WHETHER COURT CAN ENTERTAIN AN APPLICATION SEEKING TO VARY A GARNISHEE ORDER ABSOLUTE

CASE TITLE: UNITY BANK PLC v. DAVID (2021) LPELR-54923(CA)

JUDGMENT DATE: 23RD JUNE, 2021

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: HAMMA AKAWU BARKA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on garnishee proceedings.

FACTS

This is an appeal against the decision of the High Court of Justice, Osun State, Ede Judicial Division quorum; A.O. Oyebiyi J, in suit No. HED/NRJ/6/2017 delivered on the 12th of April, 2018.

The judgment creditor/applicant, Gideon David had on the 27/10/17 by way of motion exparte prayed the Court to issue a garnishee order nisi against the the Appellant, Unity Bank Plc and 2 orders, and consequent upon the application made by the judgment creditors, a garnishee order nisi was made on 27th day of October, 2017 as prayed, and subsequently made absolute on the 12th of February, 2018, against the 3rd and 4th garnishees therein.

On the 26th of February, 2019, Appellant filed a motion on notice for order of Court setting aside the garnishee order absolute made by the trial Court on the 12th of February, 2018, on the grounds that:

I. The 3rd and 4th Garnishee are not proper parties and there is no reasonable cause of action against the 3rd and 4th Garnishees. That the 3rd and 4th Garnishees/Respondents have no business or contractual relationship with the judgment debtors/respondents.

II. The 3rd Garnishee i.e. Visa Investment & Securities Bank account 0000202349 domiciled with the 1st Garnishee/Applicant is not linked to Bank Verification Number (BVN).

III. Furthermore, the 4th Garnishee i.e. Gusau Oil Mill Ltd Bank Account 0000201689 domiciled with the 1st Garnishee/Applicant is also not linked to Bank Verification Number (BVN).

IV. All financial institutions including the Central Bank of Nigeria has been directed by an interim order of this Court, that no outward payments, operations or outward transactions (including any bill of exchange) should be made in respect of any account(s) pending the linking of the accounts to a Bank Verification Number.

V. The 1st Garnishee/Applicant cannot pay out any money held in the accounts of the 3rd and 4th Garnishee/Respondents to the Judgment Creditor/Respondent since there is no Bank Verification Number (BVN) linked to the said accounts.

The respondent (judgment creditor) responded to the said motion brought on notice by filing a preliminary objection to the application. On the 12th of April, 2018, the trial Court duly considered arguments on the preliminary objection filed, and upheld the said respondent’s preliminary objection thereby striking out the appellant’s motion on notice filed on 26th February, 2018.

Appellant was dissatisfied by the said ruling and consequently filed an appeal in the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal based on the following issues for determination:

1. Whether the decision of the Court below on application to set aside the garnishee order absolute aside that is based on the Notice of Preliminary Objection of the respondent on the issue that the 3rd garnishee and the 4th garnishee Visa investments and Securities Ltd. And Gusau Oil Mill Ltd’s accounts have no BVN Number and that the accounts cannot be garnisheed is perverse having regard to the fact that (i) the issue was never contested by the respondent in the notice of the preliminary that the accounts of the 3rd garnishee and the 4th garnishee with the appellant have no BVN number. (ii) there is no provision in High Court Rules Osun State for Notice of Preliminary Objection. (iii) By the decision of the Supreme Court in Psychiatric Hospital Management Board vs. Ejitagha (2000) 6 SC part 11 page 1 in the Court below cannot import into the High Court Rules Osun State Notice of Preliminary Objection that is not there.

2. Whether the cost of one hundred thousand naira (N100,000) that the Court below awarded in favour of the respondent in favour of the respondent is punitive and liable to be set aside by the Court of Appeal having regard to the fact that there is no evidence that the respondent incurred the sum of one hundred thousand naira (N100,000) in filing the Notice of Preliminary Objection.

3. Whether the decision of the Court below that the application of the appellant of February, 22nd, 2018, to set aside the garnishee order absolute is an abuse of the process of the Court is perverse having regard to the judicial power of the Court under Section 6(6) (a)(b) of the 1999 Nigeria Constitution and decision of the Supreme Court in Adigun vs. A.G Oyo State (1987) 4 SC page 271 @ 288-289, Sodipo vs. Lamminkainen (1985) 7 SC part 1 page 482 by which the Court can entertain the application even after the delivery of the judgment.

4. Whether the garnishee order absolute that was made by the Court below against the appellant in favour of the respondent in respect of the account of the 3rd garnishee Visa Investments Securities Ltd. and 4th garnishee Gusau Oil Mill Ltd. is a nullity ab-initio having regard to the undisputed fact that (i) the 3rd garnishee Visa Investments Securities Ltd. and 4th garnishee Gusau Oil Mill Ltd. are not the judgment debtors and the respondent did not obtain judgment against the 3rd garnishee and 4th garnishee in any Court of superior record in Nigeria for payment of any amount of money to the respondent. (ii) the judgment debtors Nospecto Joint Ventures Services, Nospecto Gas Ltd, Nospecto Joint Ventures that the respondent obtained judgment against at the High Court Ibadan have no account with the Appellant. (iii) In the garnishee proceedings only the account of the judgment debtor with the garnishee can be attached.

DECISION/HELD

In the final analysis, the Court of Appeal held that the appeal succeeded. The order of the trial Court granting an order absolute against the appellant was accordingly vacated.

RATIOS:

• APPEAL – APPEAL AGAINST INTERLOCUTORY RULING/FINAL DECISION: Whether an appeal against a garnishee order absolute is an appeal against a final or interlocutory decision which must be filed within 14 days
• JUDGMENT AND ORDER – VARIATION OF JUDGMENT: Whether Court can entertain an application seeking to vary a garnishee order absolute
• PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION: Whether a preliminary objection to the jurisdiction of a Court and a substantive matter can be taken together
• PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: Effect of failure to serve an order nisi where service is mandatory.