IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 28 TH DAY OF NOVEMBER 2013 SUIT NO. FCT/HC/M/8529/13 BEFORE HIS LORDSHIP: HONOURABLE JUSTICE FOLASADE OJO JUDGE ESQUIRE VENTURES LIMITED BETWEEN: AND JUDGT.CREDITOR/RESPONDENT 1. THE HON. ATTORNEY GENERAL OF THE FEDERATION (Sued as the representative of the Federal Govt. of Nigeria) 2. CHIEF OF ARMY STAFF ARMY HEADQUARTERS, ABUJA JUDGT. DEBTORS/ 3. NIGERIAN ARMY APPLICANTS 1. ZENITH BANK PLC 2. UNITED BANK PLC 3. FIRST BANK PLC 4. DIAMOND BANK PLC AND 5. FIDELITY BANK PLC GARNISHEES/RESPONDENTS 6. STANDARD IBTC BANK PLC 7. FIRST CITY MONUMENT BANK PLC 8. GUARANTY TRUST BANK PLC 9. KEYSTONE BANK PLC 10. ECO BANK PLC RULING This is a motion on notice brought pursuant to the provisions of Order 45 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules 2004, Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 and the inherent jurisdiction of this Court wherein the 2 nd and 3 rd Judgment debtors seek the following reliefs: 1. An order of stay of execution of the garnishee order absolute made by this Honourable Court on the 27 th of May 2013 in respect of applicant s monies in the custody and control of the 1
3 rd 9 th respondents pending the hearing and determination of the appeal against the said order by the Court of Appeal, Abuja Division. 2. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances. The grounds upon which the application is brought as contained on the face of the motion paper are as follows: a. The applicants have lodged an appeal against the aforesaid garnishee order absolute (Notice of Appeal herewith attached). b. The res or subject matter of the appeal will be dissipated and destroyed by the 1 st respondent unless the 3 rd 9 th respondents are restrained from making same available to the respondent. c. A situation of complete and utter helplessness will inevitably be foisted on the Court of Appeal and the applicant s Appeal will be rendered nugatory. The motion is supported by a 24-paragraphed affidavit. Counsel filed a written address in support. The judgment creditor is opposed to the application and has filed a counter affidavit with a counsel s written address. At the hearing of the motion counsel on both sides adopted their written addresses as their respective oral submissions. Judgment was delivered in favour of the judgment creditor in suit No: FCT/HC/CV/366/09 on 25/5/12 against the judgment debtors/applicants. The judgment creditor initiated garnishee proceedings against the above named garnishees. A garnishee order nisi was made on the 27 th of August 20012 which order was made absolute on the 27 th of May 2013. By the garnishee order absolute, some of the garnishees were directed to pay the judgment debt. Dissatisfied with the garnishee order absolute, the applicants filed an appeal against same consequent upon which they filed this application. The facts relied on by the 2 nd and 3 rd Judgment Debtors/Applicants as contained in the affidavit in support of the motion is that they had filed a notice of appeal against this Court s judgment delivered on 25/5/12 in Suit No. FCT/HC/366/2009 and also filed motions for stay of execution pending their said appeal. That while the motions for stay were pending the Judgment Creditor/Respondent commenced garnishee proceedings against the Garnishee/Respondents herein and a garnishee order nisi was made against some of the Garnishee/Respondents. That the 2 nd and 3 rd Judgment Debtors/Applicants were not served with the garnishee order nisi. That while the garnishee proceedings was pending the record of appeal was compiled and transmitted to the Court of Appeal. That they filed another application for stay of execution of the Judgment 2
of 25/5/12 at the Court of Appeal which application was served on all the respondents herein. That their grounds of appeal raise vital and substantial issues of law particularly of fair hearing. That the subject matter will be destroyed if the Respondents are not restrained from enforcing the garnishee order absolute. That it will not be possible to return to status quo if the 2 nd and 3 rd Judgment Debtors/Applicants appeal succeeds as the Judgment Creditor/Respondent has remained unable to settle its indebtedness to its own creditors. The Judgment Creditor/Respondent on the other hand averred in its Counter Affidavit that it has suffered and will continue to suffer irreversible hardship if the judgment sum is not liquidated. He says judgment has been entered against him by the Kaduna State High Court in favour of GT Bank Plc on account of loans obtained from the bank. That since the filing of the 2 nd and 3 rd Judgment Debtors/Applicants appeal no further steps have been taken such as compilation of record of appeal. That the Judgment Creditor/Respondent undertakes to refund and pay interest on the judgment sum in the unlikely event that the 2 nd and 3 rd Judgment Debtors/Applicants succeed on appeal. That the Judgment Creditor/Respondent has several landed properties in Abuja to effect such refund. That the motion is incompetent and an abuse of Court process. Relying on Sections 241, 242 and (particularly) 243 of the Constitution of the Federal Republic of Nigeria 1999 Counsel to the 2 nd and 3 rd Judgment Debtors/Applicants argued that the 2 nd and 3 rd Judgment Debtors/Applicants have a constitutional right of appeal against the garnishee order absolute made against their interest. He further submitted that the 2 nd and 3 rd Judgment Debtors/Applicants are parties to the garnishee proceedings and are entitled as of right to appeal against same. He relied on Order 8 Rule 8(1) of the Judgment Enforcement Rules and the cases of NIGERIA AGIP OIL COMPANY LTD. VS. OGINI (2011) 2 NWLR PT. 1230 P. 131 and CENTRAL BANK OF NIGERIA VS. AUTO IMPORT EXPORT (2013) 2 NWLR PT. 1337 P. 80. On the issue of the res in this matter, Counsel argued that same would be destroyed and a situation of helplessness will be foisted on the Court of appeal if the instant application is refused. He relied on the cases of INTERCITY BANK PLC VS. ALLI (2002) 7 NWLR PT. 766 P. 420 and CLIFFORD COUSIN VS. TEMPLEMEN ODEJIBA (2005) 26 WRN 66 and urged me to grant the application sought so as to preserve the res in this matter. For his part, Counsel to the Judgment Creditor/Respondent contended that the 2 nd and 3 rd Judgment Debtors/Applicants lack the legal competence to apply for a stay of execution of the Garnishee Order Absolute made against the Garnishees/Respondents and have not placed sufficient materials for such a grant. He submitted that a judgment debtor is a stranger in garnishee proceedings and 3
relied on the case of NITEL PLC VS. I.C.I.C. DIRECTORY PUBLISHERS LTD (2009) 16 NWLR PT. 1167 P. 356. He submitted that since the money in respect of which the Garnishee Order Absolute was made is not in the custody of the 2 nd and 3 rd Judgment Debtors/Applicants they lack the locus standi to apply for a stay. He argued further that Order 8 Rule 8(1) of the Judgment Enforcement Rules relied upon by Counsel to the 2 nd and 3 rd Judgment Debtors/Applicants is not applicable to this situation. Counsel further submitted that an exercise of this Court s discretion to grant a stay is to be done judicially and judiciously based on materials before it which materials he said the applicant has failed to provide. He finally urged me to dismiss the motion. The law is settled that an application such as this essentially is an exercise of the Court s discretion. There are however guiding principles to be followed in the exercise of such discretion. In CLEV JOSH LTD. VS. TOKIMI (2008) 13 NWLR Pt. 1104 P. 422 AT P. 439 PARAS. A - C the Court of Appeal, per Gumel JCA, held as follows: Suffice it to say that in deciding whether or not to grant an application for stay of execution, a court must at least consider and answer some key questions. These include 1. Whether there is a valid and competent pending appeal; 2. Whether the applicant has shown by credible evidence that there are special or exceptional circumstances to warrant the grant of the application; and 3. Which of the competing rights and balance of convenience of the rights of the parties would support the grant etc. In a consideration of an application for stay of execution, it has been held that a grant of same is dependent on the existence of a valid and competent appeal and that no Court will grant an application for stay of execution in respect of an invalid appeal. The existence of a valid pending appeal in an application of this nature cannot therefore be overemphasized. See ORURUO VS UGWU (2007) 7 NWLR Pt. 1033 Pg. 225 at 230 Paras. C D, UBN VS NDACE (1998) 3 NWLR Pt. 541 P. 331, CBN VS AHMED (2001) 11 NWLR Pt. 724 Pg. 369 and ONASHILE VS IDOWU (1961) SCNLR 53. In ACB VS OBIMIAMI BRICK AND STONE (1993) 5 NWLR Pt. 294 P. 399, Karibi Whyte JSC held thus: In the instant case, if it could be shown that there was no valid appeal before the Court, then the basis for considering an application for a stay of execution does not exist. The reliefs sought in this application is clear and unambiguous. It is for an order of stay of execution of the garnishee order absolute made by this Court on the 27 th of May 2013 pending the hearing and determination of the appeal against 4
the said order. Exhibit E is a Notice of Appeal filed by the applicants against the garnishee order absolute. It is dated 14 th June 2013. The position of learned counsel to the judgment creditor/respondent is that the 2 nd and 3 rd judgment debtors/applicants are strangers to the garnishee and as such cannot bring this application. Applicant s counsel has however argued that the 2 nd and 3 rd judgment debtors have a right of appeal against the garnishee order absolute by virtue of Section 243 of the Constitution of the Federal Republic of Nigeria. Section 243(1)(a)and(b) provides thus: (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court, or a High Court conferred by this Constitution shall be- (a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court, or High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed; (b) Exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. From the above provision, it is clear that the right of appeal conferred by the Constitution in a civil proceedings are exercisable by: 1. A party to the suit, and (2) An interested party. An interested party however requires leave of Court to exercise his right of appeal. The appeal upon which the present application is predicated arose out of a garnishee proceedings. The law is settled that a garnishee proceedings is primarily between the judgment creditor and the garnishee. A judgment debtor is merely a nominal party. See STAR DEEP WATER PETROLEUM LIMITED & OTHERS VS A.I.C. LIMITED & ORS. Unreported decision of the Court of Appeal Lagos Judicial Division delivered on Friday 14 th May 2010 in Suit No: CA/L/610M/05 and UBA PLC VS EKANEM (2010) 6 NWLR Pt. 1190 Pg. 207. The right of appeal of a judgment debtor against a garnishee order was extensively considered by the Court of Appeal in the Unreported case of NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY VS. 5
STEPHEN ADI ODEY & ORS (UNREPORTED) delivered by the Court of Appeal (Calabar Judicial Division) on Thursday, the 28 th day of June, 2012 in Suit No: CA/C/45/2009. In that case the Court held that whether or not a judgment debtor is made a party to a garnishee proceedings he is not the party required by the order of Court to show cause in the proceedings and as such cannot appeal as of right against the garnishee order but as an interested party pursuant to Section 243 of the Constitution. I shall quote extensively from the lead Judgment delivered by Ndukwe-Anyanwu JCA. His Lordship held thus: Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. Thus, a successful party, in his quest to move against the assets of the judgment debtor usually makes an application ex parte for a garnishee order nisi attaching the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee. The following procedure governs garnishee proceedings, namely: (a) the garnishee must be personally served with the garnishee order nisi (b) upon effecting personal service of the order, the order binds the debt in the hands of the garnishee and he must therefore pay the debt over to the judgment creditor or such amount that will cover the judgment debt; (c) if the garnishee wishes to dispute the debt or liability by it to the judgment debtors, he must appear before the court; (d) where the garnishee fails to appear in obedience to the court s order, the court may proceed to make the order nisi absolute. The judgment debtor indeed should not be a party in this proceeding. Though he is a party he is not the party to show cause. The judgment debtor is not a necessary party in a garnishee proceeding and, therefore, has no right of appeal in this proceeding. Section 243 of the 1999 Constitution provides as follows: Any right of appeal to the Court of Appeal from the decision of the Federal High Court or High Court conferred by this constitution shall be: (a) exercised in the case of civil proceeding at the instance of a party thereto, or with leave of Court of Appeal at the instance of any other person having interest in the matter. If the Appellant is not supposed to be a party, can he appeal as of right in the garnishee proceeding? The answer is NO. If the answer is No, the Appellant can only appeal as a party having interest in the 6
matter with the leave of Court. See the case of UBA VS Ekanem (2009) 40 WRN page 150 where it was held that: A judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the judgment creditor in satisfaction of the judgment debt he is owing to the judgment creditor. He is not required to appear before the Court to show cause why the order nisi should be made absolute. It is the garnishee and only the garnishee that is expected to inform the Court if there is any third party s interest in the said judgment debtor s money in his custody. So, to all ramifications, it is only the garnishee that is expected to react if the law was not properly followed or observed. It has been held severally that the judgment debtor is not supposed to be a party in a garnishee proceeding. It, therefore, follows that the Appellant/judgment debtor in this case does not have any right to question the jurisdiction of the Court nor whether the hearing was fair or not. The only parties that may question the jurisdiction of the Court on whether there was fair hearing are the garnishee banks. See the unreported case of UNIVERSITY OF UYO VS. EDU ANYAWANA UYE (SUPRA) where Omokri, JCA (of blessed memory) had this to say: It is settled law that a garnishee proceeding, although incidental to the judgment pronouncing the debt owed, the judgment debtor in this case, the appellant is not a necessary party... the order nisi and order to show cause; why the order nisi should not be made absolute was directed to the garnishee and not the appellant who is the judgment debtor. The issue that the appellant was not heard as to whether or not the decree nisi should be made absolute is misconceived, speculative and does not reflect the true position of the law. The correct position of the law is that the present appellant is not a party to the garnishee proceeding, so the question of the appellant being denied of fair hearing does not arise at all. This is the position of the law and this case is on all fours with the instant case. See also PPMC Ltd. VS. DELPY PETROLEUM INC. (2005) 8 NWLR Pt.928 Pg. 458. The Appellant is not supposed to be a party in this garnishee proceeding and as such has no right to be heard in Court or any other proceeding whatsoever emanating thereto. The Appellant can only be 7
at best a party interested and therefore requires leave - a condition precedent to the institution of this appeal. Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. Thus failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the Appellate court. NALSA & TEAM ASSOCIATES VS. NNPC (1991) 8 NWLR Pt. 212 Pg. 652; ANYANSUWA VS. CO-OPERATIVE BANK LTD. (1994) 5 NWLR PT.347 PAGE 742; SHAKA VS. SALISU (1996) 2 NWLR PT. 428 PAGE 22; FBN PLC VS. BUKAR (1997) 1 NWLR PT. 483 Pg. 625; SPDC (NIG.) LTD. VS. KATAD (NIG.) LTD. (2006) 1 NWLR Pt. 960 PAGE 198. The failure of the Appellant to seek leave before appealing on the said judgment of the Court renders this appeal incompetent. This Appeal incompetent, therefore, robs the Court of the necessary jurisdiction to hear this appeal. I find the case of NIGERIAN MARITIME ADMINISTRATION AND SAFTY AGENCY (SUPRA) most apposite to the case at hand. The 2 nd and 3 rd judgment debtors are interested parties in this garnishee proceedings and I so hold. It follows therefore that they can only appeal against the garnishee order absolute with leave of Court. Order 8 Rule 8(1) of the Judgment Enforcement Rules does not confer a right to appeal without leave on the 2 nd and 3 rd judgment as submitted by their counsel and I so hold. The question now is whether the Notice of Appeal was filed with leave of Court. There is nothing before me to show that such leave was obtained. No leave was granted by this Court and applicants have not shown that such was granted by the Court of Appeal. The onus is on the applicants to do this which burden has not been discharged. The notice of appeal relied upon by the applicants was filed without leave and thus incompetent and I so hold. See NALSA AND TEAM ASSOCIATES VS NIGERIAN NATIONAL PETROLEUM CORPORATION (1991) 8 NWLR Pt. 212 Pg. 652. The law is settled that where an appeal is incompetent a stay of execution pending such appeal cannot be granted. The present application for stay of execution of the garnishee order absolute made by this Court on the 27 th of May 2013 is based on an incompetent appeal. This being so I find no merit in this application and it is hereby dismissed. 8 HON. JUSTICE F.A. OJO 28/11/2013