Habib Nigeria Bank Limited V. Wahab Opomulero & Ors.(2000)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A.
This appeal arose from an order of garnishee absolute made at the instance of 1st – 11th respondents by Edet J. of the Federal High Court sitting at Ibadan on 30th November, 1995. A judgment had been entered for the plaintiff. Wahab Opomulero (i.e. 1st respondent herein) against the defendants – Food Oils Limited and 2 Ors. namely Ayodele Subair and Adewale Subair. In the said judgment dated 3/11/94 which was in Suit No.FHC/IB/3/93 the court awarded N249,936.00 in favour of the plaintiff against the 3 defendants jointly and severally. After the judgment was delivered on 3/11/94, the learned Counsel for the plaintiff applied orally for the consolidation of the judgment with other 9 cases with similar facts and pending in the said court. The court granted the application and ordered that the judgment just delivered to ‘apply to all the consolidated cases mentioned above’. This increased the judgment debt to N2,735,127.73 payable to the plaintiffs who now become 11 (eleven) in number as judgment creditors. The three defendants however remain the same after the consolidation and they were thus adjudged as joint judgment debtors to pay the above sum to the 11 judgment creditors.
On 12/5/95, the eleven judgment creditors brought a motion ex-parte and applied to the court for an interim order that the garnishee should satisfy the judgment of the Court from the deposit of the judgment debtor/respondent which was in the custody of the garnishee, the total sum of the judgment debt, in favour of the judgment creditors together with accrued interests in all the consolidated cases Nos. FHC/IB/2-13/93 and to order the garnishee to appeal before the court to show cause why it should not pay the judgment creditors. The garnishee as shown in the ex-parte motion was Habib Nigeria Bank (the present appellant).
When the motion ex-parte came up for hearing on 25/5/95, one Mr. Sowemimo announced his appearance for Food Oils Limited (One of the respondents in the exparte motion) the 12th respondent herein. The learned Counsel for the judgment creditors/applicants opposed the appearance of Mr. Sowemimo in the hearing of the motion which was ex-parte. The court consequently adjourned the matter to 30/5/95 for consideration and ruling. On 30/5/95, another counsel Mr. Umoh Umoh from Mr. Sowemimo’s Chambers appeared again and insisted on the right of the 12th respondent to be heard on the ex-parte motion. After hearing the counsel and learned counsel for the judgment creditors, the court ordered that all the parties in the case should maintain status quo inter parties with effect from 25/5/95 when the motion first came up for hearing until further order. It clarified the effect of its order in the ruling to mean that the appellant herein (i.e. Habib Bank Nig. Ltd) shall not operate the current account No.11010148 and a deposit account titled FOOD OILS IN RECEIVERSHIP both being in its possession until further order of the court. Subsequently after the above interim order and on 31/7/95, the court issued a garnishee order nisi the enrolled order of which was served on the appellant on 4/8/95. In its subsequent reaction to the order nisi, the appellant indicated that it only got knowledge of the court’s interim order and the garnishee proceeding for the first time when the order nisi was served on it on 4/8/95. Meanwhile, in its affidavit to show cause why the order nisi should not be made absolute, the appellant stated that after revoking the appointments of receivers/managers appointed to manage the affairs of the 12th respondent which was insolvent and was going into liquidation, the syndicate of lenders who were creditors to the said 12th respondent, instructed a firm of solicitors, Messers Paul Usoro & Co., to institute legal proceedings against the said receivers/managers to, inter alia, render accounts of all the money they received in their capacity as receivers/managers on behalf of the said 12th respondent. Messrs Paul Usoro & Co. were employed by the syndicate of lenders to carry out legal documentation as regards the sale of judgment debtors’ assets (i.e. Food Oil Ltd’s assets). It was also deposed in the appellant’s affidavit at the lower court that consequent upon the above assignments and instructions the syndicate of lenders authorised the appellant to make payment of N1,984,216.00 (one million, nine hundred and eighty-four thousand, two hundred and sixteen Naira) from the receivership account to Messrs Paul Usoro & Co. for their professional service. The payment was duly made by the appellant on 29/5/95 before the service of the garnishee order on them on 4/8/95. As at the date of the service of the garnishee order nisi, the balance left in the receivership account after payment to Messrs Paul Usoro and which could garnisheed was N3,289.01(Three thousand, two hundred and eighty-nine Naira, one Kobo). The judgment creditors/applicants in the garnishee proceedings did not file any further affidavit to counter the appellant’s depositions as set out above. After hearing counsel’s arguments the court in its ruling of 30/11/95 made the garnishee order absolute- relying on the ground or presumption that the appellant had prior knowledge or notice of its interim order for the preservation of the funds in the disputed account before the payment to Messrs Paul Usoro & Co. on 29/5/95. This ruling of the lower court is the subject of the present appeal now before this court.
The appellant initially filed only one (1) ground of appeal with their notice of appeal (i.e. the omnibus ground) but later applied and obtained leave of this court on 5/3/98 to file 6 (six) additional grounds. The appellant also filed their brief of argument on 19/6/98 which was duly adopted by their learned counsel at the hearing of the appeal on 19/1/2000. Only the 12th respondent filed its brief of argument on 29/9/98 which was also adopted at the hearing of the appeal. The 1st – 11th and 13th – 14th respondents did not file any brief of argument though they were duly served with the appellant’s and 12th respondent’ brief as well as the hearing notice. Thus, they do not like to take part in the appeal but are willing to abide by any outcome of the said appeal. In the appellant’s brief, the following three (3) issues for determination are formulated:-
“2. ISSUES FOR DETERMINATION
2.1 Was the lower court justified in holding that the appellant had notice of the interim order prior to the disbursement of the funds on May 29, 1995 in consequence whereof the court granted the Garnishee order absolute?
2.1.1 Without prejudice to issue No. 1 afore-mentioned, was the court’s Garnishee order absolute, as it was framed, capable of compliance by the appellant and/or execution by the court?
2.2. Was the lower court justified in judging the appellant, the consortium of Banks and the appellant’s counsel jointly and severally guilty of criminal conduct in consequence whereof it visited criminal sanctions on them?”
The above issues are adopted in the 12th respondent’s brief in which their learned Counsel not only agrees with and subscribes to or associates himself with all the submissions made in the appellant’s brief but also concludes by urging this court to allow the appeal. Even in his oral address at the hearing of the appeal, the learned Counsel to the 12th respondent reiterated his stand in the case by urging this court to allow the appeal. By this stance and concession of the 12th respondent (the only respondent who filed a brief of argument and took part at the hearing of the appeal) the appeal could have been summarily dealt with and disposed by the court. However, since there are many other respondents in the case who will be bound by this judgment (who did not file brief or participate in the hearing) it is in the interest of justice to still consider the merits of the appeal and to regard or treat or deem the said other respondents as having adopted their respective cases as presented at the lower court and contained in the record of proceedings.
Under the first issue of the appellant’s brief submits that the appellants did not have notice or knowledge of the interim order made by the lower court and pronounced by the court on 30/5/95 until 4/8/95 when the garnishee order nisi was served on it after disbursing the funds on 29/5/95 in accordance with the instruction of the consortium of bankers. The lower court was therefore in grave error in imputing or attributing knowledge or notice of the said order on the appellant. It is contended that the interim order of the lower court made on 30/5/95 and said to take effect retrospectively on 25/5/95 was never served on the appellant. Reference is made in the brief to Order x rules 1 and 3 of the Federal High Court (Civil Procedure) Rules which stipulate and provide for personal service on a party of petitions, notices, summons, orders or other documents for which service is required except where a party is represented by a legal practitioner in which case service on the counsel will be sufficient. As regards service of court processes or orders on companies, the appellant relies upon section 78 of the Companies and Allied Matters Decree as well as Order X rule 8 of the Federal High Court (Civil procedure) Rules (supra) both of which provide that service can be effected if the process or document is given to any director, trustee or other principal officer of the company or is left at its registered office. It is submitted that the interim order was never served on the appellant through any of the above recommended ways. The appellant’s counsel has vehemently denied service or being aware of the interim order until 4/8/95 after the disbursement of the funds on 29/5/95 – see page 22 of the record and paragraphs 3(i) and (j) of their affidavit to show cause (at p.5 of the record). It is pointed out that the deposition in those paragraphs (or subparagraphs) of the affidavit in which the appellant denied service or notice of the interim order before disbursing the funds was not countered or controverted by any of the parties to the proceedings. It is also argued in the brief that there was no proof of service filed by the said order on the appellant either by way of oral testimony of the court’s bailiff or by an affidavit of service filed by the said bailiff.
Even the enrolled copy of the court’s interim order was not tendered in court nor was any of the parties to the proceedings served with it prior to the hearing of the substantive garnishee proceedings on 1/11/95. Thus, it is stated in the brief, the lower court was in error in presuming and holding that the order was ‘drawn up and served on all’ see page 27 of the record. On the importance of service of court’s processes on the parties to a judicial proceeding, the brief cites, Alli v. University of Ibadan (1992) 5 NWLR (Pt.240) 217 at 226; United Nigeria Press Ltd. and 6 Ors. v. Adebanjo (1969) 1 All NLR 431; Skenconsult Nigeria Limited v. Ukey (1981) 1 SC 6, NSCC 1; Abu v. Alele-Williams (1992) 5 NWLR (Pt.241) 340 at 349; Carribean Trading & Fidelity Corporation v. N.N.P.C. (1992) 7 NWLR (Pt. 252) 161 at 184; and Mayegun v. Ademola (1987) 4 NWLR (Pt.64) 236.
In further submission, the brief states that the lower court made a serious mistake when it held in its ruling (at P. 27 of the record) that Mr. Seyi Sowemimo appeared on 25/5/95 to represent the appellant. It is indicated in the brief that Mr. Sowemimo in fact appeared on 25/5/95 to represent the 12th respondent (i.e. Foods Oils (Nig.) Ltd.) which was the 1st defendant/respondent at the lower Court instead of the appellant and throughout the proceeding in the lower court and in this court, the counsel has been representing the 12th respondent. The lower Court’s ruling was therefore misconceived (see pages 14 and 15 of the record cited in support of the argument). Thus, the lower court was only speculating when it held that the garnishee (the appellant) had notice of the order or proceedings through its counsel Mr. Sowemimo. The brief cites State v. Aibangbee (1988) 3 NWLR (pt.84) 548 at 577 in which the Supreme Court frowned at and condemned such speculation by the trial Court which is neither borne by the record nor supported by evidence (per Eze, J.S.C.). See also Musa v. Ehidiamen (1994) 3 NWLR (Pt.334) 544 at 567; Seismograph v. Ogbeni (1976)4 SC 85 and Tijani v. C.O.P. (1994) 3 NWLR (Pt.335) 692 at 703 cited in the brief in support of the submission. Thus, it is submitted in the brief that contrary to what the lower court concluded, the appellant was neither served with the interim order nor represented by a counsel either before or on 30/5/95 before the disbursement of the funds in its custody on 29/5/95.
On the effective date of the interim order the appellant’s brief points out that the said order though made on 30/5/95 was made to take retrospective effect from 25/5/95. This is said to be unknown to law and contrary to the principle in the maxim lex nemini facit injuriam- the law works injustice to no one – See Afolabi v. Govt. of Oyo State (1985) 2 NWLR (Pt.9) 734; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 at 391 both cited in the brief in support of the assertion. It is submitted finally that the Supreme Court in both cases frowned at and condemned the court or legislature making an order or law with retrospective effect as that will cause injustice to the persons affected. We are finally urged in the brief under issue No. 1 to allow the appeal and hold that the garnishee order absolute made by the lower court was erroneous both in law and in fact.
As stated earlier, it is only the 12th respondent who filed a brief in this appeal. Other respondents (i.e 1st- 11th, and 13th-14th have not filed any brief. In the said 12th respondent’s brief the three (3) issues formulated by the appellant are adopted. The facts of the case as recited in the appellant’s brief are also adopted in the 12th respondent’s brief which emphasizes the fact that neither the appellant nor the 12th respondent were served with the ex-parte application or the interim order of 25/5/95 prior to the disbursement of the funds. The brief only argues or addresses the 1st issue in which it is maintained that the 12th respondent (or its counsel) was not aware of the garnishee order in respect of its account under the custody of the appellant. It is reiterated in the brief that the ex-parte application was mentioned in the lower court on 25/5/95 while the order nisi was made on 30/5/95. Meanwhile, the disbursement of the fund proposed to be garnisheed was made on 29/5/95. Thus there was nothing before the lower Court to show that the respondent’s counsel was aware of the terms of the ex-parte application. The 12th respondent’s Counsel also never announced his appearance at the lower court for the appellant (i.e Habib Nigeria Bank Ltd.) on 25/5/95 or any subsequent date- the brief emphasised. It is submitted that in garnishee proceedings it is only after the service of the order nisi that the garnishee can be imputed with the knowledge or notice of the proceedings. See the Supreme Court Practice of England 1988 Edition Vol. 1, Notes at 49/3/1 at pages 745 -746 cited in the brief where the learned authors are quoted in a long passage in the brief. See also Giles v. Hamer 11 Ch.D 942; Holt v. Heatherfield Trust Ltd. (1942) 2 KB 1; Hirsch v. Coates (1856) 28 U Cp 315 (139 ER/568); The English & Empire Digest Vol. 21 page 732; and Glegg v. Bromley (1912) 3 KB 474 cited in the brief in support of the contention that an order nisi does not create a charge or an attachment until it is served on the garnishee and that solicitors are entitled to their costs or charges in priority to the claim of the creditor under the garnishee order. It is thus argued in the brief there that was no basis in the present case upon which the learned trial Judge could impute knowledge or service of the order nisi without proof of its actual service on the 12th respondent or the appellant prior to the disbursement of the fund. The order made by the learned trial Judge on 30/5/95 to have a retrospective effect from 25/5/95 is also described in the brief as most invidious.
The 12th respondent’s brief adopts and abides by the appellant’s submissions under the other two (2) issues as formulated in the appellant’s brief. It adds that it was most invidious for the learned trial Judge to visit a criminal liability on or apply criminal sanction on persons who were not parties and not represented in the garnishee proceedings. The said persons, it is pointed out in the brief, were not given an opportunity to be heard or represented by counsel before their conviction and the sanctions imposed on them by the trial Court. We are finally urged in the 12th respondent’s brief to allow the appeal and to reverse the orders made by the lower court.
From the above submissions in the two briefs under the 1st issue, the first and crucial question (or point) to determine is whether the appellant in the present appeal (which was the garnishee in the lower court) was aware of or had notice or knowledge of the interim order made by the said lower court on 30/5/95. In answering this question, we have to look at the record and recall the circumstances in which the order was made. Before the said order was made by the lower court, there was a motion ex-parte dated 12/5/95 for an order of garnishee nisi. The motion (or application) was brought on behalf of 1st-11th respondents herein against the 12th-14th respondents as judgment debtors (respondents and the appellant as Garnishee (see the motion paper at page II of the record). The ex-parte motion came up for hearing on 25/5/95 and when one Mr. Sowemimo announced his appearance with Mr. Okon Umoh for the 1st defendant (i.e. the 12th respondent herein), the learned counsel for the judgment creditor/applicant Mr. Yinka Muyiwa objected vehemently to the appearance of the said Mr. Sowemimo. The court then recorded the submission or arguments of both counsel as to the validity or right of the 1st respondent’s counsel to appear at the hearing of the motion ex-parte and then adjourned the case to 30/5/95 for “consideration.” By looking at the proceedings of that day (i.e. 25/5/95), the appellant’s name was not even indicated or shown. Thus, going by the record (at p.14 thereof) the appellant (or the “garnishee”) was not a party in the proceedings of 25/5/95 and the affair was solely between the judgment creditor as plaintiff and the three judgment debtors as defendants. In the same way, the same parties are also shown in the proceedings of 30/5/95. The only little difference is that the 2nd and 3rd judgment debtors/defendants are shown to be the receivers/managers to the 1st defendant (see page 15 of the record). Consequently, in my view, the garnishee/appellant though its name appeared in the motion paper was not shown to be one of the parties in both the proceedings of 25/5/95 and 30/5/95 when the interim order (or order nisi) was made by the lower court. In view of this, I agree with the submission that since the appellant was not represented by anybody at the said proceedings, it cannot be said to be aware of or to have notice or knowledge of the order of the court both interim and nisi which was made 30/5/95. This is more so when the motion/application that resulted into the making of that order was ex-parte. I also agree (and as reflected in the printed record) that Mr. Sowemimo did not represent the appellant in the lower court. The view or holding of the learned trial Judge that he did represent the said appellant was therefore misconceived as a mere confusion or misapprehension. It is to be noted that when the interim order was made by the lower court on 30/5/95, it is indicated therein that the enrolled order would be drawn and served on all the parties concerned. This is in appreciation and confirmation that it was made pursuant to an ex-parte motion and the respondents and the garnishee did not have either actual or constructive notice or knowledge thereof. The enrolled order was drawn on the following day 31/5/95. There is nothing throughout the record of proceedings to show when the said order was actually served on the respondents and the garnishee (i.e. the appellant). Under the circumstances, the lower court should have accepted the fact averred or deposed to in the garnishee’s affidavit to show cause (paragraph 3(j) thereof) which was not controverted to the effect that the payment from the amount attached by the interim order had taken place on 29/5/95 before the interim order or the garnishee order nisi was actually made and served on the garnishee/appellant on 4/8/95. It is an elementary principle of law that facts contained in an affidavit form part of documentary evidence before the court and where an affidavit is filed deposing to certain facts and the other party does not file a counter- affidavit or a reply to counter-affidavit, as the case may be, the facts deposed to in the said affidavit would be deemed as unchallenged, uncontroverted or undisputed and therefore admitted and the court can rely on such admitted facts in resolving the issue- See Alagbe v. Abimbola (1978) 2 SC 39; Agbaje v. Ibru Sea Foods Limited (1972) 5 SC 50; National Bank of Nigeria Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 SC 97; Egbuna v. Egbuna (1989) 2 NWLR (Pt.1 06) 773 and Orient Bank (Nig.) Plc. v. Bilante International Ltd. (1996) 5 NWLR (pt.447) 166 at 180.
On the service of the interim order (or the order nisi) on both the appellant and the 12th respondent, I am of the firm view that apart from the uncontroverted fact deposed to in the affidavit of the garnishee to show cause in which it stated that it was not served with the said order until 4/8/95, the prescribed manner or way of showing proof of service of writ or other court processes as provided by the Rules of court is by tendering of an affidavit of service duly sworn to be the person affecting the service. Where it was effected by an officer of the Court (e.g. a Sheriff, a deputy Sheriff or a bailiff) such can be proved by a certificate of service or by an affidavit of service.
Service of process of the court on the person affected or to be affected is very fundamental to any judicial proceedings as the non-service or failure of service of such processes have been held in numerous decided cases to be a fundamental vice which is capable of robbing the court of its jurisdiction over the party who was not served with the said process – see Skenconsult (Nig.) Ltd & Anor v. Godwin Sekoudy Ukey (supra); Madukolu & Ors. v. Nkemdilim (1962)2 SCNLR 341,(1962) 1 All NLR 587 at 595 and Schroder v. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 1 at 20; Mark v. Eke (1997) 11 NWLR (pt.529) 501; and Unipetrol (Nig.) Ltd v. Bukar (1997) 2 NWLR (Pt.488) 472.
I therefore agree with the appellant’s submission that the appellant and 12th respondent being companies under the Companies and Allied Matters Decree the minimum statutory requirement of service on them was not complied with by leaving the order at their registered office (i.e. their head offices) – see Palm Beach Insurance v. Bruhns (1997) 9 NWLR (Pt. 519) 80; N.N.P.C. v. Elumah (1997) 3 NWLR (pt.492) 195; Texaco (Nig.) Plc v. Lukaka (1997) 6 NWLR (pt.5 10)651; and Odu’a Investment Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1; S.78 of Companies & Allied Matters Act, 1990; Orders X, rr. 1, 3 & 8; XIX r.1(a) Federal High Court (Civil Procedure) Rules. Since there was no proof of service of the interim order on the appellant and the 12th respondent, it was very wrong of the trial Judge to speculate as he did and to impute notice or knowledge of the said order on them or to punish them as he did in his order absolute. The learned trial Judge should have accepted the facts on the service of the said order as deposed to in their affidavit. Thus he should have accepted the fact that they (or at least the appellant) was not aware of the order which was not served on it as at 29/5/95 when it disbursed the fund the subject of the garnishee proceedings. It is pertinent here to comment on the way the learned trial Judge backdated his order made on 30/5/95 but to take effect retrospectively from 25/5/95. This amounts to a grossly irregular and highly ridiculous order which has no precedent or basis under our adversary system of adjudication. Even in England, the court can only antedate or post-date its judgment or order under exceptional circumstances and “on some good grounds” – See the Supreme Court Practice (1985 Ed.) Vol. 1 p.633 paragraph 42/3/3; Borthwick v. The Eldersele & Co. Ltd (1905) 2 KB 516; Belgian Crains etc. CO. Ltd. v. Cox & Co. (France) Ltd.(1919) WN 317 and Corel Mathews & Partners v. French Wools (1978) 1 WLR 1477; (1978) 2 All ER 800. In any case, we are not bound by the above English decisions and rules of Court which are only of persuasive relevance to us. In the present case, the reason given by the learned trial Judge for making his interim order to take retrospective effect was based on the wrong assumption that Mr. Sowemimo (12th respondent’s counsel) who applied to be allowed to appear in the case was representing the appellant. This assumption of the learned trial Judge has been proved wrong. On the contrary, the garnishee/appellant was never put on notice of the garnishee proceeding before 4/8/95 (as we have seen from the record). Even the 12th respondent’s counsel who happened to be in the court on the 25/5/95 and applied to be allowed to appear on behalf of his client was not allowed to do so and he or the client were not served with the motion paper (which was ex-parte) before the date (i.e. 25/5/95 and 30/5/95 when the interim order was pronounced. Thus, there was no good cause or exceptional circumstance warranting the retrospective order made by the learned trial Judge and he had no jurisdiction over the appellant and the 12th respondent (because of non-service of the motion paper on them) when he made the interim order of 30/5/95.
From my above consideration of issue No.1 of the appellant’s brief (as conceded to by the 12th respondent) the issue as framed must be answered in the negative and together with its corresponding ground of appeal (ground 2) be resolved in favour of the appellant and I accordingly so resolve them.
Under issue No.2, the appellant submits in its brief that the garnishee order absolute as it was framed by the lower court was incapable of compliance or execution by the court especially in relation to or as it affected the appellant. The order which is at page 31 of the record is reproduced in the appellant’s brief. The order directed that the amount of N1.9m said to be paid to Messrs Paul Usoro from the two accounts earlier attached by an interim order of 30/5/95 to take effect from 25/5/95 should be returned to the two accounts within 6 days and payment of judgment creditors N2.7m together with interest etc. be made from the said accounts.
It is pointed out in the appellant’s brief that the acknowledged amount outstanding in the two accounts as at 28/5/95 was N1,987,505.01 out of which N1,984,216.00 was paid to Messrs Paul Usoro & Co. on 29/5/95. It is argued that the facts as acknowledged and deposed to in the appellant’s affidavit was not controverted by the adverse party in the proceedings. Such an uncontroverted fact which has not been countered by the adverse party must be taken by the court as established- See: Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266 at 282-283; Jibrin v. Eje (1992) 7 NWLR (Pt.255) 631 at 636; Odogwu v. Odogwu (1992) 7 NWLR (Pt.253) 344 at 355; and Steel Bell (Nig.) Ltd. v Govt. of Cross River State (1996) 3 NWLR (Pt. 438) 571 at 584 cited in the brief in support of the proposition. I have to point out however that, I have dealt with a similar proposition under and when dealing with issue No. 1 above wherein I upheld the appellant’s submission. I will not hesitate to take the same measure or posture on the similar proposition under the 2nd issue without unnecessary repetition.
The appellant’s brief points out further that under the circumstances and the facts as averred in the appellant’s affidavit, it was impossible to comply with or carry out the garnishee order absolute made by the lower court as reproduced in the brief. It is submitted that the law does not compel the doing of impossibilities or, in other words, the court does not make an order in vain – lex non cogit ad impossibilia – see Nigerian National Supply Co. Ltd. v. Hamajoda Sabana & Co. Ltd. & 2 Ors. (1988) 2 NWLR (Pt.74) 23 cited in the brief in support of the submission and it is also stated that the facts and circumstances of that case are the same and on all fours with those in the present case. Thus, it is emphasised in the brief that the amount ordered by the court to be paid by the appellant was higher than the credit balance in the garnisheed account. This is moreso when the interests on the principal sum of the judgment debt (also ordered to be paid from) the same accounts) is considered – the brief indicates. It is also pointed out that what made the judgment debt to be too high and impossible to be settled by the judgment debtor or the garnishee (i.e. the appellant and the 12th respondent) was that after securing judgment in the case No. FHC/IB/3/93 on 23/11/94, the learned trial Judge on the application of the 1st respondent’s counsel consolidated the said judgment with other 9 pending cases (i.e. FHC/IB/2 and 4-13/93) which were then not heard. See page 10 of the record of proceedings. It was the various sums in the 9 other cases together with interest that raised the total amount of judgment debt against the 12th respondent to the N2,735,127.37 as claimed by the garnishes (i.e 1st – 11th respondents). It is argued in the brief that the nota bene note of consolidation made in the judgment by the learned trial Judge in which he stated that “this judgment applies to all the consolidated cases mentioned above,” was apart from its being contrary to all legal principles on consolidation of cases, vague and incapable of being complied with. It is not clear whether the same amount was claimed in the other consolidated suits. Thus, it is pointed out that there was high confusion created or caused by the learned trial Judge in his judgment of 3/11/94 which gave rise to the garnishee proceedings in the present case. It is also submitted that the procedure adopted by the learned trial Judge was judicially and structurally wrong apart from its being vague and imprecise – see Union Bank of Nigeria Ltd. & Anor. V. Penny-Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 242; NITEL Ltd. & 2 Ors. v Ogunbiyi (1992) 7 NWLR (pt.255) 543 at 564; and Orhue & Anor v. Edo & Anor. (1996) 9 NWLR (Pt.473) 475 at488 cited in the appellant’s brief in support of the submission. We are finally urged in the brief under the issue to allow the appeal and reverse the garnishee order absolute made by the lower court.
In the 12th respondent’s brief which concentrates and addresses only issue No.1, it expressly stated (in the said brief) that the 12th respondent associates himself and abides by the submissions in the appellant’s brief on the other two issues (i.e. issues 2 and 3). Thus, the appellant’s submissions under the two issues are adopted by the 12th respondent. In the circumstances, and since there is no other brief (or briefs) filed in the case (particularly by the 1st-11 the respondents) the matter has thus been simplified for this court which can determine that appeal on the unchallenged submissions from the briefs med. However, as I stated earlier, I will still consider the merits of the submissions in the two briefs vis-a-vis the respective cases of all the parties (including the 1st -11 the respondents) as presented at the lower court. The main controversy under the 2nd issue is against the ruling of the learned trial Judge on 30/11/99 whereby after considering the garnishee affidavit to show cause and hearing the submissions of counsel representing the parties, he not only made absolute the order nisi but also accused the garnishee and its counsel (Messrs Paul Usoro & Co.) as well as the syndicate or consortium of bankers for fraudulent dealing and theft of the funds in the account involved or attached by an earlier order (order nisi) made by the court. After considering the submissions in the appellant’s brief and scrutinizing the record, I found that there are merits in the said submissions.
In the first place, when we consider the judgment which gave rise to the garnishee proceedings the order of consolidation of the judgment obtained in one case which was made to apply (or inure) to all the other 9 cases consolidated was most irregular and a blatant derogation or breach of the principles of justice. The law only knows and recognises consolidation of suits or cases but does not recognize or accept “consolidation of judgments.” Thus, at the stage when case No. FHC/IB/3/93 was concluded and judgment given, it was too late for the plaintiffs’ counsel to apply for consolidation of that judgment with all the 9 other pending suits which were not heard. The learned counsel should have applied more timeously for the consolidation of all the suits before the judgment obtained in one. An order of consolidation of suits is one made for convenience and is aimed at reducing or saving costs and time. Consolidation of cases or suits, like all other legal steps is not granted as a matter of course but is regulated by principles.
One very important principle on consolidation is that even though the suits are consolidated they still retain their separate identities so that each of the consolidated suit, is considered on its merit and the suits consolidated do not wear a single garment but rather they wear their original or individual garments. The advantage of consolidation of separate actions is to save costs of litigation but not to be used as a subterfuge for denial of fair hearing to either or both of the parties to the consolidated cases as was done in the present case. See: Obiekweife v. Unumma (1957) 2 SCNLR 331; Atta v. Nnacho (1964) 1 All NLR 313; Delta Steel Company Ltd. v. Owners of the Ship Adetya Prabha (1991) 3 NWLR (Pt. 179) 369; Enigwe v.Akaigwe (1992) 2 NWLR (Pt.225) 505; Dugbo v. Kporoaro (1958) SCNLR 73; Nwidenyi v. Aleke (1996) 4 NWLR (Pt.442) 349 at 358 – 59 and 360.
Thus the order of the learned trial Judge in the present case that the judgment in one case should inure to other nine (9) case at the stage it was made (i.e. after judgment) was a serious error which led to a miscarriage of justice as it prevented the consolidated suits from being considered on their merits.
The second point with which I also agree fully with the learned Counsel for the appellant is that the order made by the learned trial Judge was vague, ambiguous and incapable of being carried out or executed. How can it be ordered that above two million Naira (i.e N2,735,505.01) be paid out of just about one Million Naira (precisely N1,984,216.00)?. This is practically impossible. I agree that it was like the situation in U.B.N Ltd. v. Penny-Mart Ltd. (supra). Because of the additional interest ordered, the total amount payable by the defendant/judgment creditors were not exact or clear. As such the order to pay the principal judgment debt and the interest which was or were not determined was too vague, confusing and did not put a final and to the proceedings. Such a judgment cannot be sustained in law and cannot be upheld by the court.- See also NITEL V. Ogunbiyi (supra) where this court held that judgment or order of court must be made with reasonable clarity leaving no room for doubt or conjecture.
It may also be observed that the order absolute made by the lower court was misconceived because it sought to attach the funds realised for the sale of the 12th respondent’s properties under a receivership process. To that extent, the amount realised from such sale under a receivership is not attachable because it was not the property of the 12th respondent. Rather, it was the property of the syndicate or consortium of bankers (including the appellant) who had earlier loaned money to the 12th respondent. It is trite that a judgment creditor cannot levy execution against the properties of the judgment debtor which are already under receivership – see: Krans v. Bright Oridami (unrep.) but reported in Digest of Supreme Court cases 1956 – 84 Vol.9 pages 474; Lancaster Motor Co. (London) Ltd.v. Bremith Ltd. (1941) 1KB 675, Spence v. Coleman (1901) 2 KB 199.
Furthermore, the amount under the account had been exhausted by payment to the legal firm of Messrs Paul Usoro for their legal services to the consortium of bankers prior to the service of order nisi on the appellant. Even if the fees were not paid prior to the service, they could still be paid as such fees are not attachable by a garnishee order – see Wells v. Wells (1914) P. 147 and paragraph 49/1/29 of the English Supreme Court Practice Rules 1985 P.706.
In view of my above considerations of issue No.2 of the appellant’s brief, the said issue together with its relevant ground of appeal (ground 1 of the additional grounds) must be resolved in favour of the appellant. Consequently, I hereby answer the said issue in the negative and resolve it with the ground of appeal to which it relates in favour of the appellant.
Under the third issue, the appellant’s quarrel is against the trial Court’s pronouncement on an alleged criminal liability of the appellant, the consortium of banks and the appellant’s solicitor Messrs Paul Usoro & Co. as contained in its ruling at pages 30-31 of the record. The trial Court after making the pronouncement proceeded to impose criminal sanctions on all those indicted (or convicted) in the pronouncement. The relevant passage is quoted in the brief (in extenso) – and it is submitted that the ruling and the order as well as the finding of criminal liability against the parties concerned was not only erroneous in both law and facts but also unconstitutional. It is pointed out that the judgment creditors did not pray or ask the court for the orders. The 1st – 11 respondents/judgment creditor’s counsel merely asked for the garnishee order nisi to be made absolute in order for them to get their money. Thus, the learned trial Judge made an order that was not prayed for and was contrary to the principle as established in a plethora of cases including Akapo v. Hakeem-Habeeb (1992) 6 NWLR (pt.24 7) 266 at 297; Ekpenyong & 3 Ors v. Nyong & 6 Ors, (1975) 2 SC 71; Baerthle & Co. Ltd.v. Lima Services Ltd. (1992) 1 NWLR (pt.217) 273 at 277; Union Bank of Nigeria Ltd. v. Penny-Mart Ltd. (supra) at p; and Secretary, Two Local Government v. Adigun (1992) 6 NWLR H (Pt.250) 723 at 748 -749 cited in the brief in support of the submission. It is also argued that in making the order and convicting the appellant and other persons without affording them a hearing the learned trial Judge violated their rights to fair hearing as enshrined and guaranteed in section 33(1) (5) and (6) of the Constitution of the Federal Republic of Nigeria (as amended) 1979 which was then in operation-see State v Onagoruwa (1992) 2 NWLR (Pt.221) 33 at 56- 57; Akapo v. Hakeem-Habeeb (supra); Union Bank of Nigeria Ltd. v. Penny-Mart Ltd. (supra at p.242 of the report); and Bakare v. Lagos State Civil Service Commission & Anor (1992) 3 NWLR (Pt.262) 641 cited in the brief in support of the argument. It is pointed out on the point that apart from the trial Court’s failure to afford a hearing to the affected parties, the consortium of banks was neither a party nor represented in the garnishee proceeding when the orders were made. Thus, the learned trial Judge was said in the brief to be the accuser, the prosecutor and the Judge all at the same time and he thereby violated the twin principles of fair hearing audi alteram partem and nemo judex in causa sua. It is pointed out that there was no contempt proceeding before the said learned trial Judge as the affected parties were not served with any notice to that effect – see Bonnie v. Gold (1996) 8 NWLR (Pt.465) 230 at 237; and Anakwenze v. Tapp Industry Ltd. (1991) 7 NWLR (Pt.202) 177 at 205 -206 cited in support of the contention. The brief finally concludes by urging us to answer issue No.3 in the negative and to resolve it in favour of the appellant while allowing the appeal under the said issue.
On careful consideration of the above submissions in the appellant’s brief under issue No.3 which are not controverted but are rather supported or conceded to in the 12th respondent’s brief I am inclined to accept and endorse the said submissions. It is to be noted that the pronouncement of the learned trial Judge against the appellant, the consortium of banks and the appellant’s solicitor was bordered on criminal allegation because of the use of the words ‘fraudulent’ and ‘stealing’. The law is well settled that whenever there is allegation of crime(s) in a civil proceedings such is required to be proved beyond reasonable doubt as provided for in section 138 of the Evidence Act (Cap. 112) Laws of the Federation of Nigeria, 1990 – see Ikwuka v. Anachuna (1996) 1 NWLR (Pt. 424) 355 at 365; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499; Gbafe v. Gbafe (1996) 6 NWLR (Pt.455) 417; Tor Tiv v. Wombo (1996) 9 NWLR (Pt.471) 161; and Oruboko v. Onuene (1996) 7 NWLR (Pt. 462) 555.
I also accept the submission of the appellant (in the brief) that apart from there being no proof whatsoever, the parties concerned were convicted by the trial Judge without being afforded an opportunity of being heard. This is contrary to the rules of natural justice of fair hearing as enshrined in section 33 of the 1997 Constitution. In the instant case, the order of the learned trial Judge was made in breach of the twin pillars of the rule of natural justice and fair hearing namely audi alteram partem and nemo judex in causa sua. The learned trial Judge did not only deny the affected parties of their right to be heard on the allegations of criminal conduct against them but he also acted as a judge in his own cause – i.e. in the words used in the brief as an accuser, the prosecutor and the Judge. From the definition of fair hearing and or fair trial- see Mohammed v. Kano NA (1968) 1 All NLR 424 (per Ademola, CJN); McCarthy Ex Parte Rex v. Sussex Justices (1924) 1 KB 256 (per Lord Howart CJ); Udemah v. Nigerian Coal Corporation (1991) 3 NWLR (Pt. 180) 477 at 490; Agwuna III v. Isiadinso (1996) 5 NWLR (Pt.451) 705 at 719 and Abingbe v. R.T.A.C. (1992) 5 NWLR (Pt.241) 366 at 382. In Mohammed v. Kano NA (supra) the test for fair hearing is set as an objective one based on the opinion or impression of a reasonable person who was present during the proceeding in question. It was also held in that and subsequent cases as cited above that where the court (or a trial Judge) fails to provide an accused person or his counsel an opportunity to be heard and instead took over the conduct of the case itself (or himself) that was a denial of fair hearing – see Obodo v. Olowu (supra) and Abingbe v. R.T.A. C. (supra). In the instant case, the learned trial Judge did not only fail to afford the affected parties with the opportunity of being heard, he also made an order against the consortium of banks who were not parties before him. To that extent and since he had no jurisdiction to do so the said orders amounted only to a nullity – see: Adigun v. Attorney – General, Oyo State (1987) 1 NWLR (Pt.53) 678; Okafor v. Attorney – General, Anambra State (1991) 6 NWLR (Pt.200) 659 and Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt. 448) 255 at 266 – 267. Another serious anomaly of the orders made by the learned trial Judge is that as rightly stated in the appellant’s brief, the orders were not asked for or prayed by any of the parties before him. Neither was there any contempt proceedings or a criminal charge pending in the trial Court against the affected parties. To say the least, the approach of the learned trial Judge in making the unilateral orders complained of was very highly condescending and unbecoming of a judicial officer who should be seen and behave as an impartial arbiter in the proceedings before him and in his treatment of the parties therefor. I am of the view that the conduct or attitude of the learned trial Judge was a derogation of the fundamental right of fair hearing and a breach of the principles of natural justice against the parties or persons convicted or indicted in the offensive ruling. It was also an outright truncation of legal norms and the due process of law- see section 33 of the 1979 Constitution under which the case was decided and the said ruling delivered. Thus, the approach or steps of the learned trial Judge in the whole proceedings if measured under the objective test of fair hearing or fair trial as stated above will amount to a mistrial and was therefore nothing but a nullity. It is aptly caught by and falls within the purview of the remark or dictum of Aniagolu, J.S.C. in Edun v. Odan Community (1980) 8-11 SC 103 at 127 -128 as follows:
“The court of last resort will indeed do justice but must do the justice by procedures laid down by the law and the Constitution. The moment a court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular court to become a kangaroo Court ”
– See also Rabiu v. State (1980) 8-11 SC 130 at 232 (per Obaseki, J.S.C.) on the need for our courts to observe the rule of law in their decisions and to do justice in the cases before them.
On the basis of my above consideration of issue No.3, the said issue as framed in the appellant’s brief must also be answered in the negative and its relevant grounds of appeal (i.e. grounds 3 and 4 of the additional grounds) must be resolved in favour of the appellant. I hereby unhesitatingly so resolve them.
Finally, with all the three issues in the appeal resolved in favour of the appellant, the appeal has consequently succeeded and it is hereby allowed by me. The ruling of the lower court (Federal High Court sitting at Ibadan) delivered on 30/11/95 in which inter alia, the garnishee order nisi was made absolute is hereby set aside. The appellant and other parties affected by the said ruling (or orders therein) are hereby discharged and acquitted from the conviction or indictment for the offences of fraud and theft and the sanctions applied therefore by the lower court against them in the said ruling. I assess the costs of this appeal at N5,000.00 which I hereby award in favour of the appellant against the 1st – 11th respondents.
Other Citations: (2000)LCN/0718(CA)
