Can a garnishee proceeding be commenced in one State against a garnishee in another State?

Darsey Digital Press Ltd. v. Ayo [2019] 1 NWLR (Pt. 1654) 379 at 393, para. G-H, per Ugo, JCA:

“In other words, it is a precondition to a proper garnishee proceeding that the garnishee be resident in the very State where the order is sought. In this case, by first respondent’s own showing in his application of 20/2/2015, appellants were resident in Oyo State, outside the jurisdiction of the lower Court, hence his application for them to be served there. They were thus beyond the reach of a garnishee proceedings from the High Court of Kwara State.”

Notes:

In making the above pronouncement, the Court relied on the provisions of Section 83 of the Sheriffs and Civil Process Act Laws of Federation of Nigeria 2004 which states that “..Any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment…” The Court also relied on the case of Central Bank of Nigeria v. Auto Import Export (2013) 2 NWLR (PT 1337) 80 @ 128.

In the case of the Federal High Court, it is however arguable whether the position would remain the same since the jurisdiction of the Federal High Court is one. Click this link for a discussion on the territorial jurisdiction of the Federal High Court.

The Court of Appeal also found that although leave was granted by the trial Court to the 1st Respondent to serve the Appellants with the garnishee order nisi outside jurisdiction, there was no evidence that such service was effected before the order was made absolute. The Court held that the trial Court lacked the jurisdiction to make the order absolute and therefore the order made was invalid. The Court of Appeal relied on section 83(2) of the Sheriffs and Civil Process Act which provides that service of garnishee proceedings on the judgment debtor and garnishee(s) is mandatory.

FULL JUDGMENT

BOLOUKUROMO MOSES UGO, JCA (Delivering the Leading judgment):

The facts of this case are not very complicated. In the year 2014, 1st respondent, Demola Akintunde Ayo, representing 355 other persons, commenced proceedings under the Undefended List Procedure against one Geldaps Investment Nig. Ltd and Skywards Technologies as defendants in the High Court of Kwara State. His case was that he and those he represented invested the total sum of N345,600,000.00 with the said defendants’ fund management scheme on agreement that the said monies will be paid back to them with fabulous interest within three months. As is common with such schemes, the defendants did not keep their promise, hence their action.

In line with the rules of that Court, 1st respondent swore in the affidavit supporting his action that the defendants did not have any defence to their action. With the defendants (Geldaps Investment Nig. Ltd and Skywards Technologies) not responding to the action, the trial Judge, S.M. Akanbi J., on 05/06/2014 entered judgment against them for the sum claimed.

First respondent, as judgment creditor, subsequently commenced a Garnishee proceeding against the two judgment debtors before the same Akanbi J. to recover his judgment debt. He stated that on what may well be described as a fishing expedition by targeting all sorts of Banks carrying on business in Ilorin Metropolis. First Bank Plc, Access Bank, Guaranty Trust Bank Ltd, First City Monument Bank (FCMB), Diamond Bank, Keystone Bank Plc, and even a community Bank called Goworok Bank were cited as garnishees and discharged when 1st respondent found out that the defendants/judgment debtors did not either bank with those Banks or had no reasonable funds with them to satisfy the judgment debt.

Thereafter, first respondent commenced the garnishee proceeding the subject of this appeal against Zenith Bank and appellants as 1st, 2nd and 3rd Garnishees in that order. The two judgment debtors were also joined. The garnishee proceeding itself was not by any means straight forward like the one it commenced against the other banks earlier mentioned where it was alleged that the judgment debtors were directly account owners with the said Banks and it was their funds in those accounts that were sought to be attached: what was involved here was a much more complex tracing of funds. It was the accounts of appellants who were not themselves judgment debtors nor parties to first respondent’s action that were sought to be attached, and that is because 1st respondent/judgment creditor claimed appellants were indebted to the judgment debtors or were in custody of their funds. In the affidavit in support of his ex parte application of 20/2/2015, first respondent swore as follows:

  1. That I know as a fact from our personal investigations and I verily believe as follows:

(a) that the 2nd garnishee is one of the companies in which the judgment debtors invested our monies while the 3rd garnishee is a sister company.
(b) that it was after we obtained some information from our personal investigations that we were able to trace our monies to the 2nd and 3rd garnishees and we have only recently obtained the account numbers.
(c) that the 1st judgment debtor gave us a letter which showed that the 1st judgment debtor invested our monies with the 2nd garnishee. A copy of the said letter dated the 13th day of June, 2011 is herewith attached and marked as exhibit A.

(d) that part and all the monies deposited by the judgment creditors/applicants into the Judgment debtors investment scheme were paid into the account of 2nd garnishee.
(e) that the 3rd garnishee is a sister company of the 2nd garnishee and funds owed and due to the 1st judgment debtor were secretly moved from the account of 2nd garnishee to the 3rd garnishee to avoid detection and deprive the judgment creditors of the funds.
(f) That the garnishees are in possession of the judgment debtors’ money.
(g) that to the best of my knowledge the Garnishee bank is within the jurisdiction of the Court.
(h)          …..
(i)            …..
(j)           …..
(k)          …..
(l)            …..
(m)         …..
9. …..
10. That I recently discovered that the 2nd garnishees is in a place outside the jurisdiction of the Honourable Court at their last known office address at No. 6 Asake Shopping Plaza, 7up Montana, Ibadan, Oyo State and the 3rd Garnishee is a sister company to the 2nd garnishee and is also connected to the same address and leave of the Court is necessary to serve the garnishee order nisi.

In line with paragraph 10 of his affidavit, 1st respondent in his motion ex parte also prayed for:

An order granting leave to the applicant to serve the Garnishee order nisi in this case on the 2nd and 3rd garnishees at their last known office address at No. 6 Asake Shopping Plaza, 7up Montana, Ibadan, Oyo State, a place outside the jurisdiction of the honourable court.

This application ex parte for garnishee order nisi was moved on 26/02/2015 and granted the same day and an order made for all the garnishees including appellants to show cause why the order nisi granted attaching in the interim appellants funds with Zenith Bank (2nd respondent) should not be made absolute. Somehow, however, only Zenith Bank responded by deposing to an affidavit in which it disclosed that the two appellants were its customers and, combined, had about N33,000,000.00 (Thirty-Three Million Naira) in their accounts with it.

On the basis of that affidavit, Akanbi J. made the garnishee order absolute attaching appellant’s funds of about N33,000,000.00 (Thirty-three Million Naira) with Zenith Bank in satisfaction of the judgment debtors’ debt to 1st respondent.

It is consequent upon that order that appellants filed the present appeal by a notice and grounds containing six (6) grounds on 26/03/2015. They later obtained leave to correct only its heading but somehow used that opportunity to add a new Ground 7 to their Amended Notice of Appeal even as such was neither part of what they sought by their application nor what was granted them by this Court on 17/01/2017. That new ground incidentally complained about events that postdated the 17/03/2015 decision of Akanbi J. they appealed from.

Now, even though the appeal was originally brought against the Judgment creditor (now 1st respondent), the two judgment debtors as 2nd and 3rd respondents, and the 3rd Garnishee, Zenith Bank Plc, 4th respondent, the appellants, by a Notice of Withdrawal filed on 06/05/2016 (which this court granted on 06/05/2016) withdrew against the judgment creditors, thereby leaving only the judgment creditor and Zenith Bank (3rd Garnishee) as respondents to the appeal. They filed their brief of argument on 08/03/2017 but only 2nd respondent responded by filing its brief of argument on 07/04/2017, to which appellants filed a reply brief on 08/07/2017.

With the 1st respondent/ judgment creditor not responding despite report of service of processes on him, the appeal was heard only on appellants’ and 2nd respondent’s Briefs of Arguments.

In their Brief of Argument, appellants raised the following eight issues for determination:

  1. Whether the lower Court erred in granting a Garnishee Order Absolute against the Appellants who were not served with the Garnishee Order Nisi and other Court processes.
    2. Whether non-service of the Court processes on the Appellants and failure of the lower Court in giving a ruling one way or the other on Appellants’ Motion on Notice dated 7th April, 2015, did not breach the Appellants’ Constitutional right to fair hearing thereby leading to a miscarriage of Justice.
    3. Whether the lower Court was right in making Garnishee Orders Nisi and Absolute against the Appellants without any proof of any link or business relationship between Appellants and the 1st Respondents or the judgment Debtors.
    4. Whether the lower Court had jurisdiction to attach the Appellants’ Account kept with the 2nd Respondent, having not been joined as parties and adjudged to be judgment Debtors in the original suit by the lower Court.
    5. Whether the failure to obtain a certificate of the Garnishee Order Absolute made by the lower Court and to register same in the Nigerian Register of Judgments as required under Section 104 and 105 of the Sheriff and Civil Process Act CAP 407 Laws of Federation of Nigeria does not render the Garnishee Order Absolute a nullity.
    6. Whether the lower Court had jurisdiction to grant a Garnishee Order Absolute attaching the funds of the appellants who are not in Kwara State, the jurisdiction of the lower Court, to satisfy the Judgment debt.
    7. Whether the Garnishee Order Nisi and by extension the Order Absolute are perverse and not supported by the 1st Respondent’s pleadings and hearsay evidence on record, contained in paragraph 8, of his affidavit of urgency and affidavit in support of motion ex-parte, dated 20th February, 2015.
    8. Whether from the totality of the evidence presented before the lower Court, the Order Absolute made by the lower Court on the 17th Day of March 2015 was not obtained by fraud.

On issue 1, Mr Sogbetun for appellants submitted that the lower Court was clearly in error in making the Order Absolute against appellants when they were not served with the Garnishee Order Nisi as ordered by the Court when it was granted. Citing Section 83(2) of the Sheriffs and Civil Process Act which states that “At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the Garnishee and on the judgment debtor”, counsel argued that upon the issuance of an Order Nisi in a garnishee proceeding, it becomes imperative on the judgment creditor to cause the Judgment Debtor and the Garnishees to be served with the processes, that being the only way the garnishee will become aware of the garnishee proceedings against him and be able to respond by way of an affidavit showing cause. Until a party is served with process, counsel submitted, the Court cannot assume jurisdiction and all its proceedings are null, void and of no effect and liable to be set aside. He cited the cases of Management Enterprises Ltd v. Otusanya (1987) 2 NWLR (PT. 55) 179 and Odutola v. Kayode (1994) 2 NWLR (PT. 324); Skenconsult v. Ukey (1981) 1 S.C 6 among others to submit that none or even improper service of processes renders any proceedings conducted thereon a nullity. In the instant case, counsel pointed out, there was neither affidavit of service nor any other proof thereof produced before the Court below. What is more, he further argued, the last known place of address on which appellants were ordered to be served processes by substituted means is not even within the jurisdiction of the lower Court, which further made the purported service invalid and incurably bad in law. Counsel also argued, too, that the procedure of service of Court processes by substituted means is not applicable to a company; service of Court processes on a company must be at the registered office of the company and it is bad and ineffective if it is done at a branch office – for which counsel cited Integrated Builders v. Domzaq Vent (Nig.) Ltd (2005) 2 NWLR (PT. 909) 97 at 118 Paras D-F and Mark v. Eke (2004) 5 NWLR (PT. 865) S.C 54.

On Issue 2, counsel submitted that non-service of the Court processes on the Appellants and failure of the lower Court to rule on the appellants’ Motion on Notice of 7th April, 2015 to set aside its Garnishee Absolute Order also breached the appellants’ right to fair hearing and occasioned a miscarriage of justice against them, the effect of which is nullification of the entire proceedings.

On issue 3, it was submitted that the lower Court was also clearly in error in making an Order Absolute against appellants without any proof of any business relationship between them and the judgment debtors. Counsel again referenced Section 83 of the Sheriffs and Civil Process Act in arguing that those provisions make it mandatory that only a garnishee who is within the State and jurisdiction of the Court making the order shall have his funds attached to satisfy a judgment debt.

Counsel also argued that 1st respondent who deposed that all the facts he obtained regarding appellants were from his personal investigation ought to have stated the source of his investigation. The Court, he submitted, cannot act on such information except it can ascertain the source of the information and belief and the facts deposed corroborated by someone who speaks from his personal knowledge. First respondent’s affidavit against appellants, counsel argued, was also speculative and failed to show any business relationship or nexus between 1st respondent, the judgment debtors and the appellants to warrant the lower Court’s garnishee order absolute of 17th March 2015 against the appellants.

On issue 4, counsel argued that only the account of a Court certified judgment debtor can be attached and the monies in the said account with a garnishee paid to a judgment debtor; that a garnishee’s account in another garnishee bank cannot be attached as part of the judgment sum. He once again referenced the provisions of Section 83 of the Sheriffs and Civil Process Act to argue that from the said section the garnishee must be indebted to the judgment debtor and it is the monies from the garnishee that is attached to satisfy the judgment sum. In this case, he argued, 1st respondent could not establish any link between the judgment debtors and appellants so their accounts were wrongly garnished. Counsel urged us to resolve this issue too in appellant’s favour.

On issue 5, Mr. Sogbetun for appellants argued that the failure to obtain a certificate of the Garnishee Order Absolute and to register same in the Nigerian Register of Judgments, as he said is required under Section 104 and 105 of the Sherriff and Civil Process Act CAP 407 Laws of Federation of Nigeria renders the Garnishee Order absolute a nullity. He cited Section 104 and 105 of the Sheriffs and Civil Process Act to support his argument.

On Issue 6, it was argued that the lower Court lacked jurisdiction to make an Order Absolute attaching funds of appellants who are not within Kwara State and within the jurisdiction of the lower Court. Counsel argued that the provisions of Section 83 of the Sheriffs and Civil Process Act make it mandatory that only a debtor liable to the original debtor and who is within the State and jurisdiction of the Court making the order shall have his funds attached to satisfy a judgment debt. Appellants who were 2nd and 3rd Garnishees/1st and 2nd appellants, besides the fact that they were not indebted to 1st respondent, were not also within Kwara State and therefore not within the jurisdiction of the lower Court so it could not have legally ordered their funds or accounts to be garnisheed. Where a Court lacks jurisdiction to adjudicate on a suit, the whole process amounts to a nullity no matter how well conducted, counsel argued, citing Amobi v. Nzegwu (2014) 2 NWLR 91392) 510, 536 and KLM Royal Dutch Airlines v. Kumzhi (2004) 8 NWLR (PT 875) 231, 251 -252.

On issue 7, it was argued that the Garnishee Order Nisi, and by extension the Order Absolute, were perverse, not supported by 1st respondent’s pleadings and basically hearsay evidence. He reproduced paragraphs 8 and 9 of the Affidavits of Urgency and in Support of Motion ex parte of 1st respondent dated 20th February, 2015 and submitted they were all hearsay and inadmissible in evidence. Same applies to Exhibit A attached to the said Affidavit, because, according to him, it was not tendered by the alleged maker of the document (who counsel further asserted was even dead as at that time) nor was it received or addressed to 1st respondent for which he would have had personal knowledge to depose to it as he did. Counsel cited Section 83 of the Evidence Act, 2011 and the cases of F.R.N. v. Mohammed Usman (2012) CLR 3 (D) (SC) or (SC283/2011); Suberu v. The State (2010) 3 SC. (PT. 2) 105 to buttress his arguments.

On issue 8, counsel argued that 1st respondent obtained the garnishee order absolute by fraud in the lower Court. He said Akanbi J. was deceived into granting the order absolute. Counsel repeated his earlier argument that appellants do not have any relationship with the defendants/judgment debtors and this was to the knowledge of 1st respondent. He said Exhibit A attached to the ex parte motion of 1st respondent in the Court below, which letter was purportedly written by Adebanjo Adeniyi as Managing Director of 1st Appellant and formed the basis of 1st respondent’s claim, is not actually the letter-headed paper of 1st appellant. Counsel said the entire contents of Exhibit “A” were forged; that besides, whereas Exhibit “A” has an address in Ibadan, 1st appellant company is actually domiciled in Lagos and has no branch or address in Ibadan.

It was also asserted by Mr. Sogbetun, albeit without any supporting evidence, that the action in the lower Court was purposely commenced by 1st respondent in Ilorin, a place very away from Lagos where appellants carried on business, and that the suit was even brought to defraud the estate of late Mr. Adeniyi Olaide Adebanjo who was the alter ego of the appellants and single handedly opened the accounts with Zenith Bank. Neither appellants’ shareholders nor their directors were served with hearing notices and originating processes of this suit or any other suit thereby ousting the lower Court of jurisdiction to hear the matter, counsel argued. For particulars of fraud, counsel referred us to the affidavit in support of appellants’ motion on notice of 07/04/2015 to set aside the action as well as the garnishee order absolute earlier referred to which he moved before Akanbi J but was not ruled on by His Lordship.

In conclusion, counsel finally prayed us to allow the appeal, set aside the Garnishee Order Absolute of 17/03/2015 of the lower Court and even the Undefended List judgment of the lower Court of 05/06/2014 in favour of 1st respondent, even as appellants were not parties to that case and this appeal too is not also against that judgment.

As indicated earlier, only Zenith Bank (2nd respondent) filed a Brief of argument in the appeal. In its said brief of argument of 07/04/2017, it first objected preliminarily to issues 2, 4, 5, 6 and 8 of appellant as well as Grounds 6 and 7 of their Grounds of appeal. Ground 3, it was also argued, was abandoned, no issue having been distilled from it by appellants.

It was contended by Mr. Segun Ogundola for Zenith Bank that appellants distilled eight issues from their seven grounds of appeal whereas the law is that issues for determination must not outnumber grounds of appeal. Counsel cited Access Bank Plc v. Muhammed (2014) 6 NWLR (PT 1404) 613 @ 623 (C.A.) among other cases on this point.

On Ground 7 of the grounds of appeal was attacked on multiple fronts. It was first argued that appellants by their motion on notice of 05/10/2016 sought to amend only the heading of their Notice of appeal which was wrongly headed in ‘The Court of Appeal, Ibadan Division’, and that is what was granted by this Court; there was no prayer to add additional ground to the Notice of appeal yet appellants went on to add a new ground 7 to their amended notice of appeal and used same to complain about the failure of Akanbi J. to rule on the 07/04/2015 application. Same ground 7, counsel further argued, does not relate to the 17/03/2015 decision of the trial Court appealed from nor the issues of garnishee absolute decided by it. Mr. Ogundola accordingly urged us to strike out Ground 7 along with issue 2 distilled from it by appellants from it.

On the omnibus ground 6 of appellant complaining about the decision being against the weight of evidence, it was posited by Mr. Ogundola that since the garnishee order absolute was decided on only the affidavit to show cause of his client Zenith Bank Plc, a complaint about weight of evidence is out of place. Counsel cited Labati v. Faromipin (2011) 12 NWLR (PT 1262) 609 @ 619 (C.A.) for this point.

Issues 4, 5 and 6 of appellants it was also argued were incompetent because they were by appellants’ own showing all distilled from Ground 5. It is not permitted to formulate more than issue from a ground of appeal, counsel argued (citing Nwankwo v. Yar’Adua (2010) 12 NWLR (PT 1209) 518 @ 553) so issues 4, 5 and 6 distilled from ground 5 were also liable to be struck off.

Learned counsel next isolated issue 4 for attack, saying it is unrelated to ground 5 so it must be struck off even on that ground, for which he cited Adejumo v. State (2006) 9 NWLR (PT 986) 627 @ 639-640. Issues 4, 7 and 8 of appellant were incompetent for the same reason that they were all said to have been distilled from Ground 6 of the grounds of appeal, counsel submitted.

Mr Ogundola thereafter proceeded to frame the following two issues for determination of the appeal:

  1. Whether the Garnishee Order Absolute made by the Learned Trial judge on the 17th day of March 2015 is not liable to be set aside for lack of service on the Appellants in accordance with the due process of law and the specific applicable statute/laws/ and judicial decisions thereof.
    2. Whether or not the Lower Court had jurisdiction to grant a Garnishee Order Absolute attaching the funds of the Appellants who are not resident in Kwara State being the jurisdiction of the lower Court in satisfaction of the 1st respondents judgment sum.

Being inclined to argue against the ruling appealed from but also conscious of the fact that a respondent’s traditional role in an appeal is to defend the decision appealed from and not argue against it, Mr. Segun Ogundola for 2nd respondent prefaced his arguments thus:

“…The 2nd respondent seeks to clearly state that her primary duty is the course of justice and in consequence the positive standpoint of the 2nd respondent in this appeal is premised on the fortification provided by the authorities of Adelu v. State (2014) 13 NWLR (PT 1425) 465 @ 490-491 para H-A (S.C); Ayoade v. Spring Bank Plc (2014) 4 NWLR (PT 1396) 93 @ 133-135 paras G-D.”

Learned counsel then went on to commence argument on Zenith Bank’s issue 1 by contending that the effect of failure to service garnishee proceeding on a Garnishee renders such proceeding ineffective and liable to be set aside. Counsel analysed the records of appeal to back his contention that appellants were not served the Garnishee proceedings, which is not in keeping with the provisions of Section 83 of the Sheriffs and Civil Process Act. Counsel cited a number of authorities to back up his assertion on the imperativeness of service of Court processes generally and particularly in Garnishee proceedings.

On issue 2, Mr. Ogundola still relying on the same Section 83 of the Sheriffs and Civil Process Act and the case of C.B.N. v. Auto Import Export (2013) 2 NWLR (PT 1337) 80 @ 128 (S.C.) also submitted that garnishee proceedings can only lie against a garnishee indebted and resident within the State, which he argued was not the case with the appellants who by even 1st respondents showing were not resident in Kwara State.

In his Reply brief of 08/06/2017, Mr. Sogbetun argued that all the issues and grounds of appellants were competent. On Mr. Ogundola’s argument that several issues were formulated from one or few grounds of appeal, Mr. Sogbetun citing Mahmud Mohammed, J.S.C. (as he then was) in Eke v. Ogbonda (2007) ALL FWLR (PT 351) 1456 submitted that although framing two issues from a single ground amounts to proliferation of issues and is frowned upon by the Court, nevertheless where the grounds and the issues are competent to sustain the appeal, the Court would proceed to determine the appeal on the issues together. The fact that a brief is bad, faulty, or inelegant is not sufficient reason to throw it away, he argued citing Oputa J.S.C. in Obiora v. Osele (1989) 1 NWLR (PT 97) 276. 

On 2nd respondent’s argument about Ground 7 of the appeal, Mr Sogbetun argued that the objection of Mr. Ogundola is about non-compliance with the rules of this Court. Counsel argued that so long as 2nd respondent has not shown how the issue raised in that ground would affect its interest, it cannot complain. The said ground 7, counsel submitted, is aimed at doing substantial justice in the case.

On issues 7 and 8 formulated from omnibus Ground 6 of the Notice of appeal, Mr. Sogbetun citing Lion Buildings Ltd v. Shadipe (1976) 2 F.N.L. 28; Osolu v. Osolu (2003) 10 SCM 113; Lagga v. Sarhuna (2008) 161 LRCN 133 @ 185 argued that a complaint that the decision is against the weight of evidence embraces complaints about evaluation of evidence and the weight the Court ascribed to the evidence so issues 7 and 8 were properly raised.

Counsel finally urged us to overrule the objection which he said was mere technicality. He urged us not be bugged down by technicalities and rather aim at doing substantial justice. He cited Order 4 Rule 4 of the Rules of this Court which says the power of the Court on hearing appeal cannot be circumscribed by grounds of appeal.

Resolution of issues
Let me start from the multi-pronged preliminary objection of 2nd respondent. It seems to me that there is a lot of merit in the several arms of that objection.

Starting from the objection to Ground 7 of the Amended Notice of Appeal attacked by Mr. Ogundola on the grounds that it deviated from the prayer sought by appellant in their motion on notice of 05/10/2010 for amendment of their Notice of Appeal and even complains about event that postdates the 17/03/2015 decision appealed from, I note that, just as Mr. Ogundola pointed out, the prayer of appellant in their motion for amendment of their Notice of Appeal, which this Court granted on 17/01/2017, was only for:

  1. An order of this Honourable Court granting the leave to appellants/applicants/2nd and 3rd garnishees to amend appellants’ heading of the Court in which the Notice dated the 26th of March 2015 which reads ‘IN THE COURT OF APPEAL HOLDEN AT IBADAN’ to read ‘IN THE COURT OF APPEAL HOLDEN AT ILORIN’ including other amendments appearing in the proposed Amended Notice of Appeal and to file same in like manner as the amended Notice of appeal.

  2. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

The ground for the application as set out on the motion paper was:

“To correct the printing errors and omissions in the original notice of appeal and to properly regularize the parties named therein in view of the notice to withdraw (this appeal against the judgment debtors) filed by the appellants and granted by this Honourable Court on 28th Sept. 2016.’

Appellants never sought to add any additional ground of appeal let alone one in terms of Ground 7 of their Notice of appeal which even curiously complains about events that postdated the 17th March 2015 decision of the lower Court that is the subject of this appeal. Not only is it not permissible for litigants to amend their processes by themselves, it is even very unlikely that this new Ground of appellants which does not relate to the decision appealed from could have been granted by this Court even if an amendment was sought. Being a stranger to the appeal, Ground 7 and issue 2 distilled from it are struck off.

Issue 5 of appellant, which asks whether the failure to obtain a certificate of the Garnishee Order Absolute made by the lower Court and to register same in the Nigerian Register of Judgments as required under Section 104 and 105 of the Sheriff and Civil Process Act CAP 407 Laws of Federation of Nigeria does not render the Garnishee Order Absolute a nullity, is also incompetent as it not founded on any ground of appeal. I am not unmindful of the fact that the said issue is Particular 3 of Ground 5. But particulars on their own are not grounds of appeal. Particulars, as their name suggest, only further highlight the complaint in the ground of appeal. So if a particular is unrelated to the ground, as particular 3 of ground 5 is, it is useless. That being the case, Issue 5 is also struck off.

Save the foregoing, I think appellants’ complaints in issues 1, 3, 4, and 6 are clear and can be accommodated, even though some of them are inelegantly drafted and even overlap.

Merits of the appeal 

Coming to the merits of the appeal, it even appears to me that it can be conveniently determined on issues 1 and 6 of appellant, which issues question the jurisdiction of the lower Court to entertain the garnishee proceedings.

Appellants’ complaint in issue 1 is that they were not served with the garnishee Order Nisi of the lower Court to Show Cause before it was made absolute against them. Not only is failure to serve processes on parties, where required, generally fatal to adjudication (Emeka v. Okoroafor (2017) 11 NWLR (PT 1577) 410), the provisions of Section 83(2) of the Sheriffs and Civil Process Act, Laws of Federation of Nigeria, 2004 also particularly make service of garnishee proceedings on the judgment debtor and garnishee (s) mandatory. The said Section 83 reads:

83(1) The Court may upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.

83(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.

While it is true that this Court as earlier shown, granted leave to 1st respondent to serve the Garnishee Order Nisi on appellants outside jurisdiction at No. 6 Asake Shopping Plaza, 7UP, Monatan, Ibadan, Oyo State, there is nothing in the records to suggest that the said process was actually served on appellants before the order absolute of garnishee was made against them on 17/03/2015. There is no affidavit of service in the records, just as appellants were not also represented. The inference to be drawn from all that, especially the absence of proof of service, is that appellants were not served the Garnishee order Nisi before it was made absolute on 17/03/2015. And that is a serious infraction of the provisions of Section 83(2) of the Sheriffs and Civil Process Act, which consequentially renders the said Garnishee order absolute invalid and of no effect and denied the lower Court of jurisdiction to hear let alone grant it: see Wema Bank Plc v. Brastem-Sterr (Nig.) Ltd (2011) 6 NWLR (PT 1242) 58 @ 77-78. Issue 1 is accordingly resolved, devastatingly, against 1st respondent and in favour of appellants.

On Issue 6 of appellant, which is whether the lower Court had jurisdiction to grant Garnishee Order Absolute attaching the funds of appellants who are not resident in Kwara State, again the provisions of Section 83 of the Sheriffs and Civil Process Act Laws of Federation of Nigeria 2004 are relevant. The words of that provisions are:

“..Any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment…”

In other words, it is a precondition to a proper garnishee proceeding that the garnishee be resident in the very State where the order is sought: Central Bank of Nigeria v. Auto Import Export (2013) 2 NWLR (PT 1337) 80 @ 128. In this case, by first respondent’s own showing in his application of 20/2/2015, appellants were resident in Oyo State, outside the jurisdiction of the lower Court, hence his application for them to be served there. They were thus beyond the reach of a garnishee proceedings from the High Court of Kwara State. Issue 6 is also accordingly resolved in favour of appellants.

With these two jurisdictional issues resolved in favour of appellants, and since 1st respondent may wish to recommence his garnishee proceedings against appellants in the proper manner and forum, I deem it unnecessary to comment on them.

The appeal is accordingly allowed and the garnishee order absolute of the High Court of Kwara State attaching the funds of appellants with 2nd respondent (Zenith Bank Plc) is hereby vacated, the said order being a nullity.
Parties shall bear their costs.

CHIDI NWAOMA UWA, JCA: I read before now the judgment of my learned brother BOLOUKUROMO MOSES UGO, JCA. I agree with the decision arrived at and adopt same as mine in allowing the appeal. I abide, by the order made as to costs in the leading judgment.

HAMMA AKAWU BARKA, JCA: The judgment just read by my learned brother BOLOUKUROMO MOSES UGO JCA, was made available to me before now. The issues therein having been considered to my satisfaction, I too see merit in the appeal, and consequently allow the same. The order made on costs is also agreeable to me.

Appearances:

Kolapo Sogbetun Esq. for the Appellants.

Segun Ogundola Esq. with him, Christopher Richard Esq. for the 2nd Respondent.

The 1st respondent not represented by counsel.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a Legal Practitioner, Consultant, Mediator and Social Entrepreneur. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts. Desirous of implementing new legal solutions, he founded Stephen Legal, a firm in the business of providing innovative legal insights and easy solution in this information age. Stephen also serves as a volunteer at Prof. Pat. Utomi’s Centre for Values in Leadership in Lagos, given his passion for capacity building and leadership development.
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