RULING. This is a motion on notice wherein the judgment debtor/applicant seeks the following reliefs:

Transcription

1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 15TH DAY OF JULY 2013 SUIT NO. FCT/HC/M/8912/13 BEFORE HIS LORDSHIP HONOURABLE JUSTICE FOLASADE OJO JUDGE BETWEEN: 1. KUDA ENG. AND CONSTRUCTION COMPANY LTD JUDGT. CREDITORS/ 2. MISS OLUFEMI OLAITAN RESPONDENTS AND 1. FEDERAL CAPITAL DEV. AUTHORITY 2. HONOURABLE MINISTER OF FCT JUDGT. DEBTORS/APPLICANTS 3. WUSE ZONE 4 PROPERTY DEVELOPMENT COMPANY LTD AND 1. FIDELITY BANK PLC 2. ZENITH BANK PLC GARNISHEES RULING This is a motion on notice wherein the judgment debtor/applicant seeks the following reliefs: i. An order of the Honourable Court setting aside the order nisi made on 18/6/2013 for the 1 st and 2 nd Garnishee to show cause. ii. An order of the Honourable Court striking out the Garnishee proceeding for being an abuse of court process. 1

2 OR IN THE ALTERNATIVE iii. An order of this Honourable Court staying further proceedings in the instant garnishee proceedings pending the hearing and determination of the motion on notice dated 4/7/12 and filed in the Court of Appeal on 5/7/12 for variation of the stay of execution granted by Annenih J. on 21/6/2012. The grounds upon which the application is brought as stated on the face of the motion paper are follows: i. That there is a conditional stay of execution of the judgment sought to be executed in the garnishee proceedings. ii. That there is a pending application before the Court of Appeal to vary the condition of stay filed on 5/7/2012. iii. Appeal has been entered and parties have exchanged brief of argument and appeal set down for hearing. iv. This Honourable Court lacks jurisdiction to entertain same as the entire garnishee proceeding constitutes abuse of Court process. The motion is supported by a 26 paragraphed affidavit and three exhibits marked Exhibit JDA1, JDA2 and JDA3 respectively. Filed along with the motion is a counsel s written address which the applicant s counsel adopted as his oral submission in support of the application. The judgment creditors/respondents are opposed to the application. Their counsel argued orally on points of law against the grant of same. It would be apt at this stage to state in brief the background facts leading to this application. 2

3 Judgment was entered in favour of the respondents, Kuda Engineering Constriction Company Ltd. and Miss Olufemi Olaitan in this suit against the applicants Federal Capital Development Authority and Honourable Minister, FCT in the sum of Sixty Two Million Naira on the 14 th May 2012 by the FCT High Court, Coram Annenih J. Exhibit JDA1 is the judgment. Dissatisfied with the judgment, the applicants filed an appeal against same to the Court of Appeal as well as an application for stay of execution of the Judgment. Exhibit JDA2 is the ruling on the motion for stay of execution of judgment delivered by my learned brother, Annenih J. In Exhibit JDA2 the Court granted a conditional stay of execution of judgment and ordered that the judgment debt be paid into Court pending the outcome of the appeal. The judgment debtors filed yet another application at the Court of Appeal seeking to vary the conditional stay of execution which said application is still pending. The Judgment Creditors and respondents to this application despite been aware of all the above facts filed a garnishee proceedings seeking to attach the funds of the judgment debtors in the garnishee bank to satisfy the judgment debt of Sixty-Two Million Naira pursuant to the judgment of my learned brother. This Court on the 18 th of June 2013 granted an order nisi for the said sum. It is the order nisi that the judgment debtors seek to set aside by this application. The applicants position is that the said order nisi was obtained by fraud in that the judgment creditors did not disclose all the background facts i.e. the existence of a conditional stay, the order that the judgment debt be paid to Court and also the existence of a pending motion before the Court of Appeal. 3

4 Learned counsel to the applicants submitted that if all the facts were disclosed this Court would not have granted the order nisi. Learned counsel submitted that the order nisi is illegal, void and a nullity and urged me to so hold and set same aside. He relied on the case of VASWANI TRADING CO. LTD. VS. SAVALAKA & CO. (1972) 12 SC 77. Learned counsel to the respondents contended that an application for garnishee proceedings is sui generis and the proper parties in such proceedings are only the judgment debtor and the garnishee. He relied on the cases of UBA (NIG.) PLC VS. EKANEM (2010) 6 NWLR (Pt. 1190) Pg. 207 at 226, DENTON WEST VS. MOUMA (2008) 6 NWLR (Pt. 1083) Pg. 418 and PURIFICATION TECHNIQUE VS. A.G. OF LAGOS STATE (2004) 9 NWLR (Pt. 879) Pg He therefore urged me to dismiss the applicants motion as he is not a party to the garnishee proceedings. On whether the judgment debtors are competent to be heard in this proceedings, I am of the view that considering the nature of the application which is that challenging the jurisdiction of this Court to grant the order nisi they are entitled to be heard. While the Court of Appeal has in the case of UBA PLC VS. EKANEM (2010) 6 NWLR Pt Pg. 207 cited by the respondents counsel held that a judgment debtor is merely a nominal party to a garnishee proceedings and is not entitled to be heard, it has also been held in the more recent case of CROSS RIVER STATE FORESTRY COMMISSION & ANOR VS. MURI EFFIONG ARCHIBONG ANWAN & ORS (unreported) decision of the Court of Appeal, Calabar Division, delivered on Monday 9 th July 2012 in SUIT NO. CA/C/14/2009 that ordinarily a judgment debtor is not a necessary party in a garnishee proceeding before the Court, but the Court cannot close it s eyes to processes filed in Court and the law includes the judgment debtor 4

5 as one of the parties to be served the order nisi. In that case Ndukwe Anyanwu, JCA held thus: In a garnishee proceedings, the garnishee must be served with the garnishee order nisi. Upon service of the order nisi, on the garnishee he may file an affidavit to show cause and attend Court on the return date. Where the garnishee fails to appear in Court on the return date, the Court may make the order nisi absolute. Likewise the judgment debtor is to be served the order nisi, in case he intends to challenge the amount on the order. See IN RE: DIAMOND BANK (SUPRA). In the instant case, the judgment debtors filed a motion stating that they were not served. Neither the Court nor the judgment creditor verified this assertion of the judgment debtors. The Judgment creditor and the Court glossed over the issue even though it was vital to the jurisdiction of the Court. The objection of the judgment debtor is to the jurisdiction of the Court to grant the order nisi. The judgment debtor who is entitled to be served with the order is entitled to be heard in the present circumstance and I so hold. The issue of jurisdiction is very fundamental to a proceeding and is not such to be glossed over. It is not disputed that after judgment was delivered by my learned brother Annenih J. in favour of the respondents, the applicants filed an application for stay pursuant to which a conditional stay of execution was granted. This ruling granting conditional stay of execution has not been set aside by that Court or the Court of Appeal. It is therefore still valid and subsisting. 5

6 It is trite that when a Court delivers it s rulings or judgment it becomes functus officio in the matter and cannot revisit same. See IBOK VS. HONESTY II (2007) 6 NWLR (Pt. 1029) Pg. 55. Furthermore, the law is that no Judge has power to reverse, vary or alter the order or decision of another Judge of coordinate jurisdiction. See S.P.D.C.N LTD. VS. EDAMKUE (2009) 14 NWLR Pt Pg. 1 and ADEYEMO-BERO VS. OMOTOSHO (2008) 15 NWLR Pt Pg. 576 at 589 Paras A D. Proceeding with the instant garnishee proceeding is clearly a review of the order for conditional stay ordering the judgment debt to be paid into Court pending appeal. The garnishee order nisi made by this Court on 18/6/13 is a nullity having been made without jurisdiction. The judgment creditors who applied for the order did not make a full disclosure of facts at the time of seeking the order. It is trite that he who comes to equity must come with clean hands. The judgment creditors did not come with clean hands in the present circumstance and I so hold. In OMOTUNDE VS OMOTUNDE (2001) 9 NWLR Pt. 718, Pg. 252 at 273, Paragraphs C H, Adekeye, JCA held thus: Circumstances in which a Court may invoke its inherent power to set aside its judgment or order are: 1) To correct any clerical error or mistakes arising from accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention under the rules of Court or order 5 Rule 3 Court of Appeal Rules 1981; 2) Until a Court pronounces a judgment on merit or by consent of parties a Court retains the power to set aside its default judgment obtained in the absence of one of 6

7 the parties or default of pleadings The power to do so is however discretionary and has to be exercised judiciously 3) Where a judgment has been obtained as a result of fraud practiced by one of the parties 4) Where a judgment is a nullity, due to a fundamental defect which goes to the issue of jurisdiction and competence of the Court In this case, the Order Nisi made by this Honourable Court on the 18 th of June 2013 was premised on the facts presented by the judgment creditor. The judgment creditor/respondent in the affidavit in support only stated that judgment was entered in its favour and the judgment debtor has refused to settle the judgment debt. The fact that there was a conditional order staying the judgment of the Court by Annenih J. was completely left out. There is absolutely nowhere where it was mentioned that there is a pending order of the Court in respect of the judgment or that there is a pending appeal. The act of the judgment/creditor in omitting this vital information or development is a calculated attempt to over reach the other party by deceiving the Court and I so hold. The Judgment Creditor has obviously not come with clean hands. They withheld vital facts to get the order. This being so, the order so obtained is one liable to be set aside. The existence of the conditional stay makes the present garnishee order proceedings an abuse of Court process. This Court has the power to vacate its order where same was made based on fraudulent misrepresentation. 7

8 In conclusion I find that the present garnishee proceedings is an abuse of Court process. The Order Nisi made on the 18 th of June 2013 was made without jurisdiction based upon misrepresentation of facts. The Order Nisi is therefore liable to be set aside and it is hereby set aside. I also find the entire garnishee proceedings to be an abuse of Court process and it is hereby struck out. HON. JUSTICE F. A. OJO JUDGE 15/7/2013 W. E. Ivara for the Judgment Creditors/Respondents. E. N. Ukaegbu for the 1 st and 2 nd Judgment Debtors/Applicants. Emmanuel Onuoha for the 3 rd Judgment Debtor/Respondent. 8