CORAM

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John Inyang Okoro – JUSTICE OF THE SUPREME COURT OF NIGERIA

Helen Moronkeji Ogunwumiju – JUSTICE OF THE SUPREME COURT OF NIGERIA

Adamu Jauro – JUSTICE OF THE SUPREME COURT OF NIGERIA

Obande Festus Ogbuinya – JUSTICE OF THE SUPREME COURT OF NIGERIA

Abubakar Sadiq Umar – JUSTICE OF THE SUPREME COURT OF NIGERIA

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PARTIES

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VITACHEM NIGERIA LIMITED

APPELLANTS 

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DSM SINOCHEM PHARMACEUTICALS INDIA PRIVATE LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, GARNISHEE PROCEEDINGS, CIVIL PROCEDURE, EVIDENCE, SHERIFF AND CIVIL PROCESS ACT, PRELIMINARY OBJECTION, AFFIDAVIT EVIDENCE, SERVICE OF PROCESS, ABUSE OF COURT PROCESS

 

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SUMMARY OF FACTS

The Respondent obtained a summary judgment against the Appellant on 24th November, 2014 from the High Court of Lagos State in Suit No: ID/ADR/126/2014. On 1st December, 2014, the Respondent filed an ex-parte application for garnishee order nisi while the Appellant filed an application to set aside the summary judgment on 5th December, 2014. On 10th December, 2014, the Respondent filed a counter-affidavit to the Appellant’s application to set aside the summary judgment. The trial Court granted the application for garnishee order nisi on the same day. The Appellant filed another application to set aside the garnishee order nisi on 23rd December, 2014. In the affidavit supporting this application, the Appellant stated that “the attempt to make the order absolute is a violation of the Sheriff and Civil Process Act which renders the whole process void.” The Appellant’s counsel also stated in his written address that “It was not aware of the pendency of the garnishee proceedings but only got to know through one of the garnishee banks because the Appellant was not served with the order nisi.” The trial Court dismissed the Appellant’s applications to set aside both the summary judgment and the garnishee order nisi, and proceeded to make the garnishee order nisi absolute on 16th April, 2015. On appeal, the Court of Appeal affirmed the trial Court’s decision, leading to this further appeal to the Supreme Court.

 

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HELD

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1. The appeal was dismissed.

2. The Supreme Court held that the preliminary objection raised by the Respondent was inappropriate and dismissed it, as it sought to challenge only some grounds of appeal rather than the competence of the entire appeal.

3. The Court found that the Appellant failed to adduce credible evidence to support its claim of non-service of the garnishee order nisi.

4. The Court held that the Appellant’s averments in its affidavit were too general and did not specifically allege non-service.

5. The Court ruled that the issue of abuse of court process was not properly raised before the Court of Appeal as it was not supported by any ground of appeal.

6. The cost of the appeal was assessed at N5,000,000.00 in favour of the Respondent.

 

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ISSUES

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1. Whether in view of Section 83(2) of the Sheriff and Civil Process Act, the Court of Appeal was right when it upheld the position of the trial Judge that the Appellant did not disclose the facts of non-service of the Garnishee Order Nisi in its affidavit in support of the application to set aside the Garnishee Order Nisi even when there was no proof of service in the Court file?

2. Whether the Court of Appeal was right to overlook the failure and/or refusal of the learned trial judge to consider the ground of abuse of Court process upon which the Appellant’s application to set aside the Garnishee Order Nisi at the trial Court was predicated?

3. Whether the trial Court had jurisdiction in the first place to entertain the Garnishee proceeding or whether the Court of Appeal was right to uphold the jurisdiction of trial Court to entertain the Garnishee proceeding?

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – WHEN INAPPROPRIATE IN APPELLATE PROCEEDINGS

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“A preliminary objection is inappropriate when a Respondent’s intention is merely to challenge some grounds of appeal or to argue that certain grounds are incompetent, academic, or irrelevant. Such challenges go to the merits of the appeal or the specific arguments raised by the Appellant, rather than the fundamental competence of the appeal itself.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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PRELIMINARY OBJECTION – PURPOSE AND PROPER APPLICATION

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“A preliminary objection is a procedural tool designed to challenge the competence or jurisdiction of the Court to hear an appeal, with the aim of terminating the appeal in limine (at the threshold) without delving into its merits. It is a fundamental challenge to the validity of the appeal itself, rather than to the substance of the arguments raised within the appeal.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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BURDEN OF PROOF – REQUIREMENT FOR CREDIBLE EVIDENCE

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“It is an elementary principle of law that a party who seeks the intervention of the Court to grant a relief must adduce credible and cogent evidence to support his prayer. This principle is deeply entrenched in our jurisprudence and finds its basis in both statutory provisions, particularly the Evidence Act, and a plethora of judicial pronouncements.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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AFFIDAVIT EVIDENCE – REQUIREMENT FOR SPECIFIC AVERMENTS

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“With specific reference to a claim, relief or prayer based on affidavit, the affidavit in support must contain cogent and credible averments and where necessary relevant documentary evidence to convince the Court. The Court cannot speculate or assume facts; they must be proven through evidence.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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LEGAL ARGUMENT IN AFFIDAVITS – INADMISSIBILITY

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“Beyond that, the averment quoted above is pure legal argument, which is an extraneous content in an affidavit. Such an averment is liable to be discountenanced because it offends the provision of Section 115 of the Evidence Act, 2023 as amended which prohibits argument in an affidavit.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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COUNSEL’S ADDRESS – CANNOT SUBSTITUTE FOR EVIDENCE

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“It is trite law that no matter how brilliant the submission of a counsel may be, it cannot be a substitute for evidence. This principle underscores the adversarial nature of our legal system where parties are required to prove their assertions through credible and admissible evidence, rather than relying solely on the persuasive rhetoric of their counsel.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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PRESUMPTION OF SERVICE – EFFECT OF APPEARANCE

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“First, because where a party who is entitled to be served a Court process appears in Court, there is a rebuttable presumption that the appearance is in response to service of the process; it then behoves the party appearing to rebut that presumption.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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PURPOSE OF SERVICE – NOTICE AND INFORMATION

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“The essence of service of a process on a party is to notify the party of the pendency of proceedings concerning the process served. However where the party to be served has become aware of the pendency of proceedings and has even filed processes in reaction thereto, the need for the Court to look out for proof of service on such a party becomes superfluous.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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NATURE OF GARNISHEE PROCEEDINGS

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“The proceedings leading to the instant appeal is a garnishee proceedings, which is strictly between the judgment debtor and the garnishee. The requirement of service of order nisi on the Appellant as a judgment debtor is only for the purpose of notice or information.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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APPELLATE JURISDICTION – GROUNDS OF APPEAL REQUIREMENT

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“It is trite that the jurisdiction of an appellate Court to consider an issue on appeal is invoked by grounds contained in the Notice of Appeal. Consequently, where there is no ground raising a complaint before the appellate Court, the appellant cannot be heard in respect of such a complaint not raised in the ground of appeal as the appellate Court will lack jurisdiction to consider such complaint.” – Per ABUBAKAR SADIQ UMAR, J.S.C.

 

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PROCEDURE IN GARNISHEE PROCEEDINGS – COUNTER AFFIDAVIT REQUIREMENT

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“After a garnishee order nisi is granted, usually ex parte on application of the judgment creditor, the order nisi is supposed to be served on the judgment debtor and the garnishee. They are required to show cause why the order nisi should not be made absolute on the return date. All the processes filed by the judgment creditor/garnishor, which the Court considered in granting the ex parte order nisi, MUST be served on the garnishee and judgment debtor.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

 

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JUDGMENT DEBTOR’S OBLIGATIONS – WHAT COUNTER AFFIDAVIT SHOULD CONTAIN

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“The judgment debtor and the garnishee are mandated by law to file counter affidavit showing cause why the order nisi should not be made absolute. On the return date, they are obliged to bring to the attention of the Court these counter affidavit and exhibits attached thereto which detail reasons why the liquidated sum sought to be attached by the judgment creditor should not be so attached from the sum standing to the credit of the judgment debtor in the Bank (garnishee).” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

 

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IMPROPER PROCEDURE – MOTIONS TO SET ASIDE ORDER NISI

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“No other procedure is allowed by law. No motions to set aside the order nisi is allowed by law.” – Per HELEN MORONKEJI OGUNWUMIJU, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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– Evidence Act, 2023 (as amended by the Evidence (Amendment) Act, 2023)

– Sheriff and Civil Process Act

– Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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1. Chioma Okwanyi, Esq., with him, Mathew Okwuanyi, Esq.For Appellant(s)

2. James Amade, Esq., with him, Obioma Chidiebere, Esq.For Respondent(s)