IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT MAITAMA BEFORE HIS LORDSHIP: HON. JUSTICE A. S. UMAR RULING

Transcription

1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT MAITAMA BEFORE HIS LORDSHIP: HON. JUSTICE A. S. UMAR MOTION NO: FCT/HC/M/178/13 BETWEEN: CORNELIUS NWAPI - JUDGEMENT CREDITOR VS MR. OLATOKUNBO B. & 3 ORS - JUDGEMENT DEBTORS RULING DATE: 8/5/2013 Pursuant to a judgment delivered by this court dated 31/7/12 the judgment creditor brought an application exparte dated 27/9/2012 pursuant to order 83 (1) of sheriff and civil processes Act The application seeks an order of garnishee Nisi for the attachment of judgment debtors in the custody of garnishee for the satisfaction of the judgment of the court. The said application was granted as prayed in the motion paper. Before the garnishee Nisi was made absolute a counsel for the judgment debtor Niyi Oyinloye filed a motion for stay of execution of the said judgment. On 28/03/12 when the matter came up for hearing, the learned counsel for judgment debtor did not appear to move his application. And in the interest of justice the matter was further adjourned to 29/4/13. 1

2 On the said date, learned counsel for the judgment debtor informed the court that there is no purpose for hearing his application for stay of execution since an appeal has been filed and entered before court of appeal. And if this court went ahead to entertain the judgment creditor s application to make garnishee order absolute then there is nothing remaining for court of appeal to determine. He argued that once an appeal in entered, the lower court is seized of the case until that appeal is heard. In response learned counsel for the Judgment creditor Nwosu A. Nwosu Esq. Contended that this court has jurisdiction on this matter despite the fact that appeals has been entered at court of appeal. He refer to the case of Fidelity bank VS Okwu Owulu 2012 All FWLR pt 644 at 151 Purification Technology Nig Ltd VS Attorney General Lagos State 2004 Vol. 9. NWLR Pt 879 at pg. 665 at 678. He submitted that despite the matter is on appeal that does not preclude this court from proceeding with Garnishee proceedings after all Garnishee proceedings is sui generis He finally urged the court to hear the pending applications. I have carefully listened to the argument of learned counsel across the divide. In my respective view, the issue is quite simple and straight forward which call for determination, is whether this court can make a garnishee order Nisi absolute and when a judgment debtor has appealed against the decision of the lower court. Instructively, there is no doubt that garnishee is a means of colleting a monetary judgment against a judgment debtor by 2

3 ordering a third party (the garnishee) to pay money otherwise owed to the judgment debtor directly to the judgment creditor. See Union bank Plc VS Boney Maraus Industries ltd and other 2005 ALL FWLR PT 278. In other words garnishee proceeding is a process of entering money judgment by the seizure or attachment of the debt due or accruing to the judgment debtor which form part of his property in. The hands of a 3 rd party for attachment. Like the counsel for the judgment creditor rightly submitted it is Sui -generis and is unlike other proceedings for enforcement of judgment. Furthermore learned counsel for the judgment creditor urged the court to hear the pending application for stay of proceeding filed by the judgment debtors. The learned counsel for the judgment creditor referred the court to the decision of the court in the Purification Technique Nigeria Ltd VS Attorney General Lagos State (Supra) and the case of Fidelity Bank Plc Okwuowulu (Supra). I took time to read the 2 cases. In Purification case the court at pg. 669 held on the issue whether a judgement creditor can commence garnishee proceeding where application for stay of execution is pending. In that case the court further held that the existence of an application seeking for an order of stay of execution of judgment does not preclude a judgement creditor from seeking to use garnishee proceeding to enforce the judgment: I have also read and considered the case of DENTON west VS MUOMA SAN 2008 ALL FWLR PT 433 AT

4 However in the case of WAEC VS Mrs. Nkoyo Edet Ikane and other unreported case in suit No CALC/52/2011, the Court of Appeal Calabar division decided a similar situation on appeal and my learned lords had held otherwise. In that case the counsel for the applicant argued that since an appeal was entered and a garnishee order NISI was made even though according to him it was made exparte, while there was a pending application for stay of proceedings the subsequent application absolute must be made to the court of appeal. He cited order 4 rule II court of appeal rule 2007 in support and urged the court to strike out the order NISI because it is a nullity. He relied on the case of Standard Trust Bank Ltd VS Contract Resources Nig. Ltd (2001) and First Inland Bank Plc VS Effiong Learned counsel in that case argued that indeed Garnishee proceedings is distinct in the sense that it is between the judgement creditor and the garnishee at best the judgment debtor is a nominal interested party and thus has no right to challenge it. He relied on the case of Purification Technique VS AG Lagos State 2004 and Denton west VS Muoma (2008) the court held that, when the present application is being made when the appeal has been entered and before the order NISI becomes absolute any proceeding still pending before lower court can no longer be entertained before the lower court. They either abate or wait for the outcome of the appeal. The court per KUMA BAYAWA AKAAHS JCA in a case of WAEC (SUPRA) as he then was, held that after appeal has been entered and until it has been finally disposed of, the court shall be seized 4

5 of the whole of the proceeding as within the parties except otherwise provided in the rules of this court, every application therein shall be made to the court, and not to the court below, but any application may be filed in the court below for transmission to the court. This decision of the court of appeal which is later in time against the decision of Purification case which is 2004 decision in my view shall be preferred. Agreeing that it is a sui generis does not give the lower court the power to hear such application when appeal has been entered. It is proper in my humble view and with respect to learned counsel for the judgment creditor to make such application at appeal court. More so as to whether stay of execution takes precedence over garnishee proceeding made exparte the court held that stay of execution take precedence. In the event I am wrong in this position, I am further re-inforced by the decision of the court in the case of Oyelese and others VS INEC and others suit No CA/IM/36/2011 decided on Tuesday the 22 day of March The court held that the moment the record of appeal is received in the registry of the court, of appeal is considered to be formally before the court, and it is considered entered in the cause list of the court and an appeal number and file number assigned to it. See also the case of Duke VS Duke suit No Call/170/2010 delivered on Thursday the 20th day of July Where the court held that an appeal is entered when the record of proceedings is received in the court of appeal and it is entered in the cause list. See Ogunneni VS Dada I All NLR 66 at 668. Also order 4 rule 10 for the court of Appeal rules Once an appeal has entered, the court becomes seized of the whole proceedings see Ajibade Aina and others VS Tukatone Press Ltd 1968 I ALLNLR 5

6 210 Cesane Missini and others VS Michael Olasubomi Balogun1968 I ALL NLR 318. In view of the foregoing it is my considered view to find in favour of the judgment debtors. Consequently, all the applications including garnishee proceeding, shall be adjourned sine die pending the hearing and determination of the appeal before the court of appeal. The judgement creditor may also take up the garnishee proceeding with appeal court. Signed Judge Appearances: Nwosu. A Nwosu Esq. for Judgement creditor Olaniyi debtor. Oyiniloye Esq for the Judgement 6