➥ CASE SUMMARY OF:
Portland Paints & Products Nig. & Anor V. Mr. Jimmy S. Olaghere & Anor (2012) – CA/L/1046M/11
by Branham Chima (SAL).
➥ COURT:
Court of Appeal – CA/L/1046M/11
➥ JUDGEMENT DELIVERED ON:
17 May 2012
➥ AREA(S) OF LAW
Appeal against garnishee proceeding.
➥ PRINCIPLES OF LAW
⦿ NATURE OF A GARNISHEE PROCEEDING
A garnishee proceeding is a proceeding that is Sui generic, in a class of its own, and is to be distinguished from other proceeding for enforcement of judgment, such as that by Writ of execution See: Purification Techniques (Nig) Ltd. v. AG Lagos; State (2004) 9 NWLR (pt 879) 655; Denton West v. Muoma (2008) 6 NWLR (pt 1083) 418; F.B.N. PLC v. Akpanabong Community Bank Ltd. (2006) NWLR (Pt 962) 438; Mobil producing (Nig) Unlimited v. Monopo (2003) 18 NWLR (pt 852) 346; N.A.O.C. Ltd v. Ogini (2011) 2 NWLR. The nature of Garnishee proceedings had been elaborately explained by this court in the case of N.A.O.C Ltd v. Ogini (supra) at page 152 para E – G as follows: “A garnishee proceeding is another process different from writ of execution whereby judgment creditor can realize the fruits of his judgment. If the judgment creditor knows that the judgment debtor has an amount of money with any bank or institution he will as garnishor file an exparte application to be supported by an affidavit in form 23 of the Judgment Enforcement Rules (JER) for an order that the garnishee (in the instant case UBA PLC) shall show cause why it should not pay the amount due to the judgment debtor.” — S.D. Bage, JCA.
⦿ GARNISHEE PROCEEDING CANNOT BE MADE SUBJECT OF APPEAL UNTIL IT IS ABSOLUTE
A garnishee proceedings is a special or sui generic proceedings that annures only between the garnishor and garnishee. It is only as between those parties that an application may be made; even then, it cannot even be a subject of appeal before it is made absolute. This is good sense and indeed good practice required for the purpose of avoiding the clustering of our courts by the applications of third parties whose ultimate rights may have to be determined independently of the garnishee proceedings or suit; and as independent suits which merits are not necessarily and intrinsically tied to the issue of the availability of the funds or judgment debt. — M.A. Danjuma, JCA.
⦿ WHERE A PRELIMINARY OBJECTION SUCCEEDS, NO NEED TO CONSIDER THE ISSUE ON MERIT
I have had the benefit of a preview of the lead Ruling of my lord, S. D. BAGE, JCA, and I must stress that it is well settled that where a preliminary objection succeeds, there will be no need to consider the arguments in support of the issue or issues for determination. — M.A. Danjuma, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Sidi Dauda Bage, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Layi Babatunde (SAN)
⦿ FOR THE RESPONDENT
Taiwo O. Taiwo Esq.
➥ CASE FACT/HISTORY
The matter in this application was fixed for hearing on the 26th of April, 2012, seeking, inter alia, for (1) order for leave extending the time within which to bring this application. (2) An order deeming this application as properly brought before this Honourable Court. (3) An order ex-debito justitae suspending forthwith the execution or further execution of the ex-parte Garnishee order issued by the lower court after the appeal had been entered in this Honourable Court pending the Hearing and determination of the appellants/applicants’ pending the hearing and determination of the motion on Notice for unconditional stay pending before this Honourable Court.
The main thrust of the appellants/applicants’ application is for this court to suspend the execution or further execution of the ex-parte Garnishee order by the lower court after the appeal had been entered in this court and there is a motion for unconditional staying pending yet to be heard.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL STRUCK OUT BECAUSE PRELIMINARY OBJECTION WAS SUCCESSFUL]
I. Whether the Appellant’s application will succeed?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT CANNOT MAKE AN APPEAL AGAINST A GARNISHEE PROCEEDING
[‘Appellants/applicants learned counsel had himself conceded that under Section 24 of the Court of Appeal Act, no provision is made for appeal against an Order NISI made. We have seen the parties to a garnishee proceeding for an order NISI is strictly exparte between the garnishor (judgment creditor) and the garnishee (the bank or institution). The appellants before this court are therefore not parties to the proceeding. The proceeding from its unique feature has no relationship whatsoever with the appeal filed by the appellants/applicants against the main judgment itself. In short there is no correlation between the two.’
‘The instant application is one of an order made NISI in Garnishee proceeding Exparte. This court cannot find any reason from the submissions of the learned counsel to the appellants/applicants to set aside the order obtained NISI. The order itself was never before this court on any kind of application. It was a clear case of asking the court to put something on nothing. It will definitely collapse.’
‘In the instant case, since the applicant could not show that he was a party to the proceeding which led to the granting of the garnishee order on 12th March, 2008, it needed leave of court under section 243(a) of the 1999 Constitution to show that it was “a person having an interest in the matter or that it was aggrieved having suffered a legal grievance. In Re: Madaki (1990) 4 NWLR (pt. 143) 226; in Re: Yinka Folawiyo and sons Ltd (1991) 7 NWLR (pt. 202) 237; Denton-west v. Muama (2008) 6 NWLR (pt.1083) 418. Per Owoade, J.C.A at page 157 paras F-G: “Based on the aforegoing I hold in agreement with the learned counsel to the respondents that the applicant was not a party to the garnishee proceeding which led to the grant of the order NISI of 12th March, 2008 and that the applicant has no right of appeal on the said order.”’]
B. A GARNISHEE ORDER CANNOT BE APPEAL AGAINST
[‘The motion is for an order ex debito justitae to suspend the execution or further execution of the ex parte garnishee order nisi pending the hearing and determination of the motion on notice for unconditional stay pending in this Court. That in my view is a back door way of appealing against an Order Nisi. Section 24 of the Court of Appeal Act 2004 specifically prohibits any appeal against an order Nisi. The Applicant not being a party to the ex parte proceedings which culminated in the Order Nisi being granted cannot seek any relief against the order by relying on the inherent jurisdiction of this court under Order 4 of the Court of Appeal Rules or Section 15 of the Court of Appeal Act which mandates this court to grant reliefs the trial court would have granted. In the sui generic circumstances of this case, the only orders the trial court can grant on the return date would be to make the Order Nisi absolute or on proper application by the garnishee to discharge same.’
‘In the sui generic circumstances of this case, the only orders the trial court can grant on the return date would be to make the Order Nisi absolute or on proper application by the garnishee to discharge same.’
‘The Applicant being a party on the return date can make a case that the Order Nisi be discharged having been served with the order Nisi thus affording him an opportunity to be heard. It is after the Order Nisi has been made absolute that there is a recourse by way of appeal against same before this Court.’]
.
.
.
✓ DECISION:
‘The Motion on Notice dated 4/4/12 and filed on the 19/4/12 is hereby refused by this court. It is struck out.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
