16/07/2019
GWEDE vs. DELTA STATE HOUSE OF ASSEMBLY & ANOR.(2019)LPEL
R-47441(SC)
ISSUE: GARNISHEE PROCEEDINGS: Principles governing garnishee proceedings
PRINCIPLE:
"A few words on garnishee proceedings. A garnishee proceedings is usually commenced by an ex-parte application made to the
Court having jurisdiction to hear the matter by the Judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order NISI. Simply, NISI is a Norman - French word which means "Unless". It is therefore an order made, at
that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless
there is sufficient reason given by the party on whom the order is directed why the payment ordered should not be made. Such
reasons could be that he does not hold any money belonging to the judgment debtor or that such money belonging to the
judgment debtor in his possession is a subject of litigation or has been assigned to a third party or any other legal and reasonable excuse. If no sufficient reason is given, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor.
The Court then becomes functus officio as far as that matter is concerned in that the Judge who decided the matter is precluded
from again considering the matter even if new evidence or argument are presented to him.
See Union Bank of Nigeria Plc vs. Boney Marcus Industries Ltd. & Ors. (2005) 13 NWLR (Pt. 943) 654; Choice Investments Ltd. v.
Jeromnimon (Midland Bank Ltd. Garnishee) (1981) 1 All ER 225 at 328; Guaranty Trust Bank Plc vs. Innoson Nig. Ltd. (2017) LPELR -
42368 (SC)." Per OKORO, JSC.(Pp.23-25,P
aras.F-B).
ISSUE: GARNISHEE PROCEEDINGS: When a judgment debtor should be heard in a garnishee proceeding
PRINCIPLE:
"Let me state briefly that in garnishee proceedings, a judgment creditor who after diligent search identifies or knows that the judgment debtor has some money in possession or custody of a bank or other institution, may file an ex - parte application in
Court with an affidavit in support praying the Court for an order Nisi ordering the garnishee to appear and show cause why he
should not pay the amount due to the judgment debtor in his possession to him. After the grant of the order Nisi which I said is
made ex - parte, the said order must be served on the garnishee, judgment creditor and the judgment debtor and the registrar
must then fix a date not less than 14 days after the service of the order nisi on the three parties aforesaid.
It has to be noted that at the stage of the ex - parte application only two parties, i.e. the judgment creditor and the garnishee are
involved in the proceedings. However, after the service of the order nisi on the judgment debtor, as the Court of Appeal would
say in NAOC Ltd. vs. Ogini (supra), the subsequent hearing envisage a tripartite proceedings in which the three parties are represented. I am persuaded to agree with the learned counsel for the 1st Respondent herein that at this stage of the proceedings, the three parties can be heard by the Court before an order absolute is made depending on the facts and
circumstance of the case. I say so advisedly bearing in mind that garnishee proceedings is in the nature of enforcement of the
judgment of a Court of law and does not permit the re-opening of hearing in a matter which has been settled in the judgment
sought to be enforced. I shall return to this anon. See GTB vs. Innoson Nigeria Ltd. (2017) LPELR - 42368 (SC); Union Bank of
Nigeria Plc vs. Boney Marcus Industries Ltd. (2005) 13 NWLR (Pt. 943) 654.
The last stage of this proceeding is that where the garnishee does not appear or appears but does not show cause why he should
not be ordered to pay the judgment sum from the account of the judgment debtor in his possession to the judgment creditor, then an order absolute is made against him/her. The above procedure is backed up by Section 83(1) and (2) of the Sheriffs and Civil Process Act which states as follows:-
"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, herein
after 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 many be sufficient to satisfy the judgment or order together with costs aforesaid.
(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the
judgment debtor."
Again, Order VIII Rule 8(1) of the Judgment (Enforcement) Rules provides:-
"If no amount is paid into Court (following service of the garnishee order nisi), the Court, instead of making an order that
ex*****on shall issue, may after hearing from the judgment creditor, the garnishee and the judgment debtor or such of them as appear, determine the question of liability of the garnishee, and may make such order as to the payment to the judgment
creditor of any sum found to be due from the garnishee to the judgment debtor..." (underlining mine for emphasis).
There appears to me that by a combination of Section 83(2) of the Sheriff and Civil Process Act and Order VIII Rule 8 of the
Judgment Enforcement Rules, a judgment debtor, after being served with order nisi can be heard by the Court only if or where he observes irregularities in what is presented before the Court by the judgment creditor. Why I say so is that at that stage, it is not
an opportunity to reopen the case which judgment has been entered. It is strictly for the enforcement of such judgment. Thus, where the judgment sought to be enforced is certain, in terms of the parties, the judgment sum and the party adjudged the
debtor, then the judgment debtor has nothing to say in the proceedings. However, where, as in this case, the judgment sum is
not certain and the party adjudged as the debtor is confused by the judgment creditor, I think that justice demands that the
"judgment debtor" be heard in such circumstance. In other words, it is not cast on stone that a judgment debtor cannot be heard in garnishee proceedings. It is the Court that will determine whether he should be heard or not. If the application of the judgment
debtor before the Court is to reopen issues settled in the judgment, he cannot be heard. But if the application is to draw the attention of the Court to misleading facts put forward by the judgment creditor, there is nothing wrong with him being heard.
I am persuaded by some Court of Appeal authorities in this matter including but not limited to Barbedos Ventures Ltd. vs. Zamfara
State (2017) LPELR-42499, CA; Nigerian Breweries Plc vs. Dumuje (Supra)." Per OKORO, JSC.(Pp.35-40,Paras.C-A).
ISSUE: GARNISHEE PROCEEDINGS: When a party will not be tagged as a judgment debtor
PRINCIPLE:
"Let me quickly state that I have painstakingly perused both the judgment of this Court in Appeal No. SC. 255/2013 (the Pre -
Election Appeal) and the Court's varied consequential order in the said matter but I am unable to find even in remotest
semblance where this Court held that the 1st Respondent herein is a Judgment debtor. The learned senior counsel for the
Appellant also failed to refer to any portion of the said judgment or varied order where it was so stated. The law is trite that a
document, including a judgment of the Court, speaks for itself, and one cannot read into the text what is not contained therein.
See Ahmed vs. Central Bank of Nigeria (2013) 11 NWLR (Pt. 1365) 352 at 374 paragraphs A - C.
However, on page 4, paragraph 4.4 of the appellant's brief, the learned Silk made the following submission:-
"The 1st Respondent did not apply to this honourable Court to be made one of the Appellant's but rather to be made one of the
Respondents. The Judgment having been entered against the Respondents of which the 1st Respondent is one of the
Respondents by virtue of the decision of this Court above, can any of the Respondents now be heard to argue that it is wrong to
label him/her as Judgment Debtor especially when the judgment remained unsatisfied."
The above argument stems from the Ruling of this Court on an application by the 1st Respondent to be joined as respondent
contained on pages 1138 of the record of appeal which states thus:-
"Having regards to the provision of Section 287(1) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and hereinafter referred to as the 1999 Constitution and Section 94 of the Sheriffs and Civil Process Act as well as Order 2 Rule 16 of
the Judgment (Enforcement) Rules made thereunder, the applicant seeking to be joined in the instant application does not need to be a party by joinder as he is presumed by law to be a party and can thereby enforce any order of the Court made for its benefit.
The application is therefore superfluous and is consequently dismissed with costs of N250,000 to each respondent present in
Court this morning. Application filed on 15/10/15 is dismissed."
The above Ruling of this Court refers to Section 287(1) of the 1999 Constitution, Section 94 of the Sheriffs and Civil Process Act
and Order 2 Rule 16 of the Judgment (Enforcement) Rules. Now Section 287 (1) of the Constitution states:-
"The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by Courts
with subordinate jurisdiction to that of the Supreme Court."
This provision of the Constitution does not, by any stretch of imagination make a person who was not adjudged a judgment
debtor to be so addressed.
Order 2 Rule 16 of the Judgment (Enforcement) Rules provides as follows:-
"Where a person not being a party in a proceeding obtains an order or has an order made in his favour, he shall be entitled to
enforce obedience to such order by the same process as if he were a party in the proceedings; and any person not being a party
in a proceeding against whom obedience to any judgment may be enforced, shall be liable to the same process for enforcing
obedience to such judgment as if he were a party to the proceeding."
This provision contemplates a non - party's involvement to either enforce a judgment made in his favour or to have an order
requiring his obedience enforced against him. In the instant case, what is the position of the 1st Respondent in Appeal No.
SC.255/2013? Put differently, as was posited by the learned counsel for the 1st Respondent. What does the judgment of this
Court in SC.255/2013 require of the 1st Respondent? The answer to this question is found in the judgment/orders of this Court in
both the judgment in SC.255/2013 and the order varying the consequential order in the said judgment.
The material order to this issue can be found on page 447 of Vol. 1 of the record of appeal which states:-
"4. It is further ordered that the said 2nd Respondent EDOJA RUFUS AKPODIETE refunds to the coffers of the Delta State House of Assembly all monies/sums of money he collected by way of salary, allowances whatsoever and howsoever described since he took his seat in the said House of Assembly under the pretext of being the duly elected candidate of the 4th respondent
representing Ugheli North Constituency II, within ninety (90) days of this order."
The above order places liability to refund the monies he collected solely on Edoja Rufus Akpudiete, the removed member of the
1st Respondent and by the said order, the 1st Respondent herein was the beneficiary as all the salaries and allowances of the
removed member were to be returned to its coffers. I agree with the learned counsel for the Respondent that the above initial
order did not confer any obligation on the 1st Respondent requiring its obedience.
As the facts of this case indicate, the above order of this Court was varied. The said varied order is shown at page 450 of vol. 1 of
the record of appeal and is stated thus:-
"...the sum of money so refunded by the 2nd Respondent EDOJA RUFUS AKPODIETE to the Delta State House of Assembly shall be
paid to the Appellant/Applicant JENKINS GIANE GWEDE as salaries, allowances etc. from June, 2011 till October, 2014..."
The question may be asked if the above order makes the 1st Respondent a Judgment Debtor?
I do not think so. As was argued by the learned counsel for the 1st Respondent, the obligation placed on the 1st Respondent is to
give payment to the Appellant of any sum of money refunded by the removed member. I agree also that the 1st Respondent's
obligation under the varied order does not fetter, diminish or eliminate the removed member's liability to refund all monies he
collected by way of salaries and allowances while illegally sitting as a member of the first Respondent.
In its judgment, the Court below made a far reaching finding on page 1131, Vol. 2 of the record of appeal, which I agree entirely
as follows:-
"The person who is clearly the judgment debtor and against whom the 1st Respondent (Appellant herein) was and is supposed to press Garnishee proceedings is Hon. (Barr) Edoja Rufus Akpodiete or his Banker or any third party having his funds or monies and NOT DELTA STATE HOUSE OF ASSEMBLY. The 1st Respondent did not prove or show to the lower Court that the said removed
member refunded any monies or funds in forms of salaries or allowances received by the removed member to the Appellant (1st Respondent herein) and same has not been paid over to the 1st Respondent (Appellant herein)."
I agree entirely with the above view of the Court below and the submission of learned counsel for the 1st Respondent on the
matter. It is the sums of money refunded by Edoja Rufus Akpodiete to the Delta State House of Assembly that triggers a payment obligation from the 1st Respondent to the Appellant. In other words, the 1st Respondent can only be found to be indebted to the Appellant where it is shown that the removed member has refunded sums of money to the 1st Respondent and that the 1st
Respondent refused and/or neglected to pay such refunded sums to the Appellant. It is the removed member who is indebted to the Appellant as the Judgment Debtor. Definitely not the 1st Respondent.
This being the case, it is my view that the garnishee proceedings commenced against the 1st Respondent by the appellant was
done in error. It is only monies refunded by the removed member that can be the subject of the garnishment." Per OKORO, JSC.(Pp.17-23,Paras.C-E).
ISSUE: GARNISHEE PROCEEDINGS: Whether the judgment sum sought to be enforced in garnishee proceedings must be certain or ascertainable
PRINCIPLE:
"In this matter, the Appellant failed to make full and frank disclosure before the Federal High Court hearing the garnishee
proceedings. First, the appellant represented that he is entitled to a judgment debt of N490,803,002.00 when, in actual fact, neither the Supreme Court's judgment of 24th October, 2014 nor the consequential order of 26th October, 2015 enumerated any specific sum of money the appellant was to be paid. This Court only ordered that Mr. Edoja Rufus Akpodiete, the removed
member of the 1st Respondent should refund all the salaries and allowances he received while sitting as "member" of the 1st
Respondent. One wonders how the Appellant was able to compute those sums of money by himself alone outside the judgment of the Court and tag it as the judgment sum. In garnishee proceedings, the judgment sum must be certain and can be located in the judgment. It is not to be left to conjecture." Per OKORO, JSC.(Pp.40-41,P
aras.D-B).
