(2016) LPELR-40517(CA)

Transcription

1 STANBIC IBTC BANK v. LONG TERM GLOBAL CAPITAL LTD & ORS CITATION: SIDI DAUDA BAGE CHINWE EUGENIA IYIZOBA TIJJANI ABUBAKAR In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON FRIDAY, 29TH APRIL, 2016 Suit No: CA/L/245A/2011(R) Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal STANBIC IBTC BANK PLC - Applicant(s) 1. LONG TERM GLOBAL CAPITAL LTD 2. PATRICK AKINKUOTU 3. ACCESS BANK PLC And - Respondent(s) RATIO DECIDENDI 1. APPEAL - RECORD OF APPEAL: Duty of the Court Registrar in compilation of Record of Appeal "I am inclined to agree with the learned Senior Counsel for the 1st and 2nd Respondents that this is clearly a negation of the unambiguous provisions of Order 8 Rule 1 of the Court of Appeal Rules, 2011 which provides inter alia that the Registrar of the Court below shall within sixty days after the filing of a Notice of appeal compile and transmit the record of appeal to the Court."Per ABUBAKAR, J.C.A. (P. 35, Paras. D-F) - read in context 2. APPEAL - FILING/ENTRY OF APPEAL: When is an appeal entered "... the law is well settled that giving Notice of appeal is not sufficient to consider the appeal as having been properly entered, an appeal is deemed to be properly entered when the records of appeal are compiled and transmitted to the Court of Appeal by the Registrar. See: Order 4 Rule 10 of the Court of Appeal Rules 2011 which provides that "An appeal shall be deemed to have been entered in the Court when the record of proceedings in the Court below has been received in the Registry of the Court"Per ABUBAKAR, J.C.A. (Pp , Paras. E-A) - read in context 3. APPEAL - FILING/ENTRY OF APPEAL: Effect of entering an appeal "Before an application for stay of execution, proceedings or for injunction pending appeal becomes competent, an appeal against the decision sought to be stayed must have been entered in the Court, it will be an error to grant an injunction pending appeal when there is no competent appeal against the decision sought to be stayed, See: MOBIL OIL (NIG) LTD Vs. AGADAIGHO (1988) 1 N.S.C.C." Per ABUBAKAR, J.C.A. (P. 47, Paras. B-D) - read in context

2 4. APPEAL - NATURE OF APPEAL: Nature/effect of an appeal "An appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point there cannot possibly be an appeal against what had not been decided against a party. See CHIEF DANIEL OGBONNAYA & ORS VS ADAPALM NIG LTD (1993) 5 NWLR (Pt. 292) 147; HYACINTH VS MBARA & ANOR (1992) 5 NWLR (KP. 242) 386; UNION BANK OF NIG LTD VS PROF. ALBERT OJO OZIGI (1994) 3 NWLR (Pt. 333) 385; MILITARY ADMINISTRATOR AKWA IBOM STATE VS OBONG (2001) 1 NWLR (Pt.694) 214 at 229."Per ABUBAKAR, J.C.A. (Pp , Paras. E-A) - read in context 5. JUDGMENT AND ORDER - ORDER OF STRIKING OUT: Effect of an order of striking out "The consequence of an order of striking out by a Court is not to shut out the Applicant whose application was earlier struck out, an order striking out is distinct from an order of dismissal, an order of striking out affords an Applicant the opportunity of re-filing similar application, subject to satisfying certain conditions See: PW RESOURCES LTD & ANOR Vs. KPORAH & ANOR (supra)."per ABUBAKAR, J.C.A. (P. 34, Paras. C-D) - read in context

3 6. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Status of a judgment debtor in a garnishee proceeding "I am mindful of the chains of decisions of this Court in seemingly endless decisions to the effect that the only parties envisaged in garnishee proceedings are the Judgment Creditor and the Garnishee, thereby excluding a Judgment Debtor from exercising any right to partake in the proceedings as a party, that even where a Judgment debtor feels aggrieved by the decision of the Court in garnishee proceedings he cannot maintain and sustain a valid action against the decision of the Court. Garnishee proceedings are held to be separate and distinct actions between the judgment creditor and the garnishee. In the case of DENTON-WEST Vs. MUOMA [2008] 6 NWLR (Pt. 1083) 418 at 442 D-E, KEKERE- EKUN, JCA (as he then was), held as follows: "There is no doubt that garnishee proceedings are separate proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. See: In Re Diamond (supra) at 133 D-E; Purification Techniques (Nig.) Ltd v. A-G, Lagos State (supra)." Consequently, it has been held that a judgment debtor cannot appeal against a garnishee order made by the lower Court. This statement of law was expressed with emphasis in P.P.M.C. LTD. Vs. DELPHI PET. INC. [2005] 8 NWLR (Pt. 928) 458 at 484, C-G, where SALAMI, JCA, (Later PCA) held as follows and I quote: "The reason for inability of the appellants to appeal against a garnishee order is for the simple fact that it is a product of proceedings between the judgment creditor and the person in possession of the assets of the judgment debtor. In the instant case, Guaranty Trust Bank is the garnishee or a person holding the assets of the judgment debtor, the appellants herein, while the respondent is the judgment creditor. A garnishee proceedings although incidental to the judgment pronouncing the debt owing, the appellants being judgment debtor are not necessary party to the said proceedings. The procedure whereby the judgment creditor obtains the order of the Court to attach from any person within the jurisdiction of the Court assets of judgment debtor to satisfy the judgment debt is described as attachment of debt and is one of the several methods of executing judgment. The proceedings for this separate and distinct action is between the respondent, herein and the Guaranty Trust Bank Plc., the garnishee which has not appealed the said decision. There is no substance respectfully in the submission of the learned counsel for appellants that the decision of Aderemi, J.C.A in In Re Diamond Bank Limited (2002) 17 NWLR (Pt. 795) 120 is obiter dictum. The issue in that decision was an existence or otherwise of an appeal and, the person competent to bring an appeal in a garnishee proceedings." See: also UBA Vs. EKANEM [2010] 6 NWLR (Pt. 1190) 207 at 222, B-D. The above settled position of the law in my humble understanding remains unassailable only with respect to a garnishee order nisi made by the lower Court and ought not in my humble view be extended to apply to garnishee order absolute as in the instant application, particularly where it relates to the determination of proper parties in garnishee proceedings. In proceedings relating to garnishee order nisi which is usually initiated ex parte, it is safe to say that the proceedings involve only the judgment creditor and the garnishee, it is also safe to conclude that any decision to the effect that the judgment debtor is not a party at this stage can be said to represent the correct and settled position of the law, but where the proceedings are with respect to garnishee order absolute, a tripartite party arrangement is in place, a tripod is established, that is the judgment creditor, the judgment debtor; and the garnishee. It is to be noted that in proceedings relating to garnishee order absolute, the judgment debtor by law becomes an active participant in the process. This is obvious from the effect of Section 83(2) of the Sheriffs and Civil Process Act as well as Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules. Section 83(2) of the Sheriffs and Civil Process Act makes the service of the order nisi on the judgment debtor at least fourteen days before the hearing wherein the order nisi will be made absolute mandatory. The pertinent question to ask is, why must the judgment debtor be served copy of the order Nisi? I think the reason is not farfetched, it is obviously to enable him appear in Court on the adjourned date to be so heard if he desires before the order is made absolute. The section makes it mandatory for the service of the order nisi on the Judgment debtor, which presupposes that he is a necessary party in the proceedings, service upon him of the order Nisi serves as an invitation to him (the Judgment Debtor) to enable him to be heard by the Court before the order absolute is finally made. See: WEMA BANK PLC. Vs. BRASTEM-STERR (NIG.) LTD. [2011] 6 NWLR (Pt. 1242) 58 at 80A-D, SKENCONSULT (NIG) LTD Vs. UKEY (1981) 1 SC 4 at 15. A careful reading of Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules also makes a Judgment Debtor a necessary party to garnishee proceedings. The Order provides as follows and I quote: "If no amount is paid into Court, the Court instead of making an order that execution shall issue, may after hearing the judgment creditor, the garnishee, and the judgment debtor or such of them as appear, determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor and as to costs as may be just, or may make an order under Section 87 of the Act." The implication of the above provision is that a judgment debtor in garnishee proceedings is required to be heard along with the judgment creditor and garnishee before an Order Nisi is made absolute, let me also state that, the Order states clearly that "after hearing the judgment creditor, the garnishee and the judgment debtor" the use of the word "AND" in the wordings of the order makes the tripod complete because the word "AND" is conjunctive. Let me provide further support to my opinion by relying on the decision of this Court delivered by my learned brother, OGUNWUMIJU, JCA in N.A.O.C. Vs. OGINI, [2011] 2 NWLR (Pt. 1230) 131 at , F-C, where my Lord and Learned brother said as follows and I quote: "If the judgment creditor knows that the judgment debtor has an amount of money with any Bank or institution, he will as Garnishor file for an ex parte application to be supported by an affidavit in Form 23 of the Judgment Enforcement Rules (JER) for an order that the Garnishee (in this case U.B.A. Plc.) shall show cause why he should not pay the amount due to the judgment debtor to him. These proceedings are strictly ex parte between the Garnishor (judgment creditor) and the Garnishee (the Bank or institution). Where the Court grants the order nisi on the garnishee, the Registrar through the Sheriff of the Court must serve on the garnishee, the judgment creditor and the judgment debtor the Order nisi on Form 26 of JER. The registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing. This subsequent hearing envisages a tripartite proceedings in which all interests are represented. That is when the judgment debtor has the opportunity to convince the Court to discharge the order nisi by filing affidavits to that effect. After that hearing on notice, the Court may discharge the order nisi or make it an order absolute. Thus, the judgment enforcement rules envisages two proceedings, one ex parte and the other one on notice. I agree with the learned respondent's counsel and my learned brother that there can be no appeal against the order nisi made ex parte. See S. 14(1) of the Court of Appeal Act, Cap. C36, Laws of the Federation, On the other hand, the garnishee order absolute being proceedings in which all parties have been heard and the interest of the judgment debtor in the money in custody of the Garnishee determined is one in which an appeal can lie to this Court." See: also FIDELITY BANK PLC Vs. OKWUOWULU [2013] 6 NWLR (Pt.1349) 197 at , H-C, CBN Vs. AUTO IMPORT EXPORT [2013] 2 NWLR (Pt. 1337) 80 at 127 F-G. Where the lower Court refuses to discharge the order nisi and proceeds to make the order absolute, the judgment debtor, being a necessary party, and feeling aggrieved by the decision of the lower Court can appeal as of right since the order absolute is regarded as a final decision of the lower Court. See UBN PLC Vs. BONEY MARCUS INDUSTRIES LTD (2005) 13 NWLR (Pt.943) 654, (2005) 7 S.C (Pt. II) 70."Per ABUBAKAR, J.C.A. (Pp , Paras. E-B) - read in context

4 7. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Nature of a garnishee proceeding "The law has since, found a resting position that, the garnishee proceedings are separate proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debt. Also, the garnishee order nisi which is usually initiated ex-parte is a proceeding that involve only the judgment creditor and the garnishee. The garnishee order nisi therefore constitutes only an interim order, and may not have the full force of law, until it is made absolute. The order obtained ex-parte cannot give the right of appeal which is a fundamental constitutional matter. At that state, it cannot be exercised by non parties or extraneous persons to a suit. However, a different application applies, when such order nisi becomes absolute. The provision of Section 83(2) of the Sheriffs and Civil Process Act makes the service of the order nisi on the judgment debtor at the least fourteen days before the hearing, wherein the order nisi will be made absolute. This is a mandatory requirement. After the service of the order nisi, can such a judgment debtor exercise the right of appeal, as is the case with the present application? The Supreme Court has since settled this debacle. See OGUNDIANI VS ARABA (1978) 11 N.S.C.C. 334 at 350 1) "A particularly interesting aspect of the decision in HCJ/16/71 is that, although, the Appellant knew full well not only the nature of the claims in the said proceedings but also of the decision of OLU AYOOLA J, he did not even intervene by exercising his right of appeal, for, in the circumstances of the proceedings, he could have availed himself of the provisions of the law whereby a person interested in (or whose interest could be affected by) a judgment in any proceedings in Court, although, not a party therein, can appeal from such a judgment. (see HARIET JOHNSON VS BAFUNKE ADEREMI (1955) 13 WACA 297 PC." Also, the Supreme Court in AKANDE VS GENERAL ELECTRIC LTD (1979) 3-4 S.C. 115 at ; (1979) 12 N.S.C.C. 51 at 56 per Aniagolu J.S.C. (as he then was) also stated as follows: "In granting the application for inter alia, leave to appeal, the Federal Court of Appeal relied on the definition of the word "party" in Section 2 of the High Court of Lagos Law where it is said to include every person served with notice of or attending any proceedings, although, not named on the record, and the word "Defendant" defined therein, as including "every person served with a summons." But on a proper construction of Section 121E (5) (a) of the Constitution (amendment) (No. 2), the person therein stated exercising the right of appeal to the Court of Appeal, must be one named in the record or, with leave, having "an interest" in the proceedings which terms include a person affected or likely to be affected or aggrieved by the proceedings. Good examples are afforded by MAJA & OTHER VS JOHNSON (1951) 13 WACA 194; and JOHNSON VS ADEREMI (1955) 13 WACA 297 (P.C.) at 299. It cannot include a total stranger to the proceedings who is neither named in the record nor has an interest therein, the definition of "party" in the State Law extending its meaning notwithstanding." This Xourt per Pats Acholonu J.C.A. (as he then was) in EJEKAM VS DEVON IND. LTD (1998) 1 NWLR (Pt. 534) 417 at followed the trend established by the Supreme Court and stated as follows: "Chief Williams wondered when the appointment of the people i.e. 2-4 Appellants were made as directors and cited RUSSIAN COMMERCIAL AND INDUSTRIAL BANK VS COMPTOIR DESCONPTE DE MULHOUSE (1925) A.C. 112 at 130 and JOHN SHAW VS SHAW (1935) 2 K.B. 113; 19 Chief Williams pointed out that, factually the so called Appellants were not strict sensu parties to the case stressing that, the person who really was a party but could not competently appeal was Emeka Okoli. One of the points agitated by the Respondent in its brief, by way of preliminary objection is, that, the proceedings or the decision leading to the appeal did not affect the Appellants, as the Xourt's decision affected primarily, the proceeding initiated by Emeka Okoli Esq, and therefore, the appeal is incompetent. There are certain variables in this case which gives it a complex nature. It was the main action in which the Appellants were made parties that gave rise to the interlocutory decision. Although, on the face of it, it would appear that, it was directed at Okoli, but the Appellants have been made parties to the main case. They are interested in what might turn out rightly or wrongly to be the decision of the Court. The Court of Justice would not to my mind adequately taken care of, if the Court would pretend like an ostrich to hide its head in sand and close its eyes to the fact of the Appellants being part of the case and strike out the appeal (without going into the merits of it), in order to enable them if they so wish apply to the Court, as an interest party. Section 222(a) of the Constitution shall be construed with the background of the fact of a particular case. It will amount to mere philosophy sing and dwelling in realm of semantics or philology to deny the Appellants' right of appeal in a matter in which they are inextricably affected and bound as parties, and for which they are interested in its outcome. I do not share the enthusiasm and/or view of the Respondents' counsel in this matter, shall we hide the fact that they briefed the chambers of St Matthew Daniel and Balogun & Co. to file the motion paper, if the Court below had ruled in accordance with the tone of the motion paper that would have given pleasure to the Appellants. The Court shall, at all times avoid multiplicity of proceedings. To my mind, the appeal is competent."per BAGE, J.C.A. (Pp , Paras. B-A) - read in context

5 TIJJANI ABUBAKAR, J.C.A. : (Delivering the Lead Ruling): This is an Application by the Appellant filed on the 9th of November 2015, by learned Senior Counsel Ayanlaja SAN and Tayo Oyetibo SAN on behalf of the Appellant/Applicant praying for the following Orders: "a. Extension of time within which the Applicant may appeal against the Garnishee Order absolute made by the Federal High Court on 9th February, 2011 in Suit No. FHC/L/1491/2009 between LONGTERM GLOBAL CAPITAL LTD & ANOTHER V. STANBIC IBTC BANK PLC. b. Permitting the Appeal to be maintained against the 3rd Respondent as Access Bank PLC (Formerly Intercontinental Bank Plc.). c. Deeming as having been properly filed and served the Notice of Appeal filed on 27th October, 2015 a certified true copy of which is marked Exhibit STANBIC-3. d. Departure from the Rules of this Court by allowing the Applicant to compile and transmit the record of Appeal in this case. e. Deeming as having been properly compiled and transmitted the record of Appeal compiled by the Applicant and transmitted to this Court on 9th day of November, f. An injunction (pending the 1

6 determination of the appeal lodged herein) restraining the 3rd Respondent from paying over to the 1st and 2nd Respondents the amount of N2.5 Billion and interests thereon being the judgment debt attached pursuant to the Garnishee Order absolute made in favour of the 1st and 2nd Respondents by the Federal High Court on 9th February, g. An injunction (pending the determination of the appeal lodged herein) restraining the 1st and 2nd Respondents from withdrawing from the 3rd Respondent or otherwise dealing in any manner whatsoever with the N2.5 Billion and interests thereon originally belonging to the Applicant which fund was attached by the Garnishee Order absolute made by the Federal High Court on 9th of February, AND for such Order or further Orders as this Court may deem fit to make in the circumstance." The grounds upon which the Applicant seeks the above Orders are as follows: 1. The Applicant being a judgment debtor has a right of appeal against the Garnishee Order absolute, made on 9th February The Garnishee proceedings were taken out in the Court below against the Garnishee in the name of 2

7 Intercontinental Bank Plc. 3. Sometime in the year 2012 there was a merger between Intercontinental Bank Plc, and the 3rd Respondent and the two Banks retained the name Access Bank Plc. 4. Time within which to appeal the Garnishee Order absolute has expired. 5. The Court is vested with power to extend time to appeal and deem the notice of Appeal already filed as having been properly filed. 6. It is in the interest of justice to compile and transmit the record of appeal expeditiously so as to expedite the hearing of the appeal. 7. This Court has a duty to ensure that the Res of this appeal, to wit, the N2.5 billion in the custody of the 3rd Respondent is preserved pending the determination of the appeal. Applicants application is supported by a 28 paragraph Affidavit deposed by Funmilola Kuku, a Legal Practitioner in the Law firm of Messrs. Tayo Oyetibo & Co, the Application is also accompanied by several exhibits, the Applicant also filed 9 paragraph Further Affidavit on 11th December, In determining this application therefore, Applicants materials are the application filed on the 9th day of November

8 accompanied by affidavit in support and several exhibits and further affidavit filed on the 11th day of December, On their part, the Respondents filed 36 paragraphs Counter Affidavit on 17th November 2015 deposed by Ayanlewa Onoja, a legal practitioner at the Law firm of Fagbohungbe SAN. The Respondents also filed some exhibits, namely Exhibit LT1- the Amended Notice of Appeal, Exhibit LT2- Appellant s Brief of Arguments, Exhibit LT3- Respondents' brief of Argument, Exhibit LT4- Appellant's Reply Brief of Argument, Exhibit LT5- Appellant's Written Address, Exhibit LT6-1st and 2nd Respondents' Written Address, Exhibit LT7- Applicant's Notice of Withdrawal of Motion, Exhibit LT8- Motion on Notice dated and filed on 29/10/2013 filed at the Supreme Court, Exhibit LT9- Notice of Withdrawal of Motion filed at the Supreme Court, Exhibit LT10 a copy of Punch Newspaper publication of April 2, 2015, Exhibit LT11- Notice of 1st Respondent's Board Resolution, Exhibit LT12 - Form CAC 3 filed by the 1st Respondent, Exhibit LT13 and LT14 - copies of letters of registration issued to the lst Respondent by SEC, Exhibit LT15- copy of letter of 4

9 Registration issued to the 1st Respondent by NSE, and Exhibit LT16 â 1st Respondent's Audited Financial Report. The 1st and 2nd Respondents also filed a Further Counter Affidavit on the 8th day of December, 2015 and supported by Exhibit A - copy of proceedings of this Court of 19th November, 2015 and Exhibit B- Copy of proceedings of this Court of 7th October, Both parties prepared and filed written addresses. Applicants written address was filed on the 11th day of December 2015, in the said address, the applicant formulated one issue for determination, the issue reads as follows: "Whether having regard to the grounds of appeal and the facts contained in the affidavits in support of this application, this honorable Court ought not to grant Prayers (a)-(g) being sought by the Applicantâ. On the part of the 1st and 2nd Respondents, they filed written address on the 14th day of January 2016 through learned Senior Counsel Fagbohungbe SAN, they also submitted one issue for determination and the sole issue reads as follows: "Having regard to the peculiar circumstances of the present case and the law relating to garnishee 5

10 proceedings, whether this Honorable Court should exercise its discretion in granting the reliefs sought by the Applicant? In his submissions, learned Senior Counsel for the Applicant referred to Order 7 Rule 10 of the Court of Appeal Rules, 2011 and contended that in considering Applicants application, the factors to be considered by the Court are whether there are good and substantial reasons for the failure to appeal within time and whether the grounds of appeal, prima facie show good cause why the appeal should be heard. He relied on the decisions in CHUKWU Vs. OMEHIA [2013] 7 NWLR (Pt. 1354) 463 at 497, B - D; AKINPELU vs. ADEGRORE [2008] 10 NWLR (pt. 1096) 531, ENYIBROS FOODS PROCESSING COMPANY LTD Vs. NIGERIAN DEPOSIT INSURANCE CORPORATION [2007] 9 NWLR (Pt. 1039) 216. He submitted that the Applicant in the instant case has furnished good and sufficient particulars in the affidavit in support, explaining why the Applicant could not file its Notice of Appeal within the time limited by the rules of Court, learned Senior Counsel referred to paragraphs 6-9 of the Affidavit in support and Exhibit STANBIC 3 to submit that the Applicant took 6

11 steps to appeal against the Garnishee Order absolute one day after the time within which to appeal expired and for that reason therefore, the Applicant cannot be accused of inordinate delay in bringing the application. Learned Senior Counsel also contended that where the ground of appeal in an application for extension of time within which to appeal raises an issue of jurisdiction, the question of delay ceases to be relevant, he relied on the decision in LAFFERI (NIG.) LTD Vs. NAL MERCHANT BANK (citation not supplied), to submit that grounds 5 and 6 of the Notice of appeal marked as Exhibit STANBIC 5 raised issue of jurisdiction, and that the Applicant is therefore entitled to an order for extension of time, he urged this Court to so hold. Learned Senior Counsel cited Section 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to submit that the right of appeal is constitutionally guaranteed, he also cited Section 64 of the Federal High Court Act to define a party, and contended that by virtue of Section 83(2) of the Sheriffs and Civil Process Act, a judgment debtor comes within the purview of a party and has a 7

12 right in law to appeal against the garnishee order absolute, he contended that the Applicant ought to be allowed to appeal against the garnishee order absolute. He referred this Court to NIGERIAN NAVY Vs. LABINJO [2012] 17 NWLR (Pt. 1328) 56 at 84 â 85, MILITARY GOVERNOR OF LAGOS STATE Vs. ADEYIGA [2012] 5 NWLR (Pt.1293) 291 At 338; Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and NIGERIA AGIP OIL & GAS LTD Vs. OGINI [2011] 2 NWLR (Pt. 1230) 131. Learned Counsel therefore urged this Court to enlarge the time for the Applicant to appeal against the garnishee order absolute. Learned Senior counsel for the Applicant contended that Order 20 Rule (2) of the Court of Appeal Rules 2011 empowers this Court to allow departure from the Rules of this Court. Order 8 Rule 4 of the Court of Appeal Rules, the Applicant is entitled to compile and transmit record of appeal upon failure by the Registrar to compile and transmit records within sixty days provided by the rules of Court, that Applicant shall have thirty days to compile and transmit the records, Learned Senior Counsel said by the provisions of 8

13 Order 20 Rule (2) of the Court of Appeal Rules 2011, this Court may direct departure from the rules and direct that applicant compiles and transmits records without having to wait for the expiration of the sixty days given to the registrar by the Rules of Court, he relied on the decisions in ADEYEMO ABIODUN & ORS vs. FEDERAL REPUBLIC OF NIGERIA, SOLEYE vs. SONIBARE and ALBASMA vs. SALAMI (Citation not supplied by learned Senior Counsel). He argued that in granting an order permitting a departure from the rules of Court, the factor to be considered is the overriding interest of justice. He submitted that granting the Order will give room for an expeditious disposal of the substantive appeal, and urged this Court to allow a departure from the rules by allowing the Applicant to compile and transmit the record of appeal in this case in the interest of justice. Learned senior counsel further submitted that this Court has the power to make deeming orders in the instant case, the Court has the power to deem the Notice of appeal filed on the 27th day of October 2015 as having been properly filed, that this Court has power to also deem as properly filed and 9

14 served the records of appeal compiled and transmitted on the 9th day of November 2015, so doing would guarantee expeditious determination of the appeal. Learned Senior Counsel relied on the decision in ERISI Vs. IDIKA [1987] 4 NWLR (pt. 66) 503 at 517, to urge this Court to grant prayers (c) and (e) on the motion dated 9th November, Learned Counsel submitted that this Court has the power to grant prayer (b) of the motion on notice in the face of the fact that the 3rd Respondent has effectively assumed and taken up the role and position of Intercontinental Bank Plc. He referred to Exhibit STANBIC-6 and urged this Court to grant prayer (b) on the Motion on notice. Learned Counsel further submitted that this Court has the power to grant an Order for injunction pending the hearing and determination of the appeal for the purpose of preserving and protecting the res, which is the subject matter of this Appeal. He relied on KIGO vs. HOLMAN BROS (1980) 5 â 7 SC 41, ABOSELDEHYE LAB. PLC Vs. U.M.B. LTD [2013] 13 NWLR (Pt. 1370) 91 at 113 F - G, and OLUWADARE Vs. UNILORIN [2009] 17 NWLR (Pt. 1169) 1, and submitted that the balance of convenience is in 10

15 favor of preservation of the said sum of N2.5Billion and this justifies keeping matters in status quo, he submitted that doing otherwise would put the funds at great risk of dissipation. He referred to paragraph 25 of the affidavit in support of the application. Learned senior counsel for the Applicant further submitted that an assurance by the Respondents that the funds would not be dissipated is not sufficient in the circumstance of this application, he relied on the decisions in WILSON Vs. CHURCH (No.2) (1879) 12 Ch.D 454, ONUZULIKE Vs. COMMISSIONER FOR SPECIAL DUTIES [1990] 7 NWLR (Pt. 161) 252. Learned Senior Counsel also submitted that the Order of injunction sought by the Applicant is for the protection of the res pending the hearing and determination of the appeal against the garnishee order absolute and not the appeal against the substantive suit. He referred to NIGERIA AGIP OIL & GAS LTD Vs. OGINI (Supra) and DENTON-WEST Vs. MUOMA [2008] 6 NWLR (Pt. 1083) 418 to submit that Garnishee proceedings are sui generis and that a right of appeal thereof is distinct from a right of appeal in respect of the judgment sought to be enforced by the 11

16 garnishee proceedings. Learned Senior Counsel referred this Court to an appeal pending before the Supreme Court of Nigeria in Appeal Number SC/535/2013 between STANBIC IBTC BANK PLC vs. LONGTERM GLOBAL CAPITAL LTD & ANOR, Counsel said it is an appeal against the substantive judgment of the lower Court and urged this Court to ensure that the funds are preserved. He urged this Court to grant the prayers of the Applicant in the interest of justice. Learned Senior Counsel Fagbohungbe SAN for the 1st and 2nd Respondents submitted that this Court should refuse to exercise its discretion in favor of the Applicant and dismiss the Applicantâs application in limine for being an abuse of Court process in that the Applicant, not being a party to the garnishee proceedings is seeking to exercise a right which it does not have at all and mala fide too. Learned counsel argued that only a party in a proceeding may appeal or seek to appeal as of right against any decision in such proceedings. Learned Senior Counsel for the Respondents referred to Section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999, U.B.A. PLC. Vs. EKANEM [2010] 12

17 6 NWLR (Pt. 1190) 207 at 224 E-H, NIGERIA AGIP OIL & GAS LTD Vs. OGINI [2011] 2 NWLR (Pt. 1230) 131 to submit that garnishee proceedings are completely different from the usual civil proceedings and that the heavy reliance of the Applicant on the case of NIGERIA AGIP OIL & GAS LTD Vs. OGINI (Supra) is erroneous, he further submitted that what can be deduced from the decision in the case is that a Judgment debtor is by no means a party to a garnishee proceeding and has no right of appeal in respect of any order made in the garnishee proceeding, not being a party to the proceeding. Learned counsel further submitted that the power of this Court to extend time for a party to carry out an act or take a step can only be exercised judicially and judiciously and that in this instant case, the Order, if granted will go to no issue because the Applicant cannot exercise its alleged right of appeal in vacuum, since it was not a part to the garnishee proceedings. Learned counsel referred to AZUH Vs. UNION BANK PLC. [2014] 11 NWLR (Pt. 1419) 580 and submitted that the fact that a person has an interest in the outcome of a proceeding in Court will not 13

18 automatically confer such a person exactly the same right as those of a party in the suit. Learned Counsel urged this Court to hold that all the cases cited by the Applicant were cited out of context and that the heavy reliance on NIGERIA AGIP OIL & GAS LTD Vs. OGINI (supra) cannot avail the Applicant. Learned counsel further submitted that the Applicant either misunderstood, misapplied or deliberately quoted out of context the decision in NIGERIA AGIP OIL & GAS LTD Vs. OGINI. Learned Counsel submitted that a dispassionate analysis of the decision of Ogunwunmi JCA in NIGERIA AGIP OIL & GAS LTD Vs. OGINI (Supra) will reveal that the position of the law espoused is that whereas an appeal cannot lie against a garnishee order nisi by virtue of Section 14 of the Court of Appeal Act, being an exparte order, an appeal can lie against a garnishee order absolute which is usually granted after all the parties in the garnishee proceedings must have been heard. Learned Counsel contended that parties, as referred to in the case can only mean the Judgment Creditor and the Garnishee, who are the only parties recognized by law in garnishee proceedings, and 14

19 that the Applicant cannot mischievously contend that a Judgment Debtor, who is not a party in the garnishee proceeding can appeal against the garnishee order absolute. On the issue of jurisdiction raised by the Applicant, Learned Senior Counsel for the 1st and 2nd Respondents submitted that the issue of jurisdiction as raised by the Applicant in its Notice of Appeal, which was filed without the prior leave of Court is merely self serving and goes to no issue, and that the said issue of jurisdiction can only be validly and competently raised by the Garnishee and not the Applicant. Counsel relied on the decision in NIGERIA MARITIME ADMINISTRATION AND SAFETY AGENCY Vs. STEPHEN ODEY (2012) WRN 108, U.B.A PLC. Vs. EKANEM (Supra) and WEMA BANK PLC Vs. BRASTEM- STERR (NIG) LTD [2011] 6 NWLR (Pt. 1242) 58. Learned Counsel for the Respondents submitted that Section 64 of the Federal High Court Act relied on by the Applicant relating to the definition of parties before the Federal High Court were misconstrued by the Applicant and cannot therefore avail the applicant. Learned Counsel further referred to CENTRAL BANK OF NIGERIA Vs. OKEFE (2015) LPELR (CA); 15

20 STAR DEEPWATER PETROLEUM LTD Vs. A.I.C. LTD. (2010) LPELR-9165; UNION BANK PLC vs. BONEY MARCUS INDUSTRIES LTD (2005) 7 SC (PT 11) 70 and RE: DIAMOND BANK [2002] 17 NWLR (PT 795) 12 on the principle that a Judgment Debtor is not regarded as a party in garnishee proceedings. Learned counsel contended that this Court is bound by its previous decisions; Counsel said the Court of Appeal must refrain from giving conflicting decisions, which may tend to be embarrassing to the administration of Justice. Learned Senior Counsel also referred to TSA INDUSTRIES LTD Vs. FBN PLC (No. 1) [2012] 14 NWLR (Pt. 1320) 326, NNB Vs. DENCLAG [2005] 4 NWLR (Pt. 916) 549 G - H and Order 6 Rule 6 of the Court of Appeal Rules to submit that Applicants application is an abuse of Court process and urged that the purported Notice of Appeal attached to Applicantà ÂÂs application and marked Exhibit STANBIC-5 be struck out. Learned Senior Counsel for the Respondent again referred to AZUH Vs. UNION BANK (Supra) to contend that this Court lacks the requisite jurisdiction to entertain the present Application as constituted because the Applicant was not a party to the 16

21 garnishee proceeding and therefore lacks the requisite locus standi to bring the present Application, he therefore urged this Court to decline jurisdiction to entertain the said Application. Learned counsel also referred to the decision in MADUKOLU Vs. NKEMDILIM (1962) 2 SCNLR 341 and OLORIODE Vs. OYEBI (1984) 5 SC 1 B to submit that the Applicant's application was not initiated by due process of law and upon the fulfillment of all the conditions precedent to justify the ruling by this Court of its jurisdiction to entertain the said application, Counsel therefore urged this Court to decline jurisdiction and dismiss the application. Learned Senior counsel for the 1st and 2nd Respondents again referred to TSA INDUSTRIES LTD Vs. FBN PLC (Supra), and Paragraphs 11, 12, 13, and 14 of the Affidavit in support of the Applicantâs application and paragraphs 15, 16, 18, 19, 25, 26, 30 and 31 of the 1st and 2nd Respondentsâ counter Affidavit and paragraphs 10, 11, 12 and 13 of the 1st and 2nd Respondents' further counter Affidavit to contend that the present application is a repetition of two other applications which had earlier been filed by the Applicant 17

22 in this Court. Counsel submitted that the application filed by the Applicant on 13th May, 2011 was extensively argued in this Court on 19th March, 2012 and 7th October, 2013 respectively and this Court in its Ruling struck out the applicant's application. Upon being struck out by the Court, the Applicant filed another application in the same terms on 8th October 2013, and later withdrew the Application after issues had been joined on the merit by the parties through their respective Written Addresses. Learned Counsel for the 1st and 2nd Respondents submitted that the Applicant had earlier filed a Notice of Appeal in Appeal No. CA/L/245/2011 between STANBIC IBTC BANK PLC Vs. LONGTERM GLOBAL CAPITAL LTD & ANOR which is pending before this Court and the parties have duly filed their respective Briefs of Argument, apart from this, the Applicant also filed an application at the Supreme Court in Suit No: SC/535/2103 between the same parties, in which the Applicant sought Orders of injunction against the 1st and 2nd Respondents, this application was again withdrawn by the Applicant after the Supreme Court had ordered the Applicant and the 1st and 2nd 18

23 Respondent to file their respective written addresses. Learned Senior counsel said the multiple applications before this Court and the Supreme Court in respect of the same garnishee order absolute is malicious and constitutes an abuse of Court process, and therefore urged this Court to hold that the Applicant's conduct is mala fide and aimed at obstructing the effective and efficient administration of justice, that the multiple applications are designed to frustrate the 1st and 2nd Respondents from reaping the fruits of the garnishee order absolute made in the their favor. Learned senior counsel relied on the decision in ZENITH BANK PLC. Vs. JOHN [2015] 7 NWLR (Pt. 1458) 392 to submit that this present Application is only aimed at ensuring that the 1st and 2nd Respondents continue to suffer by being deliberately, mischievously, and maliciously deprived of the fruits of the garnishee order absolute made by the lower Court on 9th February, 2011, five years ago. Learned Counsel urged this Court to put a definite end to the oppressive conduct of the Applicant by dismissing the application in the interest of justice as there must be an end to 19

24 litigation. Learned senior counsel referred to prayers (d) and (e) of the Applicant s application and submitted that the reliefs are grossly misconceived and go to no issue. Learned Counsel also argued that the Record of Appeal referred to by the Applicant in the application was not compiled and transmitted to this Court for the purpose of the present proceedings. Learned counsel argued that Applicant's application was predicated on a Notice of Appeal purportedly filed on behalf of the Applicant on the 27th of October, 2015 while the purported Record of Appeal referred to in paragraphs (d) and (e) was compiled in or about March, Learned Senior counsel referred this Court to prayer (c) on the Applicant s motion paper and Exhibit STANBIC-3 attached to the affidavit in support of the motion, he also referred to pages of Volume III of the Record of Appeal, and pages of Volume III of the Record of Appeal to contend that the date on the said Notice of Appeal is different from the Notice of Appeal attached to the Applicant s present Application. Learned counsel referred to Order 8 Rule 1 of the Court of Appeal Rules 20

25 to submit that the Record of Appeal cannot predate or come before the Notice of Appeal filed in respect of an appeal; that a Record of Appeal can only be validly and competently compiled and transmitted after the filing of the Notice of Appeal. Learned Senior Counsel therefore urged this Court to dismiss prayers (d) and (e) on the motion paper filed by the Applicant. Learned counsel for the 1st and 2nd Respondent submitted that prayers (f) and (g) on the motion paper are grossly incompetent and must be dismissed in limine. Learned senior counsel contended that since the Application is merely seeking for an order of extension of time within which to appeal, and the Application has not been heard and determined yet, it means there is no competent appeal before this Court upon which the orders of injunction can be concreted. Learned Counsel further contended that the discretion of the Court to make deeming orders can only be properly exercised if the process was filed by a party with the requisite locus standi in respect of the issue to which the process relates. Learned senior counsel therefore urged this Court to hold that the Notice of Appeal 21

26 attached to the Applicants application was filed by a mere meddlesome interloper and therefore constitutes a gross abuse of Court process. Learned Senior counsel for the 1st and 2nd Respondents submitted that the order of injunction sought by the Applicant in the instant Application cannot stand because it is predicated on nothing. Learned Counsel referred this Court to UBANI Vs. OGOLO [1998] 3 NWLR (Pt. 540) 120 to submit that the basis of an application for interlocutory injunction is to protect a right, and that in the instant case the right of the Applicant to the funds in the 3rd Respondents custody became extinguished immediately the garnishee order nisi through which the funds were attached in the hands of the 3rd Respondent was made absolute by the lower Court. The Applicant, as Judgment Debtor, ceases to have any right over the judgment sum; counsel relied on the decision in ZENITH BANK PLC Vs. JOHN (Supra). Counsel submitted that the Applicant has not in any way established that the money in custody of the 3rd Respondent is the res, capable of being destroyed to warrant the Orders of injunction. On the whole, learned Senior Counsel 22

27 for the 1st and 2nd Respondents submitted that the balance of convenience tilts in favor of the 1st and 2nd Respondents and urged this Court to discountenance the submissions of the Applicant and dismiss the Application. The Applicant filed Reply on Points of Law to the 1st and 2nd Respondents address; the reply is substantially a repetition of Applicants elaborate address in support of the points canvassed in Applicants written address. The reply by the applicant touched on the issues already canvassed by the applicant, the reply threw more light on the effect of striking out and re-emphasized the fact the applicant is a party to the garnishee proceedings, learned counsel revisited the decision in AGIP OIL COMPANY LTD Vs. OGINI (Supra), and substantial authorities referred to by the Applicant and the Respondents while making submissions on this application. Applicant also revisited the issue of injunction in its reply on points of law. Having navigated through the submissions of parties in this application, let me settle down to address the issue central to the determination of the application, I am sure the issue is not beyond "whether, 23

28 having regard to the circumstances of this application, this Court ought to grant the reliefs sought by the Applicant". Let me treat the issue whether or not the applicant in the instant application is a party to the garnishee order absolute, made by the lower Court on 9th February, 2011 in suit number FHC/CS/1491/2009, the basis upon which applicants application for extension of time to appeal is predicated. I am sure this is a convenient point to start. It is the argument of the 1st and 2nd Respondents' counsel that the application by the Applicant constitutes an abuse of Court process, as the Applicant is merely a Judgment Debtor, hence not a party to the Garnishee proceedings and therefore has no right of appeal against the garnishee order absolute made by the lower Court. I am mindful of the chains of decisions of this Court in seemingly endless decisions to the effect that the only parties envisaged in garnishee proceedings are the Judgment Creditor and the Garnishee, thereby excluding a Judgment Debtor from exercising any right to partake in the proceedings as a party, that even where a Judgment debtor feels aggrieved by the decision of the Court 24

29 in garnishee proceedings he cannot maintain and sustain a valid action against the decision of the Court. Garnishee proceedings are held to be separate and distinct actions between the judgment creditor and the garnishee. In the case of DENTON-WEST Vs. MUOMA [2008] 6 NWLR (Pt. 1083) 418 at 442 D-E, KEKERE-EKUN, JCA (as he then was), held as follows: "There is no doubt that garnishee proceedings are separate proceedings between the judgment creditor and the person or body who has custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced the debt owing. See: In Re Diamond (supra) at 133 D-E; Purification Techniques (Nig.) Ltd v. A-G, Lagos State (supra)." Consequently, it has been held that a judgment debtor cannot appeal against a garnishee order made by the lower Court. This statement of law was expressed with emphasis in P.P.M.C. LTD. Vs. DELPHI PET. INC. [2005] 8 NWLR (Pt. 928) 458 at 484, C-G, where SALAMI, JCA, (Later PCA) held as follows and I quote: "The reason for inability of the appellants to appeal against a garnishee order is for the simple fact that it is a product of proceedings 25

30 between the judgment creditor and the person in possession of the assets of the judgment debtor. In the instant case, Guaranty Trust Bank is the garnishee or a person holding the assets of the judgment debtor, the appellants herein, while the respondent is the judgment creditor. A garnishee proceedings although incidental to the judgment pronouncing the debt owing, the appellants being judgment debtor are not necessary party to the said proceedings. The procedure whereby the judgment creditor obtains the order of the Court to attach from any person within the jurisdiction of the Court assets of judgment debtor to satisfy the judgment debt is described as attachment of debt and is one of the several methods of executing judgment. The proceedings for this separate and distinct action is between the respondent, herein and the Guaranty Trust Bank Plc., the garnishee which has not appealed the said decision. There is no substance respectfully in the submission of the learned counsel for appellants that the decision of Aderemi, J.C.A in In Re Diamond Bank Limited (2002) 17 NWLR (Pt. 795) 120 is obiter dictum. The issue in that decision was an

31 existence or otherwise of an appeal and, the person competent to bring an appeal in a garnishee proceedings." See: also UBA Vs. EKANEM [2010] 6 NWLR (Pt. 1190) 207 at 222, B-D. The above settled position of the law in my humble understanding remains unassailable only with respect to a garnishee order nisi made by the lower Court and ought not in my humble view be extended to apply to garnishee order absolute as in the instant application, particularly where it relates to the determination of proper parties in garnishee proceedings. In proceedings relating to garnishee order nisi which is usually initiated ex parte, it is safe to say that the proceedings involve only the judgment creditor and the garnishee, it is also safe to conclude that any decision to the effect that the judgment debtor is not a party at this stage can be said to represent the correct and settled position of the law, but where the proceedings are with respect to garnishee order absolute, a tripartite party arrangement is in place, a tripod is established, that is the judgment creditor, the judgment debtor; and the garnishee. It is to be noted that in proceedings 27

32 relating to garnishee order absolute, the judgment debtor by law becomes an active participant in the process. This is obvious from the effect of Section 83(2) of the Sheriffs and Civil Process Act as well as Order VIII, Rule 8(1) of the Judgments (Enforcement) Rules. Section 83(2) of the Sheriffs and Civil Process Act makes the service of the order nisi on the judgment debtor at least fourteen days before the hearing wherein the order nisi will be made absolute mandatory. The pertinent question to ask is, why must the judgment debtor be served copy of the order Nisi? I think the reason is not farfetched, it is obviously to enable him appear in Court on the adjourned date to be so heard if he desires before the order is made absolute. The section makes it mandatory for the service of the order nisi on the Judgment debtor, which presupposes that he is a necessary party in the proceedings, service upon him of the order Nisi serves as an invitation to him (the Judgment Debtor) to enable him to be heard by the Court before the order absolute is finally made. See: WEMA BANK PLC. Vs. BRASTEM-STERR (NIG.) LTD. [2011] 6 NWLR (Pt. 1242) 58 at 80A-D, SKENCONSULT 28