➥ CASE SUMMARY OF:
Skye Bank Plc v. Haruna & Ors (CA/K/264/2011, 17th December, 2014)
by Branham Chima.
➥ SUBJECT MATTER
Bank account frozen
Nature of ex parte order
➥ CASE FACT/HISTORY
The resume of the facts of the case giving rise to this appeal are that the said 4th and 5th Respondents to this appeal operated a financial investment outfit in which, many depositors including the 1st 3rd Respondents deposited their money. The outfit was suspected of being operated illegally consequent upon which the 6th Respondent (EFCC) in the course of its investigation applied to the 7th Respondent (the Federal High Court) Lagos to freeze their (4th & 5th Respondents) accounts. Their accounts were frozen. The 1st 3rd Respondents were among the depositors who demanded for the return of their money from the 4th & 5th Respondents. They then initiated proceedings at the lower Court for summary judgment, which was entered in their favour on the 13/4/2011 in the sum of N6,319,500 (Six Million, three hundred and nineteen thousand five hundred Naira only).
As the judgment sum remained wholly unpaid, the 1st 3rd judgment creditors as applicants, vide a motion ex-parte pursuant to Section 83 of the Sheriffs & Civil Process Act initiated garnishee proceedings against seven (7) banks including the Appellant believing that the judgment debtors/MIRIAM MOSES VENTURES AND MOSES SAMANJA AUDU as Respondents, have money custodied by the said banks. It therefore sought and obtained leave of Court to garnishee the judgment/debtors’ accounts in those Banks.
After hearing the argument from both counsel to the 1st Garnishee (Appellant) and the 1st & 3rd Respondents, the learned trial Judge ruled that the Appellant as 1st Garnishee failed to show cause why the order Nisi should not be made absolute. The Court held inter alia that: ‚Accordingly, therefore, I hold that the 1st, 8th & 9th Garnishees have not shown good cause why the order Nisi shall not be made absolute and consequently, therefore, they are hereby ordered particularly the 1st Garnishee to pay the JCAs (judgment creditors) the sum of N6.3M plus 10% interest from the judgment debtor’s account in Exhibit SK4, from the date of judgment to date.’
This appeal is against the decision of Kaduna State High Court in a garnishee proceedings delivered by Hon. Justice Dogara Mallam on 29th July, 2011 wherein the Court made the order nisi for the payment of the judgment sum of N6,319,500 absolute against the Appellant who was the 1st Garnishee and in favour of the 1st 3rd Respondents as judgment Creditors/Applicants.
The Appellant was dissatisfied with the decision and expressed its displeasure by filing a notice of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: DISMISSED]
I. The Appellant has no “cause of action'” and “locus standi” to file the appeal is predicated on Section 91 of the Sheriffs and Civil Process Act and the contention that the freezing order does not avail the Appellant as the 4th – 7th Respondents did not challenge the order absolute?
RESOLUTION: IN APPELLANT’S FAVOUR. (Appellant has locus standi and cause of action to prosecute this appeal).
[‘Now, looking at the records of appeal it is evident that the Appellant was a party to the Garnishee proceedings against whom the order Nisi was made absolute. The gravamen of the Appellant’s complaint as in the affidavit to show cause is that it had shown sufficient cause why the order Nisi ought not to have been made absolute against it. That is a cause of complaint which gives a right of action to the Appellant. The combination of these facts and the factual situation leading to the Judgment of the Lower Court against the Appellant, as the party in whose possession or custody the Judgment/debtors money is, and who is aggrieved by the said Judgment, the Appellant has shown sufficient “cause of action” to prosecute the appeal, and a fortiorori. the locus to approach the Court to institute the appeal for a determination of the propriety or otherwise of the order. At this stage, it is not the processes filed by the Respondent’s that determine the “cause of action” of the Appellant, neither is it the weakness of the Appellant’s complaint. See Alh. Aminu Ibrahim vs. Mr F. Osim(1988) 6 SCNJ 203 at 213. The Court is only to be concerned with the grounds of appeal to see if they disclose a “cause of action”. see F. A. AKINBOBOLA vs. PLISSON FUKO NIG. LTD & ORS(1991) 1 SCNJ 129 at 138. It is in the light of these that the argument canvassed by the 1st 3rd Respondents go to the strength or weakness of the Appellant’s appeal which are fit for determination of the main appeal but not to defeat or negate the “Cause of action” which the Appellant by virtue of being a party to the proceedings giving rise to this appeal and against whom an order absolute has been made as disclosed in the grounds of appeal, has.’]
I. Whether the trial judge was justified in holding that the Appellant has not shown good cause why the order nisi should not be made absolute having regard to the materials placed before the trial court?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The Appellant did not show any good cause to not make the order nisi absolute).
[THE EARLIER EX PARTE IN FAVOUR OF EFCC HAD EXPIRED THUS NOT SUBSISTING
‘In the instant appeal, the records of appeal before us does not disclose that the said order ex-parte obtained on 29/11/2010 was heard on notice or was renewed by the Court. The Appellant also does not contend that the order was renewed. Thus, by the operation of the law and Rules of the Federal High Court, the freezing order made on 29/11/2010 was no longer operational or in force by effluxion of time as at the time that the Garnishee order nisi was served on the Appellant, a period of about 6 months. It follows that the Federal High Court order heavily relied upon by the Appellant in its garnishee affidavit of cause, was not a subsisting order to be obeyed as argued by the Appellant. Contrary to the Appellant’s contention that the said order had to be obeyed being the order first in time, that order by the operation of the Law and Rules of that Court, was no longer a subsisting order as at the time that the order Nisi was served on the Appellant. There was at that time no obligation on the Appellant to comply with the said Federal High Court order which had, by effluxion of time, lapsed, and there was thus, no longer any alien on the account. Thus all the cases cited by the Appellant’s counsel on the need to obey an order of the Court or the undesirability of the lower Court making a later order inconsistent with the Federal High Court order do not apply here.’
EVEN THE EFCC (6TH RESPONDENT) NOR THE OWNERS OF THE BANK ACCOUNT (4TH & 5TH RESPONDENTS) ARE COMPLAINING
‘At this point it is apt to restate the fact that both the 7th & 6th Respondents who made the order and at whose instance the order was made, were all joined as co-garnishees to show cause why the order Nisi should not be crystallized into absolute for the 1st 3rd Respondents to attach the said accounts. Neither the 6th nor the 7th Respondent filed any affidavit or responded to the Garnishee proceedings. They have also not deemed it necessary to participate in this appeal. It stands to reason, as canvassed by the 1st 3rd Respondent’s counsel, that their refusal to show cause only indicates that the making of the order Nisi absolute is not in any way detrimental to them. Indeed, their non-participation at the garnishee proceedings and in this appeal lend support to the fact that the purpose for which the order was made had been achieved and the 6th Respondent was no longer interested in proceeding further. It is also significant that the 4th & 5th Respondents whose account was frozen did not also show any cause or challenge the garnishee proceedings nor participate in this appeal. This fact, justifiably gives one cause to wonder, why the Appellant is still refusing to obey the order absolute to pay to the 1st 3rd Respondents the judgment sum from the judgment debtor’s account maintained by it (the Appellant). Is the appellant trying to be more Roman than the Romans themselves or crying more than the bereaved, even when the 6th Respondent at whose instance the account was frozen or the 4th and 5th Respondents the owners of the money have raised no objection to the attachment of the money? Does the Appellant not realize that the 4th and 5th Respondent’s money in its (Appellant’s) custody having been free of any lien by effluxion of time of the 7th Respondent’s order and the conduct of the 6th Respondent, the only obligation it (the Appellant) has is to obey the order absolute which is the valid and subsisting order? What interest does the Appellant seek to protect in the money more than the 4th and 5th Respondents the owners of the money or the 6th Respondent at whose instance the account was frozen or the 7th Respondent whose order has expired? Is the Appellant playing the role of an unsolicited advocate for the 4th and 5th Respondents? Of course this Court has warned several times that it is not the business of a Garnishee to undertake to play the role of an advocate for a Judgment debtor by trying to shield and protect the money of the Judgment debtor “…… by so doing the Garnishee only exposes itself to trouble, daring the Court to do its worst….” Per Mbaba JCA in Oceanic Bank plc vs. Oladepo (2012) LPELR 19670 (CA).’]
‘The only legal option left for the Appellant is to comply with the order of the lower Court which was validly and properly made. The Appellant has not given this Court any cause to fault the decision of the lower Court. Resultantly, this appeal is devoid of merit and is accordingly dismissed. The decision of the Lower Court is hereby affirmed.’
➥ FURTHER DICTA:
⦿ WHAT IS A CAUSE OF ACTION?
What then is a “cause of action ? Admittedly, the term “cause of action” defies a single precise definition. However, it has been variously defined or described as a bundle or aggregate of facts which the law recognizes as giving a Plaintiff a right to claim a relief or remedy against a defendant. It is thus, a factual situation which gives a person a right to judicial remedy. It is the operative fact or factual situation which gives rise to a right of action which itself is a remedial right EGBE Vs. ADEFARASIN (1987) 1 SC at 34 36. Cause of action may be defined as; (i) a cause of complaint; (ii) a civil right or obligation by a Court of Law; (iii) a dispute in respect of which a Court of Law is entitled to invoke its judicial powers to determine; (iv) consequent damages; See A. G. F. VS ABUBAKAR (2007) 10 NWLR (Pt1047) 1 SC MOBIL OIL PLC VS DENR (2004) 1 NWLR (Pt 853) 142. Thus, the words “cause of action” comprises every fact which would be necessary for the Plaintiff to prove, if traversed to support his right to the Judgment of the Court READ VS. BROWN (1882) 22 4 BD. it is all those things necessary to give a right of action whether they are to be done by the Plaintiff or a 3rd party. per Agbaje JSC in E. O. Amodu vs. Dr J, O, Amode & 4 Ors ( 1 990) 9 SCNJ 1, at 9 . It has also been defined simply as “a factual situation” the existence of which entitles one person to obtain from the Court a remedy against another THOMAS vs OLUFOSOYE (1996) 1 NWLR (pt 18) 6691 per Obaseki JSC. — A.A. Wambai, JCA.
⦿ WHAT IS LOCUS STANDI?
Locus standi , which is a Latin word simply means a place of standing. It is the legal right of a party to an action to be heard in Litigation before the Court or Tribunal. The term denotes, the right of a party to institute an action in a Court of Law or seek judicial enforcement of a duty. See Senator Adesanya vs. President FRN (1981) 5 SC 112, Adesolakan Vs. Adegbo vs. A. G, Lagos State (2012) All FWLR (Pt 631) 1522. Locus standi thus, entails the legal capacity of instituting or commencing an action in a competent Court of Law without any inhibition, obstruction or hindrance from any person or body whatsoever. Whenever a person’s Locus to sue is in issue, as in this appeal, the question is really whether the person whose standing is in issue, is the proper person to request an adjudication over the dispute he has brought for adjudication. The issue at this stage, is whether the Plaintiff or the person whose locus is challenged, has disclosed sufficient interest in the dispute or the subject matter of the dispute. — A.A. Wambai, JCA.
⦿ EX PARTE ORDERS LAST FOR 14 DAYS ONLY OR THE DATE FIXED FOR THE HEARING OF THE MOTION ON NOTICE
Now, it must be acknowledged and emphasized that the said freezing order made on 29/11/2010 was made ex-parte. Implicit in that is the law that exparte orders are by their very nature not intended or meant to last forever, but to have a short life span, usually for 7 or 14 days depending on the Rule of Court unless renewed, or pending the hearing of a motion on notice. The reason for this is not far fetched. Being orders made behind the other Party, and usually for exigencies to maintain the status quo, ex-parte orders cannot have a long life span and indeed automatically die after the 14 days by Order 26 Rule 12 (1) of the F. H. C. (Civil Procedure) Rules, 2009 , or until the motion on notice is heard. This position was succinctly stated in the case of Enekwe Vs Ima Ltd (1997) 10 NWLR (Pt. 526) 60I at 611. When the Court held:- By their nature, injunction, orders granted ex parte can only be properly interim in nature. They are made without notice to the other side to keep matters in status quo to a named date, usually not more than a few days or until the Respondent can be put on notice. It is therefore wrong to make an ex-parte without fixing a date of hearing of the motion on Notice.” An ex-parte order which invariably affects a party who is absent at the proceedings in the Court when the order is made, must necessarily have a very short life span otherwise the order would come in conflict with the right of fair hearing enshrined in Section 36 (1) of the Constitution, FRN, 1999 (as amended) . They must therefore be made to last until a given date, not more than a few days. Isyaku vs. Master (2003) 5 NWLR (Pt.814) 443, Such an ex-parte order shall not be allowed by the Court of justice and equity to, last indefinitely, Goddy Okeke & Ors Vs. Chief Michael Ozo Okoli & Ors (2000) 1 NWLR (pt. 642) 641 per Fabiyi JCA, (as he then was). Surely, the ex-parte order runs its course to the date named in the order, usually not more than 14 days in the case of the Federal High Court, or until the motion on notice is heard. Where a motion on notice is not filed or moved, at the expiry of the exparte order, the said order without the need for an application to set it aside, becomes ineffectual. Whether or not a date is named for the life span of an ex-parte order or for the hearing of the motion on notice, the life of an ex-parte order comes to an end at the expiry of 14 days provided by Order 26 Rule 12(1) of the Rules of the Federal High Court , unless life is again breathed into it to resuscitate it by an extension or a renewal of the order by the Court. Where none of these is done or the cause for its issuance is abandoned or spent, the exparte order, without a formal application for its discharge, becomes discharged and ineffectual. — A.A. Wambai, JCA.
Skye Bank Plc
- Rabi Haruna
- Binta Lawal
- Hauwa’u Abubakar
- Miriam Moses Ventures Ltd.
- Moses Samanja Audu
- Economic and Financial Crime Commission
- The Registrar Federal High Court, Ikoyi, Lagos
➥ LEAD JUDGEMENT DELIVERED BY:
Amina Audi Wambai, J.C.A.
⦿ FOR THE APPELLANT(S)
G. Yakwo Esq.
O.I. Habeeb Esq.
⦿ FOR THE RESPONDENT(S)
A. G. Bello Esq.
➥ MISCELLANEOUS POINTS
✓ DISSENT ON REASON
⦿ THE EX PARTE MADE VIA SECTION 34 OF THE EFCC ACT REMAINS IN VOGUE UNTIL REVOKED
In other words, by the provisions of Section 34 of the Economic and Financial Crimes Commission (Establishment) Act of 2004 and contents of Form B in Schedule thereto, an order made Pursuant thereto, though made on an ex-parte application, remains in force until it is revoked. It is not an interlocutory order whose lifespan is determined or determinable by the provisions of the Federal High Court (Civil Procedure) Rules. The provisions of Section 34 do not make the filing of a motion on notice a pre-requisite to the continued validity of an order made pursuant to the section. It is settled law that a Court is not entitled to read anything into or remove anything from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express Johnson Vs Mobil Producing (Nig) Unlimited (2010) 7 NWLR (Pt 1194) 462 and, Nigeria Social Insurance Trust Fund Management Board Vs Klifco Nigeria Ltd(2010) 13 NWLR (Pt 1211) 307. The freezing order made by the Federal High Court was thus in the nature of a substantive order and it subsisted until revoked or set aside. There is nothing in the records of appeal showing that the order was at any time revoked or set aside by the Federal High Court or by any other Court before the order of garnishee absolute was made by the lower Court. In essence, the order was still valid and subsisting at the time. — H.A.O. Abiru, JCA.
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)