➥ CASE SUMMARY OF:
GUARANTY TRUST BANK PLC v. INNOSON NIGERIA LIMITED (2017) – SC
by PipAr Chima
Supreme Court – SC.694/2014(R)
➥ RULING DELIVERED ON:
Friday, the 12th day of May, 2017
➥ AREA(S) OF LAW
Signing of court process;
Leave to amend.
➥ NOTABLE DICTA
⦿ A LEGAL PROCESS MUST BE SIGNED BY EITHER THE LEGAL PRACTITIONER OR LITIGANT
It is trite that it is the seal or signature, of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the legal practitioner of the choice of the litigant or the litigant himself. The disputed processes were purportedly settled or signed by a legal practitioner, whose identity is unknown. Where ex facie a Court process it is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant himself or by the legal practitioner retained by him. A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB CONSTRUCTION v. NNPC (2011) 9 NWLR (Pt.1252) 317 at 336 -337 and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name. – Ejembi, JSC.
⦿ WHAT IS A GARNISHEE PROCEEDING
It is 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. The third party holds the debt or property of the Judgment Debtor. By this process, Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. – Ejembi, JSC.
⦿ GARNISHEE LACKS LOCUS TO CONTEST THE MERITS OF A JUDGMENT
That is, to show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to. It is a settled principle of law that a decision of a Court of law not appealed against is deemed to be acceptable to the parties thereto and it remains binding on them as well as their privies, including garnishees: See AKERE v. THE GOVERNOR, OYO STATE & ORS. (2012) 50 NSCQR 345 at 394, 414 – 415; DARIYE v. FRN (2015) 67 NSCQR 1457 at 1496 – 1497. – Ejembi, JSC.
⦿ WHEN FRESH ISSUE WILL NOT BE ENTERTAINED
The general rule, on fresh point or issue in this Court, is that it will not be entertained if this Court had not the benefit of the views of the Justices of the Court below: see FADIORA v. GBADEBO (1998) 3 SC 219; ENANG v. ADU (1981) 11 – 12 SC 25; ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (Pt.109) 250, etc. – Ejembi, JSC.
⦿ CONSIDERATIONS AGAINST ADDUCING FRESH EVIDENCE AT APPELLATE COURT
Three prominent considerations tending to work against adducing fresh evidence at the appellate Court, when this Court exercises its power under Order 2, Rule 12 of the Rules of this Court in that regard, are –
i. Where issues are joined on pleadings at the trial Court no party shall be taken by surprise. Thus, the Appeal Court cannot consider the reception of new evidence without amendment of the pleadings. See ONIBUDO v. AKIBU (1982) 7 SC. 60; ADELEKE v. ASHERIFA (1990) 3 NWLR (Pt.136) 94 at 111; (1990) 21 NSCC 145 at 154.
ii. It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial Court, should not be postponed to after judgment: See ADELEKE v. ASHERIFA (supra).
iii. Appellate Courts generally exercise their jurisdiction to correct errors of law or fact made by the Courts below, after the latter’s consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial Court or Judge should not be assessed or judged on the new evidence that the trial Court or judge never had an opportunity to consider: See ADELEKE v. ASHERIFA (supra). In other words the correctness or otherwise of the judgment of the trial Judge or Court should not be assessed on evidential materials he or it never had opportunity to consider. – Ejembi, JSC.
⦿ THE STRICT DUTY OF A GARNISHEE
It is most pertinent to bear in mind the fact that the appellant/applicant herein is a garnishee. The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession belonging to the judgment debtor should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor nor to protect the debtor’s money in its possession. See: Oceanic Bank Plc v. Michael Olusegun Oladepo & Anor. (2012) LPELR – 19670 (C/A). – Kekere-Ekun, JSC.
⦿ ONLY LEGAL PRACTITIONER WITH NAME ON THE ROLL SHOULD SIGN COURT PROCESS
The purpose of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria, 2004, is to ensure that only a Legal Practitioner whose name is on the roll of the Supreme Court should sign Court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a Court process. It is to ensure that fake lawyers do not invade the profession … The literal construction of the Law is that Legal Practitioners who are animate personalities should sign Court processes and not a firm of Legal Practitioners which is inanimate and cannot be found in the roll of this Court. – Bage, JSC.
⦿ NO TIME LIMIT FOR AMENDING GROUNDS OF APPEAL
Let me also add that, there is nothing in our law or rules which sets a time limit for bringing an application to amend the grounds of appeal, and the Court has a discretion to allow the amendment upon such terms as it may deem just. See IBRAHIM VS. OSHOMAH (1991) 6 NWLR (Pt.197) 286; OPARA VS. SCHLUMBERGER & ANOR (2006) 7 S.C. (Pt.III) 56. – Bage, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.S.C.
⦿ FOR THE APPELLANT
O. I. Olorundare, SAN.
⦿ FOR THE RESPONDENT
Prof. Joseph N. M. Mbadugha.
➥ CASE HISTORY
In the suit of Innoson Nigeria Limited, the present Respondent as the plaintiff, at the Federal High Court, Ibadan, the Nigeria Customs Service and the Attorney-General of the Federation were the defendants. In the final judgment delivered on 20th December, 2010, the Federal High Court, in favour of Innoson Nigeria Ltd, ordered the defendants (hereinafter called the judgment debtors) to pay:
“i. Seven Hundred Million, Two Hundred and Twenty Two Thousand Naira (N700,220.000.00) only ii. 22% interest on the said sum from the commencement of the action per annum until the date of judgment; and iii. 22% interest per annum on the said sum from the date of judgment until final liquidation of the judgment sum.”
The Appellant herein was one of the 5 banks moneys belonging to the Nigeria Customs Service were traced to. The Nigeria Customs Service was one of the Appellant’s Customers. On 2nd March, 2011, the Order Nisi issued by the Federal High Court was served on the Appellant (as the 5th Garnishee).
➥ ISSUE(S) & RESOLUTION
I. The Appellant prayed, via its application, that the Court allow it file fresh evidence & raise new issues.
A. By the applicant’s prayers 2 & 4, it seek to adduce fresh evidence that would in effect enable it challenge the judgment of the trial Court to which it was not a party and against which the parties thereto have not appealed. Furthermore, the fresh issues if allowed would alter the character of the case fought at the Court below and at the trial Court. This Court will not accede to such a request, which is overreaching and in bad faith.
B. The question which the Appellant offers no answer or explanation is: On what locus standi does the Appellant/Garnishee stand to attack the main judgment? I see none, except some frivolous frolic. Let me further state, at the risk of repetition, that neither the Nigeria Customs Service nor the Attorney-General of the Federation, who are the Judgment Debtors, have not appealed the Judgment or Order of the Federal High Court directing them to pay to the Respondent herein, inter alia, N700,220,000.00 as damages.
C. It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor. It is for this reason that I consider or view this aspect of the instant application an abuse of Court process.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 2(1), 24, of the Legal Practitioners Act Laws of the Federation of Nigeria 2004.
➥ REFERENCED (CASE)
⦿ A DESCRIPTION OF WHAT A GARNISHEE PROCEEDING IS
Lord Denning, MR, in CHOICE INVESTMENT LTD. v. JEROMINIMON (1981) QB 149 at 154 – 155, gives a simple illustration of garnishee proceeding thus: “A creditor is owed 100 by a debtor. The debtor does not pay. The creditor then gets judgment against him for the 100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has 150 at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the [judgment creditor] out of the Customer’s 150 the 100 which he owes to the creditor.”
The master of the Rolls went on, in the case, to state further: “There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay 100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason way the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See PRITCHARD V. WESTMINISTER (1969) 1 ALL ER 999 and RAINBOW v. MOORGATE PROPERTIES LTD. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it.”
➥ REFERENCED (OTHERS)