Skye Bank Plc V. Yavat B. David & Ors (2016)
LawGlobal-Hub Lead Judgment Report
AMINA AUDI WAMBAI, J.C.A.
In the Garnishee proceedings at the High Court of Kaduna State sitting at Kaduna, before Hon. Justice Isa Aliyu (now called the Lower Court) in suit No. KDH/KD/941/2010 in which the 1st, 2nd and 3rd Respondents were the Judgment creditors and the 4th and 5th Respondents were the Judgment Debtors, the Appellant was the Garnishee against whom a garnishee order Nisi was made. on the 19th January, 2011 (19/01/2011), the Order Nisi was made absolute against the Appellant. The Appellant’s application to have the Order absolute set aside was dismissed on the 19th January, 2012 (19/012012). This appeal is against the Rulings of the 19/01/2011 making the Nisi Order absolute and that of 19/01/2012 refusing to set aside the Order absolute.
The Appellant commenced this appeal by a Notice filed by its Counsel, Anigbogu Jude Obinna Esq. on the 21st February, 2013 which was by leave of this Court amended on the 01/07/2015. The amended Notice of Appeal is predicated upon 4 grounds.
?In compliance with the Rules of this Court, both parties filed their respective brief of argument. The Appellant’s brief of
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argument dated 29th May, 2014 and filed on 30/04/2014 but deemed properly filed and served on 20/10/2014 was settled by Anigbogu Jude Obinna Esq. The 1st, 2nd and 3rd Respondents’ brief of argument dated 14/11/2014 and filed on 17/11/2014 was settled by Emmanuel B. Kantiok Esq wherein a Preliminary Objection to the hearing of the appeal was also argued. In response, the Appellant’s Counsel filed a reply brief on 08/12/2014.
In ventilating his grievance against the Judgment of the lower Court, the Appellant’s Counsel in his brief of argument distilled two issues for determination as follows:-
“(1) Whether the Judgment of the Lower Court was not a Judgment in default and as such could be set aside by the same Court.
(2) Whether the Order absolute made by the Court below was not in error considering the fact that the whole of the judgment Debtor’s money with the Garnishee/Appellant had already been attached in an earlier Order absolute made by the High Court of Kano State.”
The 4th and 5th Respondents did not file any brief.
?In the event that their Preliminary Objection fails, the 1st, 2nd and 3rd Respondents adopted the two issues
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formulated by the Appellant’s Counsel.
At the hearing of the Appeal on 01/03/2016 while the learned Counsel to the 1st, 2nd and 3rd Respondents adopted their arguments on the Preliminary Objection and their brief of argument on the main appeal and urged that the appeal be struck out on the basis of the Preliminary Objection or be dismissed for lacking in merits, the learned Counsel for the Appellant adopted both his brief of argument and the reply brief and urged that the appeal be allowed.
Now, a Preliminary Objection as the name connotes, is an initial or introductory objection against the regularity or validity of a Court process, taken at the earliest opportunity expressing legal disapproval to the action. Thus, a Preliminary Objection is an initial objection taken before the actual commencement of the matter, issue or thing being objected to. See Akpan v. Bob & 4 Ors (2010) 17 NWLR (Pt. 1223) 421 SC, and where raised to the hearing of an appeal, it is not only prudent but mandatory that the preliminary objection be first determined before hearing the substantive appeal. See UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt. 890), Osun State Govt v.
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Dalami (Nig) Ltd (2003) 7 NWLR (Pt. 818) 93, Amos v. Alabi (2003) 15 NSCQLR 133.
The wisdom for this is because the aim of a Preliminary Objection is to abort, prevent or foreclose the hearing of an appeal and to terminate same in limine, thereby sending the appeal to its grave at that stage. GENERAL ELECTRIC V. AKANDE (2010) 18 NWLR (pt. 1225) 598, OGIDE V. EGBA (1999) NWLR (pt. 621) 42, ADELEKAN V. ECO-LINE N.V. (2006) 12 NWLR (pt. 993) 33, CBN V. BEEKITI CONST. LTD (2011) 5 NWLR (pt. 1240) 203 222.
Invariably, a successful Preliminary Objection saves the valuable time, energy and resources of the Court and of the parties which would otherwise be dissipated in hearing an incompetent or worthless appeal.
HASSAN V. ALIYU (2010) 17 NWLR (Pt.. 1223) 547 SC, YARO v. AREWA CONST. LTD & ORS (2007) 6 SCNJ 418.
I shall therefore consider the Preliminary Objection first.
PRELIMINARY OBJECTION
The Notice of Preliminary Objection as argued in the 1st, 2nd and 3rd Respondents’ brief of argument is predicated upon on two grounds, viz:-
(1) The entire Appeal is incompetent in that there is no valid Notice and grounds of appeal.<br< p=””
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(2) The two (2) issues formulated for determination by the Appellant are incompetent as they are based on incompetent grounds of appeal.
The substance of the argument in support of the 1st ground of the Preliminary Objection is that there is no valid Notice of appeal because the appeal is predicated upon a non existing Ruling in that while the records of appeal including the motion on Notice dated 25/01/2012 and filed on 03/05/2012 which was granted by this Court on 12/02/2013 clearly show that the Garnishee Order absolute was made on the 19/01/2011, the Notice of appeal filed on 22/02/2013 challenges the Rulings delivered on 20/01/2011 and 19/01/2012.
Secondly, that the Appellant did not seek leave or extension of time to appeal the decision of 19/01/2012 thereby making the Notice of Appeal incompetent, being filed out of time without leave of Court.
?On the 2nd ground of the Preliminary Objection that the two (2) issues formulated are predicated on incompetent grounds, it was submitted that ground 1 of the Notice of Appeal is ‘incompetent as it is’ not a challenge to the Garnishee Order absolute. That the complaint that the Order absolute was
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made in error because the funds of the Judgment debtors with the Appellant were already subject of an earlier Order absolute by a Kano High Court, is untenable because it does not flow from any ratio of the Court not having been canvassed at and pronounced upon by the Lower Court, citing the cases of OMOWOVORE v. ONUSORE (2011) ALL NWLR (Pt. 582) 1670, 1706-1707, YAHAYA V. SARAKI (2012) ALL FWLR (Pt. 656) 458, 477-E-F, 478 A.
Ground 2 of the Notice of appeal it was argued is also incompetent being an attack on the Ruling delivered on 19/01/2012 the Notice of appeal of which was filed on 22/09/2013, a period of one year two months and without an Order of Court extending time to file the ground, since the Appellant’s motion for extension of time granted on 22/03/2013 was only for the Ruling delivered on 19/01/2011 and not the Ruling delivered on 19/01/2012. He relied on WILBAHI HAULAGE V. ANAMMCO LTD (2009) ALL FWLR (Pt. 485) 1790, 1796, OJEMAIE INVEST. LTD. V. A. G. FED. (2011) ALL FWLR (Pt. 582) 1738, 1770 B-C, CREEK VIEW PROPERTY DEV. CO. LTD V. ADEGBORUWA (2012) ALL FWLR (Pt. 641) 1606, 1606 – 1607 H-A to submit that the absence of the requisite leave
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renders the appeal incompetent.
Ground 3 of the appeal it was also submitted, is a mere statement of fact and not an attack on any ratio of the Court challenging any error of fact or Law and is contrary to Order 6 Rule 2(2)(3) of the Rules of this Court and is incompetent, and he relied on OPARISON V. OPARISON (2013) ALL FWLR (Pt. 666) 523, 531 – G-B.
The 3 grounds of appeal upon which the two issues formulated being incompetent, learned Counsel contended that the issues raised on the incompetent grounds are themselves incompetent and should be struck out citing in support the cases of JOHN V. ENEH (2014) ALL FWLR (Pt. 230) 1284, 1306 B, AMOBI V. NZEGWU (2014) ALL FWLR (Pt. 230) 1284, 1306 B.
Responding to the Preliminary Objection, and maintaining that the Notice of Appeal is valid and the grounds of appeal as well as the issues are competent, learned Counsel to the Appellant in his reply argued that the 20/01/2011 stated as the date of the 1st Ruling appealed against when the Order Nisi was made absolute is, to the knowledge of the Respondents, a clerical error which is not enough to strike out the Notice of Appeal as the sin of Counsel should
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not be visited on the client – G.T.M. ENT. LTD. V. C.R. INV. LTD. (2012) ALL FWLR (Pt. 655) 390, AUSA v. CROSS LINES LTD. (2006) ALL FWLR (Pt. 321) 1271, were relied upon and that technicalities not be allowed to defeat justice of the case -NGIGE V. OBI (2006) ALL FWLR (Pt. 330) 1041. Moreover, the Motion on Notice filed on 03/05/2012 and granted by this Court on 12/02/2013 show clearly that the Order absolute was made on 19/01/2011.
On the grounds and the two issues formulated being incompetent, Counsel submitted that what they are saying on ground 1 is that the whole proceedings leading to the making of the Order absolute was done in their absence; they were not aware of the proceedings let alone to show cause why the funds should not be attached and that the cases cited by the Respondent’s Counsel do not apply.
On ground 2, it was submitted that the Appellant’s appeal is against the main Ruling of 19/01/2011 in respect of which extension of time was sought vide motion of 03/05/2012, granted on 12/02/2013, to appeal out of time and that it is not necessary to appeal the Ruling of 19/01/2012, refusing to set aside the Order absolute made on
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19/01/2011.
The 1st ground of the objection that the appeal is incompetent for absence of valid notice and ground of appeal is premised on two reasons, namely, that the appeal is against a non existing Ruling and the grounds of appeal are all incompetent.
With regards to this ground, it is not in contention that the Ruling in which Order Nisi was made absolute was delivered on the 19/01/2011 but the Notice of Appeal dated 21/02/2013 and filed on 22/02/2013 at pages 118-121 of the record puts the date of the delivery of this particular Ruling appealed against as 20th January, 2011. Undoubtedly, there is nothing on the record to show that the Ruling or any Ruling was delivered on 19/01/2011.
It is a settled principle of Law that an appeal is substantially a complaint against the decision of a trial or Lower Court; an invitation or a resort to a superior Court to review the decision of an inferior Court and find out whether on the facts placed before it, and applying the relevant and applicable Law, the inferior Court arrived at a right or wrong decision. See AKPAN V. BOB (2010) 17 NWLR (Pt. 1223) 421 SC, A.G. OYO & ANOR V. FAIRLAKES HOTEL LTD
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(1988) 5 NWLR (Pt. 92) 56.
Counsel for the Appellant has however, pressed on the Court that the 20th January, 2011 on the Notice of Appeal instead of the 19th January, 2011 the actual date of the Ruling, is to the knowledge of the Respondents, a mere clerical error. Moreover, the Respondents in their argument admitted that the Appellant’s motion filed on 03/05/2012 and granted on 12/02/2013 clearly shows that the Order absolute was made on 19/01/2011. A perusal of the record at pages 122-123 shows that the decision/order in respect of which the Appellant sought and was granted leave to appeal out of time was delivered on 19/01/2011 (and not 20/01/2011). Furthermore, the amended Notice of appeal filed by Order of this Court also states the 19th January, 2011 as the date when the Order Nisi was made absolute. The effect is that the 20/01/2011 mistakenly written in the initial Notice of appeal has been amended or corrected to read the 19/01/2011. This is because it is beyond dispute that an amendment takes effect from the date of the original document sought to be amended, and dates back to the date of the original issue.
An Order of amendment takes
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effect not from the date when the amendment is made or granted but from the date of the commencement of the action or process amended. A.G. EKITI STATE v. ADEWUMI (2002) 1 SC 47, VULCAN GASES V. G.F. IND. A.G. (2001) 5 SC (Pt. I) 1.
An amended Notice of Appeal is not an exception and once amended, it takes effect and relates back to the date in which the Notice was originally filed just like an amended statement of claim. It is retrospective in nature. See UNITY BANK PLC V. BOUARI (2008) 7 NWLR (Pt. 1085) 372.
I am not unmindful of the Law that only a competent Notice of Appeal can be amended, which leads to the question whether the wrong date appearing on the Notice of Appeal ipso facto vitiates the Notice.
This question is neither puzzling nor does it raise any storm as it has been settled and put to rest by the Supreme Court in JERIC NIG. LTD V. U.B.N. PLC (2000) 15 NWLR (Pt. 691) 447 where Kalgo JSC was in a situation similar to this appeal, held inter alia:-
‘l also entirely agree with the submission of the learned Counsel for the Respondent that the mistaking of the actual year of the Judgment in the circumstances of this case is a
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mere irregularity which did not vitiate the appeal or cause any miscarriage of justice. The error was in my respective view not total as to render the appeal incompetent.”
See also ADEBISI ADEGBUYI V. APC (2013) LPELR 22799 (CA). I therefore discountenance this arm of the objection.
The 2nd ground of the objection is that the 3 grounds of appeal are incompetent, as well as the issues formulated therefrom. Beginning with ground 1, the complaint therein is that the Order absolute was made in error because the whole of the Judgment debtor’s money with the Garnishee had already been attached and was subject of an earlier Order absolute made by High Court of Justice, Kano State; that the Judgment debtors had no more funds left with the Garnishee.
?This complaint as correctly submitted by the Respondents? Counsel was not canvassed before the Lower Court nor was any pronouncement made upon same. The complaint does not flow from any ratio of the decision of 19/01/2011 appealed against.
It is now axiomatic that for a ground of appeal to be competent it must spring from, relate to or flow from the decision appealed against. OMOWORARE V. OMISORE
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(Supra), METAL CONST. LTD V. MIGLIORE (1990) 1 NWLR (Pt. 126) 299, 317.
For a ground of appeal to be competent it must be circumscribed by the issue(s) in controversy arising from the Judgment appealed against, as the grounds of appeal are the reasons why the decision is considered to be wrong by the aggrieved party. Thus, where the grounds of appeal arise from matters not touching on the real issues in controversy decided by the Court, or from the ratio of the decision appealed against, the ground(s) shall be incompetent and liable to be struck out. SARAKI V. KOTOYE (1992) 11/12 SCNJ 26 @ 42, YUSUF v. KUPPER INTERNATIONAL (1996) 5 NWLR (Pt. 446) 17, OBATOYIN V. OSHATOBA (1996) 5 NWLR (Pt. 456) 531, ADEKUNLE V. ECU-LINE NV (2006) 12 NWLR (Pt. 993) 33.
In the instant appeal, the complaint raised in ground 1 does not flow from the Judgment appealed against having not been canvassed at the Lower Court and pronounced upon thereat.
Consequently, ground 1 is incompetent and afortori, issue No. 2 raised from the incompetent ground is also incompetent and liable to be and are hereby both struck out.
?On ground 2, this is
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what it provides:-
“The learned trial Judge erred in Law when he ruled that he was functus officio to set aside its Ruling of 19th January, 2011 when he has been so sufficiently empowered to set aside his decision arrived at by inadvertence or misrepresentation of facts or in the absence of the requisite jurisdiction.”
The Ruling in which the learned trial Judge is alleged to have erred in Law holding that he was functus officio was delivered on 19/01/2012. Learned Counsel to the Appellant concedes that the appeal against the said decision filed on 22/01/2013 was filed out of time and without leave or extension of time sought and obtained, but contends that he does not have to appeal the said Ruling of 19/01/2012. It is clear that the application filed by the Appellant on 03/05/2012 and granted by this Court on 12/02/2013 relates only to the Ruling delivered on 19/01/2011 in which the Order Nisi was made absolute. It does not include the Ruling delivered on 19/01/2012 in which the trial Judge held that he was functus officio to set aside the Ruling of 19/01/2011; which is the complaint in ground 2.
It is now settled by a long line of authorities
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that where by the Constitutional or statutory provisions leave is required or prescribed before an appeal is taken but which leave was not obtained, the appeal is incompetent and liable to be struck out. UKONG V. COMM. FOR FINANCE (2006) 19 NWLR (Pt. 1013) 187, HARRISON WELLI V. OKECHUKWU (1985) 2 NWLR (pt. 5) 63, and consequently, this Court is without jurisdiction to entertain the appeal against the said Ruling of 19/01/2012 having been filed out of time and without leave of Court. See OJEMAJE INVEST. LTD V. A.G.F. (2011) ALL FWLR (Pt. 582) 1738 (Supra), C.P.D. CO. LTD. V. ADEGBORUWA (Supra), NWOSU V. OFFOR (1997) 2 NWLR (Pt. 487) 274.
Resultantly, ground 2 is hereby struck out.
On ground 3, it reads:-
“That the Order absolute made by the honourable Court was in the absence of the Garnishee/Applicant as the Garnishee/Applicant was not represented or in attendance before the honourable Court on the 19th of January, 2011 when the said order was made.”
Ground 3 challenges the decision of the Lower Court delivered on 19/01/2011 making the Order Nisi absolute in the absence of the Appellant. This is what is captured in issue No. I. This
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ground as well as issue No. I derived therefrom are both competent and I so hold.
In conclusion, the Preliminary Objection succeeds in part. Grounds 1 and 2 of the amended Notice of appeal as well as issue No. 2 formulated by the Appellant are hereby struck out. Accordingly, this appeal will be considered and determined upon the only surviving issue No. 1 which is predicated upon the decision of the Lower Court delivered on 19/01/2011 alone.
I now turn to the main appeal. On this issue, the substantial part of the argument of the Appellant’s Counsel dwelled on their motion filed on 02/03/2011 for setting aside the Order absolute made on the 19/01/2011. Grounds 1 and 2 as well as issue No. 2 having been struck out, all arguments relating or pertaining to the motion, the principles of setting aside default Judgment, the reasons averred in the affidavit, the existence of an earlier Order absolute by another Court in respect of the Judgment debtors (4th and 5th Respondents) funds which exhausted the funds with the Appellant, and why the Order absolute ought to have been set aside by the Lower Court are all discountenanced.
?The only relevant argument
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canvassed by the learned Counsel is that the Order absolute was not made on merit and could have been made on merit had the Appellant filed the necessary pleadings as required by Law. He stated the reason for their inability to file the necessary process as being the act of the Appellant staff coupled by the fact that the staff proceeded on annual leave, all of which contributed to the Order Nisi not being brought to the knowledge of the appropriate department of the Bank on time to enable them respond.
Counsel stretched further to contend that while the Respondent would not suffer any injustice in the grant of his (Appellant’s) reliefs the refusal would amount to Appellant paying money that does not belong to the Judgment/Debtors/Respondents thereby defeating the essence of Garnishee proceedings.
Responding to this argument, learned Counsel to the Respondents submitted that the Garnishee Order Nisi was made absolute on merits because the Appellant was duly served with the Garnishee Order Nisi and with a return date to show cause and provided the opportunity to defend itself but chose not to, as the lapses in the internal arraignment of the Appellant
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is not sufficient reason to set aside the Order and that the Appellant does not deny the fact of service.
We were urged not to disturb the Judgment of the Lower Court.
Now, in contending that the learned trial Judge was wrong in his decision, the Appellant who was dissatisfied and desirous of ventilating his grievance and prosecuting his right to challenge the decision, had two options, one was to initiate an appeal against the said decision, which the Appellant did by this appeal and the other was to initiate an application to set aside the Judgment, which the Appellant also did by his motion of 02/03/2011.?The rationale for these two options is that, the 1st choice is predicated on an acceptance of the inherent validity of the decision but a resort to appellate intervention to review the decision either on some legal or factual basis and to determine whether on either grounds, the decision is correct. The 2nd choice, to set aside the Judgment is predicated on the premises that as a matter of Law, the Judgment does not exist, due to inherent lack of jurisdiction of the Court and should be judicially declared null and void. The objective of both
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procedures is essentially the same, in that while the 1st choice seeks to obliterate the Judgment, the latter seeks to abrogate the Judgment. See AKPAN V. EFFIONG (2010) 17 NWLR (pt. 1223) 427, OKONIPERE V. STATE (2013) 10 NWLR (pt. 1362) 209.
In the instant case, the Appellant employed the two options by first applying to the Lower Court to set aside the decision (Garnishee Order absolute) and his failure to have the Order set aside prompted this appeal against both decisions of 19/01/2011 and 19/01/2012.
However the appeal against the decision of 19/01/2012 in which the Lower Court refused to set aside the Order absolute made on 19/01/2011 having been struck out, the Appellant’s challenge in this appeal must be confined to and be circumscribed by the only live issue against the Ruling of 19/01/2011, which is that the decision to make the Garnishee Order absolute was made in error. Thus, the issue for determination in this appeal is narrow and straight forward. It is whether the learned trial Judge was right in making the Garnishee Order Nisi absolute on the 19/01/2011.
By Section 83(1) of the Sheriffs and Civil Process Act LFN 2004, the Court
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may, upon ex-parte application of any person who is entitled to the benefit of a Judgment for the recovery or payment of money for Judgment recovered but unsatisfied, Order that the debts owing from such third person, be attached to satisfy the Judgment or Order together with the costs of the Garnishee proceedings and may by the same Order or subsequent Order, Order that the garnishee shall appear before the Court to show cause why he should not pay to the person who obtained the Judgment or Order the debt due from him to such debtor.
?Generally, Garnishee proceedings are a process of enforcing a money Judgment by the seizure or attachment of the debts due or accruing to the Judgment debtor which form part of his property available in execution. By this process, the Court is empowered to order a 3rd party to pay direct to the Judgment Creditor the debt due or accruing from him to the Judgment debtor, or as much of it as may be sufficient to satisfy the amount of the Judgment and the costs of the Garnishee proceedings. A Garnishee proceedings is thus a special specie of execution of Judgment by a statutory proceeding whereby a person’s (Judgment debtor’s)
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property, money or Credit in possession or under the control of or owing by another (Garnishee), are applied to payment of former debt to 3rd person against the debtor and Garnishee.
Garnishee proceedings in this sense, is distinct since it is between the Judgment Creditor and the person holding in custody the assets of the Judgment Debtor, though it follows from the Judgment that pronounced the debt owing.
On the special nature of a Garnishee proceedings this Court per Ogunwumiju JCA in FIDELITY BANK PLC V. OKWUOWULU & ANOR (2012) LPELR 8497 (CA) observed:-
“Thus, a Garnishee proceeding is a process leading to the attachment of debt owed to a Judgment debtor by a third party who is indebted to the Judgment debtor. It is sui-generis and is unlike other proceedings for enforcement of Judgment.”
It is therefore clear that this process or means of enforcing a money Judgment by the seizure or attachment of the debts due and accruing due to the Judgment debtor by which the Court Orders 3rd party in whose hands the Judgment debtor’s money is, to pay direct to the Judgment Creditor the debt due or accruing due from him to the Judgment debtor
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including the costs of the Garnishee proceedings, is what is called a Garnishee proceedings. See Akintan JSC in U.B.A PLC V. MARAY IND. LTD (2005) 7 SC (Pt. 1) 70, FBN PLC V. FCMB PLC (2013) LPELR 22050 (CA), WEMA BANK PLC v. BRASTERN STERR NIG LTD (2010) LPELR – 9166 (CA).
Judgment Creditor who desires to recover a Judgment debt from a Judgment debtor by a Garnishee proceeding, ignites or kick starts the process by an application ex-parte made to the Court supported by an affidavit for the issuance of a Garnishee Order Nisi against the Garnishee in which the Judgment debtor is joined as a Respondent though not a necessary party to the proceedings as he is only a nominal party, see P.P.M.C. LTD V. DELPHI INC (2005) 8 NWLR (Pt. 928) 458, UBA PLC V. EKANEM (MD PARAGON ENG LTD) & ANOR (2009) LPELR – 8428 (CA).
The application is supported with an affidavit disclosing the facts upon which the Court can rely to issue the Order Nisi. If the Court is satisfied that the Judgment Creditor/Garnishor is entitled to attach the debt and the debt is owing from the Garnishee, an Order Nisi is issued. See Section 83(1) of the Sheriffs and Civil Process Act, STB
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LTD v. CONTRACT RESOURCES LTD (2001) 6 NWLR (Pt. 708) 115 and CBN V. AUTO IMPORT EXPORT & ANOR (2012) LPELR – 7858 (CA). The Order Nisi for the attachment of the debt once issued and served on the Garnishee, binds the debts in the hands of the Garnishee and the Garnishee cannot release any part of the attached sum to the Judgment Debtor or to any other person without an express Order from the Court. See Section 85 of the Sheriffs and Civil Process Act. SOKOTO STATE GOVT. V. KAMDEI NIG LTD (2004) 9 NWLR (Pt. 878) 345 CA.
This Garnishee Order Nisi is the first stage of the two installmental orders made by the Court. It is at that stage, the Judgment debt covered by the application be paid into the Court to the Judgment Creditor within the prescribed time unless there is a good reason, excuse or explanation emanating from the party on whom the order is served or made why the order should not be made absolute; otherwise, the Order becomes absolute. CITIZENS INT. BANK V. SCOA (NIG) LTD (2006) 16 NWLR (pt. 1011) LPELR ? 5509 (CA), UBN v. MARCUS (Supra).
The operative word is “unless” the Judgment Creditor shows good cause why the Order Nisi should
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not be made absolute. The Norman- French word ” Nisi is synonymous with the English word “unless” and it means that except upon the condition that the Garnishee shows sufficient reason, the Order Nisi should be made absolute because at that stage the 2nd installmental Order becomes due without anything more in the absence of a good cause been shown. The only condition that would forestall the order being made absolute is the absence of personal service or the showing of good cause.
In the instant case it is not in contention that the Appellant as the Garnishee did not appear nor was it represented in Court on the return date and did not file any affidavit before the Lower Court showing any reason why the Garnishee Order Nisi should not be made absolute. It is also common ground that the Garnishee Order Nisi was served on the Appellant, on the 15/12/2010.
?On the return date, the 19/01/2011 Mr. Kantiok of Counsel to the Judgment Creditor applied for Garnishee Order absolute against the Appellant as the 1st Garnishee, the Court having discharged the other 2 Garnishees, 2nd and 3rd, who showed that they did not have any funds of the Judgment debtor with
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them. On the said return date, 19/01/2011, the Appellant placed nothing before the Court or even an application for extension of time to show any good cause why the Order should not be made absolute. In granting the Judgment Creditor’s application and making the Garnishee Order Nisi absolute, the learned trial Judge in the short Ruling at page 98 of the record held:-
“The 1st Garnishee Skye Bank Plc was served with Garnishee Order Nisi made by this Court on the 15/12/2010. The Garnishee has failed to appear before this Court to show cause why the Order should not be made absolute. The Garnishee has not paid the Judgment debt to this Court as well. In the circumstance, it is taken that the Garnishee has no cause to show why the order should not be made absolute. The Order is therefore made absolute that the Garnishee is Ordered to pay the Judgment debt, the sum of N4,500,000.00 cost granted against the Judgment debtor N14,250.00 and the sum of N10,000.00 cost of Garnishee proceeding.”
The Law is that on the return date of a Garnishee Order Nisi, the only duty of the Court is to give effect to Section 86 or 87 of the Sheriff and Civil Process Act, as
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the case may be.
Section 86 provides:-
“lf the garnishee does not within the prescribed time pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the costs of the garnishee proceedings, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear upon summons, the Court upon proof of service may order execution to issue, and it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.”
By this provision, the trial Court is to enquire into the under listed questions and where it finds that the answers are in the affirmative, it may proceed to Order execution without any previous writ or process, and to levy the amount from such Garnishee together with the costs of the Garnishee proceedings. These questions are:-
(1) Whether service of the Garnishee Order Nisi has been duly effected on the Garnishee but he has failed to appear.
?It is the duty of the trial Court
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to first and foremost ensure that the Garnishee was duly served with the Garnishee Order Nisi at least 14 days before the return date. See Section 83 (2) of the Sheriff and Civil Process Act (now called the Act). STB v. C. R. (NIG) LTD (2001) 6 NWLR (Pt. 708) 115.
In WEMA BANK PLC V. BRASTEM STERR NIG. LTD (2010) LPELR – 9166 (CA) this Court expressed the effect of failure to serve Order Nisi on Garnishee as follows:-
“Failure to serve Order Nisi where service is mandatory before Order absolute was made is a fundamental omission which renders the proceedings void because the Court has no jurisdiction to entertain the next stage in the Garnishee. Tubonemi v. Dikko (2006) 5 NWLR (Pt, 974) 565, MARK V. EKE (2004) 5 NWLR (Pt. 866) 54 SC…..’
In the instant case, the bailiff informed the Court that the Garnishee was served on 15/12/2010 well over the required 14 days before the return date, of 19/01/2011 but failed to appear in Court. The Appellant does not deny being duly served with the Garnishee Order Nisi. Its only reason for failure to appear in Court and to file an affidavit being attributed to the fault of its staff who did not bring same
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to the knowledge of the appropriate department on time.
(2) Whether the Garnishee has not within the prescribed time in the Order Nisi paid into Court the amount due from him to the Judgment Debtor or an amount equal to the Judgment debt together with the costs of the Garnishee proceedings.
There is no dispute here that as at the return date, the Appellant had not paid the debt to the Court or Judgment Creditor.
(3) Whether the Garnishee does not dispute the debt.
A Garnishee who does not intend to dispute the debt may either pay the debt within the prescribed time in the order Nisi, or notify the Court in writing that he does not intend to dispute the claim or refuse to file any affidavit to show cause.
?Failure of a Garnishee as in the instance case, to file an affidavit to show cause is in Law deemed to be an admission of the Judgment Creditor’s claim that the Garnishee holds the Judgment debtor’s money sufficient to satisfy the Judgment/Debt. This accords with the general principle applicable to the proof of a fact by affidavit evidence. Where a fact is to be proved by affidavit evidence and the Applicant files an affidavit of facts
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relied upon for the grant of an Order, the Respondent who desires to challenge or oppose the grant of the application is duty bound to file a counter-affidavit or be deemed to have admitted the facts in the affidavit and concedes to the grant of the application. OGEJEOFO v. OGOEJEOFO (2006) 2 NWLR (Pt. 966) 206, ALAGBE V. ABIMBOLA (1978) 2 SC 39, PHCN V. OGUNSUNYI (2013) LPELR – 19838 (CA).
Similarly, in a Garnishee proceedings such as this, where a Garnishee Order Nisi is served on the Garnishee, the onus is no longer on the Garnishor to place any further materials before the Court to enable the Court make the Order absolute. The onus is on the Garnishee, if he desires to oppose the Order Nisi being made absolute, to show cause why the Order should not be made absolute. See OCEANIC BANK PLC V. OLADEPO & ANOR (2012) LPELR – 19670 (CA).
The clear provisions of Sections 83 and 86 of the Act and the authorities abundantly make it clear that on the return date of Garnishee Order Nisi, where the Court is satisfied that a Garnishee has been properly served with the Garnishee Order Nisi but fails to appear before the Court and does not dispute the debt
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or is deemed not to dispute the claim by failing to file an affidavit to show cause, the only duty of the Court is to make absolute the Order Nisi in compliance with Section 86 of the Act. This is the clear and simple interpretation of the Section 86 of the Act as judicially pronounced in several decisions of the apex Court and this Court. This position of the Law was expressed by this Court per Ogunwumiji JCA in Zenith Bank v. Igbokwe 21975 (CA) while referring to Aderemi JCA (as he then was) in Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120 as follows:-
“lf the Garnishee wishes to dispute the debt or liability by it to the judgment debtor he must appear before the Court. If the Garnishee does not appear in obedience to the Order Nisi or does not dispute liability, the Court may then make the Order Nisi absolute pursuant to the provisions of Section 85 of the Sheriffs and Civil Process Act, Cap 407 Laws of the Federation 1990……”
?There is no gain saying the fact that the reason canvassed in this case by the learned Counsel to the Appellant about the administrative lapses in the Appellant’s office accounting for their absence in Court and which
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was not placed before the Lower Court on the return date, could not have had any bearing on the duty of the trial Court to give effect to Section 86 of the Act as there being nothing before the Court to preclude it from making the Order absolute.
Let me reiterate for the purpose of emphasis even at the risk of repetition that the only recognized reasons why an order Nisi cannot be made absolute are two, namely:-
(1) Where the Garnishee was not properly served with the Order Nisi or
(2) Where in accordance with Section 87 of the Act, the garnishee shows sufficient reason or cause why the Order should not be made absolute. But where as in this case the Garnishee does not do any of these two actions, then the Court must comply with Section 86 of the Act, and the Garnishee cannot turn around to argue that the trial Judge erred in Law in making the Order Nisi absolute because the learned trial Judge was perfectly grounded in Law in making the Garnishee Order Nisi absolute, in the circumstance. The conclusion arrived at by the learned trial Judge predicated on the facts before the Court, is impeccable and cannot be faulted.
?The situation might be
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different had the Appellant appealed the decision of the 19/01/2012 wherein the trial Judge refused and dismissed the Appellant’s application to set aside the Order absolute. It is an appeal against that decision that would have enabled this Court to review the decision, look into the merit of the reasons and explanations offered by the Appellant and consider if really it is not liable to pay the debt. But Alas, for the ineptitude of the Counsel, that appeal is not before this Court though contained in the Notice of Appeal as one of the decisions appealed against.
This is why I feel compelled to comment on the manner of the presentation of the Appeal by the learned Counsel and to remind Counsel of his duty to his clients.
Counsel owes his client the duty of utmost devotion in presenting his client’s case and to the best of his ability with professional skill. It is the knowledge and professional expertise of the Counsel that his client pays for and expects nothing but the best from the Counsel within the tenets of the Law and professionalism.
?In the presentation or defence of his client’s case, Counsel is expected to place the interest of his
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client upper most and be devoted in pursuing same to the best of his ability. He must be circumspect in the choice of the manner of presentation or defence of the case. He may make mistakes in his choice and or in the presentation or defence of the case, but he must be seen to have exerted all his utmost efforts and applied his professional learning and skills.
The extent to which a Counsel can go in supporting his client’s case vis-a-vis the right of the Counsel to control the incidents of the trial is provided in Rule 14(c) of the Rules of Professional Conduct in the Legal Profession, published as Government Notice No. 69 in Federal Official Gazette No. 5 of 18th January, 1980. It provides inter alia:-
“The Lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defence of his client’s rights and exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him, save by the Rules of Law legally applied……….. in the judicial form, the client is entitled to expect his Lawyer to assert every remedy or defence……….”
See ADEWUNMI V. PLASTEX NIG. LTD (1986) NWLR (Pt.
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32) 767.
It is needless to restate that a Counsel owes the duty of total devotion to the best interest of his client and to exert his learning in maintaining or defending his client’s case. This duty includes being thorough and doing what is humanly possible to avoid costly mistakes or lapses that would be detrimental to the interest of his client.
Surely, there is a world of difference between on one hand mistakes, human error or simple clerical errors and on the other hand, the ineptitude of Counsel. Indeed the time has come for the Courts and all ministers in the temple of justice to draw a very distinct line between the two.
?The general dogma and principle of Law that a litigant should not be punished for the sin of his Counsel, I believe, has its limitations in procedural errors and can find solace only with regards to matters of procedure. The principle cannot be used as a safe-haven to cure mistakes especially and indolence of Counsel. Surely, it cannot avail the party and most importantly cannot shield the Counsel who commits blunders on the substantive requirement of the Law. The Court would not under the guise of not visiting sins of
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Counsel on the client, condone ineptitude, incompetence or lack of due diligence on the part of Counsel.
This distinction was also drawn by this Court in IYAWE V. MENE (2014) LPELR – 22611 (CA). In the words of my learned brother Lokulo-Sodipe JCA,
“l believe that it is high time learned Counsel realized that there is a world of difference between ineptitude, or incompetence of Counsel, and mistake or inadvertence of Counsel…….”
In a similar situation where Counsel for lack of knowing the difference between a final and interlocutory decision for the purpose of filing an appeal against the Ruling failed to appeal the Ruling within 14 days and also failed to support the application for extension of time to apply for leave to appeal, sought to rely on the general concept of sin of Counsel is not to be visited on the client, this Court in the case of Minister Federal Capital Territory v. Abdullahi (2010) All FWLR (Pt. 507) 179, per Lokulo-Sodipe JCA was quick to draw a distinction between the two and held inter alia:-
‘The Law is definitely settled that no litigant should be punished for sin or mistake of Counsel. lt is however also the Law
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that sin of Counsel or mistake of Counsel is not a magic wand and it ought to be appreciated that Court do not and are indeed not to condone inordinate delay or lack of diligence on the part of litigants and Counsel….”
In his contributory Judgment Peter Odili JCA (as he then was) also reasoned,
“……….it has become fashionable to take shelter in mistake of Counsel almost at all times when lapses in the prosecution of appeal arise. it is to sift the real from the imagined error of Counsel that the Court called upon to grant an indulgent…has duty to distinguish between the mistake of Counsel and the incompetence of Counsel………’
Although the client who bears the brunt of his Counsel’s ineptitude in the conduct of his case, and who is not alive to his interest to follow up the handling of the matter also shares in the lot; that is not to condone the Ineptitude of Counsel. I hope learned Counsel to the Appellant will take the heed and I say no more.
?Having said all these, the duty of this Court is to decide the appeal based upon what is presented before it. It is to confine itself to the records, and the issues as canvassed before
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it by the parties whose dispute it has been called upon to resolve, see DADA V. BANKOLE (2008) 3 MJSC 1, WILSON V. OSHIM (2000) 9 NWLR (Pt. 673) 442, ALH. ONIBUDU V. ALH. W. AKIBU & ORS (1982) ALL NLR 207, 220.
In the circumstance, the decision of the Lower Court on the only live issue in the appeal having been found to be impeccable and unassailable, this appeal as presented before us lacks merit. It is dismissed and the decision of the Lower Court delivered on 19th January, 2011 is affirmed.
Other Citations: (2016)LCN/8645(CA)
