Jenkins Duvie Giane Gwede V. Delta State House Of Assembly & Anor (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Abuja, delivered on 10th May, 2018 wherein the lower Court set aside the judgment of the Federal High Court dated 8th June, 2016. The trial Federal High Court had made the garnishee order nisi absolute against the 2nd Respondent which at the material time was alleged to be in custody of the 1st Respondent’s funds. A synopsis of the facts giving birth to this appeal will be quite illuminating.

The Supreme Court of Nigeria had in its judgment delivered in Appeal No. SC.255/2013 between JENKINS GIANE DUVIE GWEDE VS (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2) EDOJA RUFUS AKPODIETE (3) JULIUS OGHENEVWEGBA BOBI (4) DEMOCRATIC PEOPLES PARTY (DPP) delivered on 24th day of October, 2014 by my Noble Lord ONNOGHEN, JSC (now Chief justice of Nigeria) entered judgment in favour of Appellant in that case as follows:-

In consequence, I enter judgment in favour of appellant in the following terms:-

1. Appellant, JENKINS GIANE DUVIE GWEDE is hereby declared to be the duly nominated candidate by

substitution of the 4th Respondent for the election in respect of Ugelli North Constituency II of the Delta State House of Assembly and is entitled to be issued with a certificate of return in respect of same.

2. The 1st Respondent is hereby ordered to issue the said appellant with a certificate of return in respect of the State House of Assembly election held on 26th April, 2011, forthwith.
3. The 2nd Respondent EDOJA RUFUS AKPODIETE is hereby ordered to vacate the seat of Ughelli North Constituency II in the Delia State House of Assembly forthwith.
4. It is further ordered that the said 2nd respondent: EDOJA RUFUS AKPODIETE refunds to the coffers of the Delta State House of Assembly all moneys/sums of money he collected by way of salary, allowances whatsoever and however described since he took his seat in the said House of Assembly under the pre of being the duly elected candidate of the 4th respondent representing Ughelli North constituency II, within ninety (90) days of this order.

I award the sum of 150,000,000 costs at the High Court; 100,000 in the Court below and 500,000,000 in this Court in favour of Appellant and

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against the 1st and 2nd Respondents each.

Appeal and Cross Appeal of 4th Respondent allowed, cross appeals of 1st and 2nd Respondents dismissed.”

The Appellant thereafter went back to the apex Court seeking to vary and/or correct the consequential Orders made by the apex Court in the judgment delivered on 24th October, 2014. The Order of the apex Court on the Appellant’s application to it made on 26th day of October, 2015 reads in full as follows:-

“HOLDEN AT ABUJA

Appeal No: CA/B/237/2012

JUSTICES:

Hon. Justice Walter Samuel Nkanu Onnoghen, JSC

Hon. Justice Nwali Sylvester Ngwuta, JSC

Hon. Justice Mary Ukaego Peter-Odili, JSC

Hon. Justice Olukayode Ariwoola, JSC

Hon. Justice Musa Dattijo Muhammad, JSC

Application for an order, of this Honourable Court to vary and/or correct the Consequential Orders as contained in the judgment of this Honourable Court delivered on 24th October, 2014 by directing the Delta State House of Assembly/Government to pay over to the Appellant/Applicant all the Salaries and Allowances and all other perquisites of office meant for the Occupant of the seat of

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Ugelli North Constituency II, in the Delta State House of Assembly, from June, 2011 till October, 2014 when this Honourable Court delivered its judgment in the substantive appeal so as to give effect to its meaning or intention.

BETWEEN

JENKINS GIANE DUVIE GWEDE APPELLANT/APPLICANT

AND

1. Independent National Electoral Commission (INEC)
2. Edoja Rufus Akpodiete . RESPONDENTS
3. Julius Oghenevgba Bobi
4. Democratic People Party (DPP)

Monday, the 26th day of October, 2015.

UPON READING the application herein and the Affidavit of Jenkins Gianc Duvie Gwede, sworn to and filed on the 6th day of July, 2015 and after hearing from Joe Agi, SAN, (O. F. Akengba Esquire and K. E. A. Akonjom Esquire with him) of counsel for the Applicant, Prof. A. A. Utuama SAN, (Ayo Asala Esquire with him) of counsel for the 2nd Respondent, Georgina Ude Esquire of counsel for 4th Respondent. No appearance for 3rd respondent.

IT IS ORDERED:

1. that the application be and is hereby

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granted by varying the consequential orders made in the judgment of this Court in SC. 255/2013 delivered on 24th October, 2014 the sum of money so refunded by the 2nd respondent; EDOJA RUFUS AKPODIETE to the Delta State House of Assembly shall be paid to the Appellant/Applicant JENKINS GIANE DUVIE GWEDE as salaries, allowances e.t.c. from June, 2011 till October, 2014, and

2. that there shall be costs of two hundred thousand (N200,000.00) against 2nd Respondent in favour of the Applicant.

SGN

CHIEF REGISTRAR.”

In order to enforce the judgment entered in his favour by the Supreme Court of Nigeria, the Appellant approached the Federal High Court Abuja Division vide a Motion Ex Parte filed on 23rd February, 2016 for Garnishee Order Nisi to attach the 1st Respondent’s money/funds in GUARANTY TRUST BANK PLC to satisfy the sum of N490,803,002 which the Appellant believed comprised the salaries and allowances collected by EDOJA RUFUS AKPODIETE from 1st Respondent while purporting to represent UGHELLI NORTH CONSTITUENCY II in the Delta State House of Assembly. The Order NISI was granted against the GUARANTY TRUST BANK on 7th March, 2016. The 1st

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Respondent was taken to be the Judgment Debtor to the Appellant in the said application. On 14th day of June, 2016 the learned trial Judge (Hon. Justice A. F. A. ADEMOLA RTD) made the Garnishee Order Absolute in the sum of N83,256,648.71 (Eighty Three Million, Two Hundred and Fifty-Six Thousand, Six Hundred and Forty-Eight Naira, Seventy-One Kobo) attaching same from the custody of the Guaranty Trust Bank Plc.

Again by another MOTION EX-PARTE dated 2nd day of June, 2016 and filed on 3rd June, 2016 pursuant to Section 83 of the Sheriffs and Civil Process Act, the Appellant proceeded to garnishee the monies of the 1st Respondent in the Skye Bank Plc. The Order prayed for in the said Motion Ex-Parte states as follows:-

“TAKE NOTICE that this Honourable Court will be moved on the – day of 2016 (sic) at 9 O’clock in the forenoon or so soon thereafter as Applicant or counsel on his behalf may be heard praying the Court for the following reliefs:-

A GARNISHEE ORDER NISI directing the Garnishee to attach all monies accruing and belonging to the Judgment Debtor/Respondent held by it in Accounts Number 4030013512 & 1771088456 the name of clerk,(sic)

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Delta State House of Assembly in its custody for the purpose of satisfying the Judgment debt of N490,803.002 (Four Hundred and Ninety Million, Eight Hundred and Three Thousand and Two Naira) only.

AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.

TAKE FURTHER NOTICE that the Grounds upon which this application is brought are:-

i. That the Supreme Court of Nigeria entered Judgment against the Judgment Debtor on the 24th October, 2014.

ii. that the Supreme Court clarified the terms of the judgment on the 26th October 2015.

iii. That by virtue of Section 287(1) of the 1999 Constitution (as amended) this Court is enjoined to enforce decisions of the Supreme Court.

iv. That the Judgment of the Supreme Court has remained unsatisfied AND TAKE FURTHER NOTICE that the Judgment Creditor/Applicant shall at the hearing of this Motion seek the leave of Court to and shall rely on all the Processes and Exhibits filed along in this proceedings.”

The said Federal High Court granted Decree NISI against the SKYE BANK PLC on the same 3rd day of June, 2016 and directed the said Garnishee

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SKYE BANK PLC to appear on 17th June, 2016 to show cause why the Garnishee Order NISI should not be made absolute.

The 1st Respondent challenged the jurisdiction of the Federal High Court to further embark on adjudicating on Garnishee proceedings against the monies of the 1st Respondent.

The Notice of Preliminary Objection challenging the trial Court’s jurisdiction is as follows:-

“NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE that the Delta State House of Assembly shall, at or before the hearing of this suit or any applications filed herein, raise a Preliminary Objection concerning to the jurisdiction of this Honourable Court to entertain this suit and shall urge this Honourable Court to strike out the suit in its entirety.

TAKE FURTHER NOTICE that the grounds for this objection are:

The Honourable Court lacked jurisdiction to entertain the application for Garnishee Order Nisi. It is therefore, liable to be struck out.

The alleged judgment debt has been calculated unilaterally and is not in accordance with the judgment of the Supreme Court in SC. 255/2013 Jenkins Giane Duvie Gwede v. INEC & 3 Ors. It therefore, amounts

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to a variation of the said judgment.

The proper parties are not before this Honourable Court, contrary to Section 83(1) and (2) of the Sheriffs and Civil Process Act Cap 56 Law of the Federation of Nigeria, 2004.

As it concerns the proceedings in this suit No.FHC/ABJ/CS/158/16, this Honourable Court become functus officio on the 14th day of June, 2016.”

After the adoption of addresses of learned counsel on all application, the learned trial Judge gave a considered Ruling on 8th day of July, 2016 and found against the Appellant as follows:-

“The final point was that since the suit number in the previous Garnishee proceeding is the same with the second one, this Court lacked the jurisdiction to hear the garnishee order proceeding.

Let me say away (sic) that garnishee proceeding is one of the numerous ways of enforcing a judgment. It is not one of the methods of commencing an action. What I am doing is the enforcement of the Supreme Court Judgment. Where the sum enforced is less than the amount due, will the Judgment creditor not have a right to continue with the enforcement This is not a fresh action to determine a right but

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enforcement of a decision already given.

I agree with the submission of the Learned Senior Counsel that just like the bailiff of a Court can continue to execute a judgment where the sum attached is less than the Judgment sum, so also can the Court through Garnishee proceedings issue for a specific sum, if it is insufficient to meet the debt, the Judgment Creditor can proceed against any other Garnishee who is keeping the Judgment Debtors money. I have read the case of ODUMOSU V. OLUWOLE (2004) FWLR (pt. 191) 1487 cited by the Judgment debtor and I rely on it and particularly the Latin Maxim “NEMO DEBT BIS VEXARI PRO CADEM CA USA meaning – no one should be sued twice on the same cause, on the same facts if there has been a final decision of a competent Court.”

That case of ODUMOSU is about final determination of the matter and not when some issues are still pending. In the circumstances, I hold that I have jurisdiction and do hereby in the face of the affidavit to show cause sworn to by the Garnishee make the Garnishee Order Nisi dated 3rd June, 2016 absolute and order Skye Bank Plc to forthwith pay over the total sum of Seventy-Six Million, Eighty-Two

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Thousand Seven Hundred and Forty-Four Naira Five Kobo into the account of the Judgment Creditors account. It is further ordered that Skye Bank Plc shall file an affidavit of compliance on or before the 11th July, 2016.

This shall be my order.

Sgn.

HON. JUSTICE A.F.A. ADEMOLA

JUDGE

8/7/2016″

Dissatisfied with the judgment of the trial Court, the 1st Respondent which was the appellant at the Court below, filed Notice of Appeal against the said judgment. In a considered judgment, the Court of Appeal allowed the appeal and set aside the judgment of the trial Federal High Court. The order absolute made by the trial Court was set aside, hence this appeal to this Court.

Appellant’s Notice of Appeal was filed on 19th June, 2018 with three grounds of appeal. He later amended the said Notice of Appeal on 10th October, 2018. This appeal is thus based on the said amended Notice of appeal. Four issues have been distilled by the appellant for the determination of this appeal. The said issues are contained on page 2 of the appellant’s brief of argument filed on 24th October, 2018 which was adopted on 21st November, 2018 at the hearing

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of this appeal by Joe Agi, SAN, Learned Senior Counsel for the Appellant. The issues are:-

1. Whether the Court of Appeal has the power to overrule the Supreme Court on an issue of law or fact in which the Supreme Court had previously taken a position.
2. Whether by Section 83 of the Sheriffs and Civil Process Act the Court of Appeal was right by holding that the compliance with that law by the trial Court amounted to denial of fair hearing to the judgment debtor.
3. Whether the lower Court was right to hold that because garnishee order is a final order, a judgment debtor can appeal without leave of Court first had and obtained.
4. Whether the learned Justices of the Court below were right to have held that the failure of the 1st Respondent to dispute the amount stated in the appellant’s demand letter was not admission and that the 1st Respondent is not estopped from dispute (sic) the amount.

In the 1st Respondent’s brief settled by Isaiah Bozimo, Esq and filed on 19th November, 2018, two issues have been formulated for the determination of this appeal. The issues are as follow.:-

1. Having regard to the peculiar circumstances of

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this case, is the Delta State House of Assembly the Appellant’s judgment debtor in these proceedings.

2. Whether judgment debtors are passive spectators or active parties in garnishee proceedings.

From the facts and circumstances surrounding this case coupled with the judgment of the lower Court and the grounds of appeal giving birth to the issues donated by both parties, it is my well considered opinion that the two issues formulated by the 1st Respondent capture the complaint of the appellant and I shall determine this appeal based on the said two issues.

ISSUE 1:-

The main contention of the learned Senior Counsel for the Appellant in this issue is that whereas this Court (the Supreme Court) had held that the 1st Respondent is a judgment debtor in this matter, the Court below held otherwise, thus overruling the Supreme Court as it were. He submitted that contrary to the attempt by the Court below to dictate to the appellant who, among the Respondents he can proceed against to recover the judgment sum, a judgment creditor like the appellant has the liberty of selecting among the Judgment Debtors who he may proceed against to recover

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his money, relying on Mobil Producing Nig. Unlimited v Monokpo (2001) 18 NWLR (pt. 744) 212 at 244 – 245.

Furthermore, the learned Silk postulated that by Order 2 Rule 16 of Judgment (Enforcement) Rules, judgment can be enforced against a person who was not listed as a party in the suit, citing and relying on the case of Central Bank of Nigeria v Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (pt. 1618) 294. The learned SAN went ahead to posit that the lower Court had no legal competence to overrule the Supreme Court citing the case of Adegoke Motors Ltd v Dr. Babatunde Adesanya & Anor (1989) 5 SCNJ, 80; (1989) 3 NWLR (pt. 109) 250.

Mr. Joe Agi, SAN went ahead to discuss the issue of judicial precedent and submitted that a lower Court is bound to follow the decision of a higher Court on the same issue irrespective of its reservation or perceived error in the decision, relying on Atolagbe v Awuni (1997) 9 NWLR (pt. 522) 536 at 564. He then urged this Court to resolve this issue in favour of the Appellant.

In response, the learned counsel for the 1st Respondent submitted that by presuming that all Respondents in SC. 255/2013 were

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adjudged as being jointly and severally indebted to him, the Appellant misconstrues the effect of the Joinder Ruling by this Court. He opined that this Court did not find the Respondents jointly liable as the appellant alleges or at all. Referring to the said ruling by this Court; he submitted that every document speaks for itself, and one cannot read into the what is not contained therein, relying on Ahmed v Central Bank of Nigeria (2013) 11 NWLR (pt. 1365) 352 at 374 paragraphs A – C. He contended that this Court’s true intent is discernable from a dispassionate reading of the statutory provisions cited in the Joinder Ruling. Learned counsel referred this Court to Order 2 Rule 16 of the Judgment (Enforcement) Rules and submitted that, it contemplates a non-party’s involvement to either enforce a judgment made in his favour or, more importantly, in the con of these proceedings, to have an order requiring his obedience enforced against him.

The learned counsel then posed this question as follows:- “What does the judgment of this Honourable Court in SC.255/2013 require of the 1st Respondent”

Referring to portions of both the judgment in the

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Pre -Election appeal and the varied consequential Order in the Pre – Election appeal, he submitted that it is the varied order that requires the 1st Respondent’s obedience. According to him, the obligation placed on the 1st Respondent is to give payment to the Appellant of any sums of money refunded by the removed member. It is his submission that the duty to refund the monies rests squarely on the removed member and not the 1st Respondent. Learned counsel contended that it is the sums of money refunded by the removed member to the 1st Respondent that triggers a payment obligation from the 1st Respondent to the Appellant. According to him, it is Edoja Rufus Akpodiete, the removed member who is the de facto judgment debtor in these proceedings. 1st Respondent’s counsel submitted that the cases of Central Bank of Nigeria v Interstella Communications Ltd (supra) and Trade Bank Plc v Chami (2003) 13 NWLR (pt. 836) 158, relied upon by the appellant are inapplicable and distinguishable. It is his view that the 1st Respondent at no time admitted liability to pay the said judgment sum. He urged the Court to resolve this issue against the Appellant.

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Learned Senior Counsel filed reply brief on 21st November, 2018. A close perusal of the said reply brief shows that it is a re-address and emphasis on the issues already argued. This is not the purpose of a reply brief. It is to address new points of argument made by the Respondent which the Appellant did not address in his brief of argument. I shall therefore discountenance the said reply brief.

Let me quickly state that I have painstakingly perused both the judgment of this Court in Appeal No. SC. 255/2013 (the Pre – Election Appeal) and the Court’s varied consequential order in the said matter but I am unable to find even in remotest semblance where this Court held that the 1st Respondent herein is a Judgment debtor. The learned senior counsel for the Appellant also failed to refer to any portion of the said judgment or varied order where it was so stated. The law is trite that a document, including a judgment of the Court, speaks for itself, and one cannot read into the what is not contained therein. See Ahmed v Central Bank of Nigeria (2013) 11 NWLR (pt. 1365) 352 at 374 paragraphs A – C.

However, on page 4, paragraph 4.4 of the appellant’s brief,

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the learned Silk made the following submission:-

“The 1st Respondent did not apply to this honourable Court to be made one of the Appellant’s but rather to be made one of the Respondents. The Judgment having been entered against the Respondents of which the 1st Respondent is one of the Respondents by virtue of the decision of this Court above, can any of the Respondents now be heard to argue that it is wrong to label him/her as Judgment Debtor especially when the judgment remained unsatisfied.”

The above argument stems from the Ruling of this Court on an application by the 1st Respondent to be joined as respondent contained on pages 1138 of the record of appeal which states thus:-

“Having regards to the provision of Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and hereinafter referred to as the 1999 Constitution and Section 94 of the Sheriffs and Civil Process Act as well as Order 2 Rule 16 of the Judgment (Enforcement) Rules made thereunder, the applicant seeking to be joined in the instant application does not need to be a party by joinder as he is presumed by law to be a party and can thereby enforce

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any order of the Court made for its benefit.

The application is therefore superfluous and is consequently dismissed with costs of N250,000 to each respondent present in Court this morning. Application filed on 15/10/15 is dismissed.”

The above Ruling of this Court refers to Section 287(1) of the 1999 Constitution, Section 94 of the Sheriffs and Civil Process Act and Order 2 Rule 16 of the Judgment (Enforcement) Rules. Now Section 287 (1) of the Constitution states:-

“The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Supreme Court.”

This provision of the Constitution does not, by any stretch of imagination make a person who was not adjudged a judgment debtor to be so addressed.

Order 2 Rule 16 of the Judgment (Enforcement) Rules provides as follows:-

“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 proceedings; and any person not being a party in a

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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.”

This provision contemplates a non – party’s involvement to either enforce a judgment made in his favour or to have an order requiring his obedience enforced against him. In the instant case, what is the position of the 1st Respondent in Appeal No. SC.255/2013 Put differently, as was posited by the learned counsel for the 1st Respondent. What does the judgment of this Court in SC.255/2013 require of the 1st Respondent The answer to this question is found in the judgment/orders of this Court in both the judgment in SC.255/2013 and the order varying the consequential order in the said judgment.

The material order to this issue can be found on page 447 of Vol. 1 of the record of appeal which states:-

“4. It is further ordered that the said 2nd Respondent EDOJA RUFUS AKPODIETE refunds to the coffers of the Delta State House of Assembly all monies/sums of money he collected by way of salary, allowances whatsoever and howsoever described since he took his seat in

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the said House of Assembly under the pre of being the duly elected candidate of the 4th respondent representing Ugheli North Constituency II, within ninety (90) days of this order.”

The above order places liability to refund the monies he collected solely on Edoja Rufus Akpudiete, the removed member of the 1st Respondent and by the said order, the 1st Respondent herein was the beneficiary as all the salaries and allowances of the removed member were to be returned to its coffers. I agree with the learned counsel for the Respondent that the above initial order did not confer any obligation on the 1st Respondent requiring its obedience.

As the facts of this case indicate, the above order of this Court was varied. The said varied order is shown at page 450 of vol. 1 of the record of appeal and is stated thus:-

the sum of money so refunded by the 2nd Respondent EDOJA RUFUS AKPODIETE to the Delta State House of Assembly shall be paid to the Appellant/Applicant JENKINS GIANE GWEDE as salaries, allowances etc. from June, 2011 till October, 2014…”

The question may be asked if the above order makes the 1st Respondent a Judgment Debtor.

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I do not think so. As was argued by the learned counsel for the 1st Respondent, the obligation placed on the 1st Respondent is to give payment to the Appellant of any sum of money refunded by the removed member. I agree also that the 1st Respondent’s obligation under the varied order does not fetter, diminish or eliminate the removed member’s liability to refund all monies he collected by way of salaries and allowances while illegally sitting as a member of the first Respondent.

In its judgment, the Court below made a far reaching finding on page 1131, Vol. 2 of the record of appeal, which I agree entirely as follows:-

“The person who is clearly the judgment debtor and against whom the 1st Respondent (Appellant herein) was and is supposed to press Garnishee proceedings is Hon. (Barr) Edoja Rufus Akpodiete or his Banker or any third party having his funds or monies and NOT DELTA STATE HOUSE OF ASSEMBLY. The 1st Respondent did not prove or show to the lower Court that the said removed member refunded any monies or funds in forms of salaries or allowances received by the removed member to the Appellant (1st Respondent herein) and same has not been paid

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over to the 1st Respondent (Appellant herein).”

I agree entirely with the above view of the Court below and the submission of learned counsel for the 1st Respondent on the matter. It is the sums of money refunded by Edoja Rufus Akpodiete to the Delta State House of Assembly that triggers a payment obligation from the 1st Respondent to the Appellant. In other words, the 1st Respondent can only be found to be indebted to the Appellant where it is shown that the removed member has refunded sums of money to the 1st Respondent and that the 1st Respondent refused and/or neglected to pay such refunded sums to the Appellant. It is the removed member who is indebted to the Appellant as the Judgment Debtor. Definitely not the 1st Respondent.

This being the case, it is my view that the garnishee proceedings commenced against the 1st Respondent by the appellant was done in error. It is only monies refunded by the removed member that can be the subject of the garnishment.

A few words on 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

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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. 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.

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See Union Bank of Nigeria Plc vs 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, Guaranty Trust Bank Plc v Innoson Nig. Ltd (2017) LPELR – 42368 (SC).

In this appeal, appellant has argued that the liability for the debt in these proceedings has shifted from the removed member to the 1st Respondent, thus making it the judgment debtor, citing and relying on the case of Central Bank of Nigeria vs Interstella Communications Ltd (supra). I have had the opportunity to read this authority which was decided by this Court. With due respect to the learned Senior counsel for the appellant, the said authority does not avail the appellant as it is distinguishable. The law is trite that a decision is authority for which it actually decides. Also, judgments of the Court should be read in the light of its peculiar facts upon which they were decided. See Dongtoe v CSC Plateau State (2001) 4 SC (pt. 11) 43, Babatunde v P.A.S.&T.A. Ltd (2007) All FWLR (pt. 372) 1721 at 1759 paragraphs E – F.

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In the said Central Bank of Nigeria v Interstella Communications Ltd (supra), the judgment creditor, Interstella Communications Ltd (Interstella for short) obtained a judgment against Nigeria Telecommunications Ltd (NITEL for short). The judgment debt exceeded N23 Billion and $48 Million. The Federal Government of Nigeria (FGN for short), owner of NITEL set up an inter-ministerial committee to negotiate an amicable settlement of the judgment debt. Federal Government of Nigeria offered, and Interstella accepted the sum of N12 billion in full and final settlement of the debt (i.e. the Negotiated settlement). The agreed sum of N12 Billion was entered as a consent judgment in suit No. FHC/UM/CS/95/04.

In fulfillment of their undertaking to liquidate the debt, Federal Government of Nigeria wrote to the Federal Ministry of Finance to include the judgment debt in the 2009 budget. Federal Government of Nigeria paid the sum of N2.7 Billion of the judgment debt through the Central Bank of Nigeria (CBN) but reneged on any further payments. Interstella issued garnishee proceedings against CBN and FGN. Federal Government of Nigeria contended that the Federal High Court lacked jurisdiction because:-

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Neither FGN nor CBN were parties in suit No. FHC/UM/CS/95/04 and

2. NITEL’s absence was fatal to the proceedings.

In resolving the contention, this Court held that the consent judgment terminated hostilities between Interstella and NITEL. It was further held that the consent judgment was a novation which substituted the old obligation (NITEL’s liability to pay the original judgment debt) with a new one (FGN’s obligation to discharge the Negotiated settlement).

I agree with the learned counsel for the 1st Respondent that in this appeal, there is no comparable intervening event that transfers liability from Edoja Rufus Akpodiete to the Delta State House of Assembly except and until the said removed member had made refunds to the 1st Respondent. The 1st Respondent did not negotiate an amicable settlement of the sums due from the removed member to the Appellant. It never guarantied any of the said sums due from the removed member and never released the removed member of any liability to refund his salaries and allowances.

On the issue of the sum of N490,803,002 (Four Hundred and Ninety Million, Eight Hundred and Three Thousand, Two Naira)

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alleged by the appellant to have been admitted by the 1st Respondent, the lower Court made the following findings:-

“Contrary to the letter of the 1st Respondent to the Appellant, the judgment of the revered Supreme Court of Nigeria did not and does not make order for payment of N490,803,002.00 (Four Hundred and Ninety Million, Eight Hundred and Three Thousand, Two Naira) to the 1st Respondent against the Appellant. What the orders of the apex Court conclusively say is that the monies received by the removed member shall be refunded by the removed member to the coffers of Delta State House of Assembly and that when the said monies have been refunded, the monies so refunded by the removed member shall thereupon be paid by the Appellant to the 1st Respondent by the Appellant. The 1st Respondent did not disclose how he came about the sum of N490,803,002 as no such judgment was given against the appellant by the Supreme Court. The reply of the Appellant to the letter written by the 1st Respondent learned Silk makes it clear that as soon as Appellant secures the refunds of the monies Appellant would pay them to the 1st Respondent…

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There is no admission whatsoever in the Appellant’s letter acknowledging debt of N490,803,002.00 or any sum at all to the 1st Respondent. The 1st Respondent and the lower Court for reasons best known to them decided to import into the Appellant’s letter admission that is not therein contained.

The person who is clearly the judgment debtor and against whom the 1st Respondent was and is supposed to press Garnishee proceedings is Hon. (Barr.) Edoja Rufus Akpodiete or his Banker or any third party having his funds or monies and NOT DELTA STATE HOUSE OF ASSEMBLY. The 1st Respondent did not prove or show to the lower Court that the said removed member refunded any monies or funds in forms of salaries or allowances received by removed member to the Appellant and same has not been paid over to the 1st Respondent.”

(NB: At the Court below, the 1st Respondent was the Appellant while the appellant herein was the first Respondent.)

I have reproduced the portion of the judgment of the lower Court in extenso because it captures the essence of the issues in the judgment. I agree entirely with the above summation by the Court below. The pith and substance of all I have endeavoured to

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say above is that the 1st Respondent was not a judgment debtor in these proceedings. Hon. Edoja Akpodiete’s liability was never transferred to the 1st Respondent. The Appellant remains the judgment debtor until he refunds all the salaries and allowances paid to him while taking a seat at the 1st Respondent’s chambers. Thus the garnishee proceedings commenced by the appellant against the 1st Respondent’s bank was misplaced and premature. The 1st issue is accordingly resolved against the appellant.

ISSUE 2:-

This issue is whether judgment debtors are passive spectators or active parties in garnishee proceedings. In arguing this issue, the learned Senior counsel for the Appellant, referring to Section 83(1) of the Sheriffs and Civil Process Act, submitted that from the clear wordings of the said section, the person ordered or directed to statutorily show cause is the Garnishee and not the Judgment Debtor and so the refusal of the learned trial Judge for the Judgment Debtor instead of the Garnishee to show cause cannot and did not in law amount to denial of the right to fair hearing to the judgment debtor as held by the lower Court. That the statute

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having provided for the Garnishee to show cause without mentioning the Judgment Debtor in law means that the Judgment Debtor is excluded from showing cause. He opined that the statute having excluded the Judgment Debtor from the duty of showing cause on the garnishee proceedings, the lower Court was wrong to fault the decision of the trial Court on the issue, relying on the case of Buhari v Yusuf (2003) 14 NWLR (pt. 841).

Learned Senior counsel contended that it was wrong for the Court below to impute an obligation not proved in the statute for the Judgment debtor in a garnishee proceedings and hold that the refusal by the trial Court to look at the affidavit to show cause denied him of fair hearing. It is his view that Section 83(1) of the Sheriffs and Civil Process Act is akin to the rules of Court that provides for an ex-parte order even when the party to be affected is present in Court, he will not be heard, referring to the case of Provisional Liquidator of TAPP Industries Ltd & Anor v TAPP Industries Ltd (1995) LPELR – 2928 (SC).

In conclusion, the learned Silk opined that Courts of law do not brush aside the provision of a statute in order

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to do justice, relying on Calabar Central Co-Operative Thrift and Credit Society Ltd v Ekpo (2008) 6 NWLR (pt. 1083) 362 at 398. It is his final contention that the decision of the trial Court to discountenance the affidavit to show cause did not in any way infringe on the right of fair hearing of the 1st Respondent so long as that right was not given it by statute and that the Court cannot under any guise grant it such right in the name of doing substantial justice.

In response, the learned counsel for the 1st Respondent insisted that in his ensuing submission, the 1st Respondent does not concede that it is a judgment debtor in these proceedings, rather, that the submissions are nonetheless necessary to demonstrate that, having been labelled a judgment debtor by the trial Federal High Court, the 1st Respondent had a constitutionally guaranteed right to fair hearing including a right of appeal.

Learned counsel submitted that notwithstanding the conflicting decisions on the status of a judgment debtor in garnishee proceedings, such proceedings envisage two distinct stages to wit: the ex – parte order nisi stage, which concerns the judgment creditor

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and the garnishee, and the substantive “order absolute” stage, in which the judgment creditor, the garnishee and the judgment debtor have a right of audience.

Referring to Section 83 (2) of the Sheriffs and Civil Process Act and Order VIII Rule 8 (1) of the Judgment (Enforcement) Rules, learned counsel submitted that the service required under these sections is to give appropriate notice of the pending legal action to the garnishee and judgment debtor to enable them respond to the enforcement proceedings. It is his contention that after service of the garnishee order nisi, the Court may proceed to make the order absolute only after hearing from the judgment creditor, the garnishee and the judgment debtor. Learned counsel cited the following Court of Appeal decisions and urged this Court to be persuaded by them. They are:-

1. Stanbic IBTC Bank Plc v Long Term Global Capital Ltd (2016) LPELR – 40517 page 24 – 32 E – B.
2. N.A.O.C. Ltd v Ogini (2011) 2 NWLR (pt. 1230) 131, Nigerian Breweries Plc v Dumuje (2016) 8 NWLR (pt. 1515) 536.

Learned counsel submitted that the above decisions represent the fairest, most judicious application of the law

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and give congruent application to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). That to maintain due process, Order VIII Rule 8 Judgment (Enforcement) Rules requires the Court to receive submissions from the judgment creditor, the garnishee and the judgment debtor and that this is intended to ensure that the Court has all the necessary facts for the complete and effective determination of the application. He stressed that to the extent that Order VIII Rule 8 of Judgment (Enforcement) Rules makes it mandatory for the Court to hear from the judgment debtor, it shows that the 1st Respondent is a necessary party to these proceedings.

He opined that in this proceedings, the appellant failed to make full disclosure before the Federal High Court and that is the reason why the law requires the Court to hear from the judgment debtor before deciding whether or not to allow a garnishee order absolute.

Finally, learned counsel for the 1st Respondent opined that the 1st Respondent’s grievance is that the Appellant wrongfully labeled it as the judgment debtor and its funds were therefore, improperly garnished and despite

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presenting cogent reasons to discharge the garnishee order nisi, the Federal High Court proceeded to make the garnishee order absolute. He urged this Court to hold that the garnishee order absolute made on 8th July, 2016 against the 1st Respondent’s funds in Skye Bank is a final decision against which the 1st Respondent has a constitutionally guaranteed right of appeal under Section 241(1)(a) Constitution of the Federal Republic of Nigeria. He also urged this Court to resolve this issue against the Appellant.

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

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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.

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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

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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

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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.

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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).

The 1st Respondent’s grievance at the trial Court is that the Appellant wrongfully labeled it as the judgment debtor and its funds were therefore, improperly garnished. Despite presenting cogent reasons to discharge the garnishee order nisi, the Federal High Court proceeded to make the garnishee order nisi absolute. I commend the Court of Appeal which painstakingly reviewed the matter and set aside the judgment of the learned trial Judge.

In this matter, the Appellant failed to make full and frank disclosure before the Federal High Court hearing the garnishee proceedings. First, the appellant represented that he is entitled to a judgment debt of N490,803,002.00 when, in actual fact, neither the Supreme Court’s judgment of 24th October, 2014 nor the consequential order of 26th October, 2015 enumerated any specific sum of money the appellant was to be paid. This Court only ordered that Mr. Edoja Rufus Akpodiete, the removed member of the 1st Respondent should

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refund all the salaries and allowances he received while sitting as “member” of the 1st Respondent. 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.

Another issue which was wrong with the garnishee proceedings is that the appellant presented to the High Court that the 1st Respondent was indebted to him, when, in actual fact, the real judgment debtor is the removed member, Edoja Rufus Akpodiete. As observed by the learned counsel for the 1st Respondent, it was neither alleged nor shown that the removed member had made a full refund of the salaries and allowances required of him or that the 1st Respondent refused and/or neglected to pay any such refunded sum to the Appellant.

Another defect in the garnishee proceedings is that the Appellant did not disclose to the trial Court that Guaranty Trust Bank Plc had complied with Garnishee order absolute made by the trial Court on 14th day of June, 2016 having paid the said

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appellant the sum of N83,256,648.71. Instead of disclosing that such a huge part of the debt had been defrayed by the judgment debtor, the appellant still presented the whole figure of the “judgment debt” to the Court requesting the 1st Respondent to pay.

And yet again, the appellant failed to disclose that he received the sum of N21,191,952.00 from the Delta State House of Assembly, being monies so far refunded by the removed member.

It is my view that had the learned trial Judge considered the motion filed by the 1st Respondent and the affidavit annexed, the above anomalies, especially that the 1st Respondent was not the judgment debtor, would have been clearly seen and the learned trial Judge would not have made the order Nisi absolute.

There is no doubt that the 1st Respondent, having been served with order nisi and branded as judgment debtor and having filed processes at the trial Court to protest his being labeled as judgment debtor, he was indeed a necessary party in the proceedings. Consequently, since the trial Court had made the Order Nisi absolute against its funds with the garnishee, the 1st Respondent had a right of appeal under

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Section 242(1) (a) of the Constitution of the Federal Republic of Nigeria. That order absolute was a final judgment and a party in the proceedings not satisfied, had a right to appeal against same. Finally, I hold that the 1st Respondent was not a passive spectator in the garnishee proceedings because the Appellant did not present the case properly before the High Court. Issue 2 is also resolved against the Appellant.

Having resolved the two issues adopted for the determination of this appeal against the appellant, I hold that this appeal is devoid of merit and is hereby dismissed. I affirm the decision of the Court of Appeal delivered on 10th May, 2018. I make no order as to costs.

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SC.595/2018