Legalpedia Citation: (2025-06) Legalpedia 22403 (CA)

In the Court of Appeal

Holden at Abuja

Fri Jun 13, 2025

Suit Number: CA/ABJ/CV/1041/2020

CORAM

Joseph Olubunmi Kayode oyewole-Justice of the Court of Appeal

Okon Efreti Abang Justice of the Court of Appeal

Ishaq Mohammed Sani-Justice of the Court of Appeal

PARTIES

SUNTRUST BANK NIGERIA LIMITED 

APPELLANTS

BARR STEPHEN SUNDAY DADA

RESPONDENTS

AREA(S) OF LAW

AREAS OF LAW: CIVIL PROCEDURE, GARNISHEE PROCEEDINGS, CONSTITUTIONAL LAW, FAIR HEARING, JURISDICTION, EXECUTION OF JUDGMENT, BANKING LAW, SERVICE OF PROCESS, SHERIFFS AND CIVIL PROCESS, NATURAL JUSTICE

SUMMARY OF FACTS

The Respondent was beneficiary of a judgment sum following successful litigation against one Mr. Dennis Agbo Nnamdi. The Respondent thereafter took out garnishee proceedings against twenty-five commercial banks in Nigeria including the Appellant (Suntrust Bank Nigeria Limited) who was the 21st Garnishee. The order nisi was granted and the action was adjourned till 24th March, 2020 for the Garnishees to show cause. Due to COVID-19 lockdown, the matter did not come up until 15th September, 2020. On this date, the Appellant had no legal representation and had not filed any affidavit to show cause.

The lower Court discharged all other Garnishees which had filed affidavits to show cause while making the garnishee order absolute against the Appellant and nine other banks which failed to file affidavits to show cause. The Appellant’s case was that they had instructed counsel via email but the email was not delivered, and crucially, no hearing notice was served for the 15th September, 2020 hearing date. The Appellant moved to set aside the garnishee order absolute but the lower Court ruled it was functus officio and dismissed the application. The Appellant’s affidavit revealed that the Judgment Debtor had no banking relationship with the Appellant and did not feature in its database at all.

HELD

1. The appeal was allowed.
2. The garnishee order absolute made by the lower Court on 15th September, 2020 against the Appellant was set aside.
3. The Appellant was discharged as a garnishee in the proceedings.
4. The Court held that failure to serve hearing notice on the Appellant rendered the garnishee order absolute null and void.
5. The Court criticized the practice of “casting a net wide” to include all commercial banks without due diligence to ascertain which banks actually hold funds belonging to the Judgment Debtor.
6. The Court emphasized that fair hearing requires proper notice to all parties before making orders against them.
7. Parties were to bear their respective costs.

ISSUES

1. Whether the honourable trial Court acted within its jurisdiction and in compliance with fair hearing when it made the garnishee order absolute. (Ground one of the Notice of Appeal)?
2. Whether the honourable trial Court was right to dismiss the Appellant’s motion to set aside the garnishee order absolute. (Ground two of the Notice of Appeal)?

RATIONES DECIDENDI

FAIR HEARING – SERVICE OF HEARING NOTICE AS FUNDAMENTAL REQUIREMENT:

“Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the core. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution, the consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void.” – Per KEKERE-EKUN, JSC (now CJN) in NUT TARABA STATE & ORS VS HABU & ORS

FAIR HEARING – SCOPE AND MEANING:

“Fair hearing within the meaning of Section 36(1) means nothing less than a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It envisages the age-long accepted principle of natural justice in its narrow technical sense of the twin pillars, that is audi alterem partem and nemo judex in causa sua.” – Per ISHAQ MOHAMMED SANI, J.C.A.

JURISDICTION – CONFERMENT THROUGH SERVICE OF HEARING NOTICE:

“It is an elementary principle that the service of hearing notice on a party, notifying him of the date a matter is coming up in a Court, is of utmost importance, because it is the service of hearing notice on the party that confers on the Court the jurisdictional competence to entertain the matter.” – Per ISHAQ MOHAMMED SANI, J.C.A.

GARNISHEE PROCEEDINGS – PROOF OF SERVICE REQUIREMENT:

“By the above provisions the Court would only proceed to issue the garnishee order absolute upon being satisfied that there was proof of service. The situation becomes more imperative where the date given on the record was frustrated and the Court was unable to sit for quite a while.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

GARNISHEE PROCEEDINGS – CONDITION PRECEDENT FOR ORDER NISI:

“Pursuant to the above provisions, the affidavit supporting a motion ex parte for garnishee order nisi must show that the judgment is still unsatisfied and to what amount and must show that any person is indebted to such debtor within the State. This is a condition precedent to the issuance of a garnishee order nisi.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

GARNISHEE PROCEEDINGS – CRITICISM OF NET CASTING METHOD:

“This in my view precludes the prevalent practice of casting a net wide to catch all commercial banks operating in the country without the Judgment Creditor having done its due diligence to ascertain as required by above provisions of Section 83(1) of the Sheriffs and Civil Process Act (supra) the particular bank holding funds belonging to the Judgment Debtor.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

GARNISHEE PROCEEDINGS – PROBLEMS WITH INDISCRIMINATE BANK TARGETING:

“A major draw back of the net casting method is that shareholders of banks not having anything to do with the Judgment Debtor are forced into unnecessary litigation expenses to clear themselves of any liability to the Judgment Debtor. The rush into this method gives the impression that garnishee is the only method by which judgment debts can be realized.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

FAIR HEARING – DUTY TO ENSURE PROPER NOTICE:

“Ensuring that all parties had been put on notice of the new hearing date through the issuance and service of a hearing notice accords with the dictates of justice as otherwise the rights of any absent party to fair hearing would have been breached if any order was made against them and any such order would be consequently null and void.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

TECHNICALITIES VERSUS SUBSTANTIVE JUSTICE:

“The main focus of the arguments of Mr. Nwokorie is that we ignore the justice of this case and rather punish the Appellant for failing to file an affidavit to show cause before the return date fixed. Sustaining this argument would practically turn justice upside down and would amount to a genuflection at the false altar of technicalities.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

GARNISHEE PROCEEDINGS – STATUTORY REQUIREMENTS VERSUS PRACTICE:

“However, in practice, it is common amongst virtually all practitioners to commence garnishee proceedings against all banks as garnishees without ascertaining which of the banks are indebted to the judgment debtor. This method of making all banks garnishees in garnishee proceedings is regarded as casting the net while hoping that it catches a fish or two. The practice does not only contravene the provision of the law but also imposes undue obligations on the garnishees.” – Per DR MUIZ ADEYEMI BANIRE, SAN

FAIR HEARING – BURDEN OF PROOF:

“It is incumbent on the party alleging breach of fair hearing to prove it.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

SERVICE OF PROCESS – EFFECT OF NON-SERVICE:

“The failure to issue and serve hearing notice on the Appellant to appear before the lower Court on the 15th September, 2020 rendered the garnishee order absolute made against it null and void in the circumstances.” – Per JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

PROCEEDINGS WITHOUT PROPER NOTICE – LEGAL EFFECT:

“In other words, the
proceedings conducted without due service of hearing notice on the Appellant is
rendered null and void and a futile exercise and of no legal effect.” –
Per ISHAQ MOHAMMED SANI, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Sheriffs and Civil Process Act
• High Court Civil Procedure Rules 2018
• Evidence Act

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