This is an appeal against the judgment of the Court of Appeal Abuja, delivered on 10th May, 2018 wherein the lower court set aside the judgment of the Federal High Court dated 8th June, 2016. The trial Federal High Court had made the garnishee order nisi absolute against the 2nd Respondent which at the material time was alleged to be in custody of the 1st Respondent’s funds. A synopsis of the facts giving birth to this appeal will be quite illuminating.
The Supreme Court of Nigeria had in its judgment delivered in Appeal No. SC. 255/2013 between JENKINS GIANE DUVIE GWEDE VS (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2) EDOJA RUFUS AKPODIETE (3) JULIUS OGHENEVWEGBA BOBl [4) DEMOCRATIC PEOPLES PARTY (DPP) delivered on 24th day of October, 2014 by my Noble Lord ONNOGHEN, ISC [now Chief Justice of Nigeria) entered judgment in favour of Appellant in that case as follows:
“In consequence, I enter judgment in favour of appellant in the following terms:
1. Appellant, JENKINS GIANE DUVIE GWEDE is hereby declared to be the duly nominated candidate by substitution of the 4th Respondent for the election in respect of Ugelli North Constituency 11 of the Delta State House of Assembly and is entitled to be issued with a certificate of return in respect of same.
2. The 1st Respondent is hereby ordered to issue the said appellant with a certificate of return in respect of the State House of Assembly election held on 26th April, 2011, forthwith.
3. The 2nd Respondent EDOJA RUFUS AKPODIETE is hereby ordered to vacate the seat of Ughelli North Constituency II in the Delia State House of Assembly forthwith.
4. It is further ordered that the said 2nd respondent: EDOJA RUFUS AKPODIETE refunds to the coffers of the Delta State House of Assembly all moneys/sums of money he collected by way of salary, allowances whatsoever and however described since he took his seat in the said House of Assembly under the pretext of being the duly elected candidate of the 4th respondent representing Ughelli North constituency ll, within ninety (90} days of this order.
I award the sum of N150,000,000 costs at the High Court; N100,000 in the court below and N500,000,000 in this court in favour of Appellant and against the 18th and 2nd Respondents each.
Appeal and Cross Appeal of 4th Respondent allowed, cross appeals of 1st and 2nd Respondents dismissed.”
The Appellant thereafter went back to the apex court seeking to vary and/or correct the consequential Orders made by the apex court in the judgment delivered on 24th October, 2014. The Order of the apex court on the Appellant’s application to it made on 26th day of October, 2015 reads in full as follows:
IT IS ORDERED:
1. that the application be and is hereby granted by varying the consequential orders made in the judgment of this court in SC. 255/2013 delivered on 24th October. 2014 the sum of money so refunded by the 2nd respondent; EDOIA RUFUS AKPODIETE to the Delta State House of Assembly shall be paid to the Appellant/Applicant IENKINS GIANE DUVIE GWEDE as salaries, allowances etc. from June. 2011 till October, 2014, and
2. that there shall be costs of two hundred thousand (N200,000.00) against 2nd Respondent in favour of the Applicant.
In order to enforce the judgment entered in his favour by the Supreme Court of Nigeria, the Appellant approached the Federal High Court Abuja Division vide a Motion Ex Parte filed on 23rd February, 2016 for Garnishee Order Nisi to attach the 1st Respondent’s money/funds in GUARANTY TRUST BANK PLC to satisfy the sum of N490,803,002 which the Appellant believed comprised the salaries and allowances collected by EDOJA RUFUS AKPODIETE from 1St Respondent while purporting to represent UGELLI NORTH CONSTITUENCY 11 in the Delta State House of Assembly. The Order NISI was granted against the GUARANTY TRUST BANK on 7th March, 2016. The 1st Respondent was taken to be the judgment Debtor to the Appellant in the said application. 0n 14th day of June, 2016 the learned trial Judge (Hon. Justice A. F. A. ADEMOLA RTD) made the Garnishee Order Absolute in the sum of N83,256,648.71 attaching same from the custody of the Guaranty Trust Bank Plc.
Again by another MOTION EX-PARTE dated 2nd day of June, 2016 and filed on 3rd June, 2016 pursuant to Section 83 of the Sheriffs and Civil Process Act the Appellant proceeded to garnishee the monies of the 1st Respondent in the Skye Bank Plc. The Order prayed for in the said Motion Ex-Parte states as follows:
“TAKE NOTICE that this Honourable Court will be moved on the day of 2016 (sic) at 9 O’clock in the forenoon or so soon thereafter as Applicant or counsel on his behalf may be heard praying the court for the following reliefs:
A GARNISHEE ORDER NlSl directing the Garnishee to attach all monies accruing and belonging to the judgment Debtor/Respondent held by it in Accounts Number 4030013512 8; 1771088456 the name of clerk (sic) Delta State House of Assembly in its custody for the purpose of satisfying the Judgment debt of N490,803.002 only.
AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable court may deem fit to make in the circumstances. TAKE FURTHER NOTICE that the Grounds upon which this application is brought are:
i. That the Supreme Court of Nigeria entered judgment against the judgment Debtor on the 24th October, 2014.
ii. That the Supreme Court clarified the terms of the judgment on the 26th October, 2015.
iii. That by virtue of section 287(1) of the 1999 Constitution (as amended) this court is enjoined to enforce decisions of the Supreme Court.
iv. That the judgment of the Supreme Court has remained unsatisfied AND TAKE FURTHER NOTICE that the judgment creditor/Applicant shall at the hearing of this Motion seek the leave of court to and shall rely on all the Processes and Exhibits filed along in this proceedings,”
The said Federal High Court granted Decree NlSl against the SKYE BANK PLC on the same 3rd day of June, 2016 and directed the said Garnishee SKYE BANK PLC to appear on 17th June, 2016 to show cause why the Garnishee Order NlSl should not be made absolute.
The 1st Respondent challenged the jurisdiction of the Federal High Court to further embark on adjudicating on Garnishee proceedings against the monies of the 1st Respondent.
After the adoption of addresses of learned counsel on all application the learned trial Judge gave a considered Ruling on 8th day of July, 2016 and found against the Appellant as follows:
“The final point was that since the suit number in the previous Garnishee proceeding is the same with the second one, this court lacked the jurisdiction to hear the garnishee order proceeding.
Let me say away (sic) that garnishee proceeding is one of the numerous ways of enforcing a judgment. It is not one of the methods of commencing on action. What 1 am doing is the enforcement of the Supreme Court judgment. Where the sum enforced is less than the amount due, will the judgment creditor not have a right to continue with the enforcement? This is not a fresh action to determine a right but enforcement or a decision already given.
I agree with the submission of the Learned Senior Counsel that just like the bailiff of a court can continue to execute a judgment where the sum attached is less than the judgment sum, so also can the court through Garnishee proceedings issue for a specific sum, if it is insufficient to meet the debt, the judgment Creditor can proceed against any other Garnishee who is keeping the judgment Debtors money. I have read the case of ODUMOSU V. OLUWOLE (2004) FWLR (pt. 191) 1487 cited by the judgment debtor and l rely on it and particularly the Latin Maxim “NEMO DEBT BIS VEXARI PRO CADEM CAUSA meaning no one should be sued twice on the same cause, on the some facts if there has been a final decision of a competent court.”
That case of ODUMUSU is about final determination of the matter and not when some issues are still pending. In the circumstances, I hold that I have jurisdiction and do hereby in the face of the affidavit to show cause sworn to by the Garnishee make the Garnishee Order Nisi dated 3rd June, 2016 absolute and order Skye Bank Pic to forthwith pay over the total sum of N76, 820,740.05 into the account of the judgment Creditors account. It is further ordered that Skye Bank PIC shall file an affidavit of compliance on or before the 11th July, 2016.
This shall be my order.
Sgn. Hon. Justice A. F. A. Ademola 8/7/2016”
Dissatisfied with the judgment of the trial court, the 1st Respondent which was the appellant at the court below, filed Notice of Appeal against the said judgment. In a considered judgment, the Court of Appeal allowed the appeal and set aside the judgment of the trial Federal High Court. The order absolute made by the trial court was set aside, hence this appeal to this court.
ISSUES FOR DETERMINATION
1. Whether the Court of Appeal has the power to overrule the Supreme Court on an issue of law or fact in which the Supreme Court had previously taken a position.
2. Whether by section 83 of the Sheriff and Civil Process Act the Court of Appeal was right by holding that the compliance with that law by the trial court amounted to denial of fair hearing to the judgment debtor.
3. Whether the lower court was right to hold that because garnishee order is a final order, a judgment debtor can appeal without leave of court first had and obtained.
4. Whether the learned justices of the court below were right to have held that the failure of the 1st Respondent to dispute the amount stated in the appellant’s demand letter was not admission and that the 1st Respondent is not estopped from dispute (sic) the amount.
In the 1st Respondent’s brief settled by Isaiah Bozimo. Esq and filed on 19th November, 2018, two issues have been formulated for the determination of this appeal. The issues are as follows:
1. Having regard to the peculiar circumstances of this case, is the Delta State House of Assembly the Appellant’s/judgment debtor in these proceedings.
2. Whether judgment debtors are passive spectators or active parties in garnishee proceedings.
From the facts and circumstances surrounding this case coupled with the judgment of the lower court and the grounds of appeal giving birth to the issues donated by both parties, it is my well-considered opinion that the two issues formulated by the 1st Respondent capture the complaint of the appellant and I shall determine this appeal based on the said two issues.
The main contention of the learned Senior Counsel for the Appellant in this issue is that whereas this court (the Supreme Court) had held that the 1st Respondent is a judgment debtor in this matter, the court below held otherwise, thus overruling the Supreme Court as it were. He submitted that contrary to the attempt by the court below to dictate to the appellant who, among the Respondents he can proceed against to recover the judgment sum, a judgment creditor like the appellant has the liberty of selecting among the Judgment Debtors who he may proceed against to recover his money, relying on Mobil Producing Nig. Unlimited v Monokpo (2001) 18 NWLR (pt. 74-4) 212 at 244 245.
Furthermore, the learned Silk postulated that by Order 2 Rule 16 of Judgment (Enforcement) Rules, judgment can be enforced against a person who was not listed as a party in the suit, citing and relying on the case of Central Bank of Nigeria v Interstellar Communications Ltd & 3 Ors (2018) 7 NWLR (pt. 1618) 294-. The learned SAN went ahead to posit that the lower court had no legal competence to overrule the Supreme Court citing the case of Adegoke Motors Ltd v Dr. Babatunde Adesanya & anor (1989) 5 SCN], 80, (1989) 3 NWLR (pt. 109) 250.
Let me quickly state that l have painstakingly perused both the judgment of this court in Appeal No. SC. 255/2013 (the Pre-Election Appeal) and the court’s varied consequential order in the said matter but I am unable to find even in remotest semblance where this court held that the 1st Respondent herein is a judgment debtor. The learned senior counsel for the Appellant also failed to refer to any portion of the said judgment or varied order where it was so stated. The law is trite that a document, including a judgment of the court, speaks for itself, and one cannot read into the text what is not contained therein. See Ahmed v Central Bank of Nigeria (2013) 11 NWLR (pt. 1365] 352 at 374 paragraphs A C.
In this appeal, appellant has argued that the liability for the debt in these proceedings has shifted from the removed member to the 1st Respondent, thus making it the judgment debtor, citing and relying on the case of Central Bank of Nigeria vs lnterstellar Communications Ltd (supra). l have had the opportunity to read this authority which was decided by this court. With due respect to the learned senior counsel for the appellant, the said authority does not avail the appellant as it is distinguishable. The law is trite that a decision is authority for which it actually decides. Also, judgments of the court should be read in the light of its peculiar facts upon which they were decided. See Dangtoe v CSC Plateau State (2001) 4 SC (pt. 11) 43, Babatunde v P.A.S. & T.A. Ltd (2007) All FWLR (pt. 372) 1721 at 1759 paragraphs E F.
I agree with the learned counsel for the 1st Respondent that in this appeal, there is no comparable intervening event that transfers liability from Edoja Rufus Akpodiete to the Delta State House of Assembly except and until the said removed member had made refunds to the 1st Respondent. The 1st Respondent did not negotiate an amicable settlement of the sums due from the removed member to the Appellant. It never guarantied any of the said sums due from the removed member and never released the removed member of any liability to refund his salaries and allowances.
Another issue which was wrong with the garnishee proceedings is that the appellant presented to the High Court that the 1st Respondent was indebted to him, when, in actual fact, the real judgment debtor is the removed member, Edoja Rufus Akpodiete. As observed by the learned counsel for the 1st Respondent, it was neither alleged nor shown that the removed member had made a full refund of the salaries and allowances required of him or that the 1st Respondent refused and/or neglected to pay any such refunded sum to the Appellant. Another defect in the garnishee proceedings is that the Appellant did not disclose to the trial court that Guaranty Trust Bank Plc had complied with Garnishee order absolute made by the trial court on 14th day of June, 2016 having paid the said appellant the sum of N83, 256,648.71. Instead of disclosing that such a huge part of the debt had been defrayed by the judgment debtor, the appellant still presented the whole figure of the “judgment debt” to the court requesting the 1st Respondent to pay.
And yet again, the appellant failed to disclose that he received the sum of N21,191,952.00 from the Delta State House of Assembly, being monies so far refunded by the removed member.
It is my view that had the learned trial Judge considered the motion filed by the 1st Respondent and the affidavit annexed, the above anomalies, especially that the 1st Respondent was not the judgment debtor, would have been clearly seen and the learned trial Judge would not have made ‘ the order Nisi absolute.
There is no doubt that the 1st Respondent, having been served with order nisi and branded as judgment debtor and having filed processes at the trial court to protest his being labeled as judgment debtor, he was indeed a necessary party in the proceedings. Consequently, since the trial court had made the Order Nisi absolute against its funds with the garnishee, the 1st Respondent had a right of appeal under section 242(1) (3) of the Constitution of the Federal Republic of Nigeria. That order absolute was a Final judgment and a party in the proceedings not satisfied, had a right to appeal against same. Finally, I hold that the 1st Respondent was not a passive spectator in the garnishee proceedings because the Appellant did not present the case properly before the High Court. Issue 2 is also resolved against the Appellant.
Having resolved the two issues adopted for the determination of this appeal against the appellant, I hold that this appeal is devoid of merit and is hereby dismissed. I affirm the decision of the Court of Appeal delivered on 10th May, 2018. I make no order as to costs.
John Inyang Okoro, JSC.
Representations: Joe Agi, SAN with K. E. A. Akonjom, Esq, Oladimeji Ekengba, Esq and Ewere A. Ahemeke, Esq for the Appellant.
lsaiah Bozimo. Esq with Ebuka Enechebe, Esq for 1st Respondent. A. Uno Kanu. Esq for 2nd Respondent.