➥ CASE SUMMARY OF:
Sadiq Nuhu V. Director Of State Security Service Kwara State Command (CA/IL/11/2016, 4 May 2017)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Garnishee proceeding;
Judicial rascality.
➥ CASE FACT/HISTORY
The facts generating the instant appeal do not appear to be in dispute. It is on record that the appellant as applicant in suit No: FHC/IL/CS/6/2012, before the lower Court, initially applied for the enforcement of his fundamental Rights, and the records show that appellants action before the trial Court succeeded wherefore, appellant was awarded damages of N2, 000,000 by the trial Court.
Dissatisfied with the said decision, the respondent herein appealed to this Court, and the appeal with appeal No: CA/IL/35/2013, partly succeeded in favour of the appellant in that, the costs of N2,000,000 was considered excessive, and reduced to N320,000 with N75,000 as costs.
The appellants efforts in seeing to it that the judgment debt is settled by the respondents proved abortive, consequent upon which appellants by way an exparte application brought pursuant to the provisions of Section 83(1) of the Sheriff and Civil Process Act, Laws of the Federation of Nigeria 2004, Order 37 Rule 1 and 2 of Federal High Court (Civil Procedure) Rules 2009, and the inherent jurisdiction of this Court sought for the following Orders:- ”1. ORDER NISI against all the accounts of the Department of State Security (The Judgment Debtor), maintained by the judgment Debtor with the Garnishees, that the account be attached to satisfy the judgment sum of N320,000,00 (Three Hundred and Twenty Thousand Naira only) and N25,000.00 (Twenty Five Thousand Naira Only) being cost awarded against the judgment Debtor by the Lower Trial Court on the 25th day of January, 2013. 2. Fifty Thousand Naira (N50,000.00) as cost of this proceedings. 3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance of this case.”
The application was heard on the 2nd of December, 2015 and six days later, being the 8th of December, 2015, the learned trial judge delivered the vexed ruling to the effect that: ‘It is pertinent to state that the deponent has no personal knowledge of the facts but relied on information supplied to her by the judgment Creditor. Order 37 Rule 2(C) provides that the deponent shall provide his or her source of information or the grounds for belief. Paragraph 3 (j) and (k) deposed to fact provided to the deponent by the judgment Creditor and stated that judgment debtor has account with 5 named banks who are indebted to judgment Debtor. There is no source of how he came about this information, it is mandatory for the source of information or ground of belief to be stated by the deponent. If the judgment Creditor has no information or no means of obtaining it he may apply for the appointment of a receiver instead of taking out garnishee proceedings. See Halsburys Laws of England Fourth Edition Vol. 17 pages 332-333 Paragraph 534 foot-note 4. Furthermore, an order nisi does not attach the balance of an account at a bank unless it correctly sets forth the name of the account as it stands in the books of the bank. See Encyclopaedia of the Practice and Procedure of the Federal High Court of Nigeria 2nd Edition 2010 by Sir T. A. Nwamara page 6555 paragraph 2. The affidavit therefore falls short of the legal requirements. The motion cannot therefore succeed. It is accordingly hereby dismissed.’
The appellant felt dissatisfied with the said ruling, and thereby approached the Court yet again vide a notice of appeal filed on the 18th day of December, 2015 predicated upon six grounds of appeal.
➥ ISSUE(S)
I. Whether the trial Court was right in dismissing the appellant`s application in view of the provision of Section 83(1) of the Sheriff and Civil Process Act Laws of the Federation of Nigeria 2004 and Order 37 Rule 1 and 2 of the Federal High Court (Civil Procedure) Rules 2009?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE TRIAL COURT WAS WRONG IN NOT GRANTING THE ORDER NISI IN RESPECT TO THE GARNISHEE PROCEEDING
‘I however disagree with the learned counsel and the lower Court that the affidavit in support of the exparte application, failed to comply or that it did not meet the stipulations of O37 R2 (a) (d) of the Rules under consideration. This is because once an applicant satisfies the conditions enumerated under Order 37 Rules 1 and 2 of the Federal High Court (Civil Procedure ) Rules 2009, it is incumbent upon the judge to grant order Nisi, and thereafter to proceed in accordance with the law as to whether to grant an order absolute or not. See, National Insurance Commission v. Mrs Modupe Oyepero Oyefesobi and Ors (2013) LPELR 20660 (CA). In the instant case, the trial Court queried the deposition by the deponent with regards to Paragraphs 3(j) and 3(k), on account of the judgment debtor having accounts with the garnishees. He equally had problems with the affidavit in support, because the balance of the account standing in the books of account were not stated. Let me reproduce Paragraph 3 of the applicants affidavit in support of the motion ex-parte, it reads:- That Sadiq Nuhu did tell me the following on the 23rd day of November, 2015 in the course of official briefing I had with him (as a Clerk) in the company of A.S. Jimoh in our office i.e. No. 10 Venerable Adefila Road, off Lajorin road, Ilorin, by 4.00 pm and I verily believed him as follows. Furthermore, with regards to whether the applicant must state the judgment debtors account with the garnishee as a precondition, this Court in the case of Oceanic Bank Plc v. Michael Olusegun Oladepo and Anor, (2012) LPELR 19670 (CA) per Mbaba JCA, held that:- I have already stated in this judgment that the relevant particulars required by Section 83(1) of the Sheriff and Civil Process Act, for the purpose of garnishee proceedings, had been satisfied by the 1st respondent and that the application at the lower Court was not speculative, simply because the account number and the exact amount to the credit of the judgment debtor were not stated by the 1st respondent. Of course, the information as to the account number and the exact amount in the account were information within the exclusive knowledge of the appellant and the 2nd respondent, and by banking confidentiality divulges on of such information is not permitted to a third party. Had the trial Court adverted its mind to this direction by this Court, which is binding on it, the conclusion the Court ought to have arrived at, would have required no further input to sustain and to justify the garnishee order nisi, and thereby calling upon the garnishees to show cause. The trial Court in the face of this glaring misconception of the law, erred in dismissing the appellants application. I go further to say that the learned counsel for the appellant is correct, when he complained about the trial judge`s reliance on foreign authorities to the detriment of our own case law. This much was asserted by the Apex Court in Araka v. Egbue (2003) 17 NWLR (pt. 848) 1, where Karibi Whyte JSC, emphasised that foreign authorities of the greatest learning cannot supplant our case law rightly decided on issues coming before our Courts. See also Nwakanma v. Enyinnaya Abaribe (2008) LPELR 4639 (CA); Nafiu Rabiu v. Kano State (1950) 8-11 SC 130 @ 151 and Uyanne v. Asilu (1975) 4SC, where the Supreme Court made it clear that it is improper to refer or cite foreign authorities to construe our legislature, which are unique to our country, without showing the similarities between them. In other words, where it is clear that there are binding authorities or decisions by the appellate Courts in Nigeria, by way of stare decisis, all lower Courts are bound to follow the decision, and the trial Court will rely on foreign authorities only where they are of persuasive nature. See the cases of Adetunji v. Adesokan (1994) 6SCNJ 123; Odua v. Talabi (1997) 7SCNJ 600 and Nigerian Breweries PLC v. Pabod Breweries Ltd and Anr. (2010) LPELR-4609 (CA). It is this blatant disregard for our case law in favour of foreign authorities, that rightly to my mind raised grave concerns in the mind of the learned counsel for the appellant, having opined that the trial Court exhibited judicial rascality, judicial timidity and extraneous considerations. I understand his position. I accept as argued that the reasons advanced by the trial Court for holding that the affidavit in support of the ex-parte application for an order nisi falling short of the legal requirements was misconceived, and misapplied and thereby occasioned grave miscarriage of justice. I see immense merit in the instant appeal, and for the reasons deduced herein, allow this appeal, and set aside the ruling of the trial lower Court delivered on the 8th of December, 2015.’]
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.
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✓ DECISION:
‘I rather hold the view, that the ends of justice will be better met, where the application earlier dismissed is remitted to the lower Court to proceed with the hearing of the application, pursuant to the decision on the issue canvassed in this judgment. Costs of N50,000.00 are hereby awarded to the appellant.’
➥ FURTHER DICTA:
⦿ WHERE A PROCEDURE IS STATED FOR HOW A THING IS TO BE DONE IT SHOULD BE COMPLIED WITH
The learned counsel for the respondent is right having asserted in line with the decision of Effiong v. Ebong (2007) 28 WRN 71 @83, that once a particular procedure is provided by the law or rules for how a thing or procedure ought to be done, same must be strictly followed and complied with in line with the rules or procedure provided. He is equally correct having stated the law in that where words used in a statute are clear and unambiguous the Court in interpreting such provision of the statute or rules, must ascribe to the words their ordinary plain meaning, so that the import of such a statute must be understood within the context of the ordinary meaning of the clear and unambiguous words. — H.A. Barka JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Hamma Akawu Barka, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A. S. Jimoh.
⦿ FOR THE RESPONDENT(S)
Abubakar B. Nuhu, ACSC, Kwara State Ministry of Justice.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 83(1) of the Sheriff and Civil Process Act, Cap S6 of 2004, provides: ‘83 (1), The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that 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 or order together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.’
➥ REFERENCED (CASE)
⦿ WHAT IS GARNISHEE PROCEEDING
In the case of UBN PLC v. Boney Marcus Ind. Ltd (2005) 13 NWLR (pt. 943) 654 @ 666, Akintan JSC stated thus: ‘Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which form part of his property available in execution by this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due from him to the judgment debtor or as much of it as may be sufficient to satisfy the amount of the judgment and the cost of the garnishee proceedings.’
➥ REFERENCED (OTHERS)