Densa Engineering Works Ltd. & Anor. V. Union Bank of Nigeria Plc. & Anor. (1998)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
This appeal is by the judgment creditors (Densa Engineering Works Ltd. & Anor) against the ruling of Onnoghen J. delivered on the 17th day of July, 1997 whereby he discharged a garnishee order nisi made by him on the 28th day of May, 1997 against the respondent i.e. the Union Bank of Nigeria Plc.
The facts of this appeal art: simple and straight forward. The issue for determination comes within wry narrow confines even if the appellant’s brief has not been helpful in making things as simple as they ought to be.
The facts, briefly put, are that the appellant obtained judgment against the judgment debtor i.e. the Cross River Estates Ltd. in an undefended list for N2,719,000 with 21% interest and costs or N2.000 and out of pocket expenses of N296. The judgment debtor failed to satisfy the judgment debt. The appellant (judgment creditor) thereupon commenced a garnishee proceeding against the money allegedly belonging to the judgment debtor in the respondent’s bank. By a motion exparte, the appellant obtained a garnishee order nisi against the respondent for the money. By a motion dated 6th day of June, 1997. the respondent’s solicitors applied to discharge the garnishee order nisi made against it. In its ruling dated 17/7/97, the lower court discharged the said order. It is against this ruling that this appeal has come to this court.
The main grouse of the appellant is that after argument on the motion to discharge the garnishee order nisi, ruling on the motion was adjourned but before the date of the ruling, learned counsel for the respondent, by a letter dated 30th June, 1997 wrote the registrar of the lower court forwarding to him an authority, to wit, Decree No. 107 of 1993 for onward transmission to the trial Judge. The letter was duly copied to the appellant’s counsel. The appellant therefore complains that the learned trial Judge acted on the Decree without summoning counsel on both sides to address him. The appellant filed three grounds of appeal, which, without the particulars are as follows:-
- The learned trial Judge erred in law in admitting and considering legal authority from the garnishee after full completion of submissions by counsel without inviting counsel for all parties thereafter to address specifically thereupon.”
- “The learned trial Judge erred in law by having suo motu raised the issues as to application and applicability of the Constitution (Suspension and Modification) Decree No. 107 of 1993 to judgment enforcement rights over a limited liability company, and in founding his decision solely thereupon without opportunity to counsel for submissions thereupon.”
- “The learned trial Judge erred in law in declining jurisdiction and in refusing the appellants’ application upon the following conclusion:
‘The judgment creditor not having obtained the fiat of the Attorney-General before prosecuting the application for order nisi that the order is incompetent and subject to discharge.”
It may be mentioned here, and this is important in this appeal, that the “relief Sought” from the Court of Appeal, is not only to set aside the ruling of the lower court of 17th July, 1997 but also to make a garnishee order absolute in favour of the appellants. I shall deal with this “relief sought” latter in this judgment.
The appellants formulated three issues for determination thus:-
“1. Whether the learned trial Judge was not duty-hound, once receiving fresh, or additional legal authority from the garnishee, and outside the ordinary context of proceedings, to invite the parties and their counsel for fresh addresses thereupon.
ii. Whether it was competent for the learned trial Judge to so proceed suo motu, either upon legal authority so supplied, or otherwise at all, for the purposes of reaching his decision.
iii. Whether section 251(4) of Decree No. 107 of 1993 envisages a distinct limited liability company, such as the judgment debtor, or is otherwise so applicable as to have warranted the decision of the learned trial Judge, refusing execution.”
Learned counsel for the appellant arguing his issues (1) and (11) together submits that throughout the argument for the discharge of the garnishee order nisi on 30th June, 1997 no reference was made to Decree 107 of 1993 by both counsel. The decision of the Judge based on the Decree was “exclusively from his own (Judge’s) thinking” – counsel submits. Counsel refers to
(i) Orji v. Zaria Industries Limited (1992) 1 NWLR (Pt. 216) 124,
(ii) Olusanya v. olusanya (1983)
(iii) Ebba v. Ogodo (1984) 1 SCNLR 372,
Accordingly, counsel complains that he was not given an opportunity to address the court on the “purport or effect” of the Decree. He refers to Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177; Emegokwue v. Okadigbu (1973) 4 SC 113 at 117.
The respondent would seem to concede this point in his brief. In the circumstance, it becomes unnecessary to flog the issues further.
On his issue No.3, appellant’s counsel contends that following the mere deposition of the respondent that the “judgment debtor is 100% owned by the Government of Cross River State which Government has laid claim to the funds of the judgment debtor” the trial Judge proceeded to apply s. 251 (4) of Decree 107 of 1993 and “jettisoned his jurisdiction” thereby. He did this even when neither party demanded him so to do. He says that a judgment must be confined to the issues litigated by the parties to the suit. He contends that the issues decided were not the issue joined in the motion.
Learned counsel argues that a limited liability company like the judgment debtor does not qualify as a “Ministry or Extra-Ministerial Department” within the meaning: of section 251 (4) of Decree 107 of 1993. He refers to Co-operative Dev. Bank v. Obokhare (1996) 8 NWLR (Pt. 468) 579 at 568-587; Olufosoye v. Fokorede (1993) 1 NWLR (Pt. 272) 747; Ramanchandani v. Ekpenyon (1975) 5 SC 29, On the relief sought, counsel invokes the provisions of section 16 of the Court of Appeal Act 1976 and asks this court to make a garnishee order absolute in favour of the appellant. He refers to okoya v. Santili (1991) 2 NWLR (Pt. 131) 17 at 207.
On being served with the respondent’s brief, the appellant filed a reply brief.
In it, the appellant argues that the court should confine itself to the proceedings before it which led to the garnishee order nisi and its discharge.
The respondent also filed a brief of argument wherein it formulated three issues for determination viz:-
“1. Was the learned trial Judge right to consider and apply the provisions of s.251 (4) of the Nigerian Constitution as amended by Decree No. 107 of 1993 without first calling for further addresses on that issues?
Does s.251 (4) of the Constitution aforesaid oust the jurisdiction of the lower court to levy execution against the judgment debtor in this case?
In the event that this appeal succeeds, what order should the Court or Appeal make?”
In arguing issue No. 1, counsel for the respondent concedes that the learned trial Judge ought to have invited counsel on both sides for further address on s.251 (4) of Decree 107 of 1993. He submits that this court should consider sending back this case for argument on the issue of jurisdiction as raised by the Decree. On issue No.2, counsel argues that the judgment debtor being wholly owned by the Cross River State Government comes within the purview or a Ministry or Extra-Ministerial Department. The definition of a Ministry in the Civil Service Re-Organisation Act is not helpful. He therefore submits that what is an Extra-Ministerial Department is not “plain and unambiguous” and urges the court to apply the mischief rule in the canons of construction. He refers to Ifezue v. Mbadugha (1984) 1 SCNLR 427; Awolowo v. Shagari (1979) 6-9 SC 51. He submits that a limited liability company in which the Government has controlling interest is covered by the provisions of s.251 (4) of Decree 107 of 1993. He submits that the use or limited liability company in doing Government business is fully entrenched in Nigeria. Counsel gave examples of such companies as NICON Plc. NEPA Plc. NITEL Plc, NNPC and its subsidiaries and many others. He refers to s.277 (1) of the 1979 Constitution. Staff of companies in which the Government has controlling interest are covered by the provisions of Public Officers Protection Act. In university of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706 this court interpreted “the Federal Government or any of its agencies” as contained in s.230(1) of the 1979 Constitution as amended by Decree 107 of 1993 to include the University.
On issue No.3, counsel submits that the learned trial Judge acceded is his ruling that ….. interesting points of law have been raised in this matter which excite the mind as they relate to garnishee proceedings”. The lower court did not consider these points of law nor did counsel on either side address the court to warrant grant of a garnishee order absolute. No ground of appeal makes out a case for the grant of the order.
The main issue, and I think, the issue that will dispose of this appeal is whether o the lower court on receiving the letter of respondent’s counsel dated 30th June. 1997. was right in proceeding to judgment (ruling) without inviting counsel on both sides to address him on the contents of the letter. This encompasses issues 1 and 2 of the appellant and issue I of the respondent. The next point which calls for a consideration of the merits of the case in the lower court is what order this court would make in the appeal succeeds. This encompass issue 3 of the appellant and issue 2 and 3 of the respondent.
Let me deal with the first point. By his letter dated 30th June, 1997 and directed to the registrar of the lower court, respondents counsel wrote as follows:-
“Re Additional Authority in suit No. C/573/95 BETWEEN
DENSA ENGR. WORK AND ANOR – PLAINTIFFS/RESPONDENTS
V
CROSS RIVER ESTATES LTD. – DEFENDANTS
AND
UNION BANK OF NIGERIA PLC, – GARNISHEE/APPLICANT
We are solicitors to the garnishee/applicant in the above suit.
We forward herewith for onward transmission to His Lordship, additional authority to our argument:
To wit:
Decree No. 107 of 1993lvith particular reference to section 251 of the 1979 Constitution of the Federal Republic of Nigeria as all/ended by this Decree.
A copy of this letter is being sent simultaneously to other counsel in the matter.
Thank you.”
This letter was copied to counsel for the appellant in this appeal. Learned counsel for appellant has not said that he did not receive the letter. He did not react to the letter. He did not indicate to the trial Judge that he would like to address the court on the provisions of s.251(4) of Decree 107 of 1993. He folded his hands and waited for the ruling. When the ruling went against him, he started complaining.
Be that as it may, learned counsel for the respondent, like a good advocate, has readily conceded that both sides ought to have been invited to address the court on s. 251 (4) of Decree 107 of 1993 in so far as concerns the garnishee proceeding. His concession in this regard is a commendable show of magnanimity on his part. It is hoped that other counsel in the jurisdiction will emulate this brand of advocacy. On this alone, this appeal will be allowed. This must not be taken as an authority for the proposition that whenever counsel sends an additional authority to the judge, the judgment must be set aside if the judge fails to recall counsel for further address. The obligation of counsel sending additional authority is to send a copy of his letter to his opposite friend who is at liberty to reply to the new authority or to request the judge for further address. This appeal is allowed on the peculiar circumstances of this case.
The next question is what order this court will make. The appellants in their notice and grounds of appeal have asked this court to make garnishee order absolute as one of the reliefs sought. They have also repeated the request for that relief in their brief. Learned counsel relies on s.16 of the Court of Appeal Act and refers to Okoya v. Santili (1990) 2 NWLR (Pt. 131) 17 at 207: Akpan v. Otong (1996) 10 NWLR (Pt. 476) 108 at 123. The respondent on the other hand has strongly opposed in its brief the making of such an order.
Now, the complaint of the appellants in this appeal is that the learned Judge of the lower court acted on the authority contained in a letter written to him through the registrar of the lower court without inviting counsel to address him on the applicability of s. 251 of Decree No. 107 of 1993. The contents of the said letter have been set out earlier in this judgment. The three grounds of appeal also set out earlier in this judgment complain about the lower court acting on the legal authority sent to him by respondent’s counsel i.e. s.251 of Decree No. 107 of 1993, without inviting counsel for further address (ground 1); the applicability of the said Decree 107 of 1993 (ground2); and declining jurisdiction based on the appellant (judgment creditor) not obtaining the fiat of the Attorney-General before seeking to levy execution (ground 3). In no where is an issue raised in the ground of appeal as to whether the lower court should make a garnishee order absolute or not.. It was not before the lower court. In Okoya v. santili (supra) referred to by the appellant, the Supreme Court held that in the exercise of its power under s.16 of the Court or Appeal Act. the Court of Appeal has the power which the “… High Court has in the matter before it…” Making a garnishee order absolute was not a matter before the lower court in the motion. It was not an issue by the appellant Even if any party makes it an issue in the appeal, it is not predicated on any ground of appeal, and therefore incompetent. A “relief sought” must be predicated on aground of appeal. It is the grounds of appeal that contain the complaint of the appellant. An appellant cannot complain of one thing and seek a relief not before the lower court or adjudicated upon by it. What was before the lower court was the respondent’s motion to discharge the garnishee order nisi. The learned trial Judge stated in his ruling that …. interesting points of law have been raised in this matter which excite the mind as they relate to garnishee proceedings”. These “interesting points of law” have not been canvassed or argued in the court below or in this court. It is only fair that opportunity be given to both sides to the contest to argue the said points of law. In the circumstance, I shall decline to make any order for garnishee order absolute.
In the final analysis, this appeal succeeds in part. The appeal is allowed. The ruling and order of Onnoghen J. made on 17th July, 1997 is hereby set aside. The case is sent back to the High Court of Cross River State for the Chief Judge to assign the same to another Judge for fresh argument on the motion to discharge the garnishee order nisi. Parties shall be at liberty to file further papers if they so desire.
The request by the appellant for this court to make a garnishee order absolute is refused. Each party shall hear his/its own costs to this appeal.
Other Citations: (1998)LCN/0462(CA)
