Legalpedia Citation: (2014) Legalpedia (CA) 21111
In the Court of Appeal
Mon Mar 31, 2014
Suit Number: CA/L/103/2011
CORAM
PARTIES
SKYE BANK PLC APPELLANTS
1. CORNELIO COLOMBARA
2. G. CAPPA PLC
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimant/1st Respondent got judgment against the Judgment debtor/2nd Respondent for the sum of $52, 441, 47 and N1, 600, 472, 32. The Claimant/1st Respondent commenced a garnishee proceeding against the Garnishee/Appellant. The trial Court made a garnishee order nisi against the garnishee/Appellant attaching the Judgment debtor/2nd Respondent’s funds in the custody of the Garnishee/Appellant. Notwithstanding the said order nisi, the Garnishee/Appellant disbursed the Judgment debtors/2nd Respondent’s money in its custody. The trial Court made the order nisi, absolute.Aggrieved by the said Ruling, the Garnishee/Appellant appealed to Court of Appeal praying the Court to set aside the Garnishee order absolute on the ground that the Judgment debtor/2nd Respondent’s fund in its custody of the garnishee/Appellant attached by the trial Court belonged to the third party, the Lagos State Government, who was not invited by the trial Court before making the order nisi, absolute in compliance with section 88 of the Sheriff and Civil Processes Act.
HELD
Appeal dismissed
ISSUES
1. Whether the appellant had a lien of the attached funds.?
2. Whether the learned trial judge was right in the circumstance of the proceedings before the court to have made a garnishee order absolute against the appellant without first directing the appearance of the Lagos State Government and conducting an inquiry.?
3. Whether the lower court was right in holding that the 60% advance payment was inclusive of the profits accruable to the 2nd Respondent.?
RATIONES DECIDENDI
WORDS AND MEANING-GUARANTEE-MEANING OF
A guarantee, legally speaking is a contract whereby the guarantor promises the actual or potential creditor to be responsible to him in addition to the principal debtor of his existing or future obligations to the creditor, if the principal debtor fails to perform those obligations. See CHITTY ON CONTRACTS (26 EDITION, 1989) Vol. II CAP 12. Also in Blacks Law Dictionary 9 Edition page 1968 Guarantee is defined as a promise to answer for the payment of some debt, or the performance of some duty in case of the failure of another who is liable in the first instance. PER OSEJI. JCA
CASES CITED
FMBN LTD Vs. DESIRE GALLERY LTD (2004)13 NWLR (PT 891)522RE DIAMOND BANK LTD (2002)17 NWLR (PT 759) 120CBN AUTO IMPORT EXPORT (2013) 2 NWLR (PT 1337)80.