CORAM
Tunde Oyebanji Awotoye Justice Court of Appeal
Kenneth Ikechukwu Amadi Justice Court of Appeal
Abdu Dogo Justice Court of Appeal
PARTIES
ECOBANK PLC
APPELLANTS
1. OLATUNDE FARAYOLA
2. FEMI ABIMBOLU
3. PASTOR ADEKUNLE J.O
4. ALABI TUNDE LUKMAN
5. AWE FUNKE T.
6. NURUDEEN ADELEKE
7. ELDER E.S. OLANREWAJU
8. MULIKAT MOHAMMED
9. POPOOLA A. ADEBUNMI
10. AFOLABI AKINWALE
11. FADEYI BOLAJI OLUSEUN
12. ADEMOLA ESAN
13. ALHAJI FADILULAI AKINTOLA
14. LAWAL O. HAFIS
15. AKINREMI TAOFEEK
16. AKANDE MUFUTAU
17. FALADE ADENIYI
18. AJIBOYE OLUBUSUYI JOY
19. KAREEM ZEKERI
20. AKINTUNDE SEGUN
21. OLUBANJO TAIWO
22. ROTIMI OGUNDIPE (For themselves and on behalf of all the subscribers of Pennywise Royal Heritage Limited)
23. PENNYWISE ROYAL HERITAGE LTD
RESPONDENTS
AREA(S) OF LAW
BANKING LAW, GARNISHEE PROCEEDINGS, CIVIL PROCEDURE, APPEAL, JURISDICTION, CONSTITUTIONAL LAW, FAIR HEARING, ADMINISTRATION OF JUSTICE, JUDGMENT ENFORCEMENT, SHERIFFS AND CIVIL PROCESS LAW
SUMMARY OF FACTS
The 1st to 22nd Respondents who were the Claimants before the lower Court filed an action “for themselves and on behalf of all the subscribers of PENNYWISE ROYAL HERITAGE LIMITED” against the 23rd Respondent, PENNYWISE ROYAL HERITAGE LIMITED, who was the Defendant before the lower Court claiming the sum of N94,091,930:00 (Ninety Four Million, Ninety One Thousand, Nine Hundred And Thirty Naira) only being money invested with the 23rd Respondent and which the 23rd Respondent has refused to pay to the 1st – 22nd Respondents in spite of repeated demands.
On 1st of August, 2008, the lower Court gave judgment in favor of the 1st – 22nd Respondents for the amount claimed against the 23rd Respondent. Thereafter, the 1st – 22nd Respondents initiated garnishee proceedings to attach the 23rd Respondent’s monies in its account with the Garnishee (now appellant). Subsequently, an order nisi was made by the lower Court and served on the appellant to show cause why it should not be ordered to pay the judgment debtor’s money in its custody to the 1st – 22nd Respondents to satisfy the judgment debt.
After the service of the order nisi, the appellant through its solicitor filed an affidavit on 15th August, 2008 stating that the credit balance in the account of the 23rd Respondent with the appellant as at 15/8/08 was N49,229,626.74. The Garnishee/Appellant later filed a second affidavit to show cause in which it stated that the amount standing to the credit of the judgment debtor had been paid out to various persons and there was nothing left in the account of the judgment debtor.
The lower Court, after considering the two affidavits to show cause filed by the appellant and the further affidavits filed by the 1st – 22nd Respondents, on the 23rd of April, 2009 made the order nisi absolute and directed the appellant to pay to the 1st – 22nd Respondents the sum of N49,229,626.74.
Dissatisfied with the order absolute, the appellant filed an application dated 14th May, 2009 to set aside or discharge the order absolute made on the 23rd of April, 2009. After hearing the application, the lower Court, on 3rd of March, 2011, dismissed the application on the ground that it had no jurisdiction to set aside the garnishee order absolute because it was a final order and that the only remedy open to the garnishee was to lodge an appeal against it.
The appellant, dissatisfied with the ruling of 3rd of March, 2011, filed a notice of appeal against it on the same date, and later filed an amended notice of appeal on 25th of June, 2018, which was deemed by the Court as properly filed and served on 6th of March, 2019.
HELD
1. The appeal was struck out.
2. The Court found that only ground one of the six grounds of appeal in the Amended Notice of Appeal was competent. Grounds 2, 3, 4, 5, and 6 were struck out for being incompetent.
3. The Court held that the issues for determination formulated by the appellant were incompetent as they were distilled from incompetent grounds.
4. The Court also held that the lower Court was right when it refused to set aside the order absolute because it was not within the power of the Court to do so, and the only option open to the appellant was to appeal against the order absolute.
5. The appellant was ordered to pay costs of N200,000.00 (Two Hundred Thousand Naira) to the 1st-22nd Respondents jointly.
ISSUES
1. Whether the trial Court erred in law when it held it lacked the jurisdiction to discharge the order of decree absolute made on 23rd April, 2009 because the Court had become functus officio?
2. Whether the order of decree absolute of 23rd April, 2009 was validly and properly made?
3. Whether the lower Court erred in law by holding that it has no power to set aside its order absolute made on 23-04-2009 when the said order is allegedly a nullity having been made during the pendency of a motion for oral hearing?
4. Whether the lower Court erred in law by failing to set aside its null order given without or in excess of jurisdiction by giving and enforcing its judgment in favour of the claimants who were not customers of the bank contrary to Section 251 of the Constitution?
5. Whether the lower Court erred in law by failing to set aside its own decision which was given without jurisdiction and is therefore a nullity having been delivered in breach of the relevant provisions of the Sheriffs & Civil Procedure Law?
6. Whether the lower Court erred in law by failing to set aside its own decision made on 23rd April, 2009 making or enforcing an order for the payment of the totality of the “judgment debt” to the judgment creditors by the Garnishee when the Garnishee was not a party to the action?
RATIONES DECIDENDI
NOTICE OF APPEAL – INCOMPETENCE OF GROUNDS OF APPEAL WITHOUT PROPER PARTICULARS
“I have gone through grounds 3, 4, 5 and 6 of the grounds of appeal. Although the appellant attempted to incorporate the particulars of the error in the said grounds, the particulars are insufficient and thereby made the appellant’s complaints in the said grounds obscure or unclear. The Appellant is duty bound to state his complaint against the ruling of the lower Court in a clear term so that the respondent and this Court are not left in doubt as to the nature or scope of the Appellant’s complaint against the said ruling.” – Per ABDU DOGO, J.C.A.
FUNCTUS OFFICIO – FINALITY OF GARNISHEE ORDER ABSOLUTE
“As rightly stated by the lower Court if the Appellant is not satisfied with the order of the lower Court making the order nisi absolute, the only option open to it is to appeal against the order absolute.” – Per ABDU DOGO, J.C.A.
ISSUES FOR DETERMINATION – INCOMPETENT ISSUES FORMULATED FROM INCOMPETENT GROUNDS
“I am conscious of the position of the law that a single ground of appeal can sustain an appeal. However, it is also the position of the law that where an issue for determination is formulated from both competent and incompetent grounds of appeal, such issue for determination is incompetent because the Court cannot excise arguments in respect of the competent ground of appeal for the argument in respect of the incompetent ground of appeal made under the same issue for determination.” – Per ABDU DOGO, J.C.A.
NATURE OF GARNISHEE PROCEEDINGS – DISTINCTION FROM BANKING MATTERS
“The Appellant’s contention that the matter before the lower Court was a banking issue/dispute is grossly misconceived. The matter before the lower Court was a garnishee proceeding not a banking matter. The Appellant has conceded this fact in its Brief of Argument. See paragraph 3.00-3.06 of the brief. There is no doubt that the lower Court has jurisdiction to entertain the garnishee proceeding against the Appellant.” – Per ABDU DOGO, J.C.A.
ADJOURNMENT – REFUSAL OF ADJOURNMENT NOT GROUND TO SET ASIDE FINAL ORDER
“I hold the view that the refusal of the lower Court to grant the Appellant an adjournment cannot be a ground for the same lower Court to set aside the order absolute, since the refusal to grant the adjournment sought was made in the exercise of the Court’s discretion. The only way to challenge the exercise of the said discretion by the Lower Court is to appeal against the decision, which the Appellant has not, up to this time.” – Per ABDU DOGO, J.C.A.
PENDING APPLICATIONS – STATUS OF STRUCK OUT APPLICATIONS
“With regards to the Appellant’s claim that the lower Court refused/neglected to hear its application which was pending before the Court before the lower Court made the order absolute, I hold the view that this contention is also misconceived. It is clearly stated in the ruling of the lower Court delivered on 3rd March, 2011, the subject of this appeal, that the said application of the Appellant was struck out by lower Court on the same 23rd April, 2009 when the order absolute was made. The Appellant did not appeal this finding of the lower Court. See pages 294 -295 and page 298 of the Additional Record of Appeal. A motion that has been struck out cannot be said to be pending before the Court.” – Per ABDU DOGO, J.C.A.
SCOPE OF GARNISHEE ORDER – LIMITED TO JUDGMENT DEBTOR’S FUNDS
“Furthermore, I hold the view that the Appellant’s contention that the order absolute was made by the lower Court in excess of its jurisdiction and that the order amounts or is tantamount to enforcing the judgment of the Court against the Appellant who was not a party to the main suit is misconceived. The order of the lower Court was based on the first affidavit to show cause filed by the Appellant wherein it stated that the judgment debtor, i.e. the 23rd Respondent, had money in its account with the Appellant to the tune of N49,229,626.74. See page 277 of the Additional Record of Appeal. So, it was an order directing the Appellant to pay the said amount it admitted was in its custody to the judgment creditors through their Counsel.” – Per ABDU DOGO, J.C.A.
NATURE OF GARNISHEE ORDER – NOT ENFORCEMENT AGAINST GARNISHEE
“Similarly, the order of the lower Court was not an enforcement of the monetary judgment in the main suit against the Appellant but against the judgment debtor through garnishee proceeding.” – Per ABDU DOGO, J.C.A.
APPELLATE COURT’S POWER – STRIKING OUT INCOMPETENT APPEALS
“Based on the foregoing analysis therefore, I hold the view that the lower Court was right when it refused to set aside the order absolute because it is not within the power of the Court to do so. The lower Court rightly advised the Appellant to appeal against the order absolute as the only option open to it, but the Appellant did not heed the advice. In conclusion, I hold that even if the grounds of appeal and the first issue for determination are competent, yet the appeal lacks merit. It would have been dismissed by me. However, in view of my finding above that the Grounds of Appeal are incompetent save ground one, which affected the issue for determination, the proper order to make in the circumstances is to strike out the appeal.” – Per ABDU DOGO, J.C.A.
APPEAL AGAINST FINDING – PARTY CANNOT APPEAL AGAINST FINDING NOT MADE
“The 1st-22nd Respondents further contended that the finding challenged in ground one of the grounds of appeal was against the 23rd Respondent not the Appellant. This contention is obviously incorrect. The ground complained about the holding of the lower Court that it lacks jurisdiction to set aside the order absolute. The order absolute was made against the Garnishee not the Judgment debtor. It was also the Garnishee that applied to the lower Court to set aside the order absolute which the lower Court said it lacked jurisdiction to do.” – Per ABDU DOGO, J.C.A.
GROUNDS OF APPEAL – COMPLAINT MUST BE ON FINDING OR RATIO DECIDENDI
“It is trite that a ground of appeal must complain about a finding or a ratio decidendi in the ruling or judgment appealed against. Where a ground of appeal complains about a matter or an issue not dealt with or contained in the ruling or judgment of the Court appealed against such ground of appeal is incompetent.” – Per ABDU DOGO, J.C.A.
INCOMPLETE RECORD – WHEN NON-INCLUSION OF PROCEEDINGS NOT FATAL
“Nonetheless, I am of the view that the non-inclusion of the said proceedings in the Records of Appeal is not fatal to the hearing of this Appeal. There is no any doubt that the application was heard by the lower Court and a ruling on it delivered by the lower Court on 3rd March, 2011. The said proceedings is not material to the hearing of this appeal. What is material to the hearing of this appeal, inter-alia, are the application and all the processes that accompanied or supported it, the processes filed by the 1st-22nd Respondents in response to the application and the ruling of the lower Court on the application. All these processes are in the Records of Appeal.” – Per ABDU DOGO, J.C.A.
ERROR IN BRIEF OF ARGUMENT – WHEN NOT FATAL
“It is correct that the Appellant in paragraph 1.01 of its brief of argument stated that the appeal is against the ruling delivered on 21st March, 2011, which is not correct. However, I am of the view that the 1st-22nd Respondents were not misled by this error on the ruling the Appellant appealed against and in respect of which the Appellant’s Brief of Argument was filed. In the same paragraph 1.01 the Appellant stated that the ruling appealed against is at pages 279-299 of the Supplementary Record of Appeal and the ruling contained in the stated pages is the ruling delivered on 3rd March, 2011 not the ruling delivered on 21st March, 2011. Therefore, it is obvious that reference to 21st March, 2011 as the date the ruling was delivered was a mistake.” – Per ABDU DOGO, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Court of Appeal Act, 2005
• Court of Appeal Rules, 2016
• Court of Appeal Rules, 2021
• Sheriffs and Civil Process Law, Cap 151, Laws of Oyo State, 2000
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