court functus officio on it? In the case of Ngere V Okuruket ‘XlV’ (2017) All FWLR (Pt 882) 1302 also reported in (2017) 5 NWLR (Pt.1559,) 440 cited by 1st and 2nd respondents’ counsel to support his submission, the parties were heard on the issue in controversy and a decision was taken thereon by the Court. That is not so in this instance as regards the ex-parte stage of the proceedings. The contention of counsel for the 1st and 2nd respondents on this point is not attractive and I reject it. Even if the Lower Court had decided the issue at the first stage (which is not so) it elaborately dwelt on it in its ruling at the final stage, and so the appellant could appeal on it – See NJC v Agumagu (2010) 10 NWLR (Pt.1467) 365, 423 – 424.” Per JOSEPH EYO EKANEM, JCA in CBN v. IGBADOO & ORS (2017) LPELR-44591(CA) (Pp 15 – 17 Paras F – E) |
Whether the grant or refusal of a garnishee order is at the discretion of the Court; how such discretion should be exercised: “…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.” Per RIDWAN MAIWADA ABDULLAHI, JCA in ZENITH BANK v. ABAZU & ORS (2021) LPELR-55677(CA) (Pp 44 – 45 Paras F – A) |
Whether the Central Bank of Nigeria is a public officer as to require the consent of the Attorney-General of the Federation before garnishee proceedings can be commenced against it: “However, I completely disagree with the Appellant’s contention that the 1st and 2nd Respondents required the consent of the Attorney-General of the Federation to commence garnishee proceedings relying on Section 84(1), (2) and 3(a) of the Sheriffs and Civil Process Act. The reason is not far fetched. ?In the instant case, it has not been shown that the relationship between the Appellant and the 3rd Respondent is not that of a banker and customer. Indeed, the Central Bank of Nigeria is usually referred to as the “Banker’s Bank”. Therefore, the relationship between the Appellant and the 3rd Respondent was that of a banker and customer. In the circumstances, the Appellant was not a public officer within the context of Section 84 of the Sheriffs and Civil Process Act. Accordingly, the 1st and 2nd Respondents did not need the consent of the Attorney-General of the Federation to commence their garnishee proceedings as they did. I rely for this position on the case of Central Bank of Nigeria V. Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (Pt. 1618) 294 (SC) also reported in (2017) LPELR-43940 (SC), per Ogunbiyi, JSC (pp. 61-81 paras D-C). In his book, “Enforcement of Judgments” the Learned author, Chief Afe Babalola, SAN, stated thus on page 120: “It must be noted that monies paid into a bank by a judgment debtor are held in its hands in its capacity as a banker and not as a public officer even if the money is that of a public body. Bankers hold monies on behalf of their customers in a commercial capacity and not as an arm of government functionaries, thereby, making the consent of the Attorney-General unnecessary before an ex-parte application for garnishee order nisi could be commenced.” It is therefore clear, that the consent of the Attorney-General was not required to initiate the garnishee proceedings.” Per JAMES GAMBO ABUNDAGA, JCA in CBN v. FOLUSO & ORS (2021) LPELR-54879(CA) (Pp 12 – 14 Paras D – A) |
Whether a Court can set aside its judgment in regard of which a garnishee Order absolute has been made for its enforcement: “…the trial against the Respondents was duly conducted and the lower Court ceased to have jurisdiction in the matter upon pronouncement of judgment in favour of Appellant and upon the Garnishee Order absolute made by the trial Court to enforce its judgment. See: 1. CHIEF EMMANUEL BELLO V. INEC. & ORS (2010) 3 SCM 1 at 28H TO 29 A – B per MAHMOUD MOHAMMED, J.S.C. later CJN (RTD) who said: “I may observe at this stage that the misconceived course taken by the Respondent in this case is similar to the course adopted “by the Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 2 N.S.C.C Vol. 22 Part 1 page 422 also reported in (1991) 6 N.W.L.R. (Pt. 199) 501 at 532 where this Court held that failure to join as a party, a person who ought to have been joined will not render the proceedings a nullity on ground of lack of jurisdiction or competence of the Court. Akpata J.S.C. specifically stated the position as follows: – “In my view, failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance that will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial Court itself is incompetent to review the judgment; more so another Court of co-ordinate jurisdiction.” On page 54, H – I to 55, ADEKEYE, JSC also said: “A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus, liable to be set aside. See Okafor v. Okafor (2000) 11 NWLR pt. 677 pg. 21, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC pg. 6, Obimonure v. Erinosho (1966) 1 ALL NLR pg. 250. The power of a Court to set aside its judgment is statutory. The Court does not have power to set aside its judgment without a statutory provision enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstances where: (a) The writ or application was not served on the other party or (b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. Lawal v. Dawodu (1972) 8 – 9 SC pg. 83.” That is not the case in this appeal. Another major reason for the wrong decision of the lower Court in setting aside its own judgment is that having found that the Respondents were duly served all processes and they chose to stay away and having embarked on full trial of the case and given valid judgment, he became functus officio in the matter. Not only that, having made Order NISI of 10/6/2015 absolute on 8/7/2015, the only option opened to the 2nd Respondent was to have appealed the lower Court’s judgment of 20/4/2015 and the Garnishee Order absolute and not application to the lower Court which has since upon entering of the judgment and the making of Garnishee Order absolute lost jurisdiction to act in the matter or to exercise any discretion in it. See: 1. ALHAJI M. M. DINGYADI & ANOR vs. INEC & ORS (2011) 4 SCM 87 at 116 E – H per ADEKEYE, JSC who said: “The Latin phrase “functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority. A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and therefore lack the potency to review, re-open or revisit the matter. Thus once a Court delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions. More importantly, a Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue is an abuse of Court process. See Ukachukwu v. Uba (2005) 18 NWLR (pt. 956) pg. 532, Anyaegbunam v. A-G Anambra State (2001) 6 NWLR (pt. 710) pg. 32, Mohammed v. Husseini (1998) 14 NWLR (pt. 584) K pg. 108.” 2. ZENITH BANK PLC V. CHIEF ARTHUS JOHN & ORS (2015) 7 NWLR (PART 1458) 393 at 423 D – H to 424 B – C per PETER ODILI, JSC who said: “As if the strangeness of the guarantee, counter guarantee being touted are not enough, then is thrown up a fundamental matter of this Court being called upon to make an order affecting a Garnishee Order Absolute against which there is no appeal. It is stating the obvious that a Garnishee Order Absolute means an executed judgment and being a completed act. one wonders how an order of stay can either be ordered or carried out. In this regard, I refer to A.-G. Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396 at 430; Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt. 464) 15. Also, to be placed on record, is the fact that the Garnishee Order Absolute against the Central Bank of Nigeria was made by the Federal High Court and it was not appealed against to the Court of Appeal, therefore, what is being asked of the Supreme Court of the present application is for this Court to sit on appeal over a matter directly from the High Court. The power to do so has yet to be revealed as I cannot see the vires for such a procedure. See Section 233 of the 1999 Constitution (as amended) which has provided for appeal to this Court from the Court of Appeal and not the High Court. I rely also on Ogoyi v. Umagba (1995) 9 NWLR (Pt. 419) 283; Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244. Indeed, from the various processes thrown in at will by the applicants, some of such processes clearly unconnected with the respondents and even from different jurisdiction as Port Harcourt High Court and Owerri, its being sought to utilise those Court processes to give teeth to the application when what would add up to a suit as known to law, with known parties and subject matter producing a cause of action not really being easily identifiable. I do not see how not to go along with the position of learned counsel for the respondents that the Garnishee Order Absolute having been made by the High Court against the Central Bank of Nigeria over the applicants’ deposit, execution and attachment have been effectively made within the stipulations of Sections 83 – 86 Sheriffs and Civil Process Act in a way as to be said that the stay of execution being sought has been overtaken by events of the completed act of execution. The situation is all the more solidified with the fact that the appeal by the Central Bank to the Court of Appeal over the Garnishee was struck out for incompetence and no new appeal was initiated and so what was left as extant being the Garnishee Order absolute of the High Court, an appeal therefrom not available to the applicant at this stage.” (Underlined mine) 3. UNION BANK OF NIGERIA PLC VS. BONEY MARCUS IND. LTD & ORS (2005) 13 NWLR (PART 943) 654 at 664 D – H to 665 A – C per KATSINA ALIU JSC later CJN (Rtd) of blessed memory who said: In the instant case, the plaintiff Boney Marcus Ind. Ltd, obtained judgment against the defendant, Nichimen Co. (Nigeria) Ltd. This was on 19th May, 1997. Thereafter, the plaintiff filed garnishee proceedings against Metcome (Nig.) Ltd and Union Bank of Nigeria Plc., to realise the judgment debt and costs. On 17th February, 1998, the trial Judge granted the application and accordingly made an order absolute, the terms of which I have earlier on in this judgment reproduced. The 2nd garnishee – Union Bank of Nigeria Plc., filed a notice of appeal on 27th March, 1998 against that ruling. The plaintiff raised a preliminary objection to the competence of that notice on the ground that the appeal was filed out of time. It was the plaintiff’s contention that the garnishee order absolute was an interlocutory decision and that being so, an appeal against it should and must be filed within 14 days. The Court below ruled that the garnishee order absolute was an interlocutory decision. The question to be resolved in this appeal is really whether the decision of the trial Court was interlocutory or final. I think the resolution of this question would depend on whether the garnishee order as made disposed of the rights of the parties before the Court. The order of the trial Court was: “… that the money belonging to the judgment debtor in possession of the 1st garnishee which money is in the 1st garnishee’s account with the 2nd garnishee be attached to satisfy the judgment debt, together with the costs of the garnishee proceedings.” The above was the final garnishee order. In other words, it was an order absolute. It was a final decision of the Court. A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication. Clearly, by the order of the Court above, the trial Court had determined the rights of the parties before it. I must state again that the appellant promptly complied with the order of the Court.” At pages 666 E – H, to 667 A – D, AKINTAN, JSC said: “The main issue raised in this appeal is whether a garnishee order made absolute by a Court is an interlocutory or final order. Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is therefore a specie of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings. See Words & Phrases Legally Defined 3rd edition Vol. 2, pages 313- 314. Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor. The Court thereafter becomes functus officio as far as that matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Choice Investments Ltd. v. Jeromnimon (Midland Bank Ltd., Garnishee) (1981) 1 All ER 225 At 328, and Words & Phrases Legally Defined, Vol. 2, page 301. During the period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court. The question of the proceedings at the stage, being interlocutory would therefore not arise.” Per PETER OLABISI IGE, JCA in LINDA v. SARAHA HOMES (NIG) LTD & ANOR (2021) LPELR-54541(CA) (Pp 28 – 39 Paras C – A) |
Persons who can appeal as of right or with leave against the decision of a lower court and effect of an appeal filed by a person not qualified as a person aggrieved/interested party in a garnishee proceeding: “…As rightly submitted for the Judgment Creditor/Respondent, the provisions of Section 243 (a) of the 1999 Constitution as amended, entitle a party to exercise a right of appeal to this Court where he is a party to the suit or with leave where he has interest in the subject matter of the proceedings. A party must be directly affected by a ruling in order to be considered aggrieved. Merely disagreeing with the Court’s reasoning is not sufficient to give rise to aggrievement under Section 243 (a) (supra). In Mobil Producing Nig. Ltd v Monokpo (supra) also reported in (2003) LPELR-1886(SC) the Supreme Court, per Uwaifo, JSC elucidated the position of an aggrieved party thus: “A party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party.” herefore, the mere consequence of a decision does not vest a person with the status of an aggrieved party. There must be a personal legal grievance. To be a party aggrieved there must be a denial of some personal or property right to the party by the order of Court, and such denial should come as a direct result of the said order, and not merely as a result in some other proceeding of the application of a legal principal established in the order of Court appealed from. A person who may be seen as having a legal grievance was described in SGB Nigeria Ltd v Afekoro (1999) 7 S.C. (PT 111) 95, (1999) LPELR-3082(SC) the Supreme Court, per Ogundare, JSC, in these terms: “In Exparte Sidebotham, in Re Sidebotham (1880) 14 Ch. D 438 at 465 James, LJ declared as long ago as over a century: “It is said that any person aggrieved by any order of the Court is entitled to appeal. But the words ‘person aggrieved’ do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him of something, or wrongfully affected his titled to something.” The Supreme Court further said: “On the authorities therefore, the expression “person having interest” is synonymous with “person aggrieved”. And a person who has suffered a legal grievance, a person against whom a decision has been given which has deprived him of something or affected his right or title to something: See Akande v. General Electric Co. & Ors (1979) 3 LRN 187. His interest must be one that is legally recognizable.” See also: Ijelu v LSDPC (1992) LPELR-1464(SC); Ojora v. Agip Nigeria Plc (2005) 4 NWLR (Pt. 916) 515; Bellview Airlines Ltd v. Aluminium City Ltd (2007) LPELR-8465 (CA); INEC v Nynko (2011) LPELR-4313(CA); Hassan v. Borno State Government (2016) LPELR-40250(CA). The authorities thus have established that in order to have standing to maintain an appeal, the appellant must be the aggrieved party in an appealable order. The right of appeal is granted to the party aggrieved by an order or judgment; and the party aggrieved is someone whose legal right is invaded by an act complained of, or someone whose pecuniary interest is directly affected by the adjudication; one whose right of property may be established or divested thereby; or someone against whom an error has been committed. See also Black’s Law Dictionary, Ninth Edition page 1232. There were seven garnishees before the Lower Court. Ruling on the submissions of the 2nd Garnishee, the learned trial Judge, at pages 30 – 31 of the Record of Appeal held thus: “The Board of Internal Revenue is a creation of the House of Assembly of Benue State. The Chairman and other members of the said Board of Internal Revenue Service are appointed by the Governor of Benue State, which is the 4th judgment debtor in the substantive suit. The beneficiary owner of the funds collected by the Board of Internal Revenue Service is the Government of (the) State, The judgment debtors in the substantive suit are all organs of the Government of Benue State. In fact the 3rd and 4th judgment debtors are alter ego of the Government of Benue State. The Board of Internal Revenue Service, which collects revenue on behalf of the Government of Benue State, is therefore an agent of the Government, on whose behalf the said revenue is collected. Thus, any funds standing in any account held by any authority in favour of the Board of Internal Revenue Service are funds held in trust and for the benefit of the Benue State Government.” The Appellant was the 4th garnishee. In his ruling on the submission for the 4th Garnishee now Appellant, the learned trial Judge held, at pages 32 – 33 of the Record of Appeal: “Considered rulings have been delivered in respect of the processes filed by the 2nd and 3rd garnishees by this Court this morning. I accordingly adopt the findings and conclusions drawn by me in respect of the processes filed by the 2nd and 3rd Garnishes to processes filed by the 4th Garnishee. I see no good cause shown in the affidavit to show cause. The order made on 26/3/2013 is hereby made absolute and the 4th Garnishee should pay the sum of N817,322.11 to the judgment creditor forthwith.” The Judgment Debtors/Respondents lodged no appeal against the decision of the trial Court. The Notice of Appeal was filed by the 4th garnishee, now the Appellant. To my mind, several questions are posed by this appeal. A garnishee proceeding is a process of enforcing a money judgment by seizure or attachment of money due or accruing to the judgment debtor which forms part of his property available for execution. A garnishee is a third party who holds money or property that belongs to a debtor subject to an attachment proceeding by a creditor. By the garnishee proceedings, the Court orders the third party/garnishee to pay direct to the judgment creditor or to the Court the debt due or accruing from him to the judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and cost of the garnishee proceedings; Central Bank of Nigeria v Auto Import Export (2012) LPELR-7858(CA); Fidelity Bank Plc v Okwuowulu (2012) LPELR-8497(CA). The established sole duty of a garnishee in garnishee proceedings is to satisfy the Court as to why the funds in his possession belonging to the judgment debtor should not be garnished to satisfy the judgment debt; GTB Plc v Innoson Nigeria Ltd (2017) LPELR-42368(SC). It is well settled that a garnishee does not, and should not, play the role of an advocate to shield and or to protect the money of the judgment debtor; Oceanic Bank Plc v Oladepo (supra), also reported in (2012) LPELR-19670(CA); Skye Bank Plc v David (2014) LPELR-23731(CA). In GTB Plc v Inneson Nigeria Ltd (2017) LPELR-42368(SC), the Supreme Court, per Eko, JSC, was quite graphic in stating the role of a garnishee thus: “It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the judgment Debtor.” In the said case, the Supreme Court, per Eko, JSC, had clarified: “…garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to. It is a settled principle of law that a decision of a Court of law not appealed against is deemed to be acceptable to the parties thereto and it remains binding on them as well as their privies, including garnishees: See AKERE v. THE GOVERNOR, OYO STATE & ORS. (2012) 50 NSCQR 345 at 394, 414 – 415; DARIYE v. FRN (2015) 67 NSCQR 1457 at 1496 – 1497.” As noted above, none of the Judgment Debtors/Respondents appealed against the decision of the Lower Court. They are the parties directly affected by the said decision. As the learned trial Judge rightly surmised, pages 30 – 31 of the Record of Appeal: “The beneficiary owner of the funds collected by the Board of Internal Revenue service is the Government of (the) State. The judgment debtors in the substantive suit are all organs of the Government of Benue State. In fact, the 3rd and 4th judgment debtors are alter ego of the Government of Benue state. The Board of Internal Revenue service, which collects revenue on behalf of the Government of Benue state, is therefore an agent of the Government, on whose behalf the said revenue is collected. Thus, any funds standing in any account held by any authority in favour of the Board of Internal Revenue Service are funds held in trust and for the benefit of the Benue State Government.” None of these findings or conclusions were challenged by the Judgment Debtors/Respondents on appeal. Neither did the Benue state Internal Revenue Service seek leave to appeal against the decision as an interested party which was adversely affected by the decision. The Judgment Debtors/Respondents are therefore deemed to have accepted the decision of the trial Court. A decision of a Court of competent jurisdiction not appealed against, or which appealed against has not been set aside, exists for ever between the parties; Odjevwedje v. Echanokpe (1987) 3 S.C. 47, (1987) LPELR-8049(SC). It is remains valid, subsisting and binding between the parties and is presumed acceptable to the parties; Amadi v AG, Imo State (2017) LPELR-4201(SC); Chitra Knitting and Weaving Manufacturing Co. Ltd v Akingbada (2016) LPELR-40437(SC); SPDC Nig. Ltd v. X.M. Federal Ltd (2007) 7 S.C. (PT 11) 27, (2006) LPELR-3047(SC); Iyoho v Effiong (2007) 4 S.C. (Pt.111) 90, (2007) LPELR-1580(SC); Amale v Sokoto Local Government (2012) LPELR-7842(SC). I fail to see therefore the ground or basis for the challenge of the said decision by the Appellant, which was not a party to the substantive suit at the Lower Court and therefore a stranger to the proceedings thereat. It is also fundamental to note that aggrievement from an adverse ruling requires the underlying issue to have been litigated; Garuba v Omokhodion (2011) LPELR-1309(SC); Osuji v Ekeocha (2009) 16 NWLR (PT. 1166) 81, (2009) LPELR-2516(SC). The issue raised on appeal must have been submitted for adjudication before the Lower Court with each side given the opportunity to present their case to the trial Court, and specifically requesting or opposing relief. The absence of litigation in respect of an issue on appeal deprives the appellate Court of any authority or jurisdiction to act thereon; UBA Plc v BTL Industries Ltd (2006) 12 SC 63, (2006) LPELR-3404(SC); Okeke v Ejezie (2010) LPELR-4263(CA). The sole issue distilled by the Appellant for the determination of this appeal was: Whether the trial Court was right to make a garnishee order absolute attaching funds belonging to Benue State Internal Revenue Service, a separate legal entity that was not a judgment debtor in the garnishee proceedings (Ground 2). However, the legal status of the Benue State Internal Revenue Service was not before the Lower Court. There was thus no decision thereon by the trial Court. An appeal is not a new action but a continuation of the matter which is the subject of the appeal. It is a complaint against a decision of the Lower Court. An appeal therefore presupposes the existence of some decision appealed against. In the absence of a decision on the point, there cannot possibly be an appeal against what has not been decided against a party; First Bank of Nigeria Plc v TSA Industries Ltd (2010) 15 NWLR (PT. 1216) 247 SC; Iyen v FRN (2009) LPELR-8208(CA). Indeed, a competent ground of appeal and the issue for determination formulated thereon must relate to the judgment appealed against; Ndulue v Ojiakor (2013) LPELR-19889 (SC). A ground of appeal as well as the issue formulated for determination which fail to take root from the judgment appealed against is incompetent and liable to be struck out; Zakhem Oil Serve Ltd v Art-In-Science Ltd (2009) LPELR-8256(SC) I would agree with the submissions of the Judgment Creditor/Respondent that an examination of the grounds of appeal as well as the arguments being canvassed by the Appellant confirms that the Appellant cannot be described, within the purview of the provisions of Section 243(a) as a “person aggrieved” by the decision of the Court, subject matter of this appeal. The funds in issue have not been alleged to belong to the Appellant, whether directly or by lien. The complaint that the funds in issue belong to Benue State Internal Revenue Service, a separate legal entity that was not a judgment debtor in the garnishee proceedings therefore does not avail the Appellant. The contention of the Appellant that its duty to secure the deposits of her customers qualifies it as an aggrieved person where the Appellant perceives that the attachment of the customer’s deposit by an order of Court was done on a faulty application of law, cannot also hold water. The Appellant was not acting as an agent of the Benue State Internal Revenue Service. The Benue State Internal Revenue Service has not sought leave to lodge an appeal against the decision of the Lower Court. I agree with the submissions of Mr. Tsobaza that this appeal is purely academic, and its result would have no direct bearing on the rights and privileges of the Appellant. Courts are engaged in serious business and do not embark on voyages to determine issues that are purely academic, speculative or hypothetical. This is the well settled position of the law; Onochie v Odogwu (2006) 6 NWLR (PT. 975) 65; Jolasun v Bamgboye (2010) 18 NWLR (Pt.1225) 285; Drexel Energy and Natural Resources Ltd v Trans International Bank Ltd (2009) 18 NWLR (PT. 1119) 388, S.C. The appeal as lodged by the Appellant is therefore merely academic and cannot be entertained. The Preliminary Objection is thus meritorious and it is hereby upheld.” Per ONYEKACHI AJA OTISI, JCA in ZENITH BANK PLC v. BENUE STATE URBAN DEVELOPMENT BOARD & ORS (2017) LPELR-44585(CA) (Pp 6 – 19 Paras C – C) |
Whether leave of Court is required for a judgment debtor to appeal against a garnishee order: “In particular, I also think that an appellant as in the instant case who alleges that the garnishee order absolute was granted in violation of its right to fair hearing does not require any leave of Court to appeal against such a decision in the nature of a final judgment.” Per MOJEED ADEKUNLE OWOADE, JCA in APC v. ZENITH BANK & ORS (2021) LPELR-53074(CA) (Pp 22 – 22 Paras E – G) |
Whether garnishee proceedings is a separate and distinct proceeding: “Garnishee proceedings are separate and distinct from the original action that generated the judgment sought to be enforced. See HERITAGE BANK LTD v. INTERLAGOS OIL LTD (2018) LPELR 44801 (CA) and POLARIS BANK v. GUMAU & ORS (2019) LPELR-47066(CA).” Per PETER OYINKENIMIEMI AFFEN, JCA in GTB v. TAFIDA & ANOR (2021) LPELR-56131(CA) (Pp 10 – 10 Paras A – C) |
Which Court has jurisdiction to entertain a garnishee proceeding against a Central Bank of Nigeria: “The contention of the Appellant under the second issue for determination is in respect of the jurisdiction of the lower Court to hear the garnishee proceedings. It questions the power of the lower Court to adjudicate on the garnishee proceedings in the first place. It is an issue of substantive jurisdiction and one which can be raised in this Court for the first time without leave having been first sought and obtained and it will be considered by this Court. Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this – Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512. Order VIII Rule 2 of the Judgment (Enforcement) Rules made pursuant to the Sheriffs and Civil Process Act stipulates the Court in which garnishee proceedings could be commenced. It provides: a. in any Court in which the judgment debtor could under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in Magistrates’ Courts, as the case may be, sue the garnishee in respect of the debt; or b. where the debt is not yet payable, or is for an amount exceeding the jurisdiction of such Court, in any Court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable or had not exceeded the jurisdiction. Applying the literal rule of interpretation to the wordings of the above provisions, as this Court is obligated to do, they simply mean that garnishee proceedings should be brought in the Court where the judgment debtor can sue the garnishee for the funds sought to be attached in the hands or custody of the garnishee. The judgment debtors in the instant case are the fourth to the twelfth Respondents and the funds that the first to the third Respondents sought to attach by the garnishee proceedings were the funds of the twelfth Respondent in the hands of the Appellant. Therefore, going by the above provisions, it means, in the instant case, that the Court where the garnishee proceedings should be commenced is the Court where the twelfth Respondent could have sued the Appellant for the money sought to be attached.The twelfth Respondent, Heritage Bank Limited, is a commercial bank while the Appellant is the Central Bank of Nigeria. Part of the functions of the Appellant under Section 41 of the Central Bank of Nigeria Act, 2007 is to act as banker to other banks in Nigeria and Sections 15 and 16 of the Banks and Other Financial Institutions Act 1991 (as amended) makes it mandatory for all banks, including the twelfth Respondent, to maintain accounts with the Appellant containing cash reserves and special deposits for the purposes of their operations. Therefore, the relationship between the twelfth Respondent and the Appellant in respect of the accounts it maintains with the Appellant is statutory, and it is not a relationship developed in the normal course of banking business. It is not the regular individual customer and banker relationship which the Courts have held to be contractual – Guaranty Trust Bank Plc Vs Ekemezie (2016) 2 NWLR (Pt 1497) 579, Jukok Internatiomal Ltd Vs Diamond Bank Plc (2016) 6 NWLR (Pt 1507) 55. Section 251 (1) (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that the Federal High Court shall have and exercise exclusive jurisdiction to the exclusion of any other Court in civil causes and matters – “connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.” This provision has been interpreted by the Supreme Court to mean that the Federal High Court possesses exclusive jurisdiction in banking matters, except where the dispute is between a bank and one or more of its customers in the ordinary course of banking business or transaction, and in which case both the State High Court and the Federal High Court share concurrent jurisdiction – Federal Mortgage Bank of Nigeria Vs Nigeria Deposit Insurance Corporation(1999) 2 NWLR (Pt 591) 333, Nigeria Deposit Insurance Corporation Vs Okem Enterprises Ltd (2004) 10 NWLR (Pt 880) 107, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581. Applying this interpretation to the facts and circumstances of the instant case, it means by reason of the relationship between the twelfth Respondent and the Appellants in respect of its funds in its accounts with the Appellant, and the fact that the twelfth Respondent is a bank and the Appellant is the Central Bank of Nigeria, it can commence an action only in the Federal High Court against the Appellant in respect of the funds. The Federal High Court possesses exclusive jurisdiction to hear and determine such a matter. Dovetailing from this, it means that, in view of the provisions of Order VIII Rule 2 of the Judgment (Enforcement) Rules and of Section 251 (1) (d) of the Constitution, any garnishee proceeding to attach the monies in the account of the twelfth Respondent with the Appellant can, and must, only be commenced in the Federal High Court. A State High Court has no jurisdiction to entertain such a proceeding. This Court is not unaware of the conflicting decisions of the Court of Appeal on this point. On the one side are the cases of Central Bank of Nigeria Vs Auto Import Export (2013) 2 NWLR (Pt 1337) 80, Central Bank of Nigeria Vs Okeb Nig. Ltd (2014) LPELR 23162 (CA) and Central Bank of Nigeria Vs Kakuri (2016) LPELR 41468(CA) which say that it is the Federal High Court that possesses exclusive jurisdiction to entertain garnishee proceedings against the Central Bank of Nigeria. On the other side are the cases of Central Bank of Nigeria Vs Ubana (2017) 15 NWLR (Pt 1587) 151 and Central Bank of Nigeria Vs Maiyini Century Company Ltd (2017) LPELR 43024(CA) which say that it is the subject matter of the original judgment sought to be enforced by the garnishee proceeding that determines and that once that subject matter does not fall within the enumerated items over which the Federal High Court possesses jurisdiction, it is the State High Court that has jurisdiction over a garnishee proceeding against the Appellant. The case of Central Bank of Nigeria Vs Ubana supra went further to say a garnishee proceeding did not constitute a civil cause or matter to bring it within the provisions of Section 251 (1) (d) of the Constitution. By the ordinary rules of judicial precedent, it is the latest in time in these decisions that should define the present position of this Court on the subject and this is the case of Central Bank of Nigeria Vs Maiyini Century Company Ltd supra. However, being that this decision is a decision of this Court, and not that of the Supreme Court, this Court is allowed to depart from it in the following circumstances: i. Where two decisions of the Court of Appeal are in conflict and the Court must choose between them; ii. Where the Court of Appeal comes to a conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court; iii. Where the Court of Appeal comes to the conclusion that its previous decision was given per incuriam, that is, in ignorance of a statute or other binding authority, the Court is not bound by it; and iv. Where the previous decision was reached without jurisdiction. See Ibaku Vs Ebini (2010) 17 NWLR (Pt 1222) 286, Central Bank of Nigeria Vs Hydro Air PTY Ltd (2014) 16 NWLR (Pt 1434) 482. Now, a civil cause or matter is any civil suit or action which is litigated or contested before a Court of justice. Black’s Law Dictionary defines a garnishee proceeding as “a judicial proceeding in which a creditor (or potential creditor) asks the Court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party” – Fidelity Bank Plc Vs Onwuka (2017) LPELR 42839(CA). In other words, a garnishee proceeding is one by which a judgment creditor originates a third party proceeding against a person indebted to the judgment debtor to pay over directly to such judgment creditor such moneys as are due to the judgment debtor – Zenith Bank Plc Vs Omenaka (2016) LPELR 40327(CA). A garnishee proceeding is thus a civil cause – Skye Bank Plc Vs David (2016) LPELR 41548(CA), Commissioner of Police, Adamawa Vs Maiyini Century Company Ltd (2017) LPELR 43025(CA), Bauchi State Governor Vs Yusgate Nigeria Ltd (2017) LPELR 43306(CA). A read through the decisions in Central Bank of Nigeria Vs Ubana supra and Central Bank of Nigeria Vs Maiyini Century Company Ltd supra shows that neither of them made reference to or considered the provision of Order VIII Rule 2 of the Judgment (Enforcement) Rules which is the directing legislation on jurisdiction in garnishee proceedings, when read in conjunction with the provisions of Section 251 and 272 of the 1999 Constitution (as amended). It is that provision that stipulates the qualifying indices for determining which Court possesses jurisdiction in garnishee proceedings; that it is the Court in which the judgment debtor could sue the proposed garnishee for the sums sought to be attached. Additionally, it is a settled principle in our legal jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the facts and issues framed for adjudication in a particular case – Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (Pt 1333) 506, Ugwuanyi Vs Nicon Insurance Plc (2013) 11 NWLR (Pt 1366) 546. In neither of the two cases was the judgment debtor a commercial bank who is statutory obligated to maintain accounts with the Central Bank of Nigeria, like the twelfth Respondent. The provision of Order VIII Rule 2 of the Judgment (Enforcement) Rules, along with Section 251 (1)(d) of the 1999 Constitution, was considered in the cases of Central Bank of Nigeria Vs Auto Import Export supra, Central Bank of Nigeria Vs Okeb Nig. Ltd supra and Central Bank of Nigeria Vs Kakuri supra. This Court aligns itself with the decision in those cases and holds that since the twelfth Respondent could only have sued the Appellant for the sums to be attached in the Federal High Court, it is the Federal High Court that possessed jurisdiction to entertain the garnishee proceeding and, not the lower Court, the High Court of Plateau State. The Garnishee Order Absolute made by the lower Court on the 9th of December, 2014 was thus made by a Court without jurisdiction. The second issue for determination is resolved in favour of the Appellant.”; Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in CBN v. AZORO & ORS (2018) LPELR-44389(CA) (Pp 24 – 34 Paras A – E) |
Whether the National Industrial Court has jurisdiction over labour and employment related matters where an agency of the Federal Government is a party; whether the same Court can also handle Garnishee Proceedings: “In obeisance to the Counsel, I shall now proceed to resolve the remaining issues. The other jurisdictional challenge is covered by issue 2 which questions the jurisdiction of the trial Court to entertain a matter where an agency of the Federal Government is a party. I have carefully considered the submissions of the Appellant and without waste of time, I say that the Appellant is an agency of the Federal Government, that is not contested. It is also settled that the jurisdiction of the Federal High Court is circumscribed by Section 251(1) (d) (p) (q) & (I) of the 1999 Constitution (as amended) and it provides the subject matter that the Federal High Court can exercise jurisdiction. The Constitution also used the word NOTWITHSTANDING to circumscribe the jurisdiction. On the other hand Section 254 C (1) provides for the jurisdiction of the National Industrial Court and it states: “Notwithstanding, the provisions of Section 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.” The use of the word Notwithstanding changed the landscape of the provision on jurisdiction of the Federal High Court, several decisions defined the word notwithstanding as having the effect of excluding any other provision of the statute or other subordinate legislation so that the section may fulfill itself, see SARAKI V FRN (2016) LPELR-40013(SC), it held: “In NDIC v. Okem Ent. (2004) 10 NWLR (Pt.880) 107 at 182 this Court, per Uwaifo, JSC (rtd) stated as follows: “When the term notwithstanding” is used in the section of a statute, it is meant to exclude an impinging or impeding effect of any other provision of the statute or other subordinate legislation so that the said section may fulfil itself.” See further Olatunbosun v. NISER COUNCIL (1988) 3 NWLR (Pt. 80) 25: Ndaba (Nig.) Ltd v. UBN Plc (2009) 13 NWLR (Pt. 1158) 256 at 304.” By virtue of the use of the word notwithstanding in Section 251(1) and 254C of the 1999 Constitution, the jurisdictions of the Federal High Court and the National Industrial Court are mutually exclusive. They do not share any jurisdiction, the subject matter being specifically circumscribed by the Constitution. It is obvious that the National Industrial Court is strictly a labour and employment related matters, it is a specialized Court, it is not a Court of general jurisdiction. Subject matter is the most important factor in determining whether the National Industrial Court will have jurisdiction in a matter and regardless of the parties. The Federal High Court on the other hand also has subject matter and party jurisdiction. The argument of the Appellant that because it is an agency of the Federal Government and therefore the Federal High Court is the only Court with jurisdiction is flawed, jurisdiction is not just determined by only the party issue but also subject matter. The two must go together. A Court can only exercise jurisdiction when certain element are in existence as held in the case of OSI V ACCORD PARTY & ORS (2016) LPELR- 41388(SC) which held: “Before a Court can assume Jurisdiction on a matter or appeal it must be satisfied that the following conditions are met or satisfied, namely: (i) That it is properly constituted regarding the number and qualification of its member as the case may be. (ii) That the subject matter of the action or appeal is within its Jurisdiction as governed or donated to it by Law. (iii) That the action or appeal is initiated by due process of Law; and, (iv) Any condition precedent to the exercise of its Jurisdiction must be fulfilled or met. See Madukolu v. Nkemdilim (ALL NLR 687); Dangana & Anor v. Usman & 4 Ors (2012)2 SC (pt III) NURTW & Anor v. RTEAN & Ors (2012) 1 SC (pt I) 119. The relevant element in the above decision is that subject matter must be within the Jurisdiction donated to the Court by the Constitution of a statute. Where subject matter is within the jurisdiction of a particular Court, parties alone cannot confer jurisdiction on another Court. The best example here is land matters. Going by the argument of the Appellant, where a Government agency is contesting land with another party, the Federal High Court should have jurisdiction simply because one of the parties is a Federal agency. This is contrary to law because Section 251(1) of the Constitution does not have land as subject matter on which the Federal High Court will have jurisdiction and no other legislation by the National Assembly has conferred on the Federal High Court such jurisdiction. Land matters are strictly within the state High Court jurisdiction, see ADETAYO & ORS V ADEMOLA & ORS (2010) LPELR-155(SC) held thus: “Close examination of the entire provisions of Section 251 of the 1999 Constitution prescribing the jurisdiction of the Federal High Court to the exclusion of all other Courts, there is nothing therein specifically conferring jurisdiction in that Court in causes or matters concerning land disputes. Although the Section also indicated that the National Assembly may confer additional jurisdiction to the Court, there is no indication that such Act of the National Assembly had been promulgated conferring additional jurisdiction to the Court to entertain causes and matters on land disputes. If any such additional jurisdiction had been given, the most relevant statute to examine in search for it in my view, is the Land Use Act because jurisdiction of the Federal High Court to entertain land matters cannot be inferred by implication in the construction of Section 251 of the 1999 Constitution the meaning of which is quite clear and plain as no causes or matters in land dispute are mentioned therein. Since the provisions of Section 251(1)(r) of the 1999 Constitution are not helpful in tracing any jurisdiction in land matters to the Federal High Court as jurisdiction of Court is derived from statutes conferring the jurisdiction, I decided to examine the provisions of the Land Use Act 1978 which was promulgated specially and specifically to deal with the control and management of land in Nigeria. The Courts conferred with jurisdiction to entertain disputes between Nigerians in exercising their right to acquire and use land under the Act are clearly specified therein.” In the same vein, labour and employment matters are not listed anywhere in Section 251(1) of the 1999 Constitution, however, the constitution bestowed jurisdiction on the National Industrial Court. The Judgment that gave rise to the Garnishee Proceedings was an employment matter and the trial Court had jurisdiction to try the case. Related to that is whether the same Court can also handle Garnishee Proceedings, this will take us to the provisions of the Sheriffs and Civil Process Act on Garnishee Proceedings. Section 83(1) state thus: “the Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery of payment of money either before or after any oral examination of the debtor liable such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debts owing from such third party, herein after called Garnishee, to such debtor shall be attached to satisfy the Judgment, or order, together with costs of the Garnishee Proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the Judgment or Order together with cost aforesaid.” Garnishee Proceedings may be taken in a Court in which the Judgment debtor could under Civil Procedure Rules of the Court or in the Magistrate Court as the case may be to lawfully recover the debt. Admitted that the National Industrial Court was not specifically mentioned, however, the definition of a Judgment given as given by the Sheriffs and Civil Process Act would generically include the National Industrial Court and therefore, Garnishee Proceedings can commence in the National Industrial Court because the Judgment in which the debt arose is from that Court. The Court has the power to ensure execution of its Judgment. Furthermore, Order VIII Rule 2 of the Judgment Enforcement Rules provides for Garnishee Proceedings as follows: i. That the Garnishee Proceedings should be filed in any Court in which the Judgment debtor could under the Civil Procedure rules or under the appropriate section or rule sue the Garnishee. ii. An application for Garnishee proceedings is not or does not necessarily commence in the Court which delivered the Judgment, rather, in a Court that has the competence to entertain it. The Appellant argued that a Judge could be competent to handle a matter but be incompetent to determine Garnishee Proceedings. This is out rightly a flawed understanding and it was not backed by authorities. The Federal High Court does not have jurisdiction over labour and employment related matters, and therefore the National Industrial Court which has jurisdiction and handed down the Judgment is also competent to determine Garnishee Proceedings. If it can make a monetary award enforceable by Garnishee Proceedings, it also can make the initial Order Nisi absolute as the case may be. In labour and employment matters against the Appellant, the National Industrial Court is bestowed with Jurisdiction and not the Federal High Court. There is no need to stretch the issue further, I agree with the 1st Respondent in this regard, Section 254 C (1) clearly excludes other Courts in labour and employment related matters. This Appeal emanated from such labour related matter. The case of CENTRAL BANK OF NIGERIA V AUTO IMPORT & EXPORT & ORS (SUPRA) relied upon by the Appellant is irrelevant because the portion of the Judgment quoted did not say that a Court such as National Industrial Court cannot handle Garnishee Proceedings and the use of the words trial Court means the Court that determined the claim and if Garnishee Proceedings can commence in a Magistrate Court then the National Industrial Court is eminently qualified to also handle the proceedings. I agree that the Court may not necessarily have to be the Court that gave Judgment, such as the apex Court making an award and where the money to be garnisheed is in a state different from the place of Judgment. I disagree with the Appellant when he said Garnishee Proceedings are akin to counter claim, it cannot be so. The case is therefore not applicable.” Per YARGATA BYENCHIT NIMPAR, JCA in CBN v. OODO & ANOR (2020) LPELR-50290(CA) (Pp 49 – 58 Paras B – D) |
Instance where a Court in making a garnishee order absolute will be held to have rightly attached the funds of a person even though he was not a party to the suit: “…It is true as argued by the 1st – 4th Respondents that as at 2008 when the substantive suit was instituted, the party to sue in cases either against the Customs or Immigration or Prisons was the Customs, Immigration and Prisons Services Board as established by the Customs, Immigration and prisons Services Board Act, Cap 89 LFN 1990. See the case of AGBEFAWO AREMU TAJUDEEN V. CUSTOMS, IMMIGRATION & PRISONS SERVICE BOARD (2009) JELR 33826 (CA) where the action was commenced in 2002 at the trial Court. It is not enough for the Appellant to aver in their affidavit that they do not maintain any accounts in the name of the 5th, 6th and 7th Respondents. The facts placed before the Court as stated in the previous page disclose a close association between the trio. Flowing from the above, it is only reasonable that the trial Court in making the Garnishee Order Absolute will attach the funds of the Nigeria Customs Service, even though it was not a party to the suit when it held on Pages 354-355 of its Ruling that: “What is expected of the Garnishee is to truthfully disclose and produce to this Court evidence of the Statement of Account or Statement of Revenues in the Treasury Single Account (TSA) standing to the credit of the Nigeria Customs… The fact that the Nigeria Customs Service keeps its funds in the Central Bank is part of the TSA policy. This is a fact of common and public knowledge in Nigeria and requires no proof by virtue of S. 124 (1)(a) and 2 of the Evidence Act, 2011” The laws that govern Garnishee Proceedings are the Sheriffs and Civil Processes Act, Judgment (Enforcement) Rules and Civil Procedure Rules of various High Courts. Order Il Rule 16 of the Judgment (Enforcement) Rules provides that: “Where a person not being a party in a proceeding obtains an order or has an order made in his favour, he shall be entitled to enforce obedience to such order by the same process as if he were a party in the proceeding; and any person not being a party in a proceeding against whom obedience to any judgment may be enforced, shall be liable to the same process for enforcing obedience to such judgment as if he were a party to the proceeding.” The trial Court was not out of place when it made absolute the Order Nisi of 4th June, 2018 issued against the Garnishee (Central Bank of Nigeria) by attaching the sum of N509,000,000.00 (Five Hundred and Nine Million Naira Only) being Judgment debt plus accrued interest as at March, 2018 to satisfy the Judgment delivered in favour of the Judgment Creditors/Garnishors in Suit No. FHC/ABJ/CS/157/08 together with the cost of the Garnishee Proceeding. The Ruling of the Court is therefore binding on the Appellant.” Per MONICA BOLNA’AN DONGBAN-MENSEM, JCA in CBN v. LIDAN ENGINEERING LTD & ORS (2021) LPELR-52622(CA) (Pp 22 – 25 Paras F – A) |
Whether the judgment sum sought to be enforced in garnishee proceedings must be certain or ascertainable: “The condition precedent for the enforcement of money judgment by garnishee proceedings is that the sum of money sought to be recovered must be certain or liquidated in the sense that it is specifically stated in the judgment or agreed upon by the parties or is capable of mathematical computation from the judgment which is not the case with the portion of the judgment (supra), therefore the said judgment could not have been enforced by garnishee proceedings vide the latest decision of this Court (to my knowledge) in Nigerian Breweries Plc v. Chief Dumeje (supra) at page 601 per the lucid lead judgment of Ogunwumiju, J.C.A., thus – “… a garnishee order can only be upon a sum certain – liquidated amount which cannot be varied. See Major Awoyomi v. Chief of Army Staff and Ors. (2013) 4 BFLR 31, Nigeria Customs Service v. Abileowo Investment Ltd and Anor. (2014) 1 BFLR 263″. See further Nigerian Breweries Plc (supra) at pages 626-627 per the incisive judgment of Ogakwu J.C.A., and Halsbury’s Laws of England 4th Edition Reissue (or Lord Mackay’s Edition) page 131 Paragraph 254 following the cases of Randall v. Lithgow (884) 12 QBD 525, Johnson v. Diamond (1855) 11 Exch 73, Dresser v. Johns (1859) 6 CBNS 429, Jones v. Thompson (1858) EB and E 63, Shaw v. Shaw (1868) 18 LT 420.” Per JOSEPH SHAGBAOR IKYEGH, JCA in UNILAG v. OLUWASANMI & ORS (2017) LPELR-42305(CA) (Pp 12 – 13 Paras F – F) |
ORDER ABSOLUTE – Requirements of Application to Set Aside Garnishee Order Absolute “In an application of the nature of the Appellant’s application seeking to set aside the Order of the Court below it must be shown by credible evidence what are the fresh or new facts or new materials which the Court below ought to consider to change its position from the time it made the Garnishee Order Absolute on 19/6/2013 and such grounds may range from lack of jurisdiction to concealment of material facts to fresh facts available at the time the Order sought to be set aside was made but not to the knowledge of the Appellant. The Appellant relied on fresh facts, though available as at 16/9/2013 but of which the deponent of the Appellant’s affidavit to show cause was unaware of as well as the existence of an appeal against the judgment being sought to be enforced against the Appellant by the Respondent. I have considered the entirety of the Appellant’s affidavit and further and better affidavit and the Respondent’s counter – affidavit and I find that save the bare assertion as to the operations of online real time account and collection account, no single documentary exhibits were placed before the Court below on such a complicated banking mechanism by the Appellant. I also find that the mere fact that an appeal has been filed against the judgment of the Court below without more is not in law capable of operating as a stay of execution of the valid and subsisting judgment of the Court below being sought to be enforced by the Respondent, the successful party in that litigation. I find, and as deposed to clearly by the Respondent, that the Appellant’s application seeking to set aside the Garnishee Order Absolute made against it after over three months on its own affidavit to show cause and admitting to be in custody of the funds of PHCN was clearly an afterthought devoid of any bona – fide. The Appellant also failed miserably to furnish any material on which any favorable finding of facts as to the existence as at 19/6/2013 fresh materials or facts but of which it was unaware as at 19/6/2013 can be made by any reasonable Tribunal or Court of law. ?Here is a party, the Appellant, who had on its volition went voluntarily before the Court below on 19/6/2013 to state categorically on affidavit on facts within its personal knowledge and as authorized by it that it has as at 19/6/2013 in its custody funds standing to the credit of PHCN in the sum of N13, 146, 063. 58 on which the Court below made the Garnishee Order Absolute on 19/6/2013. Incredibly, such a party, as the Appellant, would then wait, and without complying with the valid and subsisting Garnishee Order Absolute of the Court below and without any appeal against the same return to the same Court below on 8/10/2013, that is almost after three month, to request the same Court below to set aside the Garnishee Order Absolute that it had made over three months earlier on the state of affairs voluntarily and willingly supplied to it by the Appellant as the true state of the accounts of PHCN with the Appellant and without any supporting vital pieces of documentary evidence. The Appellant’s story in the application to set aside the Garnishee Order Absolute is bunkum! Simply, things do not just work like that! See Live Stock Feeds Plc. V. Funtua (2005) FWLR (Pt. 286) 753.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in UNITY BANK v. BENEDICK (2021) LPELR-54549(CA) (Pp 34 – 37 Paras D – B) |
AMOUNT – Whether Stating Exact Amount in Judgment Debtor’s Account a Requirement for Grant of Order Nisi “On the afterthought submission of the Respondents to the effect that there was need to state the exact amount in the account of the Judgment Debtor, I say it is not a statutory requirement and it cannot be introduced merely to discredit the Garnishee proceedings.” Per YARGATA BYENCHIT NIMPAR, JCA in ARCHIBONG BEACHES LTD v. A.G CROSS RIVER STATE & ANOR (2019) LPELR-48145(CA) (Pp 22 – 22 Paras B – C) |
DISCRETION – Whether Grant or Refusal of Garnishee Order is Discretionary “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.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in SKYE BANK PLC v. HARUNA & ORS (2014) LPELR-41078(CA) (Pp 54 – 54 Paras D – E) |
ATTORNEY-GENERAL’S CONSENT – Instance Where Consent is Not Needed Before Instituting Garnishee Proceeding “A motley of decided cases have advanced the legal principle that, where the party is not a public officer, the consent of the Attorney-General is not required before an ex-parte application for garnishee order nisi can be commenced. CBN V INTERSTELLA COMMUNICATION LTD & 3 ORS (2019) 7 NWLR (pt 1618) 294.” Per RITA NOSAKHARE PEMU, JCA in CBN v. FOLUSO & ORS (2021) LPELR-54879(CA) (Pp 14 – 14 Paras E – F) |
COMPETENCY – Whether Garnishee Proceedings are Competent Despite Pendency of Motion for Stay of Execution “A garnishee proceeding is one of the tools with which a judgment creditor prevents a judgment debtor from dissipating his assets in the hands of a 3rd party. It is a proceeding between the judgment creditor and a 3rd party who is in custody of all or part of the assets of a judgment debtor and flows from the judgment pronouncing the debt owed but distinct from it. See Re: Diamond Bank Ltd (2002) 17 NWLR (pt 795) 120. It is a process of execution and may be affected by any order of stay of execution. The pendency of an application for stay does not however preclude the judgment creditor from taking steps to avoid the dissipation of the assets of the judgment debtor. That is why S. 86 of the Sherriff and Civil Process Act requires that the garnishee pays into Court from the debtor’s assets in his possession the amount equivalent to the judgment debt, or show requisite cause why he should not do so or is unable to do so. It is therefore immaterial that there are pending applications for stay of execution.” Per RAPHAEL CHIKWE AGBO, JCA in NIGERIA AGIP OIL CO. LTD v. OGINI & ORS (2017) LPELR-42859(CA) (Pp 3 – 4 Paras E – D) |
BENEFICIARY – Who Can Benefit from Garnishee Proceedings “Section 83 of the Sheriffs and Civil Process Act, CAP 6, Laws of the Federation of Nigeria provides that debts may be garnisheed by: … any person who is entitled to the benefit of a judgment for the recovery or payment of money… A Judgment is a determination of the issues raised on the pleadings and for what has been claimed: Ransome Kuti v. Attorney-General, Federation (1985) LPELP-2940(SC). See also Section 318(1) of Constitution of the Federal Republic of Nigeria 1999, as amended. In the case of Attorney General, Oyo v. Fairlakes Hotels Ltd (supra), relied upon by the Appellant, the Supreme Court, per Agbaje, J.S.C., cited with approval Ex. P. Chinery 12 Q.B.D. 342 wherein a judgment was described as: “…the sentence of the Law pronounced by the Court upon the matter contained in the record.” In this light, a person would be entitled to benefit from garnishee proceedings if there is a subsisting judgment for the recovery of money in his favour.” Per ONYEKACHI AJA OTISI, JCA in UBA PLC v. EDET & ORS (2014) LPELR-24243(CA) (Pp 16 – 17 Paras F – E) |
TIME TO SHOW CAUSE – Whether Rules Set a Time for Garnishee to Show Cause; Instance Where Court of Appeal Will Invoke Its Power to Determine Same “Garnishee proceedings at the lower Court (Federal High Court) is governed in the main by Order 37 of the Federal High Court Civil Procedure Rules, 2009. This rule did not set the time within which a garnishee needs to file any cause he wants to show. The regulation relating to time is as relates to the service of the order of the service of the order of the Court to show cause. The person who ordinarily need to complain of time of such service is the person to be served such as the Appellant. The provision for service is as specified in Order 37 Rule 3. This rule provides: 3. (1) unless the Court otherwise directs, an order under Rule 1 of this order to show cause shall be served. (a) On the garnishee personally, at least, fifteen days before the day appointed thereby for the further consideration of the matter; and (b) On the judgment debtor, at least seven days after the order has been served on the garnishee and at least seven days before the day appointed for the further consideration of the matter. (2) An order under Rule 1 of this order shall bind in the hands of the garnishee as from the service of the order on him any debt specified in the order or so much thereof as may be so specified. It is very clear here that it is the service of the order to show cause on the garnishee and the judgment debtor that is regulated. There is no law specifying the time the Appellant should turn in its affidavit to show cause. It is only conscionable to know that filing of processes meant for hearing of the Court must have due regards to the convenience of the Court and the return or due date set for Consideration of the case by the Court. The affidavit to show cause was in the instant case filed on 7th January, 2019. The only trigger that angered the Court was that the affidavit showing cause was served on the 1st Respondent on the set date for hearing which was 11th January, 2019. The service on the 1st Respondent of a process meant to be considered by the Court in the open Court on the date of hearing is highly reprehensible. But this with due respect does not justify the action of the Learned trial chief judge in not considering the cause shown. The cause shown was not by any law or rules of Court time barred. The Learned trial chief judge was clearly in error by holding that the affidavit to show cause was filed by the appellant considering the facts and circumstances of this case being a case of enforcement of a judgment of a Court of competent jurisdiction, this Court will not send the case back to the trial Court as this will orchestrate another inordinate delay in the enforcement of the said judge. Since the cause shown was filed and it was before the trial Court, this Court is well endowed with the power to review the said cause shown and appropriately give the decision in the interest of justice. This step is peculiarly necessary in this case to stem the rising tide of garnishee proceeding remaining endlessly in the Court longer than the time it took the Court to determine the substantive claim of the litigants. We shall therefore act under our laws to deal with the substantive application of the Appellant. Section 15 of the Court of Appeal Act and Order 20 Rule 11 of the Court of Appeal Rules 2016 are applicable here. The combined effect of Section 15 (Supra) and O.20 R. 11 is that in Civil Appeals, this Court has all the powers of the lower Court in any matter in which it has jurisdiction. See Olutola v. Unilorin (2004) 11-12 SC 214. And in order to completely settle any matters in controversy between the parties and to avoid multiplicity of legal proceedings, this Court has power to grant any relief or make any orders to which any of the parties before it may appear entitled to. This power is not restricted by the relief specifically sought in the notice of appeal, provided that they are necessary for the final determination of appeal before it as was decided in the case of Bunyan v. Akingboye (1999) 5 SC (Pt. 11) 91. See the case of Havilah Motors Ltd v. Attorney General Bayelsa & Anor (2019) LPELR- 48942 (CA) per Gumel, JCA.” Per STEPHEN JONAH ADAH, JCA in CBN v. OCHIFE & ORS (2020) LPELR-52495(CA) (Pp 17 – 20 Paras B – E) |
GARNISHEE AS PARTY – Instance(s) Where Garnishee is Regarded as a Party in Appeal Despite Payment of Money in Custody as Directed by Court “In view of the principles of law enunciated in the cases of PDP v. Sylva (2017) 5 NWLR (Pt. 1557) P. 74 @ 93, Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) P. 172; Adegoke Motors v. Adesanya (1939) 3 NWLR (Pt. 109) P. 250; Chief of Army FRN v. Chief Lawal & Ors (2012) 10 NWLR (Pt. 1307) P.62 @ 70; Hon. Bwacha v. Hon. Ikenya & Ors (2011) All FWLR (Pt. 572) P. 1674 @ 1688 and Kalu v. Uzor (2004) 12 NWLR (Pt. 886) P. 1 @ 33, and the issues raised in the Notice and grounds of appeal, the applicant/respondent (Central Bank of Nigeria) has been rightly reflected in the Amended Notice of appeal as a party, more so as it was the garnishee who was at the Centre of the garnishee proceedings before the lower Court. Furthermore, a critical examination of the grounds of appeal and the reliefs sought have revealed that the applicant/respondent is both a proper and necessary party to appeal No. CA/K/428/2008, which cannot be determined finally and justly, without it being a Party. I am not unmindful of the provisions of Section 91 of the Sheriffs and Civil Process Law, which provides thus; “97. Payment made by or execution levied upon a garnishee under any such proceedings shall be a valid discharge to him against the debtor liable under a Judgment or order, to the amount paid or levied, even though such proceedings may be set aside or the judgment or order reversed.” The above provisions, in my view, only discharges the garnishee from liability once the money said to be in its possession or custody has been paid pursuant to the Order Absolute made by the Court ordering it to pay same to the judgment/creditor. The main complaint of the appellant/respondent in the Amended Notice and grounds of appeal is principally questioning the propriety of making the Order absolute by the lower Court. It has nothing to do with liability of the appellant/respondent to pay or not to pay the judgment debt to the judgment creditor. I do not therefore subscribe to the contention of Daniel-Ebune Esq., of learned counsel to the applicant/respondent, that there is no live issues or disputes to be resolved in the appeal to warrant the applicant/respondent being made a party to the appeal. In the result, I resolve the sole issue against the applicant/respondent, that is, it is a proper and or necessary party to the appeal No. CA/K/428/2008, and its being named as the 3rd respondent in the said appeal No. CA/K/248/2008 cannot be faulted.” Per IBRAHIM SHATA BDLIYA, JCA in CBN v. FIRST INLAND BANK PLC & ORS (2017) LPELR-45293(CA) (Pp 22 – 24 Paras C – D) |
JUDGMENT DEBTOR – When Judgment Debtor Should Be Heard in Garnishee Proceeding “Fortunately, this Court, recognizing the conflict in its decisions above, invited an array of respected senior counsel as amicus curiae to address it on this issue in Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (pt. 1515) 534. In that case, like this one, the learned trial judge in his ruling on the garnishee order absolute that was appealed by the judgment debtor did not consider the merit of the case put forward by the judgment debtor, he being of the opinion, like the trial judge and respondents here, that a judgment debtor is an interloper in a garnishee proceedings because such proceedings are not the same as the proceedings where the judgment debt emanated and the judgment debtor was not a party to it. There, this Court (Ogunwumiju, J.C.A., with our brothers Barka and Ogakwu, JJ.C.A, concurring) resolved the issue as follows: “I am of the firm view that after the service of the order nisi on him, the Judgment Debtor may convince the Court by way of affidavit to discharge the order nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the originating process of the main suit or any other vitiating factor based on which the trial Court has the power to set aside its own judgment or even payment or liquidation of the judgment of the judgment sum which is being sought to be realized by way of enforcement where the Court refuses to discharge the order nisi and make the order nisi absolute, the Judgment Debtor, being a necessary party, can appeal as of right since the order absolute is regarded as a final decision of the Court: See U.B.N Plc V. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654 at 665 paras. A-C. “… “The emphasis here is the fairness of the judicial process. The right to fair hearing enshrined in S. 36 of the 1999 Constitution only connotes that a party should be given the opportunity to be heard whether or not a party’s submission is accepted is entirely the Court’s prerogative. The service of the order nisi and all accompanying processes on the judgment debtor is not a matter justifying righteousness. In my humble but strong view, it is a mandatory provision without which any subsequent judicial action would be rendered a nullity. “In my humble view, the Judgment Debtor who is the owner of the money in possession of the Garnishee has a right to be heard if he wishes before the garnishee order is made absolute. I am also of the strong but humble view that his right to be heard should be at large. If not a Pandora’s box would be opened to enable the Judgment Debtor engage in all manner of activities that can abort the process and or make nonsense of the raison d’etre of the provisions and rules of Court in garnishee proceedings enacted for the express purpose of oiling the wheels of execution of liquidated money judgment. Therefore, it is my own humble conclusion that a Judgment Debtor is free to challenge the order nisi before the Court that made the order and to urge the Court to set it aside by and for any of the following reasons: 1. File an application to the same Court to set aside the order nisi for want of jurisdiction where the computation of the money sought to be recovered had been done unilaterally and not based on a specific order of Court. In other words, when the actual total Judgment Debt is being challenged. This is because a garnishee order can only be made upon a sum certain – liquidated amount which cannot be varied. See Major Awoyomi V. Chief of Army Staff & Ors. (2013) 4 BFLR 31, Nigeria Customs Service V. Abileowo Investment Ltd. & Anor. (2014) 1 BFLR 263. 2. File a motion to vacate the order nisi supported by an affidavit to show the Court that there had been partial execution of the judgment or that part of the Judgment Debt had been paid and the process filed by the garnishor are not factually correct. 3. File a motion supported by affidavit to show that proper parties were not before the Court. 4. File an affidavit supported by exhibits that there is a motion for stay of execution of the judgment before an Appellate Court and an appeal had been lodged by the judgment debtor against the said Judgment or ruling. “The choices opened to counsel are not exhaustive and would depend on the circumstances of each case. However, it is not open to counsel to challenge the merit of the judgment during garnishee proceedings in any guise. The judgment debtor must keep his gunpowder dry to fire his gun during the course of the substantive appeal or any form of review he has chosen. If after hearing the three parties – judgment creditor, judgment debtor and garnishee in the proceedings the Trial Court decides to make the order nisi, Absolute, or to discharge or vacate same, any of the parties have a right of appeal against that decision.” This undoubtedly sound exposition of the law has been followed by subsequent decisions of this Court including Delta State Government v. Kay Que Investment Ltd & Anor (2018) LPELR- 45545 (CA) and Stanbic IBTC Bank Plc v. Long Term Global Capital Ltd & Ors, Unreported Appeal No. CA/L/254A/2011. I shall only add, in addition, that it even appears to me preposterous and in fact borders on the absurd to suggest as is done by respondents here that all that the Lawmaker intended when he made it mandatory in Section 83(2) of the Sheriffs and Civil Process Act that a judgment debtor in a garnishee proceeding shall not only be served but served “at least fourteen days before the hearing a copy of the order nisi” is to simply make him a spectator at the hearing and the minimum 14 days’ requirement is simply to enable him horn, so to speak, his spectating skills; that he is not supposed to speak, even if the judgment creditor is to his knowledge suppressing or misrepresenting facts in the proceeding and that that disability extends to even his right of appeal. Courts do not adopt an interpretation of a statute that is absurd, especially where there is another possible interpretation: See Maxwell on The Interpretation of Statutes, 12th Edition by P. St. Langan, P. 210; Ndoma -Egba v. Chukwuogor (2004) 2 S.C. (PT 1) 107 @ 114-115. In conclusion, I find the preliminary objection of respondents misconceived and here overrule it.” Per BOLOUKUROMO MOSES UGO, JCA in BOGORO LOCAL GOVT COUNCIL v. KYAUTA & ORS (2020) LPELR-49812(CA) (Pp 11 – 16 Paras C – F) |
ATTORNEY-GENERAL’S CONSENT – Position of the Law on Prior Consent of Attorney-General Before Issuance of Garnishee Order to Attach Funds Held by Public Officer “I am in agreement with the respondents that the route to enforcement of judgment through garnishee proceedings is to first seek and obtain the consent of the Attorney General as required by S.84 of the Sheriffs and Civil Process Act. The appellant totally mixed the issues. The reason is simple. The issue to sort out is whether the consent of the Attorney General is necessary in their circumstance. The case of ABIA STATE UNIVERSITY vs. ANYAIBE (supra) relied upon has nothing to do with garnishee proceedings. In the case, this Court distinguished an action under the Fundamental Rights (Enforcement Procedure) Rules as a peculiar action or special action as it has its own unique procedure. The Court concluded that an application for the enforcement of fundamental human right shall not be affected by any limitation statute whatsoever. See also MRS ODUBU vs. LT STEPHEN & ORS (2012) LPELR 19792 (CA). In CBN VS OKEFE (supra), this Court inter alia held that the issue of constitutionality of requiring prior consent of the Attorney General before issuance of garnishee order nisi under Section 84 of the Sheriff and Civil Process Act is not new and has been raised and decided in same previous decisions of this Court, ONJEWU vs. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY (2003) 10 NWLR (Pt 827) 40 and GOVERNMENT OF AKWA IBOM STATE vs. POWERCOM NIC LTD (2004) 5 NWLR (Pt 868) 202. In the two cases, the Court held that obtaining prior consent of the Attorney General under S.84 of the Sheriffs and Civil Process Act is mandatory.” Per USMAN ALHAJI MUSALE, JCA in AKPAN v. EFCC & ANOR (2021) LPELR-55800(CA) (Pp 17 – 18 Paras D – E) |
JURISDICTION – Whether State High Court Has Jurisdiction to Hear Garnishee Proceeding Initiated Solely to Enforce Monetary Judgment of Magistrate Court “…Now, in the instant appeal, what indeed is a Garnishee proceeding in law? In CBN V. Interstella Comm. Ltd (2015) 8 NWLR (Pt. 1462) 456 @ p. 489, Abba Aji JCA., (as he then was but now JSC), had opined inter alia thus: “Garnishee proceedings as a proceeding is a distinct and separate action between the Judgment Creditor and the person or body holding in the custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. Thus, a successful party in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for a ‘garnishee order nisi’ attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee.” See also NAOC Ltd V. Ogini (2011) 2 NWLR (Pt. 1250) @ p. 147; UBA Plc. V. Ekanem (2010) 6 NWLR (Pt. 1190) 207 @ p. 224. My lords, I have taken time to read through the initiating processes filed by the 1st and 2nd Respondents by way of Garnishee proceedings to enforce the monetary judgment of the trial Magistrate Court at the Court below solely on the basis that the interest on the judgment sum when calculated and added to the judgment sum is far in excess of the monetary jurisdiction enforceable by the trial Magistrate Court, hence the application to the Court below to enforce the said judgment against the Appellant by Garnishee against the 3rd Respondent, its Banker. The question here is whether under the extant laws, the Court below, being the High Court of Edo State, has the jurisdictional competence to enforce the monetary judgment of the trial Magistrate Court by means of a Garnishee proceedings as initiated against the 3rd Respondent and the Appellant by the 1st and 2nd Respondents? The extant laws and Rules to be considered and interpreted for the due resolution of this pertinent question, and ultimately the resolution issue one under now under consideration are as follows, namely: Order 11 Rules 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012, which provides thus: “Except for the purpose of Section 44 of the Act and Rule 13 of Order IV, no proceeding in a Magistrate’s Court shall be transferred, for the purpose of enforcing any judgment therein, to the High Court”. Section 44 of the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012, which provides thus: “If sufficient movable property of the judgment debtor can be found in the Federal Territory, Abuja or the state as the case may be to satisfy the judgment and costs and the cost of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found, or if such property is insufficient to satisfy the judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the Court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the Court against the immovable property of the judgment debtor in accordance with the provisions of this Act, and any rules under thereunder: Provided that where the judgment has been obtained in a Magistrate’s Court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.” Order IV Rules 13 of the Judgment Enforcement Rules which provides thus: “A writ of sequestration and a writ of interim attachment directed against any immovable property of a defendant or judgment debtor shall not issue out of a Magistrate’s Court, but such writs may issue out of the High Court upon the transfer thereto of the proceedings.” Order VIII Rules 1, 2 (A) & (B) of the Judgment Enforcement Rules, which provides thus: 1. “Subject to the next succeeding rule, garnishee proceedings may be taken in a Magistrate Court notwithstanding that the debt owing or accruing from the judgment debtor is for an amount exceeding the jurisdiction of that Court. 2. Garnishee proceedings may be taken – a) In any Court in which the judgment debtor could under the High Court (Civil Procedure Rules) or under the appropriate section or rule governing civil procedure in magistrate’s Court as the case may be, sue the garnishee in respect of the debt or b) Where the debt is not yet payable or is for such Court, in any Court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable or had not exceed the jurisdiction. The parties are ad idem that the judgment sought to be enforced is the judgment of the trial Magistrate Court and is being sought to be enforced before the Court below, which had already assumed jurisdiction and granted the Garnishee Order Absolute against the Appellant. Having taken time to ponder on the purport and effect of the above provisions of the extant laws governing the enforcement of judgments, I am strongly persuaded by the apt and unassailable submissions by the learned counsel for the Appellant that in law the Court below, being the High Court of Edo State lacked the jurisdiction to enforce a monetary judgment of the trial Magistrate Court where the enforcement sought does not involve any immovable property as required of it by law. In law jurisdiction, as I had observed earlier in this judgment, is the epicenter of the entire adjudicatory process. Thus, without jurisdiction there is nothing any Court can do to exercise powers it does not possess under the law. Indeed, a Court is incapable of creating or manufacturing jurisdiction for itself merely to hear and determine a matter not within its jurisdiction by law. The Courts are never hungry for jurisdiction! See Saraki V Frn (2016) LPELR – 40013 (SC); National Bank V. Shoyoye (1975) 2 SC 181; Kalio V. Daniel Kalio (1975) 2 SC 15; Obasanjo & Ors V. Yusuf & Anor (2004) LPELR – 2151 (SC); NDLEA V. Okorodudu (1997) 3 NWLR (Pt. 492) 221 @ 242. Now, since it is the law no proceeding in a Magistrate’s Court shall be transferred, for the purpose of enforcing any judgment therein, to the High Court except as otherwise permitted in law, it does appear very clear to me, and I so hold, that the Garnishee proceedings initiated by the 1st and 2nd Respondents against the 3rd Respondent solely to enforce the monetary judgment of the trial Magistrate Court against the Appellant was grossly incompetent. Thus, the Court below was wrong when it assumed jurisdiction not only to hear but had also proceeded to determine the same without any iota of jurisdiction under the extant applicable laws and Rules. See Order 11 Rules 25, Order 13 Rule IV of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012. See also Section 44 of the Sheriff and Civil Process Act; Rule 13 of Order IV; C.G.G. (Nig) Ltd V Ogu (2005) 8 NWLR (Pt. 927) 366; Ansa V. R.T.P.C.N. (2008) 7 NWLR (Pt. 1086) 421 @ pp. 438-439; Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266; State V. Onagoruwa (1992) 2 NWLR (Pt. 221) 33. Having taken time to consider the contending submissions of counsel for the parties on the applicable law, it is my view, and I so hold, that Order 11 Rules 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012 is the applicable law and it expressly provides that except for the purpose of Section 44 of the Act and Rule 13 of Order IV, no proceeding in a magistrate’s Court shall be transferred, for the purpose of enforcing any judgment therein, to the High Court, subject however to the power of enforcement by a High Court of the judgment of a Magistrate Court where the judgment has been obtained against an immovable property upon the conditions and in the manner prescribed by law. See Section 44 of the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012. It is very clear that the word used in the above provision of the applicable law is ‘shall’, whose interpretation as to its purport and meaning or implication no longer poses any difficulty to the Courts. Thus, in law, once the word ‘shall’ is used in a Statute or Rules of Court it connotes mandatory and must be complied. It does not brook any deviation and therefore, a failure to do so will render such proceeding or act incompetent and liable to be struck out. I find therefore, that the judgment and Order Garnishee Absolute made by the Court below over the monetary judgment of the trial Court were reached and made without any requisite jurisdiction, and thus null and void and of no legal consequences whatsoever. It is like it was either never made or it never ever existed. It is liable to be set aside ex – debito justitiae at the instance of the Appellant and or any other person affected by it without much ado. See Order 11 Rules 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012. See also Animashaun & Anor V. Ogundimu & Ors (2015) LPELR – 25979 (CA); Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209) 513 @ p. 589; John V Igbo-Etiti Local Government Area (2013) 7 NWLR (PT.1352) 1. My lords, I even find it so curious that the trial Magistrate cognizance or supposedly cognizance of the limit of its monetary jurisdiction would proceed to hear and determine a matter and award monetary amounts together with interest whose calculation would be far in excess and way beyond its monetary jurisdiction and thereby creating the self- induced fiasco of a scenario to warrant the enforcement of its monetary judgment against the judgment debtor before the Court below, even against the outright prohibition of same by the Sheriff and Civil Process Act and the Judgment Enforcement Rule made pursuant to the said Act. In very simple and clear terms, the judgment of the Court below is a nullity, and I so hold. See Nigerian Breweries Plc V. Dumuje & Anor (2015) LPELR – 25583(CA). I have in coming to the conclusion above taken time to consider the various submissions of who in law are the proper and or necessary parties to a Garnishee proceedings, and suffice for me to say that on the current state of the law a judgment debtor, whose money is to be garnisheed in a garnishee proceeding, is not and cannot be regarded in good conscience as nominal party in so strict a technical sense of the word ‘party’ but rather he is a necessary party in that he is entitled by law not only to be served with the Garnishee Order Nisi but also to participate on the return date for the Garnishee to show cause why the Garnishee Order Nisi should not be made Absolute. See Fidelity Bank Plc V. Okwuowulu (2012) LPELR – 8497 (CA); CBN V. Auto Import Export (2013)2 NWLR (Pt. 1337) 80 @ p. 127. I agree with the apt and very unassailable submission of the learned counsel for the Appellant that Order VIII Rule 1, 2(A) and (B) of the Judgment Enforcement Rules, heavily relied upon by the learned counsel for the 1st and 2nd Respondents, the true position of the law is that whilst a judgment of a High Court can be enforced by both the High Court itself and a Magistrate Court and while a Magistrate Court can enforce its own judgment delivered within its jurisdictional competence as to subject matter and monetary limit, a High Court cannot and does not have the jurisdiction to enforce a monetary judgment of a Magistrate Court, except where such enforcement bothers only on enforcement on an immovable property of a Judgment Debtor in the light of the very clear express provisions of Order II Rules 25 the Judgment Enforcement Rules by which the High Court is expressly forbidden from enforcing the judgment of a Magistrate Court except in respect of enforcement on immovable property. This to my mind, and I so hold, is the true purport of the use of the word ‘shall’ in Order 11 Rules 25 of the Judgment Enforcement Rules made under the Sheriff and Civil Process Act, Cap S6, Laws of the Federation, 2012. See Babatope & V. Sadiku & Anor (2017) LPELR – 41966(CA), where Georgewill JCA., had opined inter alia thus: “The word ‘shall’ has received countless pronouncements of the Apex Court and this Court as to its interpretation when used in an enactment or rules of Court. It is almost in all case, interpreted as denoting a command. It is never a word that gives room for deviation or option. It requires strict compliance since it is obligatory. In Ugwu & Anor V. Ararume & Anor (2007) 6 SC (Pt.1) 80 @P.88, the Supreme Court, in interpreting the meaning of the word “Shall” when used in an enactment, had succinctly stated inter alia this: “Generally, when the word ‘shall’, is used in a statute, it is not permissive. It is mandatory. The word “shall” in its ordinary meaning is a word of communal, which is normally given compulsory meaning because it is intended to denote obligation.” See also Tamti D.U. v. Nigeria Customs Service Board & Anor (2008) LPELR – 8490(CA). Having therefore, arrived at the inescapable conclusion in the resolution of issue one now under consideration that the Court below lacked the requisite jurisdiction to hear and determine the Garnishee proceedings initiated by the 1st and 2nd Respondents against the 3rd Respondent in respect of the judgment debts due payable by the Appellant arising from the judgment of the trial Magistrate Court, the judgment of the Court below, including the Garnishee Order Absolute have become sheer nullity and liable to be set aside, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance this lack of competence of the 1st and 2nd Respondents; Garnishee proceedings and proceed to consider the other two issues for determination or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent cause or matter, which is liable to be terminated in limine? In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus: “My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541. See also Mrs. Susan Olapeju Sinmisola Olley V. Hon. Olukolu Ganiyu Tunji & Ors. (2013) 10 NWLR (Pt. 1362) 275; Madukolu V. Nkemdilim (1962) 1 All NLR 587. I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the 1st and 2nd Respondents’ Garnishee proceedings initiated and conducted to a resounding successful conclusion before the Court below was grossly incompetent in law. In the circumstances therefore, I hereby resolve issue one in favor of the Appellant against the 1st and 2nd Respondents, and hold firmly that the appeal has great merit, even on this score alone, and therefore, ought to be allowed.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in DANGOTE CEMENT PLC v. ALEX & ORS (2020) LPELR-52258(CA) (Pp 31 – 44 Paras A – D) |
AFFIDAVIT – Whether Affidavit in Support of Application for Garnishee Order Nisi Must Be Deposed to by Applicant or Legal Practitioner; Effect of Failure “The law is clear that an affidavit supporting the application for garnishee order nisi must be deposed to by the applicant himself or his legal practitioner, which secretary in chambers is not, thereby reducing the requirement of the law to being observed in breach. The mention of ‘the applicant’ or ‘his legal practitioner’ clearly excludes any other person. The latin maxim “expressio unius est exclusio alterius” means that the express mention of one thing is the exclusion of another. Section 83(1) of the Act excludes anyone other than the ‘Applicant’ or his ‘Legal Practitioner’ from supplying the evidence upon which garnishee proceedings may be predicated. The Court cannot read into the provision of a statute an implied term where the provision is in itself clear and unambiguous. See Chief Adebiyi Olafisoye Vs. Federal Republic of Nigeria (2004) 4 NWLR (PT 864) 580; Federal Republic of Nigeria Vs. Chief Joshua Dariye (2011) LPELR 415 (CA) 26-27. Where the language of a statute is clear and unambiguous, it must be given its plain and ordinary meaning. The failure to depose to the affidavit supporting the initiating process by the applicant himself or his legal practitioner, in effect renders the motion ex-parte incompetent and the lower Court should have done nothing than striking it out for incompetence.” Per HUSSEIN MUKHTAR, JCA in FCMB v. DEKINA & ANOR (2020) LPELR-51435(CA) (Pp 6 – 7 Paras E – E) |
COST – Whether Court Can Award Cost in Garnishee Proceeding and When Appellate Court Will Interfere; Whether Court Can Incorporate Cost of Garnishee Proceeding into Subsequent Proceeding “By virtue of S.86 of the Sheriffs and Civil Process Act, the lower Court has the power to award cost of the garnishee proceedings in favour of the garnishor See FIDELITY BANK PLC V OKWUOWULU & ANOR (2012) LPELR – CA/L/776M/06. An appellate Court will only interfere with the award of costs by the lower Court when the award is excessive. A cost is excessive when it is punitive. The objective of awarding of costs is not to punish the judgment debtor but to serve as an indemnity to compensate a successful party for the such expenses as cost of filing the action and Court attendance. See OLASOPE V N.B.N (1975) 3 NWLR (PT 11) 147. NBANUGO V NZEFILI (1998) 2 NWLR (PT 537) ONABANJO V EWETUGA (1993) 4 NWLR (PT.288) 443. Should a Court award high cost it must give reasons for so doing. See N.N.P.C. V KLIFCO NIGERIA LTD (2011) 10 NWLR (PT 1255) 209. The trial Judge in awarding the cost of N100,000 stated thus: “By S.86 of the Sheriffs and Civil Process Act and even outside it Garnishor/Respondent is entitled to costs which I assess at N100,000.” I am of the respectful view that after an Order Absolute had been made by the lower Court the provision of S.86 of the Act could not be invoked to award costs. The proceeding that led to the judgment of 31/1/2013 was a post-garnishee proceeding. It is with due respect wrong for the lower Court to incorporate the cost of the garnishee proceeding into the subsequent proceeding. I am of the view that the cost of N100,000 awarded against the appellant is punitive and excessive.” Per TUNDE OYEBANJI AWOTOYE, JCA in UBA v. PRIMA IMPEX (NIG) LTD & ORS (2017) LPELR-42015(CA) (Pp 30 – 31 Paras C – E) |
CONSENT – Whether Judgment Creditor Must Comply with Section 84(1) of the Sheriffs and Civil Process Act, 2004 When Fund Liable to Be Attached is in Custody of Public Officer “…I would like to commence the resolution of this lone issue by a brief discourse on the nature and principles governing the garnishee proceedings. The starting point is the provision of Section 83 of the Sheriff and Civil Process Act LFN Cap 56 2004, which provides: “83. (1) The Court may, upon the exparte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show course why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with cost aforesaid. (2) At least 14 days before the day of hearing the copy of the order nisi shall be served upon the garnishee and the judgment debtor.” This provision has been given judicial pronouncements by the Appellate Courts. See SKYE BANK PLC VS. DAVID & ORS (2016) LPELR- 41548 (CA) Pages 19-22 paras F-B. Garnishee proceedings are processes used to enforce money judgments by seizing or attaching the debts due or accruing to the judgment debtor which form part of his property available in execution. The Court is empowered to order a third party to pay the debt direct to the judgment creditor the debt due or accruing from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings. This process makes the garnishee proceedings a special form of execution of judgment by a statutory proceeding in which a judgment debtor’s property, money or credit in possession, custody or under control of or owing by a garnishee are applied to the payment of former debt to a third person as against the debtor and the garnishee. See FIDELITY BANK PLC. VS. OKWUOWURU & ANOR (2012) LPELR – 8497 (CA); U.B.N PLC VS. MARCUS IND. LTD (2005) 7 SC (Pt. 1) 70; FBN PLC VS. FCMB PLC (2013) LPELR – 22050 (CA). It is the law that the duty of the Garnishee is to appear in Court and show cause why the order nisi should not be made absolute. See Section 83 (1) of the Sheriffs and Civil Process Act 2004. It is not the duty of the Garnishee to defend the judgment debtor. See TOTAL UPSTREAM NIG LTD VS. A. I. C. LTD & ORS (2015) LPELR-25388 (CA). In this case the Garnishee/Respondent has deposed to various affidavits as indicated above, disclosing all the accounts of the judgment Debtors in its custody or possession. It has also shown all the accounts which have been attached and which still had credit balance in them. For instance, at pages 47-49 of the Record, in the Further Affidavit of the 13th Garnishee/Respondent, the averments therein disclosed credit balances. From the Further Counter Affidavit at pages 54-55 of the Record, it is clear that none, except 2 of the accounts mentioned in paragraph 4 (a) – (j) of the Further, further, further, further, affidavit filed by the 13th Garnishee on 14/2/2018 was attached. Even though the Garnishee/Respondent stated that the accounts indicated had been attached, it is clear that the order nisi made by the Trial Court in respect of this suit was first in time. The Learned Trial Judge stated thus at page 96 of the Record:- “On the issue of which order nisi was first in time, my order nisi was made on 27th March, 2017 whereas that of the National Industrial Court sitting at Owerri was made in September 2017. So I have no reason whatsoever not to make my order nisi against the 13th Garnishee absolute. However, there appears to be some confusion in the computation. According to Learned Counsel some monies had been paid out of this account despite their protestations. I will adjourn for them to give us the computation.” After this adjournment it was discovered that the Garnishee/Respondent was not discharged in another proceedings in Suit No. HOW/50M/2017. However, the Garnishee/Respondent was discharged by the Trial Court on the ground that the Garnishee/Respondent which was the 13th Garnishee in that proceeding was not discharged. I see no reason for this discharge. The 13th Garnishee in Suit No. HOW/50m/2017 which is the Garnishee/Respondent herein had disclosed in its affidavit clearly stating that there were sufficient funds in the judgment debtor’s accounts. This information was enough for the Trial Court to make the order absolute. I so hold. However, there is the provision of Section 84 of the Sheriffs and Civil Process Act 2004 to contend with. The Section provides:- “84 (1) where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodia legis, as the case may be.” Subsection 2 provides: “In such cases the order of notice must be served on such public officer or on the registrar of the Court, as the case may be” Subsection 3 provides:- “(3) In this section, “appropriate officer” means- (a) In relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the federation; (b) In relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the state.” ?It is clear that for a judgment creditor to successfully enforce judgment debt by garnishee proceedings there must be compliance with the provision of Section 84 (1) of the Sheriffs and Civil Process Act, 2004. See ONJEWU VS. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY & ORS (2002) LPELR-5507 (CA) pages 37-53 paras A-D where the Court held as follows:- “Section 287(3) of the Constitution of the Federal Republic of Nigeria, 1999 reads: – “(3) The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively.” It seems to me that the argument of Mr. Idakwoji, of Counsel for the Appellant is that Section 287 has covered the field, that it is self-executing and that there is no need to look into other legislation to find the means or procedure by which the right conferred is to be executed or implemented. On the other hand, it is the argument of Mr. Ajewole, of Counsel for the 3rd Respondent/Garnishee that the provisions of Section 287 are not self-executing but need another procedural law for the enforcement. A constitutional provision is self-executing when It lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed or protected without the necessary aid of legislative enactment – See (1) Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) 506 at p. 557. Also: (2) Willis v. St. Paul Sanitation Co. (1982) 48 Minn. 140, 50 NW 1110, 1111-2; (3) Rockefeller v. Hogue 244 Ark. 1029, 429 SW. 2d.85, 88; and (4) Higgins v. Cardinal Mfg. Co. (1961) 188 Kan. 11, 360 P2D 456, 462 It is apparent from the language of S. 287(3) of the Constitution that it has left it to Legislation by the National Assembly and the several States Assemblies of the Federation under their respective legislative powers to give effect to the right of enforcement of the decisions of those enumerated Courts. I am therefore, in agreement with the submission of Mr. J.O. Ajewole, learned Counsel for the 3rd Respondent/Garnishee that this provision of the law is not self-executing i.e. it leaves it to some other authority to enact legislation to put in flesh by way of another legislative enactment setting out the conditions and procedure by which the abstract right to enforce the decisions of the Courts granted by S. 287(3) shall be implemented. As a first step we shall take an excursion into Item 57 of the 2nd Schedule to the said Constitution – Part 1 – Exclusive Legislative List. The Item reads:- “57. Service and execution in a State of the civil and criminal processes, judgments, decrees, orders and other decisions of any Court of law outside Nigeria or any Court of law in Nigeria other than a Court of law established by the House of Assembly of that State.” In effect Item 57 indicates that by virtue of S. 4 of the Constitution. It is only the National assembly that can legislate in respect of these matters except in respect of such matters from a Court of law established by a House of Assembly of that State. In the latter case, the respective States Houses of Assembly may legislate. The judgment in question was that of the High Court of Kogi State. That Court was established not by the House of Assembly of Kogi State but for Kogi State by the Constitution vide Sections 5(e) and 270 of the Constitution. However, in respect of other Courts in Kogi State which are established under S. 6(5)(k) of the Constitution the House of Assembly of that State may legislate for the service and execution in Kogi State of processes, judgments, etc. It would appear prima facie therefore that both the State Proceedings Edict, 1988 and the Sheriffs and Civil Process Law, Cap. 123 Laws of Northern Nigeria, 1963 applicable to Kogi State are not the appropriate legislation under which the lower Court could have acted to revoke the Garnishee Order it earlier made since the subject matter in issue is a judgment of the High Court of Kogi State and is properly a matter of legislation by the National Assembly. I shall come to this matter later in this judgment. The next question then is what law is applicable under Item 57 of Part I of the 2nd Schedule to the 1999 Constitution for the enforcement of judgments by the High Courts and the Higher Superior Courts In my respectful view, that legislation is to be found in the Sheriffs and Civil Process Act, Cap. 407 LFN, 1990. The heading to that Law reads, “An Act to make provision for the appointment and duties of Sheriffs, the enforcement of Judgments and orders, and the service and execution of civil process of the Courts throughout Nigeria.” Furthermore, the Sheriffs and Civil Process Act, Cap 407 is an existing law by virtue of Section 315(1) of the 1999 Constitution which provides:- “315.(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be – (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and (b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.” The Sections of that Act which for the purposes of this appeal relate to the execution of money judgments by the procedure of Garnishee are Sections 83 and 84 which read:- “83.(1) The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. (1) 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. 84. (1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodia legis, as the case may be. (2) In such cases the order or notice must be served on such public officer or on the “registrar of the Court, as the case may be. (3) In this section, “appropriate officer” means – (a) In relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation; (b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.” At this stage, in so far as both Section 8(3) of the Kogi State Proceedings Edict, 1984 and Section 84(1) of the Sheriffs and Civil Process Law of Kogi State merely require the previous consent of the Kogi State Attorney General as a pre-condition to an Order of Garnishee Nisi from the State High Court, neither legislation can be held to be inconsistent with the provisions of Section 84(1) of the Sheriffs and Civil Process Act (the Act of the National Assembly) now under consideration. Therefore, neither of the two enactments would need to be declared invalid under Section 315(3) of the Constitution on the ground of inconsistency with the provision of the Sheriffs and Civil Process Act – which is the Act of the National Assembly on the matter. It now remains to consider whether the provisions of Section. 84(1) of the Sheriffs and Civil Process Act is itself inconsistent with the provisions of Section 287(3) of the 1999 Constitution because of the requirement of the consent of the Attorney-General of Kogi State. First, I must deal with the contention of the Appellant that to seek and obtain the consent of the Attorney-General “(who is a party to this suit)” before he can levy execution is to make the Attorney-General a judge in his own cause and therefore act contrary to the principle of fair hearing. With respect, appellant cannot seriously support this contention for the following reasons- Firstly, in paragraph 4 of his own affidavit in support of his application to the lower Court for the issue of the Writ of Summons in this case he deposed thus: in respect of the Attorney-General whom he has sued as 2nd Defendant:- “4. That the 2nd Defendant in this suit is the Chief Law Officer of Kogi State Government and therefore joined in this suit as a nominal party.” Secondly, appellant knows that the role of the Attorney-General in such cases is constitutional; i.e. as Chief Law Officer of the State and Commissioner for Justice of the Government of the State – See Section 195(1) of the 1999 Constitution, Another complaint of the appellant against the requirement in the Sheriffs and Civil Process Act, Section 84(1) is that such a requirement connotes inequality of parties or litigants before the law and is contrary to the rule of law enshrined in Section 36(1) of the 1999 Constitution. With respect, an analysis of certain legislation which have been held valid under the 1979 Constitution S.33(1) which is in parimateria with Section 36(1) of the 1999 Constitution would reveal that where necessary, the dictates of public policy make it necessary in the interest of public good to enact legislation with a specific class or group in view. A particular example of such legislation is the Public Officers Protection Act which vitiates any action brought against a public officer in his personal capacity for torts committed by him in his official capacity if brought outside a period which is much less than the general limitation period stipulated by law in respect of such torts. Now it is a principle of the interpretation of statutes that in construing a statute effect must be given to the objects which the legislature intend that such legislation shall have if it is possible to give effect to such purpose without doing violence to the words of the legislation. This is known as the Golden Rule of Interpretation. Furthermore, it is a cardinal principle of the interpretation of Statutes that a particular provision must not be taken in isolation for interpretation but that the whole statute must be read as a whole in order to get the real meaning of words in the Statute. (i) Ekpo v. Calabar Local Government Council (1993) 3 NWLR (Pt. 281) 324 at 337; (ii) Adewumi v. Attorney-General, Ondo State (1996) 8 NWLR (Pt. 464) 73 at 77, 116. In the Interpretation of constitutional provisions, certain rules have emerged:- Because the function of the Constitution is to establish framework and principles of government which are broad and general in terms and intended to apply to the varying conditions entailed by the development of the diverse communities that exist in the dynamic and pluralistic Nigerian society, mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. On the contrary, some of these principles of constitutional interpretation must be borne in mind; (a) the Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision of the Constitution cannot be severed from the rest of the Constitution; (b) the principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used measure the purpose and scope of its provisions; (c) words of the Constitution are not to be read with stultifying narrowness; (d) Constitutional language is to be given a reasonable construction, and absurd consequences are to be avoided: (e) Constitutional provisions dealing with the same subject matter are to be construed together; (f) Seemingly conflicting parts are to be harmonised, if possible, so that effect can be given to all parts of the Constitution; (g) The position of an article or clause in a Constitution influences its construction; (h) where in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them without resorting to any external aid. (I) words of a Constitution may not be ignored as meaningless: some meaning or effect should be given to all the words used therein if it is possible to do so in conformity with the intention of the framers.” See (i) Rabiu v. State (1980) 9-11 S.C. 130 at 249; (ii) A.G. Bendel State v. A.G. Federation (1981) 10 S.C. 122; (1982) 3 NCLR 1. (iii) Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) p. 506 at 518-9; 558-9. Now, without subjecting the provisions of Section 84(1) of the Sheriffs and Civil Process Act to examination only with respect to the provisions of Section 287(3) of the Constitution, let us look into other relevant provisions of the Constitution. In this particular case which relates to funds of the State in the hands of a public officer, a look into the provisions of Section 120 of the Constitution would throw some light into the matter. Section 120 of the 1999 Constitution provides:- “120.(1) All revenues or other moneys raised or received by a State (not being revenues or other moneys payable under this Constitution or any Law of a House of Assembly into any other public fund of the State established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the State. (2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the State except to meet expenditure that is charged upon the Fund by this Constitution or where the issue of those moneys has been authorised by all Appropriation Law, Supplementary Appropriation Law or Law passed in pursuance of Section 121 of this Constitution. (3) No moneys shall be withdrawn from any public fund of the State, other than the Consolidated Revenue Fund of the State, unless the issue of those moneys has been authorised by a Law of the House of Assembly of the State.” The corresponding provision of the 1999 Constitution with regard to “Powers and Control over Public Funds” of the Federation is Section 80. For the present judgment, it would not be necessary to quote that section. In my respectful view it is obvious that by the provision of Section 120 any money in the hands of a public officer which apparently has not been spent and is put in a bank account, must have been appropriated by the State House of Assembly for a particular purpose and for which it has to be spent. If it is expended otherwise than for the purpose for which the House of Assembly of the State authorised the money in the Appropriation Law, Supplementary Appropriation Law or as provided in Section 121 of the Constitution, such expenditure would have been in breach of the provisions of the Constitution – the Grundnorm of this country. In my humble view. the rationale for the provision in Section 84(1) of the Sheriffs and Civil Process Act for the previous consent of the Attorney-General before a Court could validly issue even an Order Garnishee Nisi against funds in the hands of a Public Officer is to ensure that moneys that have been voted by the House of Assembly of a State for a specific purpose in the Appropriation Bill presented to that House and approved in the Budget for the year of Appropriation does not end up being the subject of execution for other unapproved purposes under the Sheriffs and Civil Process Law. There are lawful procedure and other lawful means, in my respectful view, by which a judgment creditor of Government can obtain payment of any judgment debt ordered in his favour than by disturbing the Appropriation account for the year which had been duly passed by the appropriate Legislature under the provisions of Section 120 of the same Constitution which enacted Section 287 (3). Such moneys though in a Bank Account can only assuredly be withdrawn on the authority of a public officer for the purpose for which the House of Assembly authorised the money. The Attorney-General being a public officer and also an officer of the Court would in the circumstance not give his consent to the levy of execution against such money if it would be in breach of the provisions of Section 120 of the Constitution to do so. Furthermore, the Courts should be loath to make all order of mandamus against him for that purpose. In the event, it is my opinion that the requirement for the previous consent of the Attorney-General for an Order Garnishee Nisi in Section. 84 of the Sheriffs and Civil Process Act is not inconsistent with either the provisions of Section 36(1) or of Section 287(3) of the 1999 Constitution. On the contrary it is a provision to ensure sound public administration. It is a matter of good public policy aimed at protecting the public funds. It makes for good sense too. I consider that this point was well taken by Mr. Ajewole of Counsel for the 3rd Respondent/Garnishee both in the Respondent’s Brief and his oral address in this Court. Furthermore, it is now clear that when the learned trial judge made the Garnishee Order Nisi against funds of the Kogi State Government held in the 3rd Respondent/Garnishee Bank he had no jurisdiction to do so. Such order was accordingly void. The condition precedent for his entertaining jurisdiction had not arisen – Madukolu v. Nkemdilim (1962) 2 SCNLR 341. The orders of Garnishee – Nisi and absolute having been made without jurisdiction, it was within the jurisdiction of the lower Court to set those orders aside on the application of a party aggrieved by the orders – Skens Consult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6. If the Court had no jurisdiction to make the order that it made it had jurisdiction to rescind it. Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt. 167) p. 270 at Pt. 273 and p. 279.” Consequently, this appeal fails for noncompliance with the provisions of Section 84 (1) of the Sheriffs and Civil Process Act, 2004.” Per IBRAHIM ALI ANDENYANGTSO, JCA (Pp 12 – 34 Paras D – A) |
JUDGMENT DEBTOR – When Judgment Debtor Should Be Heard in Garnishee Proceeding “Fortunately, this Court, recognizing the conflict in its decisions above, invited an array of respected senior counsel as amicus curiae to address it on this issue in Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (pt. 1515) 534. In that case, like this one, the learned trial judge in his ruling on the garnishee order absolute that was appealed by the judgment debtor did not consider the merit of the case put forward by the judgment debtor, he being of the opinion, like the trial judge and respondents here, that a judgment debtor is an interloper in a garnishee proceedings because such proceedings are not the same as the proceedings where the judgment debt emanated and the judgment debtor was not a party to it. There, this Court (Ogunwumiju, J.C.A., with our brothers Barka and Ogakwu, JJ.C.A, concurring) resolved the issue as follows: “I am of the firm view that after the service of the order nisi on him, the Judgment Debtor may convince the Court by way of affidavit to discharge the order nisi, for instance, where it is proved that the judgment leading to garnishee proceedings, was obtained by fraud, non-service of the originating process of the main suit or any other vitiating factor based on which the trial Court has the power to set aside its own judgment or even payment or liquidation of the judgment of the judgment sum which is being sought to be realized by way of enforcement where the Court refuses to discharge the order nisi and make the order nisi absolute, the Judgment Debtor, being a necessary party, can appeal as of right since the order absolute is regarded as a final decision of the Court: See U.B.N Plc V. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654 at 665 paras. A-C. “… “The emphasis here is the fairness of the judicial process. The right to fair hearing enshrined in S. 36 of the 1999 Constitution only connotes that a party should be given the opportunity to be heard whether or not a party’s submission is accepted is entirely the Court’s prerogative. The service of the order nisi and all accompanying processes on the judgment debtor is not a matter justifying righteousness. In my humble but strong view, it is a mandatory provision without which any subsequent judicial action would be rendered a nullity. “In my humble view, the Judgment Debtor who is the owner of the money in possession of the Garnishee has a right to be heard if he wishes before the garnishee order is made absolute. I am also of the strong but humble view that his right to be heard should be at large. If not a Pandora’s box would be opened to enable the Judgment Debtor engage in all manner of activities that can abort the process and or make nonsense of the raison d’etre of the provisions and rules of Court in garnishee proceedings enacted for the express purpose of oiling the wheels of execution of liquidated money judgment. Therefore, it is my own humble conclusion that a Judgment Debtor is free to challenge the order nisi before the Court that made the order and to urge the Court to set it aside by and for any of the following reasons: 1. File an application to the same Court to set aside the order nisi for want of jurisdiction where the computation of the money sought to be recovered had been done unilaterally and not based on a specific order of Court. In other words, when the actual total Judgment Debt is being challenged. This is because a garnishee order can only be made upon a sum certain – liquidated amount which cannot be varied. See Major Awoyomi V. Chief of Army Staff & Ors. (2013) 4 BFLR 31, Nigeria Customs Service V. Abileowo Investment Ltd. & Anor. (2014) 1 BFLR 263. 2. File a motion to vacate the order nisi supported by an affidavit to show the Court that there had been partial execution of the judgment or that part of the Judgment Debt had been paid and the process filed by the garnishor are not factually correct. 3. File a motion supported by affidavit to show that proper parties were not before the Court. 4. File an affidavit supported by exhibits that there is a motion for stay of execution of the judgment before an Appellate Court and an appeal had been lodged by the judgment debtor against the said Judgment or ruling. “The choices opened to counsel are not exhaustive and would depend on the circumstances of each case. However, it is not open to counsel to challenge the merit of the judgment during garnishee proceedings in any guise. The judgment debtor must keep his gunpowder dry to fire his gun during the course of the substantive appeal or any form of review he has chosen. If after hearing the three parties – judgment creditor, judgment debtor and garnishee in the proceedings the Trial Court decides to make the order nisi, Absolute, or to discharge or vacate same, any of the parties have a right of appeal against that decision.” This undoubtedly sound exposition of the law has been followed by subsequent decisions of this Court including Delta State Government v. Kay Que Investment Ltd & Anor (2018) LPELR- 45545 (CA) and Stanbic IBTC Bank Plc v. Long Term Global Capital Ltd & Ors, Unreported Appeal No. CA/L/254A/2011. I shall only add, in addition, that it even appears to me preposterous and in fact borders on the absurd to suggest as is done by respondents here that all that the Lawmaker intended when he made it mandatory in Section 83(2) of the Sheriffs and Civil Process Act that a judgment debtor in a garnishee proceeding shall not only be served but served “at least fourteen days before the hearing a copy of the order nisi” is to simply make him a spectator at the hearing and the minimum 14 days’ requirement is simply to enable him horn, so to speak, his spectating skills; that he is not supposed to speak, even if the judgment creditor is to his knowledge suppressing or misrepresenting facts in the proceeding and that that disability extends to even his right of appeal. Courts do not adopt an interpretation of a statute that is absurd, especially where there is another possible interpretation: See Maxwell on The Interpretation of Statutes, 12th Edition by P. St. Langan, P. 210; Ndoma -Egba v. Chukwuogor (2004) 2 S.C. (PT 1) 107 @ 114-115. In conclusion, I find the preliminary objection of respondents misconceived and here overrule it.” Per BOLOUKUROMO MOSES UGO, JCA in BOGORO LOCAL GOVT COUNCIL v. KYAUTA & ORS (2020) LPELR-49812(CA) (Pp 11 – 16 Paras C – F) |
JURISDICTION – Whether Court Can Set Aside Garnishee Order Nisi and Absolute Made Without Jurisdiction “Where garnishee order nisi and absolute are made without jurisdiction, it is within the jurisdiction of the lower Court to set those orders aside, on the application of an aggrieved party; this Court is borne out in this belief by the authority of NJEKWU v. KSMCI (2003) 10 NWLR part 827 at 41. Better still, if the Court had no jurisdiction to make the order that it made, it had jurisdiction to rescind it; on this again this Court is fortified by its decision AKINBOBOLA v. PHIPSON FISKO (1991) 1 NWLR part 167 at 273.” Per MOHAMMED MUSTAPHA, JCA in SUNNET SYSTEMS LTD v. NERC & ANOR (2014) LPELR-23967(CA) (Pp 12 – 12 Paras A – C) |
ATTORNEY-GENERAL’S CONSENT – Whether Consent of Attorney General is Required to Attach Funds Held in Custody of Public Officer “It has been held in plethora of cases coming under Section 84 of the Sheriffs and Civil Process Act that the requirement of the prior consent of the Attorney-General for a Garnishee order nisi is mandatory and that when such consent is not obtained, the Court has no jurisdiction. See ONJEWU V KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY (2003) 10 NWLR (prt.827) 40, C.B.N. V HYDRO AIR PTY LTD (supra) and GOVERNMENT OF AKWA IBOM STATE V POWERCOM (NIG) LTD (2004) 6 NWLR (prt. 868) 202.” Per MUHAMMED LAWAL SHUAIBU, JCA in CBN v. EKPO & ANOR (2021) LPELR-54147(CA) (Pp 15 – 15 Paras B – E) |
SERVICE OF PROCESSES – Whether Failure to Serve All Processes as Directed by Court in Garnishee Proceedings Robs Court of Jurisdiction to Make Order Nisi Absolute “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.” Per MOJEED ADEKUNLE OWOADE, JCA in ZENITH BANK v. AKPABIO & ORS (2021) LPELR-53319(CA) (Pp 12 – 15 Paras A – D) |
JUDGMENT DEBTOR – Whether Judgment Debtor Must Be Heard When Filing Affidavit to Show Cause or Any Process in Garnishee Proceeding; Effect of Failure “It is mandatory for the Court seised of Garnishee proceedings after service of Order Nisi on the judgment debtor who files a process challenging the grant or making of Garnishee Order absolute to be heard in accordance with Section 83(2) of the Sheriff and Civil Process Act which provides:- “83(2) 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. Thus, the right of the judgment debtor to be heard on the Garnishee proceedings is crystalized upon the service of the Order Nisi as aforesaid. It is incumbent upon the Court seised of the Garnishee proceedings to hear the judgment creditor, the Garnishee and the judgment debtor on the return day meant for showing cause why the Garnishee Order Nisi should not be made absolute. This is further made evident and eminent in ORDER VIII RULE 8(1) of the Judgment (Enforcement) Rules made pursuant to Section 94 of the Sheriffs and Civil Process Act which provides:- “8(1) If no amount is paid into Court, the Court, instead of making an order that execution shall issue, may, after hearing the judgment creditor, the garnishee and the judgment debtor or such of them as appear determine the question of the liability of the garnishee and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor and as to costs as may be just or may make an order under Section 87 of the Act.” The same is true and discernible from Order 37 Rules 1, 2 and 3 of the Federal High Court (Civil Procedure) Rules 2009 and the decisions of this Court on the above procedure, intendment and meaning of Section 83(2) of the Sheriff and Civil Process Act viz:- STANBIC IBTC BANK PLC V LONG TERM GLOBAL CAPITAL LTD. (2016) LPELR – 40517 per ABUBAKAR, JCA BARBEDOS VENURES LTD. V. ZAMFARA STATE GOVT. & ANOR (2017) LPELR – 42490 CA per OHO, JCA. The lower Court was patently wrong in discountenancing the AFFIDAVIT OF THE APPELLANT TITLED:- “DELTA STATE HOUSE OF ASSEMBLY’S AFFIDAVIT SHOWING CAUSE WHY THE GARNISHEE ORDER NISI SHOULD NOT BE MADE ABSOLUTE” sworn to by ABISOLA OLANIPEKUN – Legal Practitioner on the law firm of IKWUETO on behalf of the Appellant. There is nothing in the Sheriffs and Civil Process Act Section 83(2) thereof and the Judgment/ Enforcement, Rules prescribing the mode or type of process a judgment debtor would file to dispute the claim of a Judgment Creditor in Garnishee proceedings. I see nothing wrong in the use of the words “AFFIDAVIT SHOWING CAUSE” resorted to by the Appellant. An Affidavit showing cause is a vehicle or one of the means by which a party to Garnishee proceedings can explain or convince a Court seised of the Garnishee proceedings from making its Order Nisi into Garnishee Order Absolute which finally attaches the funds or monies of a judgment to satisfy a just debt owed to the judgment creditor. See Black’s Law Dictionary 10th Edition on the meaning of the words “show cause” on page 1591 Aziz:- “To produce a satisfactory explanation or excuse usu. In connection with a motion or Application to a Court.” It is therefore not a strange procedure for a judgment debtor to file an Affidavit showing cause. This is also consistent and in consonance with Order 27 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 which says:- “27 Rule 1: Upon any motion, petition, summons or other application, evidence may be given by affidavit, but the Judge may on his own motion or on application order the attendance for cross examination of the deponent and where, after such an order has been made the person in question does not attend the person’s affidavit shall not be used as evidence save by special leave.” ?The failure of the learned trial Judge to make use of the Appellant’s Affidavit showing cause or to allow the Appellant’s submissions on the said Affidavit is a denial to fair hearing which has led to miscarriage of justice against the Appellant. It constitutes a breach of the rights of the Appellant to fair hearing in the determination of its civil rights and obligations as enshrined in the Constitution of the Federal Republic of Nigeria 1999 as amended Section 36(1) thereof. See:- 1. GODWIN EKIYOR & ANOR VS CHIEF FRUKAMA BOMOR (1997) 9 NWLR (PART 519); (1997) LPELR-1082 (SC) AT PAGES 10 -11 per OGUNDARE, JSC who said:- “It is not in dispute – and the proceedings for 13/7/88 bear this out – that in Ruling on the Plaintiff’s motion to dismiss defendants’ appeal, the counter-affidavit filed by them was not considered. The fact of the existence of that counter affidavit was brought to the notice of the Court by learned counsel for the Defendant” The Court below at this stage ought either to adjourn the proceedings on terms in order to have the counter-affidavit placed before them for consideration along with the Plaintiff’s affidavit evidence before Ruling on the motion or call for it that morning and consider it along with the affidavit in support of the motion. As things turned out, the Court determined the motion only on Plaintiff’s affidavit evidence. There was a breach of the rule of natural justice audi alteram partem and the hearing on the motion cannot be described as fair as enshrined in Section 33(1) of the 1979 Constitution which provides: “In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and Impartiality. What is the meaning of “fair hearing”? This Court, per Sir Ademola, CJN provided an answer in Mohammed v. Kano Native Authority (1968) 1 All NLR424, 428-429; (1968) ANLR 411, 413 wherein it was said: “It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing, it was suggested by counsel is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case. We feel obliged to agree with this.” It cannot be seriously contended that, where a Court decides a case on the evidence of one of the parties alone while ignoring the evidence for the other side, the hearing is not a fair one. Clearly, the Defendants were denied a fair hearing. It might be, as is argued in Plaintiff’s brief, that the counter-affidavit would have made no difference to the decision of the Court below. But this is beside the point. The defect complained of is a fundamental one that goes to the root of the whole hearing of the motion is fatal to the proceedings and renders same a nullity. And being a nullity, it must be set aside notwithstanding that it might have been well decided see: Madukolu & Ors. vs. Nkemdilim (1962) 2 SCNLR 1 ANLR (Pt. 4) pages 587-590. I therefore, resolve question 2 in favour of the Defendants. And in view of the conclusion reached, it is unnecessary to consider question 1. 2. CITEC INTERNATIONAL ESTATES LTD & ORS V JOSIAH OLUWOLE FRANCIS & ORS (2014) 8 NWLR (PART 1408) 139 AT 163 A H TO 164A per OKORO, JSC who said:- “Let me consider the salient facts which are settled in this case. The motion, which order, granted by this Court is sought to be set aside, was fled on 5/4/11 in the registry of this Court. The appellants who were applicants therein undertook to serve the Respondents Applicants. The Appellants did not serve the Respondents until 20th September, 2011, i.e. about five months after the filing of the said motion and eight days to the hearing of the motion in chambers. The Respondents/Applicants filed their counter affidavit on within the time allowed by the rules of Court. Unfortunately, because the Appellants/ Respondents delayed the service of the application to just eight days before it was to be heard in chambers, the counter-affidavit and reply brief filed by the Respondents/Applicants on the day before the motion was to be heard in chambers were not brought to the attention of the Court and this misled this Court into granting the motion on notice as if it was unopposed by the Respondents. Clearly, the above facts show that the Ruling of this court dated 28/9/11 granting the prayers contained in the motion filed on 5/4/11 by the appellants is a nullity due to the fact that the Applicants/Respondents were not afforded their right to fair hearing and being that the Rules of this Court were breached. In Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44 paras. F-G, this Court held as follows: “It also has to be remembered that the denial of fair hearing was a breach of one of the rules of natural Justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void … If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial, whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. See also Ndukauba v. Kolmo (2005) 4 NWLR (Pt. 915) 411 at 430 – 431, paras. H-D.” ?It cannot be denied that the Appellant has put sufficient facts forward before the lower Court which are germane to the issues in the Garnishee proceedings. It does not matter that the process used was Affidavit showing cause. Suffice to say that she had approached the Court formally giving reasons why the ORDER NISI should not be made absolute. See FEDERAL GOVERNMENT OF NIGERIA & ORS VS. ZEBRA ENERGY LIMITED (2002) 18 NWLR (PT. 798) 162; (2002) LPELR – 3172 (SC) 32 per BELGORE JSC (later CJN Rtd.) who said: “Procedure is a guide to smoothen passage of suit; to direct the parties what to do and to guide the Court to arrive at the justice of a case. The question of initiating the proceedings by originating summons was never a big issue at the trial Court; neither was it at Court of Appeal and in this Court. The Court shall never be shackled by procedure; case is not made for procedure, it is the other way round. Once the procedure employed has brought into focus the issues the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used. This Court will certainly not disturb a clear case of justice between the parties by suo motu raising for the parties procedural abnormalities in Courts below when the parties never seriously raised exception to that procedure. It is my view that it does not matter whether by writ of summons or by originating summons a writ was initiated, what is relevant in a case of this nature is the question of justice of the case.” Per PETER OLABISI IGE, JCA in DELTA STATE HOUSE OF ASSEMBLY v. GWEDE & ANOR (2018) LPELR-51280(CA) (Pp 72 – 82 Paras C – A) |
ATTORNEY-GENERAL’S CONSENT – Instance Where Failure of Court to Make Garnishee Order Nisi Absolute for Lack of Attorney General’s Consent in Enforcing Consent Judgment Will Be Held Perverse; Power of Appellate Court to Make Order Absolute “…In resolving this issue for determination in this appeal, it must be pointed out and emphasized that the garnishee proceedings that led to this appeal were begun sequel to a consent judgment of the lower Court delivered by His Lordship, Abiri, CJ on 15th February, 2012. That judgment is a judgment of a Court of competent jurisdiction. There has not been any appeal against it. It has not been set aside by any Court of competent jurisdiction. Not at all. It is a valid and subsisting judgment. It is a judgment that must be enforced by all Persons and authorities in the country as provided by S.287 (3) of the 1999 Constitution of Nigeria, as amended. May I also reiterate that the steps taken by the Appellant to enforce the consent judgment are very well known to the law and practice in Nigeria. In refusing or declining to make its earlier Order nisi absolute, the learned judge of the lower Court remarked thus: “l have in the course of looking at the relevant laws and case law authorities found that the Order nisi earlier granted required the consent of the Attorney General of the State. See the case of FIRST BANK OF NIGERIA Plc. V. HON. ALEX TESUFA DUMBO AND ATTORNEY GENERAL OF BAYELSA STATE SUIT NO. CA/PH/607/2013 delivered on the 22nd October, 2015……. ” The learned Chief Judge proceeded to quote a part of the judgment under review where this Court specifically held that the enforcement of a judgment of a State High Court by garnishee proceedings requires the consent of an appropriate officer under S.84 of the Sheriff and Civil Process Act (SCA). The learned Chief Judge, though had other decided cases to choose from, remained convinced that that was not necessary and this belief and conviction cannot ex-facie be faulted because the doctrines of precedent and stare decisis makes mandatory for the lower Court to consider and apply any relevant and applicable decision of this Court. Now, in the course of the hearing and determination of this appeal, this Court has been referred to an earlier decision of this Court in CBN V. INTERSTELLA COMMS. LTD & ORS. (2015) 8 NWLR (Pt 1462) 456. At page 508 E-F, Abba-Aji JCA (As he then was) specifically held that: “Where the Attorney General has consented to a judgment debt, or waived his right by paying part thereof on behalf of the government, then his consent under Section 84 of the Sheriffs and Civil Process Act becomes superfluous”. This decision has now been fully affirmed by our most revered apex court in CBN V. INTERSTELLA COMMS. LTD & ORS (2018) 7 NWLR (Pti618) 294 in a judgment delivered on 15th December, 2017. In more specific terms the Supreme Court per Ogunbiyi, JSC held that a garnishee proceeding is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor. At pages 337 to 339, the Supreme Court explained that a garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. With respect to the requirement of obtaining the consent of an Attorney General before funds of any governments or their agencies can be attached to satisfy a judgment debt by way of a garnishee proceedings, the Supreme Court emphatically held that where the judgment debt to be enforced arose from a consent judgment that was freely negotiated by an Attorney General the provisions of Section 84 with respect to consent will not apply and therefore a judgment creditor needs not first obtain the consent of the debtor before proceeding against the debtor to recover his money. After having read and fully read the decision in FBN Plc. V. DUMBO & ANOR (supra), I am fully satisfied that it is not relevant and applicable to the facts and circumstances of the instant appeal. In my humble view the decision of this Court as affirmed and upheld by the Supreme Court in CBN V. INTERSTELLA COMMS LTD & ORS (supra) is more relevant and applicable in the determination of the lone issue in this appeal. Therefore, to the extent that the judgment debt sought to be enforced in this appeal is a consent judgment that all available evidence showed was very freely negotiated and arrived at as well to the extent of having been a valid and subsisting judgment of a Court of competent jurisdiction the case relied by the lower Court was totally inapplicable. In also being more relevant and applicable, the Supreme Court held in CBN V. INTERSTELLA (supra) that a party to a Suit who did not appeal against the judgment of a Court is presumed to have conceded to it. In the instant appeal, the Defendant/Judgment debtor/1st Respondent did not appeal against the consent judgment of the lower Court. Therefore, it was binding on it by operation of law. While the judgment debtor in CBN V. INTERSTELLA & ORS (supra) was shown to have commenced payment of the consent judgment sum and was held to have been estopped from denying liability, it does not matter, in my view, even if payment of the judgment debt has not commenced at all as in the instant appeal so long as the consent judgment is valid and subsisting. The argument of learned counsel Mr. Abasi for the 1st Respondent that because payment of the judgment debt had not commenced must be preposterous and of no moment. Both this Court and the Supreme Court have sufficiently emphasized that it is not the business of a garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Also, because the judgment debtor is not a recognized party or necessary to a garnishee proceedings, the application of the 1st Respondent filed on 3rd April, 2014 praying for the order nisi made on 6th March, 2014 to be aside, must be held to be incompetent. Because of the finding on the incompetence of the application of the 1st Respondent/Judgment Debtor, all the findings on the applicability of S.84 against consent judgments, would therefore have been made ex abundente cautela. The issue for determination is hereby resolved against the Respondents. This appeal is meritorious and is allowed. In consequence of the invitation of learned counsel to the Appellant to this Court to invoke S.15 of the Court of Appeal Act, 2004, I have considered the 5 conditions for the applicability of the section as set out by learned counsel to the 2nd Respondent at pages 6 to 7 of its brief and I wish to point out and emphasize that it is not quite practicable to enumerate all the circumstances to which the provisions of S. 15 read together with Order 20 Rule 11 of the rules of this Court may be applied. It is sufficient for this Court to be satisfied that the justice of any case demands it. The combined effect of Section 15 (supra) and O.20 R. 11 is that in Civil appeals, this Court has all the powers of the lower Court in any matter in which it has jurisdiction. See OLUTOLA V. UNIV. OF LAGOS (2004) 11- 12 SC 214. And in order to completely settle any matters in controversy between the parties and to avoid multiplicity of legal proceedings, this Court has power to grant any relief or make any orders to which any of the parties before it may appear entitled to. This power is not restricted by the relief specifically sought in the notice of appeal, provided that they are necessary for the final determination of appeal before it as was decided in the case of BUNYAN V. AKINGBOYE (1999) 5 SC (Pt.11) 91. With respect to the facts and circumstances in the instant appeal, the 2nd Respondent as the 6th Garnishee filed its 6 paragraphs affidavit to show cause why the Order nisi should not be made absolute against it. This affidavit was filed on 3rd April, 2014. The Appellant reacted to this affidavit with a counter affidavit of 15 paragraphs filed on 25/04/2014. During the proceedings of the lower Court held on 2nd May, 2014, all but the 2nd Respondent/6th Garnishee, out of 19 Garnishee Banks were fully discharged. When the nisi order became due to be made absolute, more than two years after the order nisi, the only garnishee against who the order could be made absolute was the 2nd Respondent. The averments in paragraphs 4 to 14 of the counter affidavit are positive and direct. They sufficiently challenged the general, or even evasive, averments in the affidavit of the 2nd Respondent filed on 3rd April, 2014. The averments in paragraphs 9 and 10 of the counter affidavit are deemed to have been fully admitted by the 2nd Respondent/6th Garnishee. Failure to challenge or contradict the averments in paragraphs 9 and 10 swings the pendulum in favour of making the nisi order absolute in the circumstances of this appeal. Without any hesitation and upon the above findings, I am of the view that Section 15 and Order 20 Rule 11, based on the available materials before this Court are applicable to allow this Court to make the order nisi to be absolute against the 2nd Respondent. The failure of the lower Court to so order was perverse an occasioned a miscarriage of justice and prejudice to the Appellant. Order nisi is made absolute against the 2nd Respondent.” Per ALI ABUBAKAR BABANDI GUMEL, JCA in HAVILAH MOTORS LTD v. A-G BAYELSA STATE & ANOR (2019) LPELR-48942(CA) (Pp 16 – 24 Paras F – E) |
SET-OFF AND LIEN – When Right of Set-Off and Right of Lien May Accrue in Garnishee Proceedings “Now, in law while right of set off may not accrue unless and until the debt had matured for payment and thus money standing to the credit of a judgment debtor would be available to satisfy a judgment creditor, the right of lien is not dependent on the maturity of the debt for repayment and thus can be exercised by the bank even before the loan or debt of the customer becomes due to protect itself from suffering unforeseeable losses should the circumstances warrant it. See First Inland Bank Plc v. Glory Effiong (supra). In Fidelity Bank Plc v. Francis Okwuowulu (supra), In Fidelity Bank Plc V. Francis Okwuowulu (supra)this Court per Ogunwumiju, JCA had stated thus: “The authorities are of the view that a garnishee is entitled to set-off any debt to him from the judgment debtor at the date when the order nisi was served upon him and the garnishee is equally entitled to a counter claim against? judgment debtor, at any rate where it arises out of the same transaction of the debt sought to be attached. See Tapp v. Jones (1974) LR 10 QB 591 @ P. 593. See also: Hale v. Victoria Plumbing Co. Ltd (1966) 2 QB 746.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in ZENITH BANK PLC v. OMENAKA & ANOR (2016) LPELR-40327(CA) (Pp 26 – 27 Paras B – A) |
Whether a Court becomes functus officio where execution has been effected after grant of an order absolute in garnishee proceedings: “That is whether a judge who makes a final order, in this case a garnishee order absolute becomes functus officio and lacks jurisdiction to set same aside in the face of failure to follow the statutory provisions that vest jurisdiction on the Court and failure of proper service on the judgment debtor. I would like to make a few comments for purposes of emphasis and to further support the lead judgment which has comprehensively considered all the issues. In the case of UBN PLC V BONEY MARCUS IND. LTD & ORS (2005) 13 NWLR, PT 943, 654 the SC per AKINTAN, JSC held that once the garnishee order absolute is made, there will be nothing left before the Court in the matter. That the Court would be functus officio and there would be nothing left to be determined by it. See also the decision of this Court in the case of BARBEDOS VENTURES LTD V ZAMFARA STATE GOVT & ANOR (2017) LPELR – 42499. In the case of ZENITH BANK PLC V JOHN (SUPRA), the apex Court held that a garnishee order absolute means an executed judgment and a completed act. In the case of MAKUN & ORS V FUT MINNA & ORS (2011) 18 NWLR, PT 1278, 190 the apex Court held that a final judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. In other words that a matter once judicially decided is finally decided. Idigbe JSC in the case of FADIORA & ANOR (IN RE SAMUEL) V GBADEBO & ANOR (1978) LPELR – 1224 defined ‘finality’ of judgment very aptly and clearly when he held as follows: “A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it.” See also AGBOGUNLERI V DEPO & ORS (2008) LPELR – 243 (SC).” Per PATRICIA AJUMA MAHMOUD, JCA in CHINAEZITE v. ADEYEMI & ORS (2019) LPELR-47654(CA) (Pp 18 – 20 Paras C – B) |
BANK DEBT – Whether Money Accepted by Bank from Customer is a Debt Capable of Being the Subject of Attachment by Garnishee Application “I should add here that, the law is that acceptance of a customer’s monies by the bank into its custody makes the banker a debtor to the customer: see Sani Abacha Foundation for Peace & Unity v. United Bank for Africa Plc (2010) ALL F.W.L.R (PT 522) 1668 @1680-1681 (S.C); United Bank for Africa Plc v. Ibhafidon (1994) 1 N.W.L.R (PT 318) 90 @ 120, Yesufu v. A.C.B (1981) 1 S.C. 74. Such funds are therefore capable of being the subject of attachment by way of a garnishee application: see Fidelity Bank Plc v. Okwuowulu (2012) ALL F.W.L.R (PT 644) 151 @161.” Per BOLOUKUROMO MOSES UGO, JCA in ACCESS BANK PLC v. MAGANE & ORS (2021) LPELR-54759(CA) (Pp 2 – 2 Paras B – E) |
ABUSE OF COURT PROCESS – Whether Grant of Garnishee Orders When Leave to Appeal is Granted to Judgment Debtor Amounts to Abuse of Court Process “The second leg of the second issue is that the subsequent prosecution and granting of the said motion ex – parte for garnishee order Nisi after leave had been granted to the Appellants/judgment – debtors to appeal amounts to abuse of Court process. The Appellants relied heavily on the case of STANDARD TRUST BANK v. CONTRACT RESOURCES NIGERIA LTD (NO. 1) (2001) Pt. 72 FWLR 1922 at 1924 – 1926 to contend that the 1st Respondent and the lower Court should not have moved the motion and the Court was wrong to grant the orders in view of the leave granted to the Appellants to appeal. It is trite that an appeal does not serve as a stay of execution of a judgment. See JOSIAH CORNELIUS LTD v. EZENWA (1996) 4 NWLR (Pt. 443) 391 wherein the Apex Court held thus: “the law is clear, that is, that an appeal does not operate as a stay of execution or of execution or of proceeding. Any party appealing against the interlocutory decision of a Court is under a duty to apply for stay of further proceedings pending appeal if he believes the result of his appeal will affect further proceedings in the matter.” If therefore the mere granting of leave to appeal but without the appeal itself entered does not amount to stay can the determination of a motion for Garnishee orders amount to abuse of Court process? The Court in the case of DENTON – WEST v. MUOHA (2008) 6 NWLR (Pt. 1083); 2007 LPELR 8172 (CA) said that the garnishee proceedings are legitimate exercise of judgment creditors right to employ ancillary methods to enforce the judgment obtained in his favour. That they are therefore competent notwithstanding the pendency of a motion for stay of execution, see also VASVANI TRADING CO. LTD v. SAVALAKH & CO (1972) 12 SC 77 AND PURIFICATION TECHNIQUES (NIG) LTD v. A .G. LAGOS STATE (2004) 9 NWLR Pt. 879 665 at 677. It is also the opinion of this Court in the case UNITED BANK FOR AFRICA v. EKANEM (2009) LPELR – 8428 (CA) that though an appeal does not ipso factor operate as a stay of execution of the decision appealed against, it is however, desirable for both parties and the trial Court to ensure that a situation of no fiat accompli is not foisted on the appellate Court, see also STANDARD TRUST BANK v. CONTRACT RESOURCES NIGRIA (SUPRA). Can the situation at hand be classified as abuse of Court process? I do not think so. What this Court in the different judgments emphasized is the desirability of maintaining status quo so that a position of complete helplessness is not thrust upon the appellate Court. It is also out of respect for the Court in the exercise of its powers of review, Furthermore, there was no appeal yet in this case when the orders of Garnishee Nisi and absolute were made by the trial Court. It is clear on the record that when the Appellants finally asked for a stay of execution, the same Court granted same and thereafter the Garnishee proceedings were stayed. The Appellant is wrong to expect that by a mere order for leave to appeal, the judgment creditor will automatically stay action thereby halting the judgment creditor’s right to materialize his judgment. I find that it did not amount to abuse of Court process for the lower Court to consider and grant Garnishee orders when leave to appeal had just been granted to the judgment debtor.” Per YARGATA BYENCHIT NIMPAR, JCA in SCOA (NIG) PLC & ANOR v. REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA & ANOR (2016) LPELR-40192(CA) (Pp 16 – 19 Paras F – D) |
ATTORNEY-GENERAL’S CONSENT – Effect of Garnishee Proceeding Commenced in Breach of Section 84(1) of the Sheriffs and Civil Process Act, 2004 on Jurisdiction/Competence of Court “The fulcrum of the five issues formulated by the Appellant and adopted by my Learned Brother for the purpose of this appeal centers on the requirement of obtaining the Consent of the Attorney General of the Federation before commencing the Garnishee Proceeding against the 2nd Respondent, i.e. Central Bank of Nigeria according to Section 84 of Sheriffs and Civil Process Act. Applying the Golden Rule of Interpretation, where the meaning of a Statute is straightforward and direct, the Judge must give effect to it, because in such situation, the words of the Statute speak the intention of the Legislature and no extraneous aid should be used to distort such clear intention. Reliance is placed on the Case Law Authorities of NIGERIAN ARMY VS BRIG. GEN. MAUDE AMINU (2010) NSCQR VOLUME 41PAGE 76; SKYE BANK PLC VS VICTOR ANAEMEM IWU ELC (2017) ELC 2342 SC PAGE 1. Section 84 (1) (3) (a) of Sheriffs and Civil Process Act, mandates that securing the Attorney General’s Consent before instituting a Garnishee Proceeding against a Public Officer, is a condition precedent for the commencement of Garnishee Proceeding against a Public Officer. Logically, it is sacrosanct that the Attorney General’s Consent is a Statutory Requirement for commencing a Garnishee Proceeding against a Public Officer. The Apex Court has held in several decisions that failure to comply with the Statutory Requirements of the Relevant Law in commencing a suit, deprives the Court of its jurisdiction to entertain or hear such suit. The irregularity cannot be regarded as a mere technicality or misconception, but constitutes a fundamental defect that cannot be waived and renders the proceedings and judgment of any Court in respect of such suit, incompetent and consequently null and void. See CHIEF ETETE S. OWOH & 3 ORS VS CHIEF KINGSTON U. ASUK & 1 ORS (2008) NSCQR VOLUME 35 PAGE 94; MKREN TIZA & 1 ORS VS IORAKPEN BEGHA (2005) NSCQR VOLUME 22 PAGE 642. In the Case Law Authority of PATRICK IZUAGBE OKOLO VS & ORS UNION BANK OF NIGERIA LIMITED (2004) NSCQR VOLUME 17, His Lordship, L C. Pats-Acholonu, JSC, while commenting on where a Party fails to comply with the provisions of a Statute in initiating a process at page 138 thus: “It must be stated unflinchingly that where the Statute and Subsidiary Legislation prescribe the mode of initiating a process or proceedings before the Court and it is not followed, or is spurned, the only reasonable conclusion is that the Party affected, which fails to comply with the requirements cannot be taken seriously. That being the case, it is my view and I hold that there is no appeal to which this Court could be called upon to adjudicate, the invocation of the term, technicalities, is merely to confuse matters and a ploy to try to hoodwink the Court to overlook a very essential ingredient that would have given life to the appeal.” In the instant suit, the failure by the appellant to first seek and obtain this consent before commencing the Garnishee Proceeding robbed the trial Court of its jurisdiction to hear or entertain the proceeding. It is settled law that the jurisdiction of a Court to adjudicate on a matter is a threshold issue. Consequently, without the necessary jurisdiction, a Court cannot make any valid order. Any order made thereto will be regarded as a nullity. See further the Case Law Authorities of MKREN TIZA & 1 ORS VS IORAKPEN BEGHA (2005) NSCQR VOLUME 22 PAGE 642; DOKUBO & ORS VS MPN & 3 ORS (2013) ELC 1115 PAGE 1.” Per ADEBUKOLA A.I. BANJOKO, JCA in AKPAN v. EFCC & ANOR (2021) LPELR-55800(CA) (Pp 31 – 34 Paras D – D) |
GARNISHEE’S RIGHT TO COMPLAIN – Whether Garnishee Not a Party in Proceedings Where Garnishee Order Nisi Was Granted Ex Parte Can Complain About Grant of the Order “The appellant was not a party at the proceedings the order nisi was granted ex parte, and as rightly pointed out by learned counsel to the respondents the appellant had no way of knowing, and did not show how it could have known with any degree of certainty, the facts relied upon by the trial Court in granting the ex parte order. As a matter of fact, the appellant did not make any reference to the affidavit of the respondents; that being so, the appellant lacks both the power and the right to complain about proceedings that had nothing to do with it, at least at that stage. For want of better word to use, the appellant’s locus was not activated at that point, this is more so as the proceeding concerned several other banks; see CITIZENS INTERNATIONAL BANK V SCOA LTD (2006) LPELR-5509-CA, where this Court held, per Salami JCA that: “…garnishee proceeding is by its nature different from other Court proceedings. It is peculiar in as much as it is done in stages. The ex parte application commencing the proceedings is confined to the judgment creditor and the Court. Thereafter, if the judgment creditor satisfies the Court on the existence of the third party who is holding money due or accruing to the judgment debtor, such a third person will be called upon to show sufficient cause why the judgment debtor’s money in the hands of the third party would not be paid over to the judgment creditor. It is therefore, in my respectful opinion, a single proceeding with two separate stages or hurdles to be cleared.” Per MOHAMMED MUSTAPHA, JCA in FIRST BANK v. NAZIA & BROTHERS (NIG) LTD & ORS (2018) LPELR-46197(CA) (Pp 27 – 28 Paras B – D) |
CENTRAL BANK OF NIGERIA – Whether Central Bank of Nigeria Can Challenge Jurisdiction of Court or Argue Lack of Attorney-General’s Consent on Behalf of Judgment Debtor Not Challenging Garnishee Proceedings “…The subject matter of the action leading to this appeal is a case of simple contract relating to debt owed to the 1st Respondent to the 2nd Respondent. In effect the lower Court is and was imbued with jurisdiction to deal with the subject matter of the action notwithstanding that Appellant was later brought in as a Garnishee. In any event one wonders the need for the Appellant to now be weeping more than the bereaved. The National Defence college filed processes in the case and even fought to defend the action and there is absolutely no evidence before this Court to show that the 2nd Respondent contested the judgment of lower Court in favour of the 1st Respondent against the 2nd Respondent. There is even no basis for the Central Bank to be fighting tooth and nail to have the Order NISI and order absolute made by the lower Court set aside when National Defence College did not bother itself appealing against the judgment given on the undefended list by lower Court. The Appellant did not by way of Affidavit showing cause, explain to the lower Court why the money should not be paid to the 1st Respondent but decided to raise objection to the jurisdiction of the lower Court. The Appellant cannot and is not allowed under the law to fight the battle of the Judgment Debtor since the 2nd Respondent who was adjudged the judgment debtor is deemed to be a party to the Garnishee proceedings under Section 83 of the Sheriffs and Civil Process Act. See CENTRAL BANK OF NIGERIA VS. INTERSTELLA COMMUNICATIONS & ORS (2018) 7 NWLR (PART 1618) 294 at 346 A – H to 347 A – B per OGUNBIYI, JSC, who said:- “It could not have been the intention of the legislature that Section 84(1) of the SCPA should be used as an umbrella for the 3rd and 4th respondents to evade a debt owed, by simply putting its funds in the hands of the appellant: it is not also the intention that a judgment creditor should first obtain the consent of the debtor before proceeding against the debtor to recover his money. The submission by the learned counsel for the appellant would certainly be counter-productive. It will also defeat the doctrine of the Rule of Law, which, as rightly argued by 1st & and respondents, counsel, is the hallmark or our democracy. This Court in NPA v. CGFC SPA (1974) NLR (Pt. 11) 463 held that a section of a statute should not be given an undue emphasis, that it did not posses, and that a statute cannot be applied in a situation where its effect is clearly contrary to the intendment of the legislature passing that law. Again and contrary to the submission advanced by the learned counsel for the appellant, the consent of the AGF had all along been obtained. Consequently, the garnishee proceedings against the appellant was rightly commenced and I so hold. The other leg of the argument is where the appellant’s counsel holds out the CBN as a public officer and retied on the case of Ibrahim v. J CSC (supra) in particular. In the case under consideration, I have ruled that the relationship between the appellant and the 3rd and 4th respondents is that of banker and customer relationship. In other words and as rightly argued by 1st and 2rd respondents’ counsel, the appellant is not a public officer in the context of Section 84 SCPA, when regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment. It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government Funds with respect to government funds in its custody. Section 2(e) of the CBN Act provides thus: “Act as a banker and provide economic and financial advice to the Federal Government.” Section 36 of the CBN Act also provides: “The bank shall receive and disburse Federal Government moneys and keep accounts thereof.” The appellant does not stand as public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise. Relevant to this conclusion is again the persuasive authority of CBN v. Ekong (supra) cited also by the appellant’s counsel wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the CBN:- “Generally, it is for overall control and administration of the monetary and banking policies of the Federal Government … It is not established for commercial or profit making purpose.” The case of Purification Tech. (Nig.) Ltd. v. A. G. Lagos State (supra) is also on all fours with the facts of the case under consideration herein. Again the persuasive judgment of the Court of Appeal at pages 679 – 680 is relevant and “There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other juristic personality or customers” In resolving the 4th issue against the appellant, I hold the strong adequately obtained by the 1st and 2nd respondents, and the garnishee proceedings was competently commenced. Further still, on the relationship between the 3rd respondent and the appellant in this case, same is purely that of a banker to a customer. Therefore, the question of whether the appellant is a public officer, who cannot release funds except the consent of the AGF is obtained, does not apply to the facts and circumstances of this case.” At pages 350 E-G His Lordship also said: “I must say that the garnishee has taken so much interest in this case and appear to have forgotten its role as a banker to the Federal Government. The role of a garnishee in any garnishee proceeding is delimited. As rightly argued by the counsel for the 1st and 2nd respondents, it is not envisaged that after a judgment creditor has gone through the rigours to establish his rights through the legal system, that the garnishee, who is asked to surrender the judgment debtor’s money in its possession should engage the judgment creditor in another bout of legal battle. See Order VIII Part II of the Judgments (Enforcement) Rules. Basically, the restrictive role and legal duty of a garnishee in a judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the judgment debtor’s state of Account in its custody.” The Appellant’s contention under issue 2 is to the effect that consent of Attorney – General was not obtained before the order NISI and ABSOLUTE were respectively made is quite unfounded and based on wrong premises. It is not the business of Appellant to challenge jurisdiction of Court or that consent was not obtained on behalf of a docile Defendant and judgment debtor who appears satisfied with the judgment of lower Court and the Garnishee proceedings. The lower Court was on a solid ground in making the Order NISI ABSOLUTE since the Appellant did not file any Affidavit to show cause why the Order Absolute should not be made. See again CBN VS INTERSTELLA COMMUNICATIONS LTD & ORS SUPRA AT PAGES 348F-H TO 349 A-B per OGUNBIYI, JSC who said again:- “It is intriguing to say that the appellant did not file any process in Court in response to the order nisi until the 1st day of December, 2011, which was a month later. The process filed eventually was a preliminary objection challenging the competence of the garnishee proceeding, pages 60 – 72 of the record are in reference. The order nisi was also made absolute only on the 13th June, 2012, well over 6 months after the order nisi was mode on 16th November, 2011. For all intents and purposes, can it be said rightly as claimed by the appellant’s counsel that his client was not given ample time to show cause why the order nisi should not be made absolute? The answer to the question certainty must be in the negative. Relevant to the case at hand is the decision of this Court in Omnia (Nig.) Ltd v. Dyk Trade Ltd. (2007) 15 NWLR (Pt. 1058) 576. In that case, the defendant filed a preliminary objection to the substantive suit but failed to file his defence, he was held to have conceded all the facts in the statement of claim. At page 626 para of the report, Chukwuma-Eneh, JSC had this to say:- “The more fundamental objection to raising this issue is that the defendant once it has decided to challenge the action by way of a preliminary objection before filing its defence is taken as having conceded all questions of facts as contained in the statement of claim, as correct. By analogy and in applying the principle enunciated in the foregoing decision to the appeal herein, the appellant having had ample opportunity to show cause within 30 days, deliberately decided not to join issues on the substantive application; rather it filed a preliminary objection. The deductive outcome is that the appellant had conceded all the facts in the application. Consequently, with the preliminary objection having failed therefore, the order nisi was ripe to be made absolute and I so hold.” Per PETER OLABISI IGE, JCA in CBN v. JOD PARTNERSHIP LTD & ANOR (2021) LPELR-53217(CA) (Pp 24 – 31 Paras B – E) |
APPEAL – Persons Who Can Appeal as of Right or with Leave Against Decision of Lower Court; Effect of Appeal Filed by Person Not Qualified as Aggrieved/Interested Party “By Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a person is entitled to exercise a right of appeal to this Court where he is a party to the suit or with leave where he has an interest in the subject matter of the proceedings. A person is only considered to be such an interested party where he is directly affected by the decision of the Court he seeks to complain against, and thus is a person aggrieved. The question that has arisen in this Appeal is whether the Appellant, being a Garnishee before the Lower Court, was a “person aggrieved’ within the meaning of the law. A person aggrieved is said to be a person against whom a decision has been pronounced which has wrongfully deprived him of something, wrongly refused him of something or wrongfully affected his title to something. See SGB Nig Ltd v Afekoro (1999) LPELR-3082(SC); Bellview Airlines Ltd V Aluminium Co. Ltd (2007) LPELR-8465 (CA); Hassan v Bornu State Govt (2016) LPELR-40250 (CA). By his definition, the Appellant herein is certainly not a “person aggrieved” within the definition and confines of the law. The Benue state Internal Revenue service, whose interest the Appellant purports to advance and protect, has not complained against the Garnishee Order absolute by challenging same. Therefore, the Appellant cannot be seen to be wailing louder than the bereaved. He will not be granted access to this Court because he is an outsider to the dispute between the parties before the trial Court, has not disclosed an interest in the subject matter of the Garnishee order, such as a lien of the money held by it, nor was leave even sought under Section 243(1)(a) of the Constitution to appeal as an interested party.” Per JUMMAI HANNATU SANKEY, JCA in ZENITH BANK PLC v. BENUE STATE URBAN DEVELOPMENT BOARD & ORS (2017) LPELR-44585(CA) (Pp 19 – 21 Paras F – C) |
THIRD PARTY CLAIM – Order Court May Make When Garnishee Suggests Debt Belongs to Third Person or Third Party Has Lien or Charge Upon It “In the instant case, it was not in contest that the credit balance of over N13 Million in the account of Moses and Samson in the Appellant bank constituted a debt owing from the Appellant Bank to the second Judgment Debtor. It was, however, not money to which the Judgment Debtor had an immediate legal right to or which he could sue for and obtain judgment in view of the directive issued by the Economic and Financial Crimes Commission to the Management of the Appellant bank freezing the money, on the strength of a valid and subsisting order of the Federal High Court. The directive constituted an encumbrance, of some sort, on the money in the account. The leeway provided by the law where such a situation arises is contained in Sections 88 and 89 of the Sheriff and Civil Process Act. Section 88 reads: Whenever in any proceedings to obtain an attachment of a debt, it is suggested by the garnishee that the debt sought to be attached belongs to some third person or that any third person has a lien or charge upon it, the Court may order such third Person to appeal and state the nature and particulars of his claim upon such debt. Section 89 states that: If the third person as described in the last preceding section does not appear, the Court, on proof of service of a copy of the order, may Proceed to make an order as if such person had appeared. In interpreting the provisions of Section 88 of the Sheriffs and Civil Process Act, the Courts have held that where a third party interest is disclosed in a garnishee proceedings, the Court has a duty to inquire into the said interest once it has been brought to its knowledge by any means or any stage of the proceedings – Idosu Vs Ojikutu 14 WACA 88, A Barzasi Vs B. Visinoni & Anor (1975) NNLR 6, Siemens Export KG Vs West German and Nigerian Trading Co Ltd (1985-1989) NBLR 27 and, Ecobank Nig Plc Vs Ette (2014) LPELR 23444. In other words, in the instant case, Section 88 of the Act stipulates that in order to circumvent and nullify the effect of the directive issued by the Economic and Financial Crimes Commission in respect of money in the account with the Appellant bank, and made pursuant to the freezing order granted by the Federal High Court, it was incumbent on the lower Court to order that the garnishee order nisi be served on the Economic and Financial Crimes Commission and to order the Commission to appear in Court and state the stage of the investigation of the activities of the Judgment Debtors and whether the money in the said account was still considered the proceeds of an offence. And Section 89 continues that where the Economic and Financial Crimes Commission is so served with the order, and it fails to appear, it would create a presumption that it is no longer interested in the money in the account and that the money was no longer considered to be the proceeds of an offence, and the Court may proceed to make the necessary order.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in SKYE BANK PLC v. HARUNA & ORS (2014) LPELR-41078(CA) (Pp 50 – 53 Paras E – B) |
INTERPRETATION – Interpretation of Section 83(2) of the Sheriffs and Civil Process Act, Cap. S.6, Laws of the Federation of Nigeria, 2004 on Computation of Time for Service of Order Nisi Upon Garnishee and Judgment Debtor Before Setting Motion for Order Absolute “In the resolution of this Sole Issue as nominated by the Learned Counsel for the Appellant our task is to resort to the provisions of Section 83(2) of the Sheriffs and Civil Process Act, Cap. S.6, Laws of the Federation of Nigeria 2004 which the Learned Counsel alleges the Court below had breached. Part V of the Act captioned “Attachment of debts by garnishee Order” provides thus: “83. Debts may be garnished (1) The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such person third person, hereinafter called the garnishee, to such debtor, shall be attached to satisfy the judgment or order, together with costs of garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.” By Subsection (2) thereof which is now the bone of contention, it is emphatic that: “(2) 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.” It would be recalled that the Learned Counsel for the Appellant in the course of his argument had alluded to Order 10 Rule 1 (a) of the Abia State of Nigeria, High Court Procedure Rules, 2009 which was not made available to us. However, I was availed of Orders 22 and 44 of the 2001 and 2014 Rules which are in pari materia with the said Order 10 Rule 1 (a) and provides as follows: COMPUTATION OF TIME 1. Whereby any Written Law or any special order made by the Court in the course of any proceedings, any limited time from or after which any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply- (a) The limited time does not include the day of the date or of the happening of the event, but commences at the beginning of the day next following that day. Order 22 of the High Court (Civil Procedure) Rules, 2001 refers). On the other hand ORDER 44 of the Abia State High Court (Civil Procedure) Rules 2014 which came into effect on 24th day of July, 2014 which revised all the previous Rules of then Eastern Nigeria, 1963 High Court Law (Amendment Edict, 1988) of the Old Imo State also provides in similar terms thus: ORDER 44 “1. Whereby any law or Order made by a Judge a time is appointed or limited for the doing of any act, the period shall be reckoned: (a) As excluding the day on which the Order is made or on which the event occurs.” It is also at this juncture necessary to refer to the Interpretation Law, CAP. 105 Laws of Abia State, 2005 which stipulates in Section 6(a) that: “6. In computing time for purposes of any law for the doing of any act, unless the contrary intention appears- (a) A period reckoned by days from the happening of an event or doing of any act or thing shall be deemed to be exclusive of the day in which the event happens or the act or thing is done.” The above provisions of the Rules and Interpretation Law of Abia State are in pari materia with Section 15(2)(a) of the Interpretation Act, Laws of the Federation 2004 which also provides that reference in an enactment to a period of days shall be construed – (a) Where the period is reckoned from a particular event the day on which the event occurred shall be excluded, and was given judicial imprimatur in terms of its interpretation in a plethora of cases amongst which is Ezeigwe v. Nwawulu & Ors. (2010) LPELR -1201 (S.C) at 39 paras. E – G. per Onoghen, JSC; that: “The law is now settled that in calculating or computing time stipulated by statute, generally the first day of the period will be excluded from reckoning while the last day will be included except, where the last day is a public holiday in which case the end of the following day, which is not a public holiday, will be included. See Section 15(2) of the Interpretation Act and Akeredolu v. Akinremi (1985) 2 NWLR (Pt. 10) 787 at 794. See Akume v. Lin (2008) 16 NWLR (Pt. 114) 490, NJC v. Agumagu & Ors. [2015] 4 C.AR 353 at 385 Paras. C -D; Etsako West L.G.C. v. Christopher (2014) 14 NWLR) Pt. 426) 73. From the line of authorities above cited, it indubitable that although the computation of time within which to do certain things or acts as provided by Statutes is normally dictated by the wordings of the Statute and the intention of the Legislature, as rightly decided in the above cases, the general rule is now settled beyond per adventure that the date of occurrence of event is normally excluded from calculation but the last day normally is included. See per Iguh JSC in Auto Import Export v. I.J.A Adebayo & 2 Ors. (2002) LPELR – 643 (SC) at P. 12 Paras. G – D; Now, a look at page 16 of the Record of Appeal would reveal that the Order Nisi was made on the 24th day of May, 2010 and the Motion on Notice was adjourned to 7th June, 2010 for continuation of hearing. As rightly observed by the Learned Counsel for the Appellant, nothing happened on the said 7th of June, 2010 and hearing continued on the 29th of June, 2010. On that day, when the case was called, the Appellant/Garnishee Bank was absent along with the Defendant/Judgment-Debtor.The Claimant/Applicant/Garnishee was represented by Chief E.T.O. Njoku with I.N. Cosmos (Miss), Ike Oguneme Esq, for the Defendant with him M.U. Uzoma Esq, while K.C. Ehiogu, Esq, appeared for 1st Bank of Nigeria PLC Garnishee Bank. The 3rd and 4th Garnishee Banks were not however represented by Counsel. Mr. Oguneme reported to Court that they had not been served with the Motion on Notice and at that juncture the Court informed Oguneme Esq, that there was Affidavit of Service of the Motion on Notice on Defendant/Judgment-Debtor through its Head of Service on 4/6/2010. Chief Njoku at that stage then applied that the Court make Garnishee Order against the 3rd and 4th Garnishee Banks praying the Motion on Notice dated 20/5/2010 to be granted. Upon the above application, the Court then remarked: “Court: 3rd and 4th Garnishee Banks were served with the Motion on Notices on 16th June, 2010. They are not in Court and not represented by Counsel. They did not equally file any process. In the circumstance the Application is granted. ORDER: (1) That the Order Nisi made on 24/5/2010 is hereby made absolute. (2) That the money in the account of the Defendant/Judgment-Debtor Osisioma Ngwa Local Government Council in the Garnishee Banks namely Zenith Bank of Nigeria PLC (Osisioma) Branch and Intercontinental Bank Osisioma Branch be and is hereby attached and to be paid to the Court Administrator of this Court for onward transmission to the Plaintiff/Judgment-Creditor/Applicant forthwith.” ?From the above reproduced decision of the Learned Trial Judge, it is clear that the Appellant was served on the 16th of June, 2010 while the Order Nisi was made on the 24th day of June, 2010. The pertinent question to be answered herein is whether the fourteen days stipulated under Section 83(2) of the Sheriffs and Civil Process Act, 2004 for service of the processes was exhausted before the Court set down the Motion for hearing and if not what is the necessary legal implication. Taking into consideration the provisions of Order 10 Rule 1(a), 22(1)(a) and 44 Rule 1(a) of the Abia State (Civil Procedure) Rules, 2009, 2001 and 2014 as well as Sections 6(1)(a) and 15(2)(a) of Abia State Interpretation Law and Act of the Laws of the Federation on the computation of time, the time for purposes of computing the fourteen days stipulated by the Sheriffs and Civil Process Act (Section 83(2) thereof) shall start to run from the 17th day of June, 2010, for the Motion on Notice for the Order Absolute to be set down for hearing. In the light of the foregoing the Learned Counsel for the Appellant was right to have submitted that the Court below lacked the jurisdiction to entertain the Motion on Notice and therefore the Order Absolute was a nullity since it was made in breach of the Appellant’s right to fair hearing (particularly under the maxim Audi Alteram Partem, which is one of the twin pillars of natural justice and as entrenched in Section 36(1) of the Constitution of the Federation of Nigeria, 1999 (as amended). From the Order Absolute made on the 29th of June, 2010, the Appellant was short-changed by one day in breach of the provision of Section 83(2) of the Sheriff and Civil Process Act, 2004 which provision is clear and unambiguous and ought to be given its simple, grammatical and natural interpretation without resort to any external aid or embellishment. See Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275; Uwazurike v. A.G Fed. (2007) 8 NWLR (Pt. 1035) 1 and Nobis Elendu v. INEC (2015) 16 NWLR (Pt. 1485) 197 at 224 Paras. E – F where M.D. Muhammad, JSC re-emphasized the time honoured principle of our jurisprudence that: “……..Courts must interpret the law within the context of its constitutive words and refrain from seeking meaning of the statute outside the clear words employed by the Legislators. See Senator Dalir Bako Gassol v. Alhaji Abubakar Umar Tutare & Ors. (2013) 3 SCNJ 6, (2013) 14 NWLR (Pt. 1374) 221 and Mr. Ugochukwu Duru v. Federal Republic of Nigeria (2013) 2 SCNJ 377, (2013) 6 NWLR (Pt. 1351) 441.” ?In the instant case, the Court below must have given Section 83(2) of the Sheriffs and Civil Process Act a skewed contextual approach in its interpretation thereby departing from the purposive intention of the Law makers on the need to afford the Garnishee nay the Judgment-Debtor at least fourteen clear days after service of the Order Nisi before setting down the motion for the order absolute. This is because the Act as well as the Courts are conscious of the fact that once a Garnishee Order Nisi has been made in respect of the Judgment-Debtor’s money in the Garnishee’s possession, the Garnishee shall mandatorily refrain from dealing in any way with the money until it has shown cause legally and until the order is made absolute. See Central Bank of Nigeria v. Kraus Thompson Organization Ltd. (2002) 7 NWLR (pt. 765) 139, U.B.A v. Ekanem (2010) 6 NWLR (Pt. 1190) 207 at 221 – 222 paras. H – A; Standard Trust Bank Ltd . v. Contract Resources Nig. Ltd (2001) 6 NWLR (Pt. 208) 115 at 123 – 124 Paras. H – B. and Ekiti State Government v. Ashaolu [2011] 15 WRN 112 at 131 – 132 lines 10 – 25 per Nweze, JCA (as he then was) citing Union Bank of Nigeria Plc. v. Boney Marcus Industries (2005) 13 NWLR (Pt 943) 654, (2005) 7 S.C. (Pt. 11) 662 at 664 – 665. On another score Learned Counsel for the Appellant has rightly cited the Supreme Court case of SLB consortium v. N.N.P.C. [2011) 9 NWLR (Pt. 1252) 317 at 332 ; Paragraph E where Onnoghen, JSC, posited that non-compliance with the Legal Practitioners Act, 1990 which is a matter of substantive law as well Order 26 Rule 4(3) of the Federal High Court (Civil Procedure) Rules which provisions are mandatory and not discretionary will render the proceedings conducted in breach of the provisions of the Law and Rules, a nullity as the Court would be bereft of jurisdiction to make any order in favour of the culprit of such non-compliance. Again, in Agboola v. Agbodenu (2009) 37 WRN 59; a decision of the Ilorin Division of this Honourable Court which I was privileged to have partaken in the hearing of the Appeal, Sankey, JCA, with whom my humble self and C.C. Nweze, (now JSC) concurred; held on the need for a condition precedent to be complied with by parties where a Statute or Rule of Court prescribes a condition precedent to the assumption of jurisdiction; relying on the authorities of Ezegbu v. FATB Ltd. (1992) 1 NWLR (Pt. 216) 197; Madukolu v. Nkemdilim (2001) 47 WRN 1; (1962) 2 SCNLR 341 at 348; that: “It is trite law that where a Statute or Rules prescribe a condition precedent to the assumption of jurisdiction, that condition must be first fulfilled before there is jurisdiction. A case must therefore come before the Court only when initiated by due process of law and upon fulfillment of any condition precedent to the exercise of such jurisdiction. In the instant case, where the Statute governing the initiation of Garnishee proceedings stipulates the condition precedent to the grant of an Order Absolute, the law is settled that unless and until the Garnishee was/is afforded the 14 days period of service any attempt at setting down the Motion on Notice for hearing would tantamount to non-compliance as the said Section 83(2) of the Sheriffs and Civil Process Act stipulates in mandatory terms that : “At least four days before the day of hearing, a copy of the Order Nisi shall be served upon the Garnishee and on the Judgment-Debtor. In such circumstance, as I had earlier held, the trial Court in this case acted without jurisdiction yet, to emphasize the point on the need for compliance with the mode of doing an act as prescribed by Statute, the Learned Counsel for the Appellant also sought umbrage in the case of Auchi v. Okuoghae [2005] 28 WRN 177 at 189; where Amaizu, JCA in line 15 thereof restated the position of the law thus: It is now settled that where an Act prescribes a particular method of exercising a statutory power, any other method of exercise of it is excluded. Isaac Ogunlaja v. A-G of Rivers State Anor (1997) 6 NWLR (Pt. 508) 209. On the need for statutory provisions to be interpreted by following their simple, grammatical and ordinary meanings as I had earlier highlighted; Peter Odili, JCA (now JSC) also reemphasized this cardinal rule of interpretation of Statutes in the case of Corporate Affairs Commission v. Ayedun (2005) 44 WRN 97 at 11 lines 15 – 30; ably cited by the Learned Counsel also. See, still on this point African News Papers (Nig.) Ltd. v. FRN (1985) 2 NWLR (Pt. 6) 137, Salami v. Chairman LEDB (1989) 5 NWLR (Pt. 125) 539, Ogbonna v. A-G. Imo State (1992) 1 NWLR (Pt. 320) 647 and Ugwu v. Ararume (2008) CCLR 215 at 262 Paras. 2526; (2007) 12 NWLR (Pt. 1048) 367 at 437 Paras. C- D, per Tobi, JSC.” Per IGNATIUS IGWE AGUBE, JCA in ZENITH BANK v. OHAJA (2016) LPELR-40618(CA) (Pp 10 – 23 Paras B – A) |
CENTRAL BANK OF NIGERIA – Whether Central Bank of Nigeria is a Public Officer Requiring Consent of Attorney-General of the Federation Before Garnishee Proceedings Can Be Commenced Against It “there is the decision of this Court of 7th June, 2019 in Appeal No: CA/J.46/2018; Central Bank Of Nigeria v. Zenith Bank Of Nigeria Plc & Anor which also happens to be more recent than all the other decisions of this Court cited by appellant. There this Court (with my humble self in lead judgment) placing reliance first on the decision of this Court (Abba-Aji, JCA, as he then was) in C.B.N. v. Interstella Communications Ltd (2015) 8 NWLR (PT. 1462) 512 and its subsequent confirmation by the apex Court on appeal in C.B.N. v. Interstella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C), as per the lead judgment of Ogunbiyi, JSC, rejected this same argument of appellant also incidentally put forward by the same chambers of Nnamonso Ekanem (S.A.N.) & Co., on behalf of Central Bank of Nigeria in that case. There, I said in lead judgment thus: “I shall say, straight away, that appellant’s contention that it is a public officer within the context of Section 84 of the Sheriffs and Civil Process Act and it is in that capacity it was in custody of Zenith Bank’s funds so 2nd respondent was required by that same provision to first obtain the consent of the Attorney-General of the Federation before commencing garnishee proceedings for attachment of Zenith Bank’s funds is a complete misconception. Incidentally, this same contention of appellant, which it also made in C.B.N. v. Interstella Communications Limited, was rejected first by this Court in its decision (Abba-Aji, J.C.A., as he then was) in C.B.N. v. Interstella Communications Ltd (2015) 8 NWLR (PT 1462) 512 and by the apex Court on further appeal in C.B.N. v. Interstella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C). The apex Court by its judgment (Ogunbiyi, J.S.C. in lead judgment) tackled the argument this way at p. 346: “The other leg of the argument is where the appellant’s counsel holds out that CBN is a public officer and relied on the case of Ibrahim v. JSC (supra) in particular. “In the case under consideration, I have ruled that the relationship between the appellant and the 3rd and 4th respondents is that of banker and customer relationship. In other words and as rightly argued by the 1st and 2nd respondents’ counsel, the appellant is not a public officer in the context of Section 84 of the SCPA [Sheriffs and Civil Process Act], when regard is had to the history of this appeal. Section 84 has been earlier reproduced in the course of this judgment. “It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government funds with respect to government funds in its custody. “… “The appellant does not stand as a public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise. “… “The case of Purification Tech (Nig.) Ltd v. A.G. Lagos State (2004) 9 NWLR (PT 879) 665 is also on all fours.” (italics mine) It has not been brought to my attention by appellant or its counsel that that position of this Court has been upturned or departed from by the apex Court on appeal or in any other case before it. Yes, I am not unaware of the argument in some quarters that the decision of the apex Court in C.B.N. v. Interstella Communications Ltd (2018) 7 NWLR (PT. 1618) 294 (S.C) was rather based on the fact that the Attorney General was in that case held to have given his consent by implication to the garnishee proceedings, he having earlier instructed some payment of the judgment debt in issue before the commencement of the garnishee proceedings. It is thus argued that that fact is the real basis or ratio decidendi of C.B.N. v. Interstella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C) and not its pronouncement distinguishing Ibrahim v. JSC (supra) and affirming emphatically that “The appellant [same Central Bank of Nigeria) does not stand as a public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise.” I am not by any means persuaded by that argument given the very clear pronouncement of Ogunbiyi, JSC, in her lead judgment as shown above directly distinguishing its earlier Limitation statute/Public Officers Protection Law case of Ibrahim v. JSC (supra) where public officer was defined as including an artificial public persons or office as shown in the passage of her judgment earlier reproduced. It has to be noted too that her Lordship even went further to say that this Court’s decision in Purification Tech (Nig.) Ltd v. A.G. Lagos State & Ors (2004) 9 NWLR (PT. 879) 665 is ‘on all fours’ with C.B.N. v. Interstella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C). Incidentally, Purification Tech (Nig.) Ltd v. A.G. Lagos State & Ors (supra) did not involve any issue of the Attorney General giving a prior instruction for payment of judgment debt. It was rather simply about the instant issue of whether prior consent of Attorney General is a condition precedent under Section 84 of the Sheriffs and Civil Process Act to commence garnishee proceedings to attach debts of a judgment debtor customer of the Central Bank of Nigeria which funds it holds as a banker to the judgment debtor. It is thus my humble opinion, still, that the decision of the apex Court in C.B.N. v. Interstella Communications Ltd (2018) 7 NWLR (PT 1618) 294 was simply to the effect that prior consent of Attorney General is not a condition precedent under Section 84 of the Sheriffs and Civil Process Act for commencement of garnishee proceedings to attach debts of a judgment debtor/customer of the Central Bank of Nigeria. In any case, even if the finding of the apex Court in C.B.N. v. Interstella Communications Ltd, to the effect that the Attorney General by his actions in that case by directing payment of the debt prior to the commencement of the garnishee proceeding had given his consent to the attachment, that would only be one of two rationes decidendi for the decision, and not that it in any way reduces to a mere obiter dictum its clear decision that Attorney General’s consent is not needed to commence garnishee proceedings against the Central Bank of Nigeria to attach debts due to its judgment debtor/customer, for as it was said by Karibi-Whyte, JSC, in lead judgment in Aeroflot Soviet Airlines v. United Bank For Africa Ltd (1986) 3 NWLR (PT 27) 188 @ 199 Para. D-E: “It is well settled that where two reasons are given for a judgment they may both constitute the ratio decidendi for such judgment. See Jacobs v. L.C.C. (1950) 1 ALL E.R. 737, London Jewellers Ltd v. Stentorough (1934) 2 K.B. 206. A reason given by a judge is not to be regarded as obiter dictum merely because another reason equally valid was also given.” Per BOLOUKUROMO MOSES UGO, JCA in CBN v. UMAR & ORS (2021) LPELR-55565(CA) (Pp 3 – 9 Paras F – E) |
RIGHT TO FAIR HEARING – Whether Failure of Court to Consider Affidavit to Show Cause in Garnishee Proceeding Will Amount to Breach of Right to Fair Hearing “I agree with the contention by the Appellant that the Court below shrieked from its duty to consider the Appellant’s affidavit to show cause before arriving at a decision whether or not to make the Garnishee Order Nis absolute. I therefore, find and I so firmly hold, that the failure of the Court below to do so amounted clearly to a breach of the Appellant’s right to fair hearing as guaranteed by Section 36 (1) of the Constitution of Nigeria 1999 (as amended). See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in CBN v. OVIE & ORS (2021) LPELR-56034(CA) (Pp 28 – 29 Paras D – A) |
ATTORNEY-GENERAL’S CONSENT – Rationale for Securing Consent of Attorney General Before Obtaining Garnishee Order Over Public Funds “The rationale for the consent of the Attorney-General of the Federation or of the state as the case may be is to avoid embarrassment to him of not having the prior knowledge that funds appropriated are diverted in satisfaction of a judgment debt. Thus, Section 84 (1) of the Sheriffs and Civil Process Act is a safeguard against such embarrassment and to ensure that an Order Nisi shall not be made in respect of money in custody or under the control of public officer in his official capacity or in custodia legis, unless the consent to such attachment is first obtained. See ONJEWU V. K. S. M. C. J. (2003) 10 NWLR (pt 827) 40 and C. B. N. V INTERSTELLA COMMUNICATIONS LTD (2018)7 NWLR (pt. 1618) 294 at 333 – 334.” Per MUHAMMED LAWAL SHUAIBU, JCA in NIGERIAN NAVY v. IRONBAR & ANOR (2019) LPELR-47006(CA) (Pp 22 – 22 Paras B – E) |
CENTRAL BANK OF NIGERIA – Whether Central Bank of Nigeria is a Public Officer Requiring Consent of Attorney-General of the Federation Before Garnishee Proceedings Can Be Commenced Against It “Now, the Appellant [Ecobank Nigeria Plc] is a commercial bank duly licenced by the 2nd Respondent (CBN). By S. 41 of the Central Bank of Nigeria Act 2007, the CBN “shall act as banker to other banks in Nigeria and may also provide banking services to banks outside Nigeria”. The Appellant’s funds in the custody of CBN (2nd Respondent) were attached by the garnishee order nisi of 29/10/12 and the CBN filed an affidavit to show cause dated 22/11/12 stating that it had “set aside the sum of N127,963,616.00 being judgment debt plus interest from the account belonging to the judgment Debtor (Ecobank Plc) domiciled with the Bank to a Garnishee Suspense Account” (see Pp… of the records). The relationship between the Appellant and the 2nd Respondent is therefore that of a banker and its customer: a relationship of debtor and creditor for which the customer has a contractual right to demand payment of money standing to his credit in the account. See FOLEY v HILL (1848) 2 H.L. Cas. 28, (1848) 9 ER 1002, BALOGUN v NATIONAL BANK OF NIGERIA LTD (1978) 11 NSCC 35, YESUFU v AFRICAN CONTINENTAL BANK LTD (NO. 3) (1981) 1 SC 74, ALLIED BANK v AKUBUEZE [1997] 6 NWLR (PT. 509) 374 and HASTON (NIGERIA) LTD v AFRICAN CONTINENTAL BANK PLC [2002] 39 WRN 1. As Lord Goddard, CJ. insightfully observed in R v DAVENPORT [1954] 1 All ER 602 at 603: “Although we talk about people having money in a bank, the only person who has money in a bank is the banker. If I pay money into my bank, either by paying cash or a cheque, that money at once becomes the money of the banker. The relationship between banker and customer is that of debtor and creditor. He does not hold my money as an agent or trustee. The leading case of Foley v Hill exploded that idea. When the banker is paying out, whether in cash over the counter or whether by crediting the bank account of somebody else, he is paying out his own money, not my money, but he is debiting me in my account with him. I have a chose in action, that is to say, I have a right to expect that the banker will honour my cheque, but he does it out of his own money.” Thus, money in the coffers of a bank is not money in the custody or control of the accountholder. The very fact that an accountholder has to make a demand on the bank clearly shows that he does not have custody or control of the money, for one does not demand for a thing that is already in one’s custody or under one’s control. It makes no difference whatsoever that the accountholder is an individual, a corporate entity, or a governmental agency or institution. See PURIFICATION TECH (NIG.) LTD v ATTORNEY-GENERAL, LAGOS STATE & ORS [2004] 9 NWLR (PT 879) 665. In relation to garnishee proceedings, the focus is always on the custodian or controller of the money sought to be attached, which in most cases, but not invariably, are banks. By s. 84(1) SCPA: “Where money is in the custody or control of a public officer in his official capacity or the Court in custodia legis, the order nisi shall not be made unless the consent of the appropriate officer has been obtained”. The requirement of seeking and obtaining the consent of the Attorney-General is a desideratum for the validity of garnishee proceedings if, and only if, the garnishee is a public officer. In such cases, non-compliance goes to the roots of the validity of the order nisi rather than the action or inaction of the garnishee upon being served. It seems to me therefore where the garnishee is a public officer, the mere fact that he appears in obedience to a garnishee order nisi and deposes to an affidavit to show cause stating that he has custody of funds belonging to the judgment debtor and that an amount of money sufficient to satisfy the judgment debt has been set aside (as in the instant case) will not donate validity to an order nisi that ought not to have been made in the first place without first seeking and obtaining the consent of the Attorney General. The relevant enquiry therefore is as to whether the CBN which made the return in obedience to the garnishee order nisi is a public officer within the meaning and intendment of S. 84 SCPA. There is an impressive array of decisions of this penultimate appellate Court in which the opinions of Justices are sharply divided on the point. Whereas some decisions [including but by no means confined to CBN v JAMES EJEMBI OKEFE (2015) LPELR-24825(CA), CBN v HYDRO AIR LTD [2014] 16 NWLR (PT. 1434) 482 (CA), CBN v J. I. NWANYANWU & SONS ENT. LTD (2014) LPELR-22745(CA), CBN v S.C.S.B.V. (No 1.) [2015] 11 NWLR (PT. 1469) 130 at 155(CA), CBN v MAIYINI CENTURY CO. LTD & ANOR (2017) LPELR-43024(CA), CBN v ALHAJI MOHAMMED KAKURI (2016) LPELR-41468(CA), CBN v ZAKARI (2018) LPELR-44751(CA), CBN v OSCO PETROLEUM LIMITED & ORS (2018) LPELR-46732(CA), CBN v UKPONG (2016) LPELR-11610(CA), UNITY BANK PLC v IGALA CONSTRUCTION CO. LTD (2018) LPELR-49878(CA), CBN v IGBADOO, Unreported, Appeal No. CA/MK/187/2017 and CENTRAL BANK OF NIGERIA v AMINU LAWAL ATANA (2019) LPELR-49194(CA) – per Daniel-Kalio JCA (pp. 6-10, paras. F-C) delivered on 10/9/19 maintain that the CBN is a public officer for which the prior consent of the Attorney-General is mandatory, other decisions [including but by no means confined toSHARIKA & SONS LTD v THE GOVERNMENT OF KADUNA STATE & ORS (2013) LPELR 20329 (CA); CBN v NJEMANZE [2015] 4 NWLR (PT. 1449) 279, CBN v INTERSTELLA COMMUNICATION LTD [2015] 8 NWLR (PT. 1462) 456 at 505 C-D – per Abba-Aji JCA, CBN v FALASH ENT NIG LTD (2017) LPELR-45415(CA), CBN v ZENITH BANK PLC & ANOR (2019) LPELR-48383(CA) 1 at 8 -11 -per Ugo JCA, CBN v KIMI APPAH ESQ (2020) LPELR-51214(CA) 1 at 9 -23 – per Adefope-Okojie, JCA and CENTRAL BANK OF NIGERIA v LIDAN ENGINEERING LTD & ORS (2021) LPELR-52622(CA) – per Dongban-Mensem, PCA (delivered on 7/1/21)] insist that the CBN is not a public officer and no necessity arises to seek and obtain the consent of the Attorney-General. Owing to the frequency of decisions on both sides of the divide, a recourse to the jurisprudential principle of posterior construction (which endorses the most recent decision as creating a precedent) is not quite helpful. At any event, the Supreme Court (per Ogundare JSC) prescribed the course open to this penultimate Court when confronted with its own conflicting decisions in USMAN v UMARU [1992] NWLR (PT 254) 377, (1992) 2 LPELR-3432 (SC) 1 at 21 thus: “It is now well settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between it and the Supreme Court is bound by its own decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd (1944) 2 ALL E.R. 293 @ 300, that is: (a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow; (b) it will refuse to follow its own decision which, though not expressly overruled, cannot stand with a decision of this Court, and (c) it is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam. See Osumanu v Amadu (1949) 12 WACA 437; Davis v. Johnson (1978) 1 All E.R. 1132.” I am therefore not bound to follow the latest decision of this Court on the point, and even though the Supreme Court dealt with the issue in the celebrated case of CENTRAL BANK OF NIGERIA v INTERSTELLA COMMUNICATIONS & ORS [2018] 7 NWLR (PT. 1618) 294, the controversy somehow still lingers. In that case, a distinct fourth issue was distilled (namely: “Whether the Court below was right when it held that the appellant is not a public officer and as such the consent of the Attorney General of the Federation was not required for attachment of funds in its custody in the garnishee proceeding”), but there are portions of that momentous decision which has generated a scenario where different divisions of this Court place heavy reliance on it as authority for their differing positions, and insisting that the decision turned on its peculiar facts and circumstances. For instance, it was held at P. 346 of the Report that “the appellant is not a public officer in the context of Section 84 SCPA, when regard is had to the history of this appeal, and at P. 347 that “[i]t is apparent herein, on the facts of this case the requisite consent of the Attorney-General of the Federation was obtained”. Having thus found myself at a crossroads, as it were, I am constrained to take a position on the vexed question of whether the CBN is a public officer within the meaning and intendment of S. 84 SCPA, which will amount, in essence, to pitching tent with one side of the spectrum or the other. It does not seem that any other course is open to me. Now, S. 84 SCPA [which deals with consent of appropriate officer or Court if money is held by a public officer or the Court] provides as follows: “(1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodia legis, as the case may be. (2) In such cases, the order of notice must be served on such public officer or on the registrar of the Court, as the case may be. (3) In this section, “appropriate officer” means – (a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation; (b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.” It cannot escape notice that S. 84 (3) SCPA defines “appropriate officer” but not the “public officer” who has custody or control of the money sought to be attached by means of garnishee proceedings. However, it seems to me that even without seeking guidance from anywhere else, the chapeau of S. 84 of the SCPA (reproduced above) which talks about money in the custody or under the control of a public officer “in HIS official capacity” clearly suggests that the reference is to a human male person, which in legal parlance includes the feminine gender, but not an artificial entity or institution. See S. 14(a) of the Interpretation Act, Cap. I23 L.F.N. 2004 to the effect that “words importing the masculine gender include females”. What is more, S . 84(3)(a) and (b) which refers to “money which is in the custody of a public officer who holds a public office in the public service of the Federation or of a State” equally suggests that the reference is to ‘the holder of a public office’ as distinct from the public office or institution in which he/she holds the office. To put matters beyond cavil, the Interpretation Act which guides the interpretation of the Constitution [see S. 318(4) of the 1999 Constitution] as well as all enactments except insofar as the contrary intention appears [see S. 1 of the Interpretation Act)] defines ‘public officer’ in S. 18(1) thereof as “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the public service of a State”. Not dissimilarly, S. 19 of the 5th Schedule to the 1999 Constitution (which deals with Code of Conduct for Public Officers) defines ‘public officer’ as “a person holding any of the offices specified in Part II of this Schedule”, which clearly excludes public institution or ‘public office’ defined therein as not including “the chairmanship or membership of ad hoc Tribunals, commissions or committees”. It seems to me therefore that the meaning of the term ‘public officer’ is not in any doubt; it refers to a human person occupying or functioning in a public office or governmental institution in which his/her services are engaged, but not the office or institution itself. I am not unaware of some decisions of this Court to the effect that the term “public officer” in S. 84 SCPA must be interpreted purposively to include the public office or department of government in which the public officer works. The argument put forward in support of this view is that being an artificial entity, funds in the coffers of CBN are actually funds in the custody or under the control of public officers in official capacity, and that the public officers in the employment of CBN are its agent, and by acting through its employees, the CBN acts by itself, thus a reference to its employees in the discharge of official duty amounts to a reference to CBN. It is my misfortune that I am not persuaded by the logic of this view. The legal personality of a corporation (such as CBN) is distinct and separate from its officers. Being an artificial entity that can only function through human agents, the actions or inactions of the officers aggregate to actions of the corporation. Not the other way round. In law, actions taken by an agent on behalf his principal are the actions of the principal, hence the agent usually incurs no personal liability (save in circumstances where both principal and agent are adjudged to be joint tortfeasors), conversely, the actions of the principal are never treated as the actions of the agent. Thus, money in the hands of officers of the CBN in the discharge of official duties is money in the custody and control of CBN, but money in the custody of CBN cannot be said to be money in the custody of its officers. What is more, when the Court is invited to construe a term employed in a statute which is not defined in that statute, it is to the Interpretation Act that recourse is made in order to unravel the meaning of that term except the statute excludes the application of the Interpretation Act. The long title of the Interpretation Act, No. 1 of 1964, Cap. I23, LFN 2004 is quite instructive: “AN ACT TO PROVIDE FOR THE CONSTRUCTION AND INTERPRETATION OF ACTS OF THE NATIONAL ASSEMBLY AND CERTAIN OTHER INSTRUMENTS AND FOR PURPOSES CONNECTED THEREWITH” whilst S. 1 thereof provides: “This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question”. Thus, where a term is clearly defined in the Interpretation Act, it does not seem to me that the Courts are at liberty to look elsewhere for the meaning of that term under the guise of purposive interpretation. In the matter at hand, the Interpretation Act has clearly defined “public officer” as “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the public service of a State”, which definition clearly excludes public office or public institution. Thus, to interpret the term ‘public officer’ to include the CBN (which is undoubtedly a public institution) is to subject the Interpretation Act to further interpretation, which will not only undermine the very object for which the Interpretation Act was enacted, but equally unwittingly frustrate the realisation of monetary judgments via garnishee proceedings by introducing a precondition unintended by the lawmaker. As there is no indication that any contrary intention appears in either the Interpretation Act or the Sherriff and Civil Process Act, I take the considered view that the Central Bank of Nigeria is not, and ought not to be construed as a public officer within the meaning and intendment of s. 84 SCPA. As stated hereinbefore, the Supreme Court dealt with this issue inCBN v INTERSTELLA COMMUNICATIONS LTD supra wherein a distinct fourth issue was distilled as to “Whether the Court below was right when it held that the appellant is not a public officer and as such the consent of the Attorney General of the Federation was not required for attachment of funds in its custody in the garnishee proceeding”. In resolving the issue, Ogunbiyi JSC (with whom Rhodes-Vivour, Peter-Odili, Sanusi and Bage, JJ.SC concurred) held thus (at p. 344 A and Pp. 346-347 D-A of the Law Report): “The 4th issue that came up for determination in that appeal was whether the lower Court was right when it held that the Appellant herein is not a public officer and hence the AGF’s consent as required under Section 84(1) does not apply herein… I have ruled that the relationship between the Appellant and the 3rd and 4th Respondents is that of Banker and customer relationship. In other words and as rightly argued by 1st and 2nd Respondents’ Counsel, the Appellant is not a public officer in the context of Section 84 SCPA, when regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment. It is apparent herein, on the facts of this case that the CBN acts as a Banker to the Federal Government Funds with respect to government funds in its custody. Section 2(e) of the CBN Act provides thus: “act as a banker and provide economic and financial advice to the Federal Government.” Section 36 of the CBN Act also provides: “The Bank shall receive and disburse Federal Government moneys and keep accounts thereof.” The appellant does not stand as public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise. Relevant to this conclusion is again the persuasive authority of CBN V. Ekong (supra) cited also by the appellant’s counsel wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the CBN: “Generally, it is for overall control and administration of the monetary and banking policies of the Federal Government … It is not established for commercial or profit making purpose…” The case of Purification Tech. (Nig) Ltd. v. AG Lagos State (supra) is also on all fours with the facts of the case under consideration herein. Again the persuasive judgment of the Court of Appeal at pages 679 – 680 is relevant and said “…There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other juristic personality or customers…” In resolving the 4th issue against the appellant, I hold the strong view that the consent of the 3rd and 4th Respondents was adequately obtained by the 1st and 2nd Respondents, and the Garnishee Proceedings was competently commenced. Further still on the relationship between the 3rd Respondent and the appellant in this case, same is purely that of a Banker to a customer. Therefore, the question of whether the Appellant is a public officer, who cannot release funds except the consent of the AGF is obtained, does not apply to the facts and circumstances of this case.” This is a controlling authority that is forcefully binding on this Court under the inflexible doctrine of stare decisis. But the reference made in the decision to “the facts and circumstances of this case” has generated an inclination to treat it as having turned on its peculiar facts, and therefore not necessarily setting a precedent on the vexed question of whether CBN is a public officer for which the consent of the Attorney-General is required under and by virtue of S. 84 SCPA. In this regard, I was fortunate to have chanced upon a recent unreported decision of this Court which, in my view, situates this particular decision of the apex Court in its proper context as a controlling authority on the point. In CENTRAL BANK OF NIGERIA v AMINU UMAR & ORS, Appeal No. CA/J/158/2020 delivered on 19/7/21, his Lordship B. M. Ugo, JCA insightfully opined as follows: “I am not unaware of the argument in some quarters that the decision of the apex Court in C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (SC) was rather based on the fact that the Attorney-General was in that case held to have given his consent by implication to the garnishee proceedings, he having earlier instructed some payment of the judgment debt in issue before the commencement of the garnishee proceedings. It is thus argued that that fact is the real basis or ratio decidendi of C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C.) and not its pronouncement distinguishing Ibrahim v. JSC (supra) and affirming emphatically that “The appellant [same Central Bank of Nigeria) does not stand as a public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise.” I am not by any means persuaded by that argument given the very clear pronouncement of Ogunbiyi, JSC, in her lead judgment as shown above directly distinguishing its earlier Limitation statute/Public Officers Protection Law case of Ibrahim v. JSC (supra) where public officer was defined as including an artificial public person or office as shown in the passage of her judgment earlier reproduced. It has to be noted too that her Lordship even went further to say that this Court’s decision in Purification Tech (Nig.) Ltd v. A.G. Lagos State & Ors (2004) 9 NWLR (PT 879) 665 is ‘on all fours’ with C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C). Incidentally, Purification Tech (Nig.) Ltd v. A.G. Lagos State & Ors (supra) did not involve any issue of the Attorney-General giving a prior instruction for payment of judgment debt. It was rather simply about the instant issue of whether prior consent of Attorney-General is a condition precedent under Section 84 of the Sheriffs and Civil Process Act to commence garnishee proceedings to attach debts of a judgment debtor customer of the Central Bank of Nigeria which funds it holds as a banker to the judgment debtor. It is thus my humble opinion, still, that the decision of the apex Court in C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT 1618) 294 was simply to the effect that prior consent of Attorney-General is not a condition precedent under Section 84 of the Sheriffs and Civil Process Act for commencement of garnishee proceedings to attach debts of a judgment debtor/customer of the Central Bank of Nigeria. In any case, even if the finding of the apex Court in C.B.N. v. Inter Stella Communications Ltd, to the effect that the Attorney-General by his actions in that case by directing payment of the debt prior to the commencement of the garnishee proceeding had given his consent to the attachment, that would only be one of two rationes decidendi for the decision, and not that it in any way reduces to a mere obiter dictum its clear decision that Attorney-General’s consent is not needed to commence garnishee proceedings against the Central Bank of Nigeria to attach debts due to its judgment debtor/customer, for as it was said by Karibi-Whyte, JSC, in lead judgment in Aeroflot Soviet Airlines v. United Bank for Africa Ltd (1986) 3 NWLR (PT. 27) 188 @ 199 Para. D-E: “It is well settled that where two reasons are given for a judgment, they may both constitute the ratio decidendi for such judgment. Jacobs v. L.C.C. (1950) 1 ALL E.R. 737, London Jewellers Ltd v. Stentorough (1934) 2 K.B. 206. A reason given by a judge is not to be regarded as obiter dictum merely because another reason equally valid was also given.” The above exposition resonates with me and I adopt it as mine for the purposes of this judgment in coming to the inevitable conclusion that one of the two rationes decidendi in CBN v INTERSTELLA COMMUNICATION LTD supra is that the CBN is not a public officer within the meaning and intendment of S. 84 SCPA, and the consent of the Attorney-General of the Federation is not a precondition for initiating garnishee proceedings against the CBN. The import of S. 84 SCPA, as stated in ONJEWU v KSMCI [2003]10 NWLR (PT. 827) 40 at 89, is to obviate the embarrassment of not knowing that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt which the government may not know anything about. I reckon however that that would be a relevant consideration if, and only if, the funds sought to be garnished are in the custody or control of a public officer, which the CBN is evidently not. I entertain no reluctance in holding that the 2nd Respondent is not a public officer within the meaning and intendment of S. 84 SCPA and the consent of the Attorney-General is not required to attach the funds of the Appellant (which is a commercial bank) under its custody and control.” Per PETER OYINKENIMIEMI AFFEN, JCA ECOBANK v. ADMIRAL ENVIRONMENTAL CARE LTD & ORS (2021) LPELR-56130(CA) (Pp 80 – 102 Paras E – A) |
JURISDICTION – Whether National Industrial Court Has Jurisdiction Over Garnishee Matters “The National Industrial Court was established by the force of the National Industrial Court Act, 2006, which provides in its Sections 10, 12(1) & (2), 19(6), 54(1), (2) and (3), as follows: 10. The Court shall have the power to enforce its judgment and accordingly, may commit for contempt any person or a representative of a trade union or employers’ organisation who commits any act or omission which in the opinion of the Court constitutes contempt of the Court… 12. (1) The jurisdiction vested in the Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this Act or any other enactment or by rules and orders of Court as may be made pursuant to this Act or, in the absence of any such provisions, in substantial conformity with the practice and procedure of the Court existing immediately before the commencement of this Act. (2) Subject to this Act and any rules made thereunder, the Court – (a) may regulate its procedure and proceedings as it thinks fit; and (b) shall be bound by the Evidence Act but may depart from it in the interest of justice. 19. The Court may in all other cases and where necessary make any appropriate order, including – … (e) an order of compliance with any provision of any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear. 54. – (1) In this Act unless the context otherwise requires – … (2) For enabling full effect to be given to the provisions of this Act – (a) any reference (whether express or by necessary implication) in any enactment (other than the Constitution of the Federal Republic of Nigeria 1999) to the “the Federal High Court”, “High Court of the Federal Capital Territory, Abuja” “High Court”, “Court of law” or “Court of record” (i) in so far as the reference relates to or is connected with the jurisdiction, powers, practice and procedure of a High Court, and (ii) except in so far as it is inconsistent with provisions of this Act, shall include a reference to the Court established by this Act, and (b) all references (whether express or by necessary implication) in any enactment (other than the Constitution of the Federal Republic of Nigeria) to the High Court of a State in so far as the enactment – (i) is of general application throughout the Federation, and (ii) relates to a matter as respects which jurisdiction is conferred upon the Court by or under this Act, shall be construed as references to the Court, notwithstanding that in an appropriate case, the enactment is, or has become, by operation of law, a law of a State. (3) The powers conferred upon the Attorney-General of the Federation and exercisable by him or the Attorney-General of a State under the Constitution or anything made thereunder shall, to the extent of that jurisdiction is conferred upon the Court, the Federal High Court, or the High Court of a State, or of the Federal Capital Territory, Abuja by or pursuant to this Act, be exercisable subject as in this Act, otherwise provided, and that section and any other enactment in law pertaining thereto shall be so construed.” (Bold fonts for emphasis) Properly understood, in its literal state, the above quoted provisions do not need any further aid for their appreciation and application. Section 10 empowers the National Industrial Court of Nigeria (NICN) to enforce its judgments. Section 12 of the Statute provides that the Court shall be guided by its practice and procedure; and, by any other enactment, which implicitly makes the Judgment Enforcement Rules applicable in the NICN. Section 12(2)(a) of the Act further provides that the NICN may regulate its own procedure. Section 19 of the Statute provides that the Court may make any order to comply with provisions of any other Act of the National Assembly. The Sheriffs and Civil Processes Act is an Act of the National Assembly, while Judgment Enforcement Rules is its subsidiary legislation. Section 54 of the statute clearly provides that in any statute where the “High Court” is mentioned, such reference shall be interpreted to mean that the NICN is mentioned. Thus, where High Court is mentioned in Rule 2 of Order VIII quoted above, this Court has the duty to interpret the provision, in the peculiar circumstances of this appeal, to mean that the NICN is mentioned in the Judgment Enforcement Rules. Section 10(2) of the Interpretation Act provides as follows: “10. … (2) An enactment which confers power to do any act shall be construed as also conferring all such powers are reasonably necessary to enable that act to be done or are incidental to the doing of it.” As this Court has noted that Section 10 of the NICN Act gives the lower Court power to enforce its judgment, Section 10(2) of the Interpretation Act concertizes that position by instructing this Court to interpret the former provision as including all powers necessarily enabling the NICN to execute its judgment, which implicitly draws in the provisions of the Judgment Enforcement Rules, for the purpose of this appeal. What the law giver has done, with clear and elaborate provisions recounted above, is to avoid the need to go on extensive exercise of amending statutes, which should ordinarily impact the practice, procedure and jurisdiction of the lower Court. Thus, the law giver directly inserted the name of the lower Court into existing statutes, thereby ensuring elimination of lacunae in the statute creating the lower Court. ln sum, it is my view and holding that the NICN is empowered by law, as demonstrated above, to enforce its money judgment by relying on provisions of the Sheriffs and Civil Process Act and the Judgment Enforcement Rules. Apart from the above, while this Court notes that some cases were relied upon by the appellant’s counsel, in the appellant’s argument of the appeal, it is a fact that this Court had given consideration to those cases and held that the NICN has power and jurisdiction to enforce monetary judgment, through the process of garnishee proceedings. Contrary to the contention of appellant’s counsel, with due respect, Section 251 of the 1999 Constitution is not applicable to this case, such as to take jurisdiction, over the garnishee proceedings before the lower Court, in the direction of the Federal High Court. The proceedings, which led to the appeal before this Court, is not a claim for debt in the strict sense of it, but only a means to enforce money judgment. In the case of CBN v. Ubana & Ors. (2016) LPELR- 40366(CA), this Court conclusively took the position, as follows: On the second limb of the objection to jurisdiction it is submitted for the 1st set of respondents that garnishee proceeding is not a civil cause or matter as contemplated by Section 251(1) of the Constitution. For the avoidance of doubt, the relevant portions of Section 251(1) of the Constitution read as follows: “Notwithstanding anything to the contrary contained in this Constitution… the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters; (d) connected with or pertaining to banking banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender bills of exchange, letters of credit, promissory noted and other fiscal measures.” Section 251(1)(d) of the Constitution is so clear it is plain, and its applicability to the situation at hand is to say the least inadequate; this is so because whichever way one looks at jurisdiction, garnishee proceedings though clearly a means of enforcement of judgments, it cannot be properly termed as substantive civil or criminal suit covered by the provisions of Section 251(1) of the Constitution;…” Also, in the case of CBN v. Abdullahi Abubakar (2019) LPELR 48261(CA), this Court held as follows: “I have not only read the cases and the other statutory provisions referred to by counsel but have also looked elsewhere for guide. Let me start with the case of CBN V. Ubana & Ors (supra). Therein the Court held: Section 251(1)(d) of the Constitution is so clear, it is plain and its applicability to the situation at hand is to say the least inadequate; this is so because which ever way one looks at jurisdiction, garnishee proceedings though clearly a means of enforcement of judgments, it cannot be properly termed a substantive civil or criminal suit covered by the provisions of Section 251(1) of the Constitution. Order 49 Rule 20 of the National Industrial Court (Civil Procedure) Rules, 2017, cited and relied on by the Respondents counsel provides: “Where the Court has delivered a monetary judgment in favour of any of the parties in the case before it, the winning party may apply to the Court for the enforcement of the judgment by filing a garnishee proceeding amongst other procedure as may be allowed under National Industrial Court Act, 2006 or any other Act or Rules of this Court.” It is the law that the judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every Court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution. See Ngere & Anor V Okuruket & Ors (2014) LPELR 22883 (SC). A Garnishee who is asked to show cause has only one thing to do, and that is, to disclose the true account status of the judgment debtor in its custody. It can therefore be made to pay the debt of the judgment debtor if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true account of the judgment debtor in its custody. It is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. See Oceanic Bank Plc V Olusegun Oladepo & Anor (2012) LPELR-19670 (CA); CBN V Interstella Communications Ltd & Ors (2017) LPELR-43940 (SC). The only defences that may therefore be open to a Garnishee is that, either the judgment debtor has no such monies in its custody, or that the money if there is, is encumbranced by a lawful obligation on it in respect of which it has no choice but to obey. Where a Garnishee, such as in the instant case undertakes to challenge the validity of the judgment debt, I believe it has gone out of its way and thus exposes itself to attendant legal consequences. Assuming that the jurisdiction of the National Industrial Court to entertain the Garnishee proceeding is properly challenged, I have no doubt that on a proper interpretation of Section 251(1)(d) and Section 254(c) (1)-(6) of the Constitution of Nigeria, 1999 (as amended), the National Industrial Court (the lower Court) is the proper Court vested with jurisdiction to entertain the action instituted by the Respondent/Judgement Creditor against the Judgment/Debtor (the Police Service Commission and Inspector General of Police). This is because this suit falls within the employer-employee relationship, and therefore falls within the purview of Section 254(c) (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides: 254(c)(1) Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters relating to or connected to labour, employment, trade unions, industrial relations and matters arising from work place, the condition of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected with disputes arising from payment or non-payment of salaries, wages, pension, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public officer, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto. The limits of the jurisdiction of a Court are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. A Court cannot do more than this, it cannot confer on itself jurisdiction not granted it by statute. See Abubakar V Abubakar (2015) ALL FWLR (PT. 808) at page 693. In determining whether or not a Court has the requisite jurisdiction to determine a matter, what is considered is the claims of the plaintiff as outlined in the plaintiff’s statement of claim. This is indeed the law. See Abia State Independent Electoral Commission V Kanu (2013) 13 NWLR (PT.1370) 713 Paras D-E. I am of the solid view that the cases of George V FRN (2011) ALL FWLR (PT.587) 664 and Obiuweubi V CBN (2011) ALL FWLR (PT.575) 208 are no longer applicable to the instant situation in view of the decision in the case of CBN V. Ubana & Ors (2016) LPELR-40366 (CA).” Per OLABODE ABIMBOLA ADEGBEHINGBE, JCA in CBN v. EZE & ORS (2021) LPELR-55554(CA) (Pp 66 – 78 Paras D – B) |
INTERPRETATION – Interpretation of Section 251(1)(d) of the 1999 Constitution as to Whether It Applies to Garnishee Proceedings “For the avoidance of doubt the relevant portions of Section 251(1) of the Constitution read as follows: “Notwithstanding anything to the contrary contained in this Constitution … the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters; (d) connected with or pertaining to banking banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender bills of exchange, letters of credit, promissory noted and other fiscal measures.” Section 251(1) (d) of the Constitution is so clear it is plain, and its applicability to the situation at hand is to say the least inadequate; this is so because whichever way one looks at jurisdiction, garnishee proceedings though clearly a means of enforcement of judgments, it cannot be properly termed as substantive civil or criminal suit covered by the provisions of Section 251(1) of the Constitution.” Per MOHAMMED MUSTAPHA, JCA in CBN v. UBANA & ORS (2016) LPELR-40366(CA) (Pp 13 – 13 Paras A – F) |
RESPONDENT’S DUTY – Duty on Respondent to Garnishee Order Nisi Who Puts Debit Balance of Debtor in Issue; Effect of Failure “the Appellant had a duty to place sufficient materials before the lower Court to enable it exercise its discretion judiciously and judicially. In response to an order nisi on it, the Appellant filed an affidavit wherein it deposed that the judgment debtor had the sum of N13,146,063.56 standing to his credit in her account maintained with her. The order nisi was consequently made absolute. The Appellant however made a U-turn on the 8th of October, 2013 when she filed an application seeking for an order setting aside the order absolute on the ground that the money attached by the order of Court had been electronically transferred from the judgment debtor’s account into an account with the Central Bank of Nigeria. The Appellant however failed to exhibit the bank statement of the judgment debtor to the application to set aside the order absolute. The Applicant who by that application put the debit balance of the debtor in issue had a duty to prove same. The Blacks Law Dictionary (9th Edition) defines Statement of Account at its page 1539 as: “a report issued periodically (usually monthly) by a bank to a customer’s account, including the checks drawn and cleared, deposits made, charges debited and the account balance.” A bank statement is therefore prima facie evidence of the entries concerning transaction in an account domiciled with a bank. It therefore goes without much ado that the Appellant who claimed the judgment debtor had transferred the outstanding balance in its account to the Central Bank of Nigeria had a duty prove same by tendering the relevant statement of account. The law is settled that where the debit balance of a bank customer becomes an issue, the bank has an obligation to prove the overall debit balance in the customer’s statement of account. See STALZGITTER STAHL VS. TUNDE DOSUNMU INDUSTRIES LIMITED (2010) 11 NWLR (PT. 1206) 589; UNION BANK VS. CHARIVICK NIGERIA LIMITED (2019) LPELR – 4986 (CA) and MAINSTREET BANK LIMITED VS. UNITED BANK FOR AFRICA PLC (2014) LPELR – 24118(CA). The Appellant who had admitted its indebtedness to the judgment debtor definitely had an uphill task to prove otherwise. He was obliged to place before the lower Court sufficient materials upon which the Court could exercise its discretion in her favour. The Statement of account is definitely one of the materials. The Appellant who sought equity did not come with clean hands. The lower Court was right when it refused the application to set aside the garnishee order absolute.” Per FOLASADE AYODEJI OJO, JCA in UNITY BANK v. BENEDICK (2021) LPELR-54549(CA) (Pp 41 – 43 Paras A – B) |
COURT’S DUTY – Duty of Court Where Garnishee Claims Account Does Not Belong to Judgment Debtor; Instance Where Appellate Court Will/Will Not Interfere with Evaluation of Evidence by Lower Court(s) “…I agree with the apt and unassailable submission of the learned counsel for the Respondents that by law in a Garnishee proceeding where the Garnishee claims as against the Judgment Creditor that an account does not belong to the Judgment Debtor, the proper thing for the Court to do is to properly evaluate the evidence proffered by both parties and come to the proper findings flowing there from. The Court cannot evaluate only the evidence of one of the parties while peremptorily merely noting the existence of the evidence of the other party without evaluating same. Where a trial Court fails to carry out its primary duty of evaluation, then it there be an appeal, the appellate Court is under a duty to re- evaluate the evidence, which the trial Court has failed to evaluate, and make proper findings of facts and reach correct decision flowing from the proved evidence for the printed record. See Oyekola V. Ajibade (2004) 32 WRN 134 @ p. 139; Jodi V. Salami (2009) 27 WRN 24 @ p. 36. ?In law the Chief Magistrate Court was, as held by the Court below, under a duty to consider both the Appellant’s affidavit and the Respondents’ counter affidavit, and having failed to do so by failing to place the two conflicting evidence of the parties on the imaginary scale of justice before preferring one evidence to the other, which what the Chief Magistrate Court failed to do. The Court below, in my finding, was therefore, on firmer ground when it held that the Chief Magistrate failed to carry out any dispassionate evaluation of the evidence of both parties before arriving at its perverse findings, which the Court below rightly, in my finding, set aside. A Court facing conflicting evidence from parties must properly evaluate the evidence in order to arrive at correct findings flowing there from and to give judgment in favor of the party whose evidence preponderates more than the evidence of the other party. See Ezennah V. Attah (2004) 17 WRN 1 @ pp. 11- 13; S T B Limited V. Interdril (Nig.) Ltd (2007) 22 WRN 58 @ p. 67 Now, the Court below having re – evaluated the evidence as in the printed record, was its conclusion and finding correct on the evidence led by the parties? There was before the Court below the counter affidavit evidence of both parties, including very vital documentary Exhibits A and B, showing that the two accounts sought to be garnisheed belonged to the Nigeria Police and the Edo Command Security Operations. The only question therefore, was whether these accounts belonged to or do not belong to the 2nd and 4th Respondents against whom the Respondents had earlier obtained judgment from the Chief Magistrate Court? The Court below considered the entirety of the affidavit and counter affidavit evidence as well as their documentary Exhibits, which the Chief Magistrate Court had failed to do, and arrived at the finding that these two accounts, in the names of the Nigeria Police and Edo Command Security Operations, notwithstanding the names indeed belonged to the 4th Respondent, who as the Inspector General of Police, is the alter ego of the entire Nigeria Police which operates under his overall command under the chain command system of the Nigeria Police. ?Having myself taking time to consider the totality of the evidence of both parties, including Exhibits A and B as in the printed record, I find that not only did the Court below carried out a proper evaluation of the entirety of the evidence as placed before the Chief Magistrate Court as in the record but it also arrived at the correct finding that these accounts in the names of the Nigeria Police and Edo Command Security Operations do actually belonged to the Nigeria Police under the overall command of the 4th Respondent the Nigeria Police work across the Country and operates different accounts in different names, including one “Lagos Overhead Cost Account” as well as the 2nd Respondent in charge of the Edo State Command of the Nigeria Police. Thus, the Court below having carried out proper evaluation of the evidence and having arrived at the correct findings of facts and reached the correct conclusion, I hold that this Court, being an appellate Court, would have no business interfering with and disturbing the correct finding of facts of the Court below but rather to affirm the correct decisions of the Court below. I affirm the view of the Court below that had the Chief Magistrate Court properly evaluated the evidence before it, it would not have come to the perverse finding that the two accounts sought to be garnisheed do not belong to the 2nd and 4th Respondents. See Oyekoka V. Ajibade (2004) 32 WRN 134 @ p. 139. In Mafimisebi V. Ehuwa (2007) 29 NSCQR 410 @ p. 413, the Supreme Court had stated inter alia thus: “it is settled law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the view of the trial Court but the Court can intervene, where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in FBN PLC v. INTERTECH RESOURCES LTD & ORS (2020) LPELR-52251(CA) (Pp 28 – 32 Paras A – F) |
STAY OF EXECUTION – Instances Where Application for Stay of Execution Will Not Be Granted “A stay of execution of the garnishee order cannot be granted when there is no appeal against the order. See Zenith bank Plc V. John (2015) 7 NWLR (Pt. 1458) 393.” Per JAMES SHEHU ABIRIYI, JCA in ECOBANK v. AKAEHOMEN (2017) LPELR-43058(CA) (Pp 12 – 13 Paras F – A) |
ATTORNEY-GENERAL’S CONSENT – Whether Silent Conduct of Attorney General of the Federation on Required Consent to Institute Garnishee Proceedings Will Amount to Actual Consent “…consent merely means an agreement to permit someone to do something, see: Ogundipe v. Oduwaiye (2014) 6 NWLR (Pt. 1404) 427; A/G, Lagos State v. Osuoka (2010) 4 NWLR (Pt. 1183) 68, 78. See further, BLACK’S LAW DICTIONARY, 7th Edition, Page 300. Where, by the words, deeds, acts or conduct or omission by one person, the other person was led to believe through those words, deeds, acts or conduct or omission that certain state of affairs was in existence, the person i.e the former should be estopped from denying or resiling from the existence of those state of affairs created by him. In the letter written on 17th April, 2017, to the Hon. Attorney General of the Federation seeking for consent, the respondent’s solicitor wrote thus: “We believe that you shall grant our application, as we await your response (sic) and take notice that your consent/refusal should be communicated to us in writing within thirty (30) days from the date of posting and your failure of which shall be interpreted as consent.” The words underlined above, to my mind, send a message that in the event that a written consent was not given within the period specified in the letter, it is taken that consent has been given. This is my understanding of the content of the letter of the 17th April, 2017 written to the AGF. Contents of a document must be interpreted in such a way to give effect to its literal meaning. See: Adekolu v. University of Ilorin (2012) LPELR-9309 (CA); Rector, Kwara State Polytechnic & Ors v. Adefila & Ors. (2006) LPELR-82487 (CA). The expected letter of consent was not forth-coming and so, the respondent approached the Court and commenced Garnishee Proceedings in his belief that the Attorney-General was not opposed to the suit being instituted or commenced based on Exhibits AKU I and AKU II. In Ajewunmi BiliRaji v. Obafemi Awolowo University (2014) LPELR-22088 (CA), this Court held: “It is a rule of Universal law that if a man either by word or conduct has intimated that he consent to act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given his conduct. See also Ladipo Akanni v. Adedeji Makanju (1978) 11 SC 13 @ 26, Morayo v. Okiade (1942) 8 WACA 46 @ 47 and Caincross v. Lovimer (1860) 3 L. T. 130.” Per Owoade J.C.A. (PP. 42-44, Paras. F-A) (Underlining mine for emphasis) See further decision in Alade v. Alemuloke (1988) LPELR-398 (SC). It does not stand to reason therefore, in those circumstances, to say as argued by the appellant, through counsel that the AGF has not given his consent. He did by his conduct of remaining silent despite Exhibits AKU 1 and AKU 2. See: Sale Gwani v. Ebule (1990) 5 NWLR (Pt. 149) 201, 217. In any case, the recipient of a business letter as in Exhibits AKU 1 and AKU 2, has a duty to reply to it and failing which it can be presumed that he has no objection to the proposals contained in those letters. See Cooperative Development Bank v. Ekerelu & Ors (2010) ALL FWLR (Pt. 54) 846. Under Section 84(1) of the Sheriff and Civil Process Act, consent required from the AGF does not necessarily have to be in a written form. It could be oral. It could be by conduct, as in this case, the silence of the AGF is presumed to be the required consent.” Per SAIDU TANKO HUSSAINI, JCA in CBN v. OCHEME (2019) LPELR-51286(CA) (Pp 15 – 18 Paras A – A) |
SERVICE OF PROCESSES – COMPANY – Proper Mode of Service of Processes on a Company “In the present case, it was not in contest that the Garnishee Order Nisi, i.e. the originating process of garnishee proceedings, as well as the Hearing Notice to the Appellant to appear in Court on the 29th of July, 2015 to show cause why the Garnishee Order Nisi should not be made absolute were served on the Appellant at its Bauchi Branch office through one Juliet Gabriel, a staff of the Appellant in the Branch Office. The said Juliet Gabriel was not said to be a director, secretary or other principal officer of the Appellant. It is obvious that service on the Appellant was not effected through the use of the first mode of service but rather through the second mode of service; i.e. by leaving it at the office of the Appellant, and it is under this mode that the appropriateness of the service will be assessed. Counsel to the Appellant maintained that the service ought to have been effected on a director, secretary or principal officer of the Appellant and that Juliet Gabriel was not one of such officers of the Appellant. It is trite that in interpreting the words of a statute, a Court is not entitled to read anything into or remove anything from them unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express – Johnson Vs Mobil Producing (Nig) Unlimited (2010) 7 NWLR (Pt 1194) 462 and Nigeria Social Insurance Trust Fund Management Board Vs Klifco Nigeria Ltd (2010) 13 NWLR (Pt 1211) 307. Nothing in the circumstances of this case justifies the reading of anything into the wordings of Order 12 Rule 8 of the Bauchi State High Court Rules. The words “by leaving it at the office of the company” in second limb of Order 12 Rule 8 of the Bauchi High Court Civil Procedure Rules did not stipulate the caliber of officer of a company that the process should be left with. However, the bailiff is not expected to just walk into the building of the office of a company and dump the Court process on the floor or on a table in the reception or in a room therein and neither is a bailiff expected to hand over the process to a visitor to the office of the company. The law is that it is sufficient if the bailiff hands over the Court processes to someone who is a staff of the company in the said office of the company. In Panache Communications Ltd Vs Aikhomu (1994) 2 NWLR (pt 327) 420, Sulu-Gambari, JCA put the issue thus at page 431 E-F: “… leaving the processes at the registered office of the company would seem to have been better served by giving the process to someone, even though not among the principal officers stipulated in the rules but whose duty would make it obligatory for him or her to deliver the processes to the persons rightly concerned. Better still, would it not therefore be better to give the processes to a staff, like the receptionist, than just to throw the documents on the floor of the premises? I think quite seriously that leaving the process with the receptionist would achieve the desired aim than throwing the process on the floor of the corridor of the registered office. . . ” In other words, the second mode of service does not place any emphasis on the rank of the officer of the company to whom the Court process is to be handed. This point was succinctly made by Edozie, JCA in Cross River Basin & Rural Development Authority Vs Sule (Baba) Ali Sule (2001) 6 NW/LR (Pt 708) 194 at page 208 D-G thus: “The appellant is a body corporate created and governed by the River Basin Development Authorities Act Cap 396, Laws of the Federation of Nigeria 1990. It has its Headquarters at Basin Town Calabar, Cross River State. The enabling Cap 395 Laws of the Federation 1990 (supra) made no special provision for service of process on the appellant, therefore resort is to be had to Order 12 Rule 8 of the High Court Rules (supra). There are two methods of service prescribed by the said Rule 8. The first method is service by giving the writ to any director, secretary or other principal officer of the corporation. A principal officer of a company has been interpreted to mean and include one who can pass as the alter ego of such a company … It is not the respondent’s case that service was effected under the first method, because David Agwu the Senior Clerical Officer cum Time Keeper of the appellant who was served with the writ of summons at Obudu can hardly qualify as Director, secretary or other principal officer of the appellant. The second method of service is by leaving the writ of summons at the office of the corporation. In this connection, it would appear immaterial the rank of the officer with whom the writ is deposited ….” Thus, in United Bank of Africa Plc Vs Ademola (2009) 8 NWLR (Pt 1142) 113, Shoremi, JCA stated at page 131 B-C that under the second mode of service of processes on a company, leaving the process with an employee would be prima facie good service which could be rebutted by proof that the employee who received the process did not deliver it to the company. In Ranco Trading Company Ltd Vs Union Bank of Nigeria Ltd (1998) 4 NWLR (Pt 547) 566 and in Nigerian Agricultural & Cooperative Bank Ltd Vs Ono Foods Development Company (Nig) Ltd (2006) 9 NWLR (Pt 985) 323, the Court of Appeal stated that service under the second mode of service is done when the process is handed in at that office and its receipt is duly acknowledged by anyone ostensibly authorized to receive documents in that office. Similar stance was taken by the Court of Appeal in International Bank for West Africa Vs Sasegbon (2007) 16 NWLR Pt 1059) 195. In Ben Thomas Hotel Ltd Vs Sebi Furniture Co. Ltd (1989) 3 NSCC 416, the Supreme Court, in considering the import of the second mode of service of processes on a company, quoted with approval the following statement of Akpabio, JCA in judgment of the Court of Appeal appealed against: “In resolving this question, I must agree with the submission of learned counsel for the respondent that the answer to this question must be looked for within the four walls of Order 5 Rule 8 (2) of the High Court (Civil Procedure) Rules of Kwara State, 1975, and nowhere else. Under that rule, there is no provision for the writ or other document to be delivered to a named official of the defendant company. It is merely to be left at the registered office of the defendant company and no more. There was no suggestion by the learned counsel for the appellant that the address Kabba-Ajaokuta New Road, Kabba, Kwara State, which appeared on the writ of summons, was not the ‘registered office’ of the defendant/appellant. In my view, once the writ of summons has been shown to have been left in the premises of the registered office of the appellant, the provisions of Order 5 Rule 8 (2) has been complied with even though the name of the official of the appellant company to whom the document was delivered was not stated.” Where the second mode of service is adopted, i.e. by leaving it at the office of the company, the rank of the officer with whom it is left is immaterial and it is sufficient if it is left with anyone ostensibly authorized to receive documents in that office Power Holding Company of Nigeria Plc Vs Ogunsuyi (2013) LPELR 19838(CA), Uwaokop Vs United Bank for Africa Plc (2013) All FWLR (Pt 690) 1376. Thus, the assertion of the Counsel to the Appellant that the service in the office must be on director, secretary or other principal officer of the company is not correct. It was not the case of the Appellant that Juliet Gabriel was not authorized to collect processes on behalf of the Appellant. The service of the processes on her was sufficient. The service of the Garnishee Order Nisi and of the Hearing Notice by leaving them with a staff of the Appellant at the office of the Appellant in Bauchi State was thus good and proper service.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in STANBIC IBTC BANK PLC, BAUCHI BRANCH v. ABOABA & ORS (2016) LPELR-43700(CA) (Pp 27 – 34 Paras F – C) |
INTERPRETATION – Interpretation of Order 13 Rule 30(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 with Respect to Its Applicability to Garnishee Proceedings “The submission of learned counsel for the Appellant is that the proceeding before the lower Court being garnishee proceeding is cognizable only under the Judgment Enforcement Rules and not under Order 13 Rule 30(1). Order 13 Rule 30(1) Provides: “Order 13, Rule 30(1) Where by reason of death or bankruptcy, or any other event occurring after the commencement of a proceeding and causing a change or transmission of interest of liability, or by reason of any person interested coming into existence after the commencement of the proceeding, it becomes necessary or desirable that any person not already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties and such new party or parties may be obtained ex parte upon an allegation of such change , or transmission of interest or liability, or of any such person interested having come into existence. (2) An order obtained under this rule shall be served upon the continuing party or parties, or their. Legal Practitioner(s) and also upon such new party unless the person making the application is the new party. (3) Every person served who is not already a party to the proceedings shall where applicable enter an appearance thereto within the same time and in the same manner as if he had been served with the originating process. He shall thereupon be served with the originating and all existing processes. (4) Any party served under this rule who was not already a party to the proceedings shall file his pleadings and other documents as if he had been an original party in the proceedings.” It is clear from the above provisions that the appellant is right that the application ought not to have been brought under the above order. Order 13 Rule 30(1) deals with pending proceedings before judgment and not with matters that have been completely determined or proceedings for enforcement of judgment. Learned counsel for the Respondent in his contention that the word “proceeding” does not end with judgment but includes any other steps taken after judgment relied on the definition of the word in Blacks Law Dictionary. In the context of the present action, learned counsel’s contention is with respect misconceived. In the case of U.B.N. Plc v Boney Marcus Ind. Ltd (2005) 13 NWLR (Pt.943) @ 654 @ 667 B-D the Supreme Court in its judgment observed: “During the period between when the order nisi and the order absolute are made, the matter would still be pending before the Court. In other words the proceeding would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the Court in the matter. The Court has at that stage completely determined the matter between the parties as far as the proceedings are concerned. The Court would be functus officio. There would be nothing left to determine by the Court. The question of the proceedings at that stage being interlocutory would therefore not arise.” The entire wordings of Order 13 Rule 30(1) leave no doubt that it is intended to apply when proceedings are not concluded but still pending. Thus it start by saying that if by reason of death etc after commencement of proceedings causing a change of interest or liability, an order can be obtained exparte making that other person a party to the suit. Rule 30(2) requires that the exparte order obtained be served on that parry so that where necessary he will under Rule 30(3) enter an appearance and then be served with the originating and all existing processes; and under Rule 30(4) he shall file his pleadings and other documents as if he had been an original party in the proceedings. The learned trial Judge in holding that the application could be brought under the Rule definitely misconstrued the order as the proceedings had been concluded and Garnishee order absolute made against Gulf Bank Plc in December 2005.” Per CHINWE EUGENIA IYIZOBA, JCA in UBA PLC v. MAGAMA (NIG) LTD & ANOR (2013) LPELR-20685(CA) (Pp 14 – 17 Paras B – D) |
COURT’S DUTY – Whether Court Has a Duty to Consider Affidavit to Show Cause in Garnishee Proceeding “In law, the Court below was under a duty on 18/4/2019 to consider the Appellant’s affidavit to show cause except if on the proceedings as in the Record of Appeal, it could be said that the Appellant indeed withdrew its opposition and by implication abandoned its affidavit to show cause. See EFCC V. Dada (2016) 1 NWLR (Pt. 1494) 567, where it was held inter alia thus: “Every Court has the bounden duty to entertain and hear any motion before it by litigants. One way or the other, failure to do this amount to denial of fair hearing. Any proceedings conducted by the Court in that matter cannot stand. It amounts to unfair hearing in breach of Section 36 of the 1999 Constitution and will be a nullity.” See also Mobil Producing (Nig.) Unlimited V. Monokpo (2003) 18 NWLR (Pt. 852) 346; Salisu V. Mobolaji (2016) 15 NWLR Pt. 1535) 242; Thomas V. F.J.S.C (2016) 11 NWLR (Pt. 1523) 312.” Per BIOBELE ABRAHAM GEORGEWILL, JCA in CBN v. OVIE & ORS (2021) LPELR-56034(CA) (Pp 27 – 28 Paras C – A) |
APPOINTMENT OF LIQUIDATOR AND RECEIVER/MANAGER – Principles of Law Applicable to Appointment; Whether Leave is Required to Institute Garnishee Proceedings Against a Company in Receivership “…Let me say albeit briefly, that the Appellant’s counsel seems to have misconceived the principle of law applicable to instances where a company is in the process of winding up, whereby a liquidator is appointed and in such other situation, where a receiver/manager is appointed over the affairs of the company. Whereas, a liquidator is appointed “for the purpose of conducting the proceedings in winding- up a company and performing such duties thereto as the Court may impose” a fortiori to preserve the company’s assets before a winding-up order is made by the Court. See Section 422(1) CAMA; PROVISIONAL LIQUIDATOR OF TAPP IND. vs. TAPP IND. LTD (1995) 5 NWLR (pt. 393) 9 at 38 to 39; the purpose of appointing a receiver for a company as can be deduced from the tenor of the relevant provisions of CAMA, is to work towards paying outstanding debt of redeeming security or freeing property from, jeopardy for the benefit of creditors or debenture holders on whose behalf the appointment is made. See the decision of the Court in ANATOGU vs. ANATOGU (1998) 5 NWLR (Pt. 548) 42. In the light of the foregoing, it is without doubt as expressly stated by the relevant provisions of CAMA, that where a liquidator has been appointed leave of Court, or Committee of Inspection as the case may be is mandatory. Section 417 CAMA states that, “if a winding up order is made on a provisional liquidator is appointed, no action or proceedings shall be proceeded with or commenced against the company except by leave of the Court on such terms as the Court may impose.” Similarly, Section 425(1)(a) CAMA leaves no one in doubt that the power of a liquidator in a winding up by the Court, to bring or defend any action or other legal proceeding in the name and on behalf of the company, shall be with the sanction either of the Court or of the committee of inspection. These peculiar provisions have been subject to judicial consideration and interpretation by this Court in a host of decisions including NDIC vs. RAHMAN BROTHERS LIMITED (2018) LPELR – 46781 (CA); NDIC vs. MOHAMMED & ORS (2018) LPELR – 44744 (CA); CO-OPERATIVE & COMMERCE BANK (NIGERIA) PLC vs. O’SILVAWAX INTERNATIONAL LIMITED (1999) 7 NWLR (Pt. 609) 97. There is no doubt that the Appellant was joined as a party to the garnishee proceedings at the lower Court as a “receiver” and not as liquidator, so that the provisions of Section 417 and 425(1)(a) CAMA becomes applicable. I have given a most careful consideration to the argument canvassed by the Appellant and I have closely read and reread the relevant provisions of CAMA, its Section 393 in particular, and found no ambiguity whatsoever, particularly on the issue under the guise of interpretation to travel outside the clear provisions of the Statue, in order to reach the conclusion urged upon us by the Appellant. Without mincing words, I find it difficult to accent, as well founded, the argument that leave of Court must mandatorily be obtained before the Respondent can proceed against the Appellant by the relevant and applicable provisions of CAMA, there is a world of difference between the statutory duty of a Receiver/Manager on the one hand, and a Liquidator on the other hand because, even though both offices are created for the management of financial distress in registered companies their end goals are substantially different. The Appellant’s counsel, certainly had a gross misconception of the obligations of both offices in company law administration and management.” Per GABRIEL OMONIYI KOLAWOLE, JCA SEAWOLF OILFIELD SERVICES LTD v. PELLEGRINI (NIG) CATERING LTD (2019) LPELR-51776(CA) (Pp 25 – 27 Paras A – F) |
APPEAL – Whether Appeal Against Garnishee Order Absolute is an Appeal Against a Final or Interlocutory Decision, and Whether It Must Be Filed Within 14 Days “Let me first consider whether appellant’s application by way of motion on notice filed on the 26/2/2018 is against an interlocutory decision or a final decision of the lower Court. Now, section 24 (2) of the Court of Appeal Act, 2004, makes provision as to the time frame in filing of appeals against final and interlocutory decisions. This periods by virtue of Order 7 Rule 10(2) of the Court of Appeal Rules are subject to extension on good grounds shown. Also, in Ngene vs. Alor, Tobi, JSC, defined Final Decision to mean that decision given by the Court and which by the decision given, nothing else or nothing more remains to be done by that Court. In other words, what the Judge has been empowered to do has been accomplished, and the Judge has no further authority or legal competence to revisit the matter. As to whether the order granted by the lower Court was final or interlocutory appeared to have been settled by the lower Court in its judgment, having stated that the order absolute was a final order or decision. The apex Court on specifically laid the issue to rest in Union Bank of Nigeria Plc vs. Marcus Ind. Ltd & ors (2005) LPELR – 3394 (SC), through the mouth of Kutigi, JSC thus: “… it was an order absolute. It was a final decision of the Court. A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution… clearly by the order of the Court above, the trial Court had determined the rights of the parties before it.” I need not say from the foregoing that appellant needed not to have filed its notice of appeal within 14 days as contended in the preliminary objection in view of the sacrosanct provisions of Section 24 of the Court of Appeal Act, 2004.” Per HAMMA AKAWU BARKA, JCA in UNITY BANK PLC v. DAVID (2021) LPELR-54923(CA) (Pp 15 – 16 Paras A – D) |
VARIATION – Whether Court Can Entertain Application Seeking to Vary a Garnishee Order Absolute “On the question whether the lower Court having granted an order absolute, being a final decision on the matter, can still entertain an application seeking to vary the order granted? The obvious answer is that, an application can still be entertained on proper grounds where the occasion so demands. The answer to the question is not farfetched. In the case of Anatogu vs. Iweka II (1995) NWLR (pt. 415) 547 per Ogundare, JSC, the Apex Court in that decision held that: “The general rule is that the Court has no power under any application in the action to vary a judgment or order after it has been uttered or drawn up, except so far as is necessary to correct errors in expressing the intention of the Court or under the slip rule” … there are however exceptions to this rule some of which are: i. A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process, can be set aside by the Court which gave the judgment or made the order. See Skenconsult (Nig.) Ltd vs. Ukey (1981) 1 SC 6, Craig vs. Kannsen (1943) KB 256, Forfie vs. Seifah (1958) 1 ALL ER 219 (PC). ii. A judgment or order made against a party in default may be set aside and the matter reopened see E.G. Order XLI Rule 5 of the High Court Rules of Eastern Nigeria. iii. There is jurisdiction to make upon proof of new facts an order supplemental to an original order e.g. a supplemental order to an order for specific performance that there is an inquiry as to damages sustained by reason of the agreement, at any rate from the date of the original order for specific performance. See Ford-Hunt vs. Singh (1973) 2ALL ER 700. iv. If a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment. v. A judgment may be set aside on the ground that fresh evidence has been discovered which if tendered at the trial, will have an opposite effect on the judgment. See also, the cases of Bassey Ene vs. Asuquo Asikpo & anor (2009) LPELR-8723 (CA) per Abadua, JCA, Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA).” Per HAMMA AKAWU BARKA, JCA in UNITY BANK PLC v. DAVID (2021) LPELR-54923(CA) (Pp 24 – 26 Paras C – B) |
ORDER NISI ABSOLUTE – Instance Where Trial Court Will Be Held Not to Have Any Justification to Refuse to Make Garnishee Order Nisi Absolute “I agree with the reasoning of my Lord Andenyangtso, JCA that the Trial Court had no reason/justification, in law, to refuse to make the Order Nisi, absolute, in the circumstances of this case, the Garnishee having disclosed that it had the judgment debtors funds in its (garnishee) custody, enough to satisfy the judgment debt. A Garnishee cannot assumed the power to fight for the judgment debtor, in a garnishee proceedings, with a view to defend the interest of the judgment debtor and protect the judgment debtor’s funds in its (garnishee’s) custody, thereby defying the Order Nisi, made by the Court. See the case of Guaranty Trust Bank PLC Vs. Innoson Nigeria Ltd., (2017) LPELR – 42368 SC, where it was held: “The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession, belonging to the judgment debtor, should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor, nor protect the debtors money in its possession. See Oceanic Batik PLC Vs. Michael Olusegun Oladepo & Anor. (2012) LPELR – 79670 (CA)” Per Kekere-Ekun, JSC. Per Eko JSC: “It is not for a garnishee to fight the cause of a judgment debtor, who either accepts the judgment against him and does nothing about it, or who may be indolent to fight its cause. No power in law inheres in the garnishee to make himself a busybody and proceed, like Don Quixotee, the Knight Errant, to fight the cause of the judgment debtor, who is his customer.” I think this appeal came to a meritorious end, when my learned brother, Andenyangtso, JCA, in the lead judgment, said: “I see no reason for this discharge. The 3rd Garnishee in suit No. HOW/50M/2017, which the Garnishee/Respondent herein, had disclosed in its affidavit clearly, stating that there were sufficient funds in the judgment debtor’s account. This information was enough for the Trial Court to make the order absolute. I so hold.” I so hold, too.” Per ITA GEORGE MBABA, JCA in ODOR & ANOR v. GOV OF IMO STATE & ORS (2020) LPELR-51439(CA) (Pp 34 – 36 Paras B – A) |
SERVICE OF ORDER NISI – Effect of Failure to Serve Order Nisi Where Service is Mandatory “This Court had occasion in Vitachem Nigeria Ltd vs. DSM Sinochem Pharmaceuticals Indi Private Ltd (2017) LPELR-43200 (CA) per Garba, JCA, as he then was to state that: “Section 83(2) of the Civil Process Act (SCPA) provides that at least fourteen days before the hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor. Apparently, the requirement of these simple and unambiguous provisions is that a garnishee order nisi made by a Court in garnishee proceedings brought by a judgment creditor to enforce a judgment entered in its favour, against a debt owed or money standing to the credit of the party against who the judgment was entered; called the judgment debtor, shall be served on the party owing the debt or holding the money in the credit of the judgment debtor, called the garnishee, and the judgment debtor, at least fourteen (14) days before the hearing, for the purpose of the order nisi. The order nisi is simply an order, instruction or directive to the named garnishee(s) to come to the Court to show good cause why the debt owed or money of the judgment debtor in their possession/custody, should not be ordered absolutely to be used for the settlement of the judgment debt. The provisions require that the order nisi be served on both the garnishee(s) and the judgment debtor at least fourteen days (14) before the date the garnishee(s) is/are appear before the Court for hearing to show cause. Although, in law practice, garnishee proceedings are strictly between the judgment creditor and the named garnishees and the judgment debtor is not considered a party, who has any right of appearance therein, the above provisions of Section 83(2) of the Sheriffs and Civil Processes Act unequivocally require that the judgment debtor be served with the order nisi along with the garnishees who are parties, before the return date for hearing to show cause to the Court why the order should not be made absolute. As statutory provision and requirement, a Court of law has the judicial duty and obligation to comply and ensure compliance therewith in the conduct of proceedings of cases before it. See C.C.C.T.C.S Ltd v. Ekpo (2008) 6 NWLR (1083) 362; Mako v. Umoh (2010) 8 NWLR (1195) 58 @ 107-8. In the case of Wema Bank Plc. V. Brastem-Sterr Nig. Ltd; (supra) this Court held that the provisions of Sections 83 of the Sheriffs and Civil Processes Act are mandatory and failure to comply with them would render an order absolute in garnishee proceedings, void. That is the law on the effect and consequence of failure to comply with the provisions” See also, Ecobank Nigeria Plc vs. Guaranty Trust Bank Plc & ors (2016) LPELR-40574 (CA), Onjewu vs. KSMCI (2002) LPELR-5507 (CA). Evidently, there is no proof of service on either the judgment debtor nor the garnishees before the order nisi was made absolute, and thus, vitiated the order absolute made, and rendered it void.” Per HAMMA AKAWU BARKA, JCA in UNITY BANK PLC v. DAVID (2021) LPELR-54923(CA) (Pp 28 – 30 Paras A – C) |
ONUS TO SHOW CAUSE – On Whom Lies the Onus to Show Cause Why Order Nisi Should Not Be Made Absolute “I have given due consideration to the facts and circumstances as can be seen in the printed Record and it does appear to me that the real crux of the issue in this appeal is simply whether the Trial Court was right when it held that the Appellant had not shown cause why the Garnishee Order Nisi should not be made absolute against the Appellant? Upon being served with the Garnishee Order Nisi, the Appellant, filed an affidavit to show cause, deposed to by one D.I UGBEDE Esq., Counsel in the Law Firm of the Appellant’s Solicitors; and also some exhibits. The pertinent paragraph of the affidavit is paragraph 3, wherein it was averred thus: 3. That based on the instruction given by the 1st Garnishee to A.J. Akubo Esq., of Counsel, he informed me in the ordinary course of my duty in our office in Lokoja on 2/11/14 and I verily believe him to be true as follows:- a. That this Honourable Court made an Order Nisi on 2/10/14 following the ex-parte motion moved by the judgment creditor/applicant’s counsel attaching the sum of N20,050,981.14 standing to the credit of the judgment debtors with the Garnishees. b. That the 1st Garnishee was served with the order nisi on 15/10/14. c. That the Judgment Debtors do not operate account numbers 2018001709 and 2017001723 with theft Garnishee. d. That the account numbers stated in the preceding paragraph do not exist on 1st Garnishee customers’ database. e. That the Judgment Debtors operate Account Number 2006404147 in the 1st Garnishee with a credit balance of N158,016,450.00 f. That the balance sum of N158,016,450.00 in account number 2006404147 stated in the preceding paragraph had been attached by subsisting Court orders in other suits involving the 1st judgment debtor to wit. (1) SIMON EGBE & 10 ORS v. IGP & ANOR – Suit/Motion No. FCT/HC/M/4477/2011, (2) JONA LEVA & IGP & ANOR – Suit/Motion No. FCT/HC/M/7966/2013, (3) CHIDIEBERE PROMISE OKERE- Suit No. FCT/HC/CV/4653/11, (4) MOHAMED ABUBAKAR v. IGP & ORS – Motion 6279/14. The CTC of enrolment orders in respect of the suits herein mentioned are hereto attached and marked respectively as Exhibits ‘A; “B; “C; and g. That due to the existing orders of various Courts stated in the preceding paragraph attaching the sum in the stated account, there is no more amount left in the account to be attached by this Honourable Court. h. That the judgment debtors/Respondents operate account number 2017655572 in the 1st Garnishee with credit balance of N64, 782, 082. 61. i. That the balance sum of N64,782,082.61 in the account number 2017655572 mentioned in the preceding paragraph had been attached by subsisting Court order in other suits involving the 1st judgment/Respondent to wit: (1) JACOB AGIDI NIG LTD V. IGP & ORS Suit No. FHC/B/CS/28/2005, (2) FRIDAY EMMANUEL BASSEY v. IGP & ORS – Suit No. FCT/HC/M/4537/2013. The CTC of the enrolment orders in respect of the suits herein stated are hereto annexed and marked respectively as Exhibits ‘E’ and j. That due to the facts stated in the preceding paragraph, there is no money left in the account number 2017655572 to be attached in favour of the applicant. k. That the judgment debtors/Respondents operate account number 2017688354 in the 1st Garnishee with credit balance of N2,000.00 I. That the balance sum of N2,000.00 in account number 2017688354 stated in the preceding paragraph had been attached by subsisting Court in Suit No: FCT/HC/M/4537/2013 between Friday Emmanuel Bassey V. IGP & ORS. A copy of the CTC of the enrolment order in the said suit and the statement of account showing the credit balance in the said account as at 15/10/14 are hereto attached and marked Exhibit ‘G’and ‘H’ respectively. m. The statement of account in respect of account number 2017655572 operated in the 1st Garnishee as at 16/10/14 belonging to the judgment debtors/Respondents showing credit balance Is hereto annexed and marked as Exhibit ‘I’. n. That on the return date, the 1st Garnishee herein shall apply to this Honourable Court to discharge it based on the facts herein deposed to and strike out its name from the garnishee proceedings. ?The question now is whether the Appellant; on the strength of its affidavit together with the annexed documentary Exhibits placed before the Trial Court, showed cause why the Garnishee Order Nisi should not be made absolute by the Trial Court. The law, as settled by a long list of authorities, is that a Garnishee proceedings is one by which a judgment creditor originates a third party proceedings against a person indebted to the judgment debtor to pay over directly to the judgment creditor such money as are due to the judgment debtor. A Garnishee proceeding is thus a procedure legally approved by law for enforcing a money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor which forms part of his money in the hands of a third party for attachment. Therefore in law, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if it exists, it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer. See UBN PLC. V. BONEY MARCUS INDUSTRIES LTD. (2005) ALL FWLR (PT. 278) 1037 @ PP. 1046-1047. FIDELITY BANK PLC. V. OKWUOWULU (2012) LPELR- 8497 (CA); CITIZENS INTERNATIONAL BANK V. SCOA (NIG) LTD. (2006) 18 NWLR (PT. 1011) 334. In considering the question whether or not the Appellant made out or showed cause why the Garnishee Order Nisi ought not to have been made absolute by the Trial Court, I deem it apposite to consider the relevant provisions of the law governing Garnishee proceedings and the onus placed on a Garnishee ordered to show cause by a Court. The relevant legislation is SECTION 83 OF THE SHERIFFS AND CIVIL PROCESS ACT which succinctly provides thus: “The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant of his legal practitioners that judgment has been recovered and that it is still unsatisfied to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with costs of the Garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who have obtained such judgment or order the debt due to from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with the costs aforesaid.” In the affidavit to show cause that was placed before the Trial Court, the 2nd and 3rd Respondents had three accounts with the Appellant, which according to the Appellant, had been attached by subsisting Court orders. In proof of these depositions, the Appellant exhibited the enrolled orders of the Courts as well as the bank statements of two of the accounts. No bank statement was annexed in respect of Account No: 2006404147. The law is settled that the primary duty of a Garnishee in garnishee proceedings is for the garnishee to appear in Court upon receipt of the order Nisi, and show cause why the funds in the judgment debtor’s account should not be paid over to the Judgment Creditor in satisfaction of the judgment debt. This is done by filing an affidavit to show cause with all the relevant documents, disclosing the true picture, status or standing of the judgment debtor’s accounts at the time of the service of the Garnishee Order Nisi on it. That is the import of Section 83 of the Sherriff and Civil Process Act CAP S6, LFN 2004, which provides thus: “83(1) The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. (2) 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.” In TOTAL UPSTREAM (NIG) LTD v. A.I.C. LTD & ORS (2015) LPELR 25388 – CA, this Court held thus: “In the circumstance, it needs be emphasized that it is not the duty of a garnishee to defend the judgment debt sought to be enforced against the judgment debtor. The duty of a garnishee upon receipt of Garnishee order nisi is to file before the relevant Court an affidavit to show cause why the judgment debtor’s money in his custody should not be attached to satisfy the judgment debt. It then behoves a garnishee to present the true state of affairs regarding the monies before the Court. Either there is no or insufficient fund in his custody or that the available fund is under lien or assigned to a third party in which case the Court instead of proceeding to make an order for Garnishee absolute may order that any issue or question necessary, for determining his liability be tried or determined as provided for in Section 87 of the Sheriff and Civil Process Act.” See also: SKYE BANK PLC v. DAVID & ORS (2014) LPELR 23731 CA; OCEANIC BANK PLC v. OLADEPO (2012) LPELR 19670 – CA. It therefore follows that the Appellant, who had opportunity and requisite time to file all relevant documents disputing its liability, cannot turn around to argue to allege mistake, or that his right to fair hearing has been breached. See MONKOM v. ODILI (2010) 2 NWLR (PT. 1179) 419. The Appellant in the instant appeal has urged this Court to set aside the Garnishee Order Absolute and discharge the Appellant, while relying on Sections 87 and 88 of the Sheriff and Civil Process Act, 2004. For Sections 87 and 88 of the Sheriff and Civil Process Act to avail the Appellant the case of the Appellant must be amply supported by documentary evidence whereby the Trial Court, if unable come to a decision concerning the Appellant’s liability or otherwise, may invoke the above sections. |