First Bank of Nigeria Plc V. Hon. Aniedi Okon Etim (2016)
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JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
This is in respect of an appeal against the decision of the High Court of Akwa Ibom State sitting at Uyo in the Uyo Judicial Division delivered by I E. UKANA J. on the 29th March, 2010 in respect of a garnishee application brought by the respondent to satisfy the judgment debt of N3,549,437.50 awarded in Suit No. HU/UND.56/08 against Uyo Local Government for respondent’s outstanding remunerations as Councilor in the said Uyo Local Government between 1999 and 2002.
After being satisfied that the garnishee order nisi had been served, the learned trial Judge made a garnishee order absolute against the appellant in the sum of N3,499,437.50 being the outstanding sum in respect of the said judgment from the sums standing to the credit of the judgment debtor, Uyo Local Government, Akwa Ibom State in its account no 6172040000019 at the branch of the appellant at Udo Odoma Avenue or any other account maintained in the name of the judgment debtor with the appellant.
Dissatisfied, the appellant filed a notice of appeal on the 7th April, 2010 containing 3 grounds of
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appeal.
At the hearing of the appeal, the appellant was unrepresented upon which its amended appellant’s brief filed on 30th January, 2013 settled by Otu Inwang Esq was deemed adopted as the arguments of the appellant in the appeal pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011.
Mr. Obot the learned counsel for the respondent on his part adopted the amended respondent’s brief filed on the 17th April, 2013 as the arguments of the respondent in this appeal. He urged the Court to dismiss the appeal.
The appellant submitted 3 issues for determination as follows:
1. Whether the service of Garnishee Order Nisi dated 12/11/2009 on the 1st garnishee/appellant at her branch office of Udo Udoma Avenue, Uyo, Akwa Ibom State was proper for the conduct of the garnishee proceedings.
2. Whether the order of trial Court made on 12/11/2009 is not binding on the parties and the Court.
3. Whether order absolute made on the 29/3/2010 was valid and or in compliance with Section 86 of the Sheriffs and Civil Process Act.
On the part of the respondent, Mr. Obot submitted 2 issues for determination as follows:
1. Whether
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grounds ‘a’ and ‘b’ of the grounds of appeal are competent in law.
2. Whether the lower Court was right in making the garnishee order nisi to become absolute in Suit No. HU/MISC.705/2009.
To ensure that all the grievances of the appellant are adequately addressed, the issues formulated by the appellant’s counsel shall be adopted for the determination of this appeal but in view of the overlapping arguments in respect thereof, they shall be taken together.
The learned counsel for the appellant submitted that by virtue of Order VIII Rule 4 (1) of Judgment (Enforcement) Procedure Rules, service on a company shall be in accordance with the Rules of Court regulating service of ordinary summons which at the material time was Order 12, Rule 8 of the High Court (Civil Procedure) Rules of Akwa Ibom State 1989 and stipulated service at the registered office thereof.
He pointed out that an attempt by the respondent to secure a departure from this procedure was rejected by the learned trial Judge in granting the garnishee order nisi, but that despite the refusal, the respondent in flagrant disobedience failed to serve the order nisi at the registered
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office of the appellant thereby depriving the Court of jurisdiction to make the order absolute. He referred to JIKANTORO vs DANTORO (2004) 18 NSCQR 646 at 654-655.
He further submitted that service of the order nisi was a condition precedent to the making of order absolute pursuant to Section 86 of the Sheriffs and Civil Process Act thereby rendering the garnishee order absolute incompetent.
He urged the Court to find for the appellant.
The first portion of the arguments of Mr. Obot relates to what he termed a preliminary objection but which in actual fact is an objection to two of the grounds of appeal and the issues formulated therefrom. Apart from the fact that he failed to draw the attention of the Court to it at the hearing of the appeal, he also failed to comply with the stipulated procedure in respect thereof. The said objection ought to have been brought by motion on notice giving the appellant the opportunity to respond thereto. The said objection is incompetent and shall be appropriately discountenanced. See ADEJUMO VS OLAWAIYE (2014) ALL FWLR (PT 749) 1910 at 1929-1930, OSIGBEMEH VS EGBAGBE (2014) ALL FWLR (PT 744) 58 at 71 and
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OKOROCHA vs PDP (2014) 57 NSCQR 272 at 319.
In respect of the substantive appeal, Mr. Obot observed that the grouse of the appellant was that the order nisi was served at its branch in Uyo instead of its head office. He submitted that the said service was made in accordance with the provisions of Order 7 Rule 9 (1) of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State which was the extant Civil Procedure Rules at the time service was effected. He referred to ROSSEK VS ACB (1998) 3 NWLR (PT 312) 382. He further submitted that having acknowledged the said service indicating that the process was delivered to it, the provisions of Section 86 of the Sheriffs and Civil Process Act had been complied with and the affidavit of service filed by the bailiff had become superfluous and any defect therein insignificant. He referred to EGBE VS ALHAJI (1990) 1 NWLR (PT 128) 546 at 551.
He urged the Court to dismiss the appeal.
Issues 1 and 2 formulated by the appellant and earlier adopted for determination of this appeal are as follows:
1. Whether the service of Garnishee Order Nisi dated 12/11/2009 on the 1st garnishee/appellant at her
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branch office at Udo Udoma Avenue, Uyo, Akwa Ibom State was proper for the conduct of the garnishee proceedings.
2. Whether the order of trial Court made on 12/11/2009 is not binding on the parties and the Court.
The issues as formulated and argued admit that indeed the garnishee order nisi herein was served on the appellant at its branch office at Udo Udoma Avenue, Uyo, Akwa Ibom State. The appellant’s contention was that the said service ought to have been effected at its head office pursuant to Order 12, Rule 8 of the High Court (Civil Procedure) Rules of Akwa Ibom State 1989. It seems however that learned counsel erroneously apprehended the applicable Rules of Court.
The garnishee order absolute was made by the learned trial Judge on the 29th March, 2010 while service was said to have been effected on the 3rd December, 2009. The said service was not denied by the appellants but only said to have been effected at its branch office instead of the head office.
As well submitted by Mr. Obot, compliance must be with the procedure law in force at the time a step is taken. See ROSSEK vs ACB (supra) at 475 where BELLO, JSC observed thus:
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On the other hand, procedural law existing at the time of the hearing of a case, whether of the trial or on appeal, applies to the prosecution and defence of the case. It does not matter whether the procedure law comes into force before or after the cause of action arises or has arisen and whether before or after an appeal is filed or has been filed: Attorney-General v. Vernazza (1960) A.C. 965 at 975 and Maxwell on Interpretation of Statutes, Eleventh Edition p.216.
The High Court (civil procedure) Rules of Akwa lbom State 2009 came into effect on 1st December, 2009 and Order 1, Rule 1 and 2 thereof state as follows:
1.-(1) These Rules shall apply to all proceedings including all part- heard causes and matters.
(2) In respect of causes and matters already pending, these Rules shall apply to every further step to be taken in respect of such causes and matters.
Order 7, Rule 9 (1) of the said 2009 Rules provide as follows:
9.-(1) Subject to any statutory provision regulating service on a registered company, corporation or body corporate, every originating process or other processes requiring personal service may be served on the
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organization by delivery to a director, secretary, Trustee or other senior, principal or responsible officer of the organization, or by leaving it at the registered, principal or advertised office or place of business of the organization within the jurisdiction.
The simple ordinary interpretation of the provisions above indicate that service on a company in its place of business within Akwa Ibom State is good and sufficient service on such company. A fortiori the service of the garnishee order nisi acknowledged by the appellant to have been delivered at its branch office at Udo Udoma Avenue, Uyo, Akwa Ibom State cannot be faulted under the law.
What this implies is that the mode of service which the respondent tried unsuccessfully to obtain from the trial Court had subsequently been validated by law and compliance therewith is outside reproach especially when service was not denied but expressly acknowledged by the appellant.
This takes the wind off the sail of this appeal as it is abundantly clear that service of the garnishee order nisi was in compliance with the provisions of Order VlII Rule 4 of the Judgment (Enforcement) Rules in the
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Sheriff and Civil Process Act which provides thus:
(1) The order nisi shall be served in accordance with the rules for the service of an ordinary summons issued from the Court from which the order is issued.
The learned trial Judge was accordingly not deprived of jurisdiction in any form or manner when it made the garnishee order absolute herein.
I therefore resolve the 3 issues against the appellant and in favour of the respondent.
This appeal is devoid of any form of merit and I accordingly dismiss it.
The garnishee order absolute made in Suit No. HU/MISC.705/2009 on the 29th March, 2010 is hereby affirmed.
Cost of N50,000.00 is awarded in favour of the respondent to be paid by the appellant.
Other Citations: (2016)LCN/8902(CA)
