CORAM

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HON. JUSTICE O.F. OMOLEYE (PJ),JUSTICE, COURT OF APPEAL

HON. JUSTICE H.A. O. ABIRU, JUSTICE, COURT OF APPEAL

HON. JUSTICE A.M. LAMIDO, JUSTICE, COURT OF APPEAL

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PARTIES

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SPEAKER, JIGAWA STATE HOUSE OF ASSEMBLY

JIGAWA STATE HOUSE OF  ASSEMBLY

CLERK, JIGAWA STATE HOUSE OF ASSEMBLY

APPELLANTS 

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1. HON.  SANI ISYAKU ABUBAKAR

2. UNITY BANK PLC

3. FIRST BANK OF NIGERIA PLC

4. ACCESS BANK PLC

5. UNITED BANK FOR AFRICA PLC

6. FIRST CITY MONUMENT BANK PLC

7. ECOBANK  NIGERIA PLC

8. ENTERPRISE BANK  PLC

9. FIDELITY BANK PLC

10. GUARANTY TRUST BANK PLC

11. POLARIS BANK PLC

12. STANBIC IBTC BANK PLC

13. STERLING BANK PLC

14. UNION BANK OF NIGERIA PLC

15. ZENITH INTERNATIONAL BANK PLC

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, GARNISHEE PROCEEDINGS, JUDGMENT AND ORDER, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The 1st set of Respondents as Judgment Creditor had filed a Motion Ex-parte before the High Court of Jigawa State, sitting in Dutse, wherein they sought for the following orders of the trial Court; to attach all the funds in all the accounts of the 1st and 2nd Appellants with the fourteen (14) Garnishee Banks, to satisfy a judgment sum of Three Million Naira (N3,000,000:00); directing the Garnishee Banks not to allow the Appellants to make any transactions in their accounts pending the satisfaction of the said judgment sum; and directing the Garnishee Banks to appear and show cause, why an Order Absolute should not be made against them for the satisfaction of the judgment sum. The trial Court granted all the reliefs of the 1st set of Respondents and adjourned the case. The 1st set of Respondents applied for the Garnishee proceedings to be suspended pending the hearing and determination of the Motion for Stay of Execution filed by the Appellants. However, the 2nd, 4th and 13th Garnishee Banks on behalf of the other Garnishees present made an application for the discharge of the Garnishee Banks that did not have money belonging to the Appellants and that those Garnishee Banks who had records of the Appellants’ funds should remain in the proceedings. The 1st set of Respondents’ Counsel conceded to the discharge of the Garnishee Banks who did not have funds belonging to the Appellants, but the Appellants opposed the application. The trial Court overruled the objection of the Appellants and granted the application of the 1st set of Respondents application for the adjournment of the garnishee proceedings and also discharged the Garnishee Banks that had no funds of the Appellants with them; it further adjourned the matter to another date for the Appellants to move their motion for stay of execution of the judgment in the substantive action. Dissatisfied with the ruling, the Appellants have appealed against the ruling of the trial Court vide their Notice of Appeal containing six (6) Grounds of Appeal.

 

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HELD

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Appeal Succeeds in Part

 

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ISSUES

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1. Whether the proceedings conducted on the 6th August, 2020 which led to the discharge of some Garnishee Banks and grant of an Order Nisi against 1st and 8th Garnishee Banks have basis in law?

2. Whether the learned trial Judge was not wrong to have refused to follow the decisions of the Supreme Court and Court of Appeal that are relevant to the issue before the trial Court?

 

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RATIONES DECIDENDI

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DUTY OF COURT WHERE THE ISSUE FORMULATED FOR DETERMINATION IS NOT DISTILLED FROM THE GROUND OF APPEAL

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“The law is trite that the Court can, where it deems an issue formulated for determination of an appeal is not distilled from a ground of appeal, “suo motu”  strike out the said issue, where it so finds in the course of writing its judgment. See the cases of: (1) Wachukwu v. Owunwanne (2011) 14 NWLR (Pt.1266) p.1 at p. 30; (2) Emejuru & Anor. v. Abraham & Ors. (2018) LPELR– 46330 (SC) and (3) Onwubuya & Ors. v. Ikegbunam (2019) LPELR – 49373 (SC).  The law is also trite that issues formulated for determination must flow from the grounds of appeal thereby drawing their lives from them. This is because grounds of appeal are the fulcrum that give strength and support to the issues formulated. Thus, where an issue is not linked to any ground of appeal, that issue is lame as it has no leg to stand on and must therefore collapse.

-PER O. F. OMOLEYE, J.C.A

 

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NATURE OF GARNISHEE PROCEEDINGS

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“Now, it is trite law that garnishee proceedings are in the nature of enforcement of the judgment of a Court.  A simple illustration of garnishee proceedings was given by the late legal sage, Lord Denning MR, in the case of: Choice Investment Ltd. v. Jerominimon (1981) QB p. 149 at pgs. 154-155 as follows:

“A creditor is owed 100 pounds by a debtor.  The debtor does not pay.  The creditor then gets judgment against him for the 100 pounds. Still the debtor does not pay.  The creditor then discovers that the debtor is a customer of a bank and that he has 150 pounds at this bank.  The creditor can get a “garnishee order” against the bank by which the bank is required to pay into the Court or direct to the (judgment creditor) out of the Customer’s 150 pounds, the 100 pounds which he owes to the creditor…….”

In other words, Garnishee proceeding is one of the ways of executing or enforcing a monetary judgment by the attachment of a debt due to the judgment debtor which forms part of his property in the custody of a third party.  It is a procedure whereby the judgment creditor obtains the order of Court to attach any debt owed the judgment debtor from any person or body within the jurisdiction of the Court in satisfaction of the judgment debt. The procedure thus flows from the judgment that pronounced a debt, albeit, it is a separate and distinct action between the judgment creditor and the person or body known as the “Garnishee” who is having custody of the assets of the judgment debtor.

– PER O. F. OMOLEYE, J.C.A

 

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PROCEDURE FOR THE APPLICATION OF GARNISHEE PROCEEDINGS – WHETHER A JUDGMENT DEBTOR CAN BE HEARD IN GARNISHEE PROCEEDINGS

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“The law is therefore settled that applications for garnishee proceedings are made to the Court by a judgment creditor and the orders of the Court usually come in two steps. The first is a Garnishee Order Nisi made at that stage by the Court upon an ex parte application of the Judgment Creditor, with an affidavit in support, ordering the Garnishee to appear and show cause why he should not pay the amount due to the Judgment Debtor in his possession to the Judgment Creditor. After the grant of the Order Nisi, the said Order Nisi must be served on the Garnishee, Judgment Creditor and Judgment Debtor. A return date, not less than fourteen days after the Service of the Order Nisi on the aforesaid three parties, is fixed by the trial Court. This means that, at the first stage of garnishee proceedings, only the Judgment Creditor and Garnishee are involved. However, after the service of the Order Nisi on the Judgment Debtor, the subsequent hearing envisages a tripartite proceeding in which the three parties are represented in Court before an Order Absolute is made.

The second stage of the proceedings is therefore 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 custody to the Judgment Creditor, then an Order Absolute is made against the Garnishee. Furthermore, the law is equally trite that a Judgment Debtor, after being served with an Order Nisi can also be heard by the Court only if he observes irregularities in what is presented before the Court by the Judgment Creditor. If the judgment sum is therefore certain, unambiguous and the application of the Judgment Debtor is only designed to reopen issues that have been settled in the main judgment, the Judgment Debtor cannot be heard. However, if the application of the Judgment Debtor is to draw the attention of the Court to misleading facts put forward by the Judgment Creditor, justice demands that the Judgment Debtor be heard in such circumstances. There is thus no hard and fast rule of law that a Judgment Debtor cannot be heard in garnishee proceedings. It is the legal duty of the Court to determine whether or not the Judgment Debtor should be heard, depending on the peculiar facts and circumstances of any given case. The above stated procedure is backed up by the provisions of Section 83(1) and (2) of the Sheriffs and Civil Process Act and Order VIII Rule 8(1) of the Judgment (Enforcement) Rules. See also the cases of:(1) Barbedos Ventures Ltd. v. Zamfara State (2017) LPELR-42499 (CA); (2) UBN V. Boney Marcus Ind. Ltd. & Ors. (2005) LPELR-3394 (SC); (3) Gwede v. Delta State House of Assembly & Anor. (2019) LPELR-47441 (SC) and (4) Sani v. Kogi State House of Assembly & Ors. (2021) LPELR-53067 (SC).

-PER O. F. OMOLEYE, J.C.A

 

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CASES CITED

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None

 

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STATUTES REFERRED TO

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Judgment (Enforcement) Rules

Sheriffs and Civil Process Act

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