For A Proper Garnishee Proceeding, The Garnishee Must Be Resident Within The Jurisdiction Of The Court Making The Order

PRACTICE AREA: COMMERCIAL LAW

INTRODUCTION

Garnishee proceeding is the process of Court requiring a third party who has the funds of a judgment debtor in its coffers, to pay the sum of the judgment debt to the judgment creditor.

Since it is not in all instances that you will find a garnishee (the third party who has the funds of a judgment debtor in its coffers) within jurisdiction, will it be out of place to look for garnishees outside jurisdiction? And where garnishees are found outside jurisdiction, can the judgment creditor institute a garnishee proceeding in the place where the actual debt arose?

UGO, J.C.A. in delivering the leading judgment in this case said “the provisions of Section 83 of the Sheriffs and Civil Process Act Laws of Federation of Nigeria 2004 are relevant. The words of that provision are: “….any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment ……” In other words, it is a precondition to a proper garnishee proceeding that the garnishee be resident in the very State where the order is sought”.

BRIEF FACTS OF THE CASE

In the year 2014, 1st respondent, Demola Akintunde Ayo, representing 355 other persons, commenced proceedings under the Undefended List Procedure against one Geldaps Investment Nig. Ltd and Skywards Technologies as defendants in the High Court of Kwara State. His case was that he and those he represented invested the total sum of ₦345,600,000.00 with the said defendants’ fund management scheme on agreement that the said monies will be paid back to them with fabulous interest within three months. As is common with such schemes, the defendants did not keep their promise, hence their action.

The defendants (Geldaps Investment Nig. Ltd and Skywards Technologies) failed to file any defence to the suit, consequently, the trial Judge entered judgment against them for the sum claimed.

First respondent as judgment creditor subsequently commenced a Garnishee proceeding against Zenith Bank (the subject of this appeal) and appellants herein as 1st, 2nd and 3rd Garnishees. The two judgment debtors were also joined.

There was however a twist to the garnishee proceeding in that it was the accounts of appellants, who were not themselves judgment debtors nor parties to first respondent’s action, that were sought to be attached. This was the case because 1st respondent/judgment creditor claimed appellants were indebted to the judgment debtors or were in custody of their funds. The 2nd garnishee is outside the jurisdiction of the Honourable Court and the 3rd Garnishee is a sister company to the 2nd garnishee and is also connected to the same address out of jurisdiction (Oyo state). Leave of the Court to serve the garnishee order nisi was therefore sought and granted. The garnishees were also to Show Cause why the Order Nisi granted should not be made absolute.

Only Zenith Bank responded by deposing to an affidavit in which it disclosed that the two appellants were its customers and, combined, had about ₦33,000,000.00 (Thirty-Three Million Naira) in their accounts with it; the appellants failed to respond.

On the basis of the affidavit deposed to by Zenith Bank, the trial Court made the Garnishee Order Absolute attaching appellant’s funds of about ₦33,000,000.00 (Thirty-three Million Naira) with Zenith Bank in satisfaction of the judgment debtors’ debt to 1st respondent.

It is consequent upon that order that appellants filed the present appeal contesting inter alia that the provisions of Section 83 of the Sheriffs and Civil Process Act make it mandatory that only a debtor liable to the original debtor and who is within the State and jurisdiction of the Court making the order shall have his funds attached to satisfy a judgment debt. Appellants who were 2nd and 3rd Garnishees/1st and 2nd appellants, besides the fact that they were not indebted to 1st respondent, were not also within Kwara State and therefore not within the jurisdiction of the lower Court so it could not have legally ordered their funds or accounts to be garnisheed.

ISSUE(S) FOR DETERMINATION

Eight major issues were formulated by the appellant for the determination of this appeal. However, the Court dwelt only on issues 1 and 6 which bothers on jurisdiction.

The eight issues as formulated by the appellants are:

1. Whether the lower Court erred in granting a Garnishee Order Absolute against the Appellants who were not served with the Garnishee Order Nisi and other Court processes.

2. Whether non-service of the Court processes on the Appellants and failure of the lower Court in giving a ruling one way or the other on Appellants’ Motion on Notice dated 7th April, 2015, did not breach the Appellants’ Constitutional right to fair hearing thereby leading to a miscarriage of Justice.

3. Whether the lower Court was right in making Garnishee Orders Nisi and Absolute against the Appellants without any proof of any link or business relationship between Appellants and the 1st Respondents or the judgment Debtors.

4. Whether the lower Court had jurisdiction to attach the Appellants’ Account kept with the 2nd Respondent, having not been joined as parties and adjudged to be judgment Debtors in the original suit by the lower Court.

5. Whether the failure to obtain a certificate of the Garnishee Order Absolute made by the lower Court and to register same in the Nigerian Register of Judgments as required under Section 104 and 105 of the Sheriff and Civil Process Act CAP 407 Laws of Federation of Nigeria does not render the Garnishee Order Absolute a nullity.

6. Whether the lower Court had jurisdiction to grant a Garnishee Order Absolute attaching the funds of the appellants who are not in Kwara State, the jurisdiction of the lower Court, to satisfy the Judgment debt.

7. Whether the Garnishee Order Nisi and by extension the Order Absolute are perverse and not supported by the 1st Respondent’s pleadings and hearsay evidence on record, contained in paragraph 8, of his affidavit of urgency and affidavit in support of motion ex-parte, dated 20th February, 2015.

8. Whether from the totality of the evidence presented before the lower Court, the Order Absolute made by the lower Court on the 17th Day of March 2015 was not obtained by fraud.

HELD

Both issues 1 and 6 were resolved in favour of the appellant and against the respondent and since 1st respondent may wish to recommence his garnishee proceedings against appellants in the proper manner and forum, the Court did not delve into the other areas of the appeal.

The appeal was consequently allowed and the garnishee order absolute of the High Court of Kwara State attaching the funds of appellants with 2nd respondent (Zenith Bank Plc) was vacated, the said order being a nullity.

Parties are to bear their respective costs.

RATIO DECIDENDI

• APPEAL – PARTICULARS OF GROUND OF APPEAL: Effect of particulars of a ground of appeal that is inconsistent with the main complaint in a ground of appeal

“…I am not unmindful of the fact that the said issue is Particular 3 of Ground 5. But particulars on their own are not grounds of appeal.

Particulars, as their name suggest, only further highlight the complaint in the ground of appeal. So if a particular is unrelated to the ground, as particular 3 of ground 5 is, it is useless. That being the case, Issue 5 is also struck off.” Per UGO, J.C.A. (P. 25, Paras. A-C)

• PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: Whether a garnishee proceeding shall be instituted where the defendant resides or carry out business

“On Issue 6 of appellant, which is whether the lower Court had jurisdiction to grant Garnishee Order Absolute attaching the funds of appellants who are not resident in Kwara State, again the provisions of Section 83 of the Sheriffs and Civil Process Act Laws of Federation of Nigeria 2004 are relevant. The words of that provisions are: “….any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment ……” In other words, it is a precondition to a proper garnishee proceeding that the garnishee be resident in the very State where the order is sought: see Central Bank of Nigeria v. Auto Import Export (2013) 2 NWLR (PT 1337) 80 @ 128. In this case, by first respondent’s own showing in his application of 20/2/2015, appellants were resident in Oyo State, outside the jurisdiction of the lower Court, hence his application for them to be served there. They were thus beyond the reach of a garnishee proceedings from the High Court of Kwara State. Issue 6 is also accordingly resolved in favour of appellants.”Per UGO, J.C.A. (Pp. 28-29, Paras. C-B)

OTHER CASES FROM THE COURT

NWADIEM v. FRN (2018) LPELR-44506(CA)

• CRIMINAL LAW AND PROCEDURE – CHARGE(S): Effect of error in stating the offences or the particulars required to be stated in the charge

“The main grouse of the Appellant in relation to Issue One boils down to contradictions in the Registration Number of the White J5 Bus by which the Appellant Conveyed the illicit drug in between the charge sheet, the evidence of PW4 and the recordings of the learned trial Judge.

If the learned Counsel for the Appellant sees the contradiction as arising from an error or defect in the charge sheet itself, such is cured by the provisions of Section 166 C.P.A. and Section 206 C.P.C.

In similar terms Section 166 of the Criminal Procedure Act and Section 206 of the Criminal Procedure Code provide that:

“No error in stating the offence or particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of Justice.”

The above Section 206 of the C.P.C. is one of five Sections in the Criminal Procedure Code dealing with the effect of failure to comply with its provisions with the proviso that the proceedings will not be set aside unless a failure of Justice has been caused thereby. See: EVELYN ARO VS. COMMISSIONER OF POLICE 1978 NNLR (Cited in Jones, 2nd Edition. CRIMINAL PROCEDURE CODE IN THE NORTHERN STATES OF NIGERIA Page 132)”Per OWOADE, J.C.A. (Pp. 15-16, Paras. A-A)

• CRIMINAL LAW AND PROCEDURE – UNLAWFUL POSSESSION OF NARCOTIC DRUG: Whether cannabis sativa also known as Indian Hemp is in law a narcotic drug

“Finally, in relation to Issue One, the learned Counsel for the Appellant cannot be heard to say that the Appellant’s charge is defective on the Ground that the NDLEA Act does not list Cannabis Sativa as prohibited drug. This is because the Courts have taken judicial notice of the fact that Cannabis Sativa (Indian Hemp) is a narcotic substance and a similar substance as Cocaine, Heroin and LSD under the Provisions of Sections 11 (b) and 19 under which the Appellant was convicted. See: CHUKWUMA VS. F.R.N. (2011) ALL FWLR (PT. 585) 231 at 236, TIMOTHY VS. F.R.N. (2012) ALL FWLR (PT. 639) 1006 at 1009.

Thus, in the case of CHUKWUMA VS. F.R.N. (Supra) at Page 236, the Supreme Court per Muhammed, JSC held that:

“The ingredients of unlawful possession of Cannabis Sativa (Indian Hemp) are:

a. That the weed was in possession of the accused person.

b. That the weed is proved to be Indian Hemp (Cannabis Sativa)

c. The third ingredient of lawful authority is to be proved by the accused person”.

Clearly, therefore, Indian hemp (Cannabis Sativa) is in the same category of narcotic drugs and held similar to Cocaine, Heroin and LSD under the Provision of Sections 11 (b) and 19 of the NDLEA Act, Cap N30, LFN 2004.” Per OWOADE, J.C.A. (Pp. 18-19, Paras. C-C)

• EVIDENCE – CONFESSIONAL STATEMENT: Whether confession is the best form of evidence in a criminal trial

“Still on Issue One, learned Counsel for the Appellant could not be right to have suggested that the Appellant does not have knowledge of his possession of the 499.4 Kg of Indian Hemp of which he was charged. It is clear from the evidence of PW2 at Pages 74 – 75 of the Record as well as the confessional statement of the Appellant Exhibit PW4 that the Appellant had knowledge of the possession of the 499.4 Kilograms of Indian hemp for which he was charged.

In this respect, I also agree with the learned Counsel to the Respondent that the best evidence for purposes of conviction is confession of the commission of the crime by the accused person. That a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict. See: EMMANUEL OLABODE VS. THE STATE (2009) 5 – 6 SC (PT. 11) 29, FEDERAL REPUBLIC OF NIGERIA VS. FAITH IWEKA (2011) 11 – 12 SC (PT. 1) 109, MOSES JUA VS. THE STATE (2010) 1 – 2 SC 96, SEGUN AJIBADE VS. THE STATE (2012) 12 SC (PT.VI) 94.”Per OWOADE, J.C.A. (Pp. 17-18, Paras. C-B)

KERI & ORS v. MAKADA & ANOR (2018) LPELR-44525(CA)

• JURISDICTION – JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether Section 14 of the Kebbi State Sharia (Administration of Justice) Law, 2000 which confers unlimited jurisdiction on the Sharia Court of Appeal is inconsistent with the provisions of the Constitution

“The jurisdiction of the Sharia Court of Appeal is clearly defined by Section 277 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

A claim predicated upon title to land simpliciter such as the one in the instant case, has been held in a plethora of cases by the apex Court and this Court as outside the scope of the jurisdiction of the Sharia Court of Appeal as defined by the said Section 277 of the Constitution. See MAGAJI V. MATARI (2000) 8 NWLR (Prt 670) 722 USMAN V. UMARU (1992) 7 NWLR (Prt. 254) 277 and GARBA V. DOGON YARO (1991) 1 NWLR (Prt. 165) 102.

Parties in the instant case are ad idem that a claim of title to land simpliciter is outside the scope of the jurisdiction of the lower Court. The only contention is the one raised by learned counsel for the respondents to the effect that Sections 12 and 14 of the (Administration of justice) Law, 2000 applicable to Kebbi State has extended the jurisdiction of the Sharia Court of Appeal in that State to hear and determine other civil matters in addition to those listed in Section 277 (2) of the 1999 Constitution (as amended). The relevant Sections 12 and 14 of the said law read:- “Section 12- the Sharia Court of Appeal of the State shall be competent to exercise appellate and supervisory jurisdiction on Sharia Court in civil or criminal proceedings involving questions of sharia law.”

“Section 14- An appeal shall lie from the decision of the Upper Sharia Court in civil or criminal cause or matter to the Sharia Court of Appeal.”

It is settled law that the Courts in this country derive their jurisdictions from the Constitution and other statutory enactments establishing the Courts. Thus, a Court cannot without an enabling law empowering it, exercise jurisdiction in any case. Even the parties to the proceedings cannot confer jurisdiction on the Court where it is lacking. See UGO V. OKAFOR (1996) 3 NWLR (Prt 438) 542.

I have stated elsewhere in this judgment that the provision of Section 277 (1) and (2) of the 1999 Constitution limits the jurisdiction of the Sharia Court of Appeal to matters involving the application of Islamic Personal Law which are essentially matters relating to marriage and its dissolution, family relationship and guardianship of infants. It also includes waqf, gift, will or succession where the endower, donor testator or deceased person is a Muslim. The provision of the Section also included the determination of any question of Islamic Personal Law regarding Muslim, maintenance or guardianship of a physically or mentally infirm Muslim and lastly, in all other cases where parties have requested the Court of first instance to determine the case in accordance with Islamic Personal Law.

The Sharia Court of Appeal is established by the Constitution in Section 275 (1) thus: –

“There shall be for any state that requires it a Sharia Court of Appeal for that State.”

Section 279 of the Constitution also provides:-

“Subject to the provisions of any law made by the House of Assembly of the State, the Grand Kadi of the Sharia Court of Appeal of the State may make rules and for regulating the practice and procedure of the Sharia Court of Appeal.”

It is crystal clear from the above that the Constitution did not envisage the creation of additional jurisdiction for the Sharia Court of Appeal. Consequently, the provision of Sections 12 and 14 of the Kebbi State Sharia (Administration of Justice) Law 2000 which seek to give criminal jurisdiction to the Sharia Court of Appeal from Islamic Personal Law and which impliedly amended the provisions of the Constitution is ultra vires the legislative competence of the Kebbi State House of Assembly. Section 1 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) unequivocally provides:-

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

The said provision of Sections 12 & 14 of Sharia (Administration of Justice) Law, 2000 applicable to Kebbi State is void to the extent of its inconsistency with Section 277 (2) of the Constitution.”Per SHUAIBU, J.C.A. (Pp. 5-9, Paras. F-D)

• JURISDICTION – JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the jurisdiction of the Sharia Court of Appeal is limited to Islamic Personal Law

“The Sharia Court of Appeal has no jurisdiction to entertain the appeal where questions regarding Islamic Personal Law were not adjudicated upon. There is long line of decided cases on the subject by the superior Courts of records on the issue.”Per OHO, J.C.A. (P. 10, Paras. D-E)

MUSA v. YAHAYA (2018) LPELR-44527(CA)

• APPEAL – FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought and obtained before fresh point can be raised on appeal and the exception(s) thereof

“The cumulative grounds of the objection are that the issue of jurisdiction was never canvassed before the lower Court and that same was raised for the first time on appeal before this Court. Although the appellant is allowed to raise fresh issue on point of law but it is imperative to obtain the leave of Court.

It is pertinent to stress that the purpose of ground of appeal is to give notice to the respondent of the errors complaint of in the pending appeal. Where an appellant relies on any ground, this must be properly raised either by way of a ground of appeal or cross – appeal. Therefore, before the findings or decisions of a trial Court can be contested at a Court exercising appellate jurisdiction, there must be a ground of appeal complaining the inadequacies in the finding or decisions of a trial Court.

In the instant case, the issue of jurisdiction of the lower Court was never canvassed at the lower Court and hence a fresh issue raised on appeal before us.

An appellate Court will not normally allow fresh point to be taken before it if such point was not raised, canvassed or pronounced upon by the Court from which the appeal came. However, a fresh issue of the first time on appeal on special circumstances and upon leave of Court sought and obtained. See GBADAMOSI V DAIRO (2007) 3 NWLR (Prt 1021) 282. However the case SIDI V SHA’ABAN (1992) 4 NWLR (Prt 233) 113 at 118 it was held that although the rules of natural justice and the principles of the Constitution apply to the Sharia Court, they are however not restricted to the grounds of appeal or issues raised before them. Under Islamic Law, the trial and appellate Courts are not restricted to the grounds or issues raised by the parties. And they can apply which ever law is applicable to the case in order to achieve substantial justice to the parties. In the light of the foregoing, the preliminary objection of the respondent is overruled.”Per SHUAIBU, J.C.A. (Pp.  5-7, Paras. F-D)

• JURISDICTION – JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the Sharia Court of Appeal has jurisdiction to entertain appeals in relation to declaration of title to land

“I agree with the reasonings therein and the conclusion that the Sharia Court of Appeal has no jurisdiction in respect of appeals predicated upon of a simple claim of title to land devoid of any issue involving application of Islamic Law.”Per MUKHTAR, J.C.A. (P. 11, Paras. A-B)

• JURISDICTION – JURISDICTION OF THE SHARIA COURT OF APPEAL: Whether the jurisdiction of the Sharia Court of Appeal is limited to Islamic Personal Law

“The Sharia Court of Appeal has no jurisdiction to entertain the appeal where questions regarding Islamic Personal Law were not adjudicated upon. There is long line of decided cases on the subject by the superior Courts of records on the issue.”Per OHO, J.C.A. (P. 11, Paras. D-F)

UMAR v. MANAGER (2018) LPELR-44526(CA)

• JUDGMENT AND ORDER – EXECUTION OF JUDGMENT: Position of the law as regards the execution of judgment over the immovable properties of a judgment debtor

“The main contention here is whether the lower Court had followed a proper step in granting leave to attach and sell the immovable properties of the appellant. It is perhaps necessary to first and foremost understand what is the meaning of execution. Execution means quite simply, the process for enforcing or giving effect to the judgment of the Court. It is really the last state of a suit; the final process whereby the winning party reaps the benefit of the judgment in his favour by obtaining possession of anything adjudged to belong to him by the Court. See GOVERNMENT OF GONGOLA STATE V ALHAJI UMARU ABBA TUKUR (1989) 9 SC 105 at 119.

The provision of Section 44 of the Sheriffs and Civil Process Act Cap. Laws of the Federation of Nigeria specifically deals with execution of immovable property and it provides as follows:

“Section 44- If sufficient movable property of the judgment creditor can be found in the Federal Capital Territory, Abuja or the state as the case may be, to satisfy the judgment and costs and cost of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found or if such property is insufficient to satisfy the judgment and costs of execution; and judgment debtor is the owner of any immovable property, the judgment creditor may apply to the Court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the Court against the immovable property of the judgment debtor in accordance with the provisions of this Act and any rules made thereunder.

Provided that where the judgment has been obtained in a Magistrate’s Court, execution shall not issue out of the Magistrate’s Court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.”

Also Order IV Rule 16 (1) to (3) of the Judgment (Enforcement) Rules provides: –

“16 (1) when a judgment creditor desires a writ of attachment and sale to be issued against immovable property of the judgment debtor he shall apply to the High Court.

(2) The application shall be supported by evidence showing-

(a) what steps, if any, have already been taken to enforce the judgment and with what effect, and

(b) what sum now remains due under the judgment, and

(c) that no movable property of the judgment debtor, or none sufficient to satisfy the Judgment debt, or none sufficient to satisfy the judgment debt, can with reasonable diligence be found.

(3) If upon the hearing of the application it appears to the Court that writ of attachment and sale may lawfully issue against the immovable property, the Court shall make an order accordingly.”

In the instant case, the respondent as applicant before the lower Court had in paragraph 4 (f) and(h) of the affidavit in support of the motion on notice for an order to issue a writ of attachment and sale of the appellant’s immovable properties averred as follows:-

“4 (f) – That the Respondent’s movable properties cannot satisfy the judgment sum.

(h) That at several occasions the litigation department of this Honourable Court attempted to levy execution on the Respondent’s movable properties, but it was discovered that the Respondent has no movables worth the judgment sum.”

I have considered the facts in the instant case and it is my respectful view that the requirement of first exhausting the movable property of the judgment debtor before attaching and selling the immovable property only arises where the movable property exist. But not where the judgment debtor has no movable property at all as in this instant case.

From the averments in paragraph 4(h) and (f) of the respondent’s affidavit in support of his application before the lower Court, the respondent has shown that he diligently searched and ensured that no movable property exists anywhere else. And once the judgment creditor satisfied the Court that there is no movable property to attach, he becomes entitled to leave for the issue of a writ against immovable property of the judgment debtor. Thus, the respondent in the instant case has discharged the onus imposed on him by Sections 44 of the Sheriffs and Civil Process Act and the Judgment (Enforcement) Rules.”Per SHUAIBU, J.C.A. (Pp. 7-11, Paras. C-B)

• JUDGMENT AND ORDER – CONSENT JUDGMENT: Whether a consent judgment or order is as effective as any judgment after the matters are fully fought out to the end

“In considering the above argument, I will first of all state that a judgment is not the less final because it is a judgment entered by consent of the parties. Such a judgment is as much a final judgment as one resulting from a contested hearing. It was held in plethora of judicial decisions that a judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution and is absolute, complete and certain.

It is equally settled that the judgment of a competent Court subsists and is binding until set aside on appeal or other judicial proceedings. See THE HONDA PLACE LTD V GLOBE MOTORS LTD (Supra) and NGIGE V DISU (2017) 16 NWLR (Prt 1590) 1 at 16.

The consent judgment in issue subsists and is binding and same has not been appealed against.”Per SHUAIBU, J.C.A. (Pp. 11-12, Paras. D-B)

• JUDGMENT AND ORDER – ENFORCEMENT OF JUDGMENT: How the judgment of a Court should be enforced

“It also settled law that an order for the enforcement of a valid judgment of a Court of law must address exactly what the judgment being enforced decoded. Thus, the exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined.”Per SHUAIBU, J.C.A. (P. 12, Paras. C-D)

• JUDGMENT AND ORDER – JUDGMENT OF COURT: Presumption of correctness in favour of judgment of Court

“The general rule is that a judgment or order of the Court of law is presumed to be correct and remains valid, binding and subsisting until set aside on appeal. See ROOSEK V ACB LTD (1993) 8 NWLR (Prt 312 383.”Per SHUAIBU, J.C.A. (P. 14, Paras. B-C)

Culled from LawPavilion