1. HON. MINISTER OF WATER RESOURCES
2. FEDERAL MINISTRY OF WATER RESOURCES
1. B. MARVIN INTERNATIONAL LTD
2. CENTRAL BANK OF NIGERIA
(DELIVERED BY HON. JUSTICE TANI YUSUF HASSAN. JCA)
This appeal is against the Ruling of Federal Capital Territory High Court, Abuja in Suit No. FCT/HC/CV/3222/2013 delivered on the 16th day of September, 2014.
The appellants herein as Defendants/Judgment Debtors/ applicants at the trial court filed a Motion on Notice No. FCT/HC/CV/M/1251/2013 seeking for an order of court staying the execution of the judgment and orders of the court delivered on 24th October, 2013 pending the
determination of the appeal filed against the said judgment.
The Respondent herein as the Judgment/Creditor/ Respondent/applicant also on 21/11/2013 filed a motion experte seeking for a garnishee order nisi attaching the total sum of N97,081,227.47k plus 10% annual interest thereon belonging to the judgment Debtors in satisfaction of the judgment sum as delivered by the court in favour of the Judgment/Creditor. At the end of the day, the trial court in a consolidated Ruling granted the appellants' application on condition that the judgment sum be deposited in court within 14 days from the date of the Ruling that is 16/09/2014 and the Chief Registrar to pay the said sum into an interest yielding account in a bank in Abuja.
The Respondent's application for Garnishee order nisi for attachment of the judgment sum was made absolute. It is this ruling of the trial court that gave rise to this appeal.
The Notice of Appeal dated and filed on 19/09/2014 has three grounds of appeal with their particulars and reliefs sought.
The appellants brief dated and filed on the 4th day of December, 2014 was settled by their counsel B. Omoluabi. In it three issues were identified for determination as follows:
1. "Whether the learned trial judge acted rightly when he granted the Garnishee Order Nisi without first hearing and determining the appellants' motion for stay of execution filed earlier in time and pending before the court".
2. "Whether the learned trial judge did not deny fair hearing to the appellants when he determined the Garnishee proceedings against the appellants without first considering and pronouncing on a point of law validly raised by the appellant in the cause of proceedings to wit: (the need to obtain Honourable Attorney General of the Federation's consent before making a garnishee order nisi against the 1st garnishee the (CBN)"
3. "Whether the learned trial judge acted properly when he proceeded to make the Garnishee Order absolute after having ordered a stay of execution of the judgment"
The Respondent's brief dated and filed on the 3rd day of July, 2015 was settled by its Senior Counsel Chief O. Onoja SAN. The appellants' three issues formulated, were adopted by the respondent.
However in its brief of argument the respondent incorporated a preliminary objection and argued same in its brief at pages 3-5.
The Garnishee/respondent did not file any brief.
Issues for determination in an appeal are meant to identify what is in issue in the grounds of appeal filed to be argued -Sanusi Vs Ayoola (1992) NWLR (part 265) 275.
Issues for determination must derive from the grounds of appeal otherwise ground is deemed abandoned. Sec Alims Nigeria Limited Vs United Bank for Africa (2013) 1 SCNJ, S. Udoechin Vs L. Alinarat (2000) FWLR (part 22) 203 at 210 and Sparking Breweries Ltd and Anor Vs Union Bank Ltd (2001) 7 SCNJ 321.
It is glaring that the above issues formulated by the appellant and adopted by the respondent, none of them deemed it appropriate to indicate the ground under which each issue is distilled. However I have gone through the grounds of appeal. I am satisfied that the three issues identified are distilled from the three grounds appeal, namely issue 1 distilled from ground 1, issue 2 from ground 2 and issue 3 from ground 3.
The Notice of preliminary objection filed by the respondent on 31st March, 2015 was argued in its brief filed on 3 day of July, 2015.
The grounds of the Preliminary objection are:
a) The instant appeal emanated from garnishee proceedings between the Respondent/Applicant and the Central Bank of Nigeria,
b) The appellants were the original defendants/judgment j debtors at the lower court.
c) The appellants lack the legal capacity to initiate or prosecute this appeal.
d) The appeal is incompetent.
e) The Honourable Court lacks jurisdiction to entertain this appeal.
The learned Senior Counsel for the Respondent/Preliminary objector Chief O. Onoja SAN, canvassed in his brief, that it is the law that only a garnishee can appeal on order absolute made by a court.
That the appellant being a mere judgment/debtor or a nominal party and not a garnishee against whom the order was made, lacks the requisite locus standi to initiate, maintain or prosecute the instant appeal. The court was referred to U.B.A Plc Vs Ekanem (2010) 6 NWLR (part 1190) 207 at 222 paragraphs B-D, P. P. M.S Ltd Vs Delphi Pet. Inc. (2005) 8 NWLR (part 92B) 458, Denton-West Vs Muoma (2008) 6 NWLR (part 1083) 418 at 442 - 443 paragraphs H-A and U.B.N Pic Vs B.M Ind- Ltd (2001) 13 NWLR (part 731) 567 among others.
It is also the submission of the Respondent/objector that the appeal is caught by the provision of section 14(1) of the Court of Appeal Act 2004 which provides that in an interlocutory appeal, leave of either the lower court or Court of Appeal must be sought which the appellant failed to do as required by law. In the absence of the required leave the appeal is in competent and this court lacks jurisdiction to entertain same. He referred to N.A.O.C Ltd Vs Ogim (2011) 2 NWLR (part 131) 151, Ibrahim Vs Umar (2012) 7 NWLR (part 1300) 507, Johamaid Vs Adamu (1996) 2 NWLR (part 432) 554 at 562 and Ayalogu Vs Agu (1998) 1 NWLR (part 532) 129 at 141.
Finally the court was urged to uphold the objection and strike out the appeal.
The appellant filed a counter affidavit on the 5th day of November, 2015 in response to the preliminary objection. The appellants' counsel B. Omoluabi submitted, as deposed in paragraph 7 of the counter affidavit that the appellants are competent to file this appeal as they were the respondents in the garnishee application at the lower court. In paragraphs 8 and 9 of the counter affidavit, the averments therein are that the funds sought to the attached by way of garnishee are funds belonging to the 2nd appellant, which if the application is granted, the appellants will be prejudiced.
We are urged to refuse the preliminary objection as it will be contrary to the interest of justice if it is upheld.
A preliminary objection, as the phrase connotes, is an opposition to the hearing of an appeal by the respondent's counsel. The purpose of preliminary objection, if successful, is to terminate the hearing of the appeal in limine either partially or totally - Okoye Vs Okonkwo (2015) 5 NWLR (part 1451) 127 at 132.
A perusal of the grounds of objection leaves one in no doubt that it is an objection to the competence of hearing of this appeal. Locus standi which is the basis of the objection is a challenge to the standing and right of the appellants to file this appeal.
It is necessary to state the facts leading to this objection.
Judgment in the substantive suit No. FCT/HC/CV/3222/2012 was given in favour of the respondent in the sum of N97,061,227.47k by the trial court. The appellants being dissatisfied with the judgment, filed a motion at the lower court for stay of execution of the judgment sum. The respondent also instituted a garnishee proceedings to realize the judgment debt and interest The trial court, took both applications and delivered a consolidated ruling on 16th September, 2014, allowing both applications and ordered as follows for the appellant.
"The application is therefore granted but on condition that the judgment sum is to be paid into court within 14 days from today".
It is ordered for the respondent as follows:
"The Garnishee Order nisi is thus made absolute. To preserve the judgment sum pending determination by the Court of Appeal, the Garnishee which has the appellant/applicant's funds sufficient to liquidate the judgment sum and the interest is directed to pay the said sum which stands at N97,061,227.47k into court not later than 14 days to be held in interest account by the Chief Registrar of the court".
The appellant being the judgment debtor was not happy with the order and therefore appealed to this court. The Notice of Appeal was filed on 19/09/2014.
It is correct as submitted by the respondent's Senior Counsel that it is only the garnishee that can appeal on the order made by the court.
A garnishee proceedings is strictly between the judgment creditor and the Garnishee, in the instant case between the 1st respondent, B. Marvin International Ltd and 2nd respondent, Central Bank of Nigeria. Thus the appellants being the judgment debtors could only be seen and not heard, and any action taken by them is considered in the eye of law as interloping, meddling or obstruction. See F.G.N Vs Interstella Comms. Ltd (2015) 9 NWLR (part 1463) 1 at 8, U.B.A Pic Vs Ekanem (2010) 6 NWLR (part 1190) 207 and Nitel Plc Vs I.C.I.C (Directory Publishers) Ltd (2009) 16 NWLR (part 1167) 356.
Although the Sheriff and Civil Process Act requires that the judgment debtor be served with a copy of the garnishee proceedings, the judgment debtor is not a necessary party to garnishee proceedings. See Pacification Techniques (Nig.) Ltd Vs Attorney General of Lagos State (2004) 9 NWLR (Part 879) 665.
It is only against the garnishee that execution under the garnishee proceeding could be levied and not against the judgment debtor.
It follows therefore that it is only the garnishee that is expected to react if the law was not properly followed or observed,
A garnishee proceeding is a process leading to the attachment of debt owed to judgment debtor by a third party. The proceeding is strictly between the judgment creditor and the third party- It is not a proceeding against the judgment debtor directly. See Nitel Plc Vs I.C.I.C. (supra).
By the above decisions it is therefore dear that the appellants lack the locus to file this appeal, which eventually deprived this court the jurisdiction to entertain the appeal,
The issue that the appellants had not sought and obtained leave before filing this appeal pursuant to section 14(1) of the Court of Appeal Act has become academic since the appellants have no locus in the first place to file the appeal.
Even if they had locus, the appeal is still incompetent since no leave was sought and obtained before the interlocutory application was filed.
The preliminary objection succeeds and it is upheld. The appeal is struck out for being incompetent.
Parties to bear their costs.
ABUBAKAR D. YAHAYA. JCA: I have read before now, the leading judgment of my learned brother Hassan JCA just delivered. I agree with the reasoning and the conclusion that the preliminary objection has merit and it is upheld. The appeal is incompetent and it is struck out,
No order as to costs.
JOSEPH E. EKANEM, JCA: I read in draft the judgment which has just been delivered by my learned brother, Tani Y. Hassan, JCA. I agree with the reasoning and conclusion therein. A judgment debtor has no right of appeal against a garnishee order absolute no matter how he feels about it. It is only the garnishee who can appeal against the order.
Consequent upon the above and for the more comprehensive reasons set out in the lead judgment, I also strike out the appeal for being incompetent.
1. B. Omoluabi for Appellant
2. Chief O. Onoja SAN
3. Noah Abdul
4. O. A. Daniel for Respondents
5. J Ameh
6. Mrs. E. U. Dan
7. Miss Mar-yam Ezeani
8. Cornelia Edet for Garnishee/Respondent