RTL008-7 Costly Mistakes Law Firms Are Making With Their WebsiteApril 13, 2016
MAINSTREET BANK REGISTRARS LIMITED V. EVUKOWHIRORO ELEYEME PROMISEApril 18, 2016
Court Of Appeal – Lagos
AREAS OF LAW:
ACTION, APPEAL, COURT, GARNISHEE PROCEEDINGS, JUDGMENT AND ORDER, JURISDICTION, PRACTICE AND PROCEDURE
SUMMARY OF FACTS:
The 1st Respondent got a default judgment against the Appellants and filed necessary processes towards executing the judgment after the Appellants application to set aside the judgment was dismissed. The 1st Respondent then commenced garnishee proceedings with a view to enforcing the monetary judgment. While this was ongoing, the Appellants applied and were granted leave to appeal against the judgment entered against them. They also filed an application for stay of execution. The Court however made a Garnishee order nisi and order absolute attaching the account of the Appellants. An application to discharge the Garnishee order absolute and to terminate further proceedings in the matter was refused by the lower court, hence this appeal at the instance of the Appellant.
ISSUES FOR DETERMINATION:
- Whether it was proper for the Honorable trial court to assume jurisdiction in the Garnishee proceedings when the originating processes did not disclose that the 2nd Respondent /Garnishee and/ or the debt owed by it to the 1st Appellant/ Judgment Debtor is/are within the jurisdiction of the court
a. The filing of the motion Ex – parte for Garnishee Order Nisi by the 1st Respondent/Judgment creditor during the pendency of the Appellants/judgment – Debtor’ application for leave to Appeal
b. The subsequent prosecution and granting of the said motion Ex-parte for Garnishee Nisi after leave had been granted to the Appellant/ judgment –Debtors to appeal and,
c. The granting of the Garnishee order Absolute after the filing of an appeal and the application to stay the execution of the default judgment upon which the said Motion Ex – parte for Garnishee order Nisi and Garnishee Order Absolute were predicated do not amount to an abuse of court process, leading to a miscarriage of justice?
JURISDICTION OF COURT – EFFECT OF PROCEEDINGS CONDUCTED BY COURT WHERE IT LACKS JURISDICTION
“Jurisdiction is generally a crucial and radical question. If a court lacks jurisdiction to determine a matter then all proceedings undertaken by the court becomes a nullity however well conducted. That makes jurisdiction a threshold matter. The apex court in the case of NDIC V Central Bank Of Nigeria (2002) LPELR – 2000(SC) held thus:
“Jurisdiction is the very basis on which any tribunal tries a case; it is lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of appeal or to this court; a fortiori the court can suo motu raise it.” PER Y .B. NIMPAR, J.C.A.
JURISDICTION – FACTORS THAT DETERMINES THE JURISDICTION OF COURTS
“The law is settled on how to determine the jurisdiction of a court, a plethora of cases have re-established that jurisdiction has impact on competency of the court and is determined on the following principles:
1. It is properly constituted with respect to the number and qualification of its members;
2. It has jurisdiction over the subject matter
3. The action is initiated by due process of law; and
4. Any condition precedent to the exercise of its jurisdiction has been fulfilled.” PER Y .B. NIMPAR, J.C.A.
GARNISHEE PROCEEDINGS – PROCEDURE FOR GARNISHEE PROCEEDINGS UNDER SECTIONS 83 AND 84 OF THE SHERIFF AND CIVIL PROCESS ACT – CONDITIONS TO A VALID GARNISHEE PROCEEDINGS
“The law has spelt out the procedure for garnishee proceedings in Sections 83 and 84 of the Sheriff and Civil Process Act. The requirements stipulated in the Act are:
a. An applicant must satisfy that Judgement has been delivered;
b. An applicant must satisfy the court that the judgement is still unsatisfied;
c. An applicant must satisfy the court as to the amount of the still unsatisfied; and
d. An applicant must satisfy the court that a debt owes from the third party.
See UBA V SGB Ltd (1996) 10 NWLR Pt 478 381 See also CBN V Auto Import Export(2013) 2 NWLR (Pt 1337) 80 wherein a variant of the conditions to a valid garnishee proceedings were given as follows:
“For a garnishee proceeding to be valid, it is in incumbent upon the trial court to ensure that the following conditions have been duly satisfied:-
i. That the garnishee must be indebted to the judgment creditor within the state and be resident in the state in which the proceedings are to be brought. As such, if the debt is owed by someone outside the state, the proceeding are inapplicable.
ii. The proceedings should be filed in any court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in Magistrates courts, as the case may be, sue the garnishee in respect of the debt. Thus, the court may not necessarily have to be the one that gave the judgment. It could be a Magistrate’s court and the fact that the debt exceeds the jurisdiction thereof notwithstanding.
iii. The application for the garnishee order shall be made ex – parte. The court if satisfied that the judgement creditor is entitled to attach the debt
iv. shall make a garnishee order nisi. See order 8 Rule 3(2).
v. The service of the order nisi thereon binds or attaches the debt in the hands of the garnishee. Section 85 of the Sheriff and Civil Process Act (supra). See the case of National Insurance Commission V Oyefeso &Ors (2013) LPELR – 20660 (CA).”
– PER Y .B. NIMPAR, J.C.A.
GARNISHEE PROCEEDINGS – DUTY OF COURTS IN MAKING GARNISHEE ORDER.
“It is the duty of the court to require any material before making the garnishee order nisi. It is after the making of the order Nisi that the law requires that the judgment debtor be served and even at that he has no part in the proceedings. “PER Y. B. NIMPAR, J.C.A.
GARNISHEE PROCEEDINGS- GARNISHEE PROCEEDINGS DISTINGUISHED FROM THE PROCEEDINGS LEADING TO THE JUDGMENT DEBT.
“It has been settled that garnishee proceedings are distinct from the proceedings leading to the judgment debt, see Star Deepwater Petroleum Limited & Ors V A.I.C Limited &Ors (2010) LPELR – 9165 (CA) where the court held as follows:
“It is trite law, that garnishee proceedings though incidental to the judgement pronouncing the debt owed, the judgement debtor is not a necessary party to the said proceedings.”See also P.P.M.C V Delphi Petroleum Incorporated (2005) 1 NWLR (PT. 928) 458 at 486 and IN RE: Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120 at 133.” PER Y .B. NIMPAR, J.C.A.
ABUSE OF COURT PROCESS -WHAT THAT CONSTITUTE ABUSE OF COURT PROCESS
“Abuse of court process has received judicial attention in a plethora of cases, one of which is Saraki V Kotoye (1992) LPELR – 3016(SC) where the apex court said:
“Thus the multiplicity of actions on the same subject matter between the same parties even where there exist a right to bring the action is regarded as abuse. The abuse lies in the multiplicity and the manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intension purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds.” PER Y . B. NIMPAR, J.C.A.
ABUSE OF COURT PROCESS – BASIC INGREDIENTS THAT MUST BE PRESENT FOR ABUSE OF COURT PROCESS TO BE SAID TO HAVE OCCURRED
“There are therefore basic ingredients that must be present for abuse of court process to be said to have occurred. These are:
a. The actions must be between same parties;
b. On the same subject matter;
c. On the same issues.” PER Y .B. NIMPAR, J.C.A.
GARNISHEE PROCEEDINGS – DEFINITION OF GARNISHEE PROCEEDINGS.
“A Garnishee proceedings has been defined as:
“It behooves a successful plaintiff who does not want to lose the fruits of his victory to move fast against the assets of the judgment debtor to realize the fruits. One of such methods is to obtain the order of court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the court to satisfy the judgment debt. That process is known as “attachment of debt”. And it is a separate and distinct action between the plaintiff/judgment creditor and the person or body holding in custody the assets of the judgment debt, although it flows from the judgment that pronounces the debt owing.” See Re: Diamond Bank Ltd. (2002) 17 NWLR (PT.795) 120 @ 133.
A Garnishee proceedings is therefore not the kind of action that can qualify to be adjudged for abuse of court process. PER Y .B. NIMPAR, J.C.A.
STAY OF EXECUTION- WHETHER AN APPEAL CAN OPERATE AS A STAY OF EXECUTION
“It is trite that an appeal does not serve as a stay of execution of a judgment. See Josiah Cornelius Ltd V Ezenwa (1996) 4 NWLR (Pt. 443) 391 wherein the apex court held thus:
“the law is clear, that is, that an appeal does not operate as a stay of execution or of execution or of proceeding. Any party appealing against the interlocutory decision of a court is under a duty to apply for stay of further proceedings pending appeal if he believes the result of his appeal will affect further proceedings in the matter.
It therefore the mere granting of leave to appeal but without the appeal itself entered does not amount to stay can the determination of a motion for Garnishee orders amount to abuse of court process? The court in the case of Denton – West V Muoma (2008)6 NWLR (Pt. 1083); 2007 LPELR 8172 (CA) said that the garnishee proceedings are legitimate exercise of judgment creditors right to employ ancilliary methods to enforce the judgement obtained in his favour. That they are therefore competent notwithstanding the pendency of a motion for stay of execution, see also Vaswani Trading Co. Ltd V Savalakh & (1972) 12 SC 77 And Purification Techniques (Nig) Ltd V A. G. Lagos State 92004) 9 NWLR Pt. 879 665 at 677. It is also the opinion of this court in the case United Bank For Africa V Ekanem(2009) LPELR – 8428 (CA) that though an appeal does not ipso factor operate as a stay of execution of the decision appealed against, it is however, desirable for both parties and the trial court to ensure that a situation of no fiat accompli is not foisted on the appellate court, see also Standard Trust Bank V Contract Resources Nigeria (Supra).” PER Y .B. NIMPAR, J.C.A.
STATUTE REFERRED TO:
Sheriff and Civil Process Act