BARBEDOS VENTURES LTD V ZAMFARA STATE GOVT. & ANOR

BARBEDOS VENTURES LTD V ZAMFARA STATE GOVT. & ANOR


IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO

ON THURSDAY, 8TH JUNE, 2017


Appeal No: CA/S/62/2013

CITATION

Before Their Lordships:

HUSSEIN MUKHTAR, JCA.

MUHAMMED LAWAL SHUAIBU, JCA.

FREDERICK OZIAKPONO OHO, JCA.


BETWEEN

BARBEDOS VENTURES LTD
(APPELLANT)

AND

ZAMFARA STATE GOVT.
FIRST BANK PLC
(RESPONDENTS)


PRONOUNCEMENT


A. PRACTICE AND PROCEDURE
1. Garnishee Proceedings – How garnishee proceedings commence and how it is terminated
Effect of order absolute in garnishee proceedings

I wish to add that Garnishee proceedings commences with an exparte application for an order nisi and terminates with an order absolute after all the necessary parties were put on notice. Once an order absolute is granted, the Court becomes functus officio in respect of that matter and thus lacks jurisdiction to review, reopen or reverse its decision. Per SHUAIBU, JCA. read in context

2. Garnishee Proceedings – The stages in garnishee proceedings and parties to the proceedings
Status of a judgment debtor in a garnishee proceeding

The first huddle that needs to be scaled here is the question of whether, it can be said in the real sense of the word that the Judgment Debtor is indeed a nominal party in a Garnishee proceedings as claimed by learned Appellant’s Counsel, and that if at all, at what stage can a Judgment Debtor be referred to as a nominal party? This Court in the case of Fidelity Bank Plc v. Okwuowulu (2012) LPELR-8497 (CA) per OGUNWUMIJU, JCA had this to say on the issue;

“A garnishee proceeding can be described in two stages; the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in Court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed to the judgment debtor. This is usually done ex parte and limited to the judgment creditor and the Court.

The second stage is where on the return date, the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the Court may subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor, judgment creditor and the garnishee. This is because on the return date, all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other.”

This Court also in an earlier case in N.A.O.C. v. Ogini (2011) 2 NWLR (Pt. 1230) 131 AT 152-153, per OGUNWUMIJU, JCA had this to say on the subject;

“If the judgment creditor knows that the judgment debtor has an amount of money with any Bank or institution, he will as Garnishor file for an ex parte application to be supported by an affidavit in Form 23 of the Judgment Enforcement Rules (JER) for an order that the Garnishee (in this case U.B.A. Plc.) shall show cause why he should not pay the amount due to the judgment debtor to him. These proceedings are strictly ex parte between the Garnishor (judgment creditor) and the Garnishee (the Bank or institution). Where the Court grants the order nisi on the garnishee, the Registrar through the Sheriff of the Court must serve on the garnishee, the judgment creditor and the judgment debtor the Order nisi on Form 26 of JER. The Registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing. This subsequent hearing envisages a tripartite proceeding, in which all interests are represented. That is when the judgment debtor has the opportunity to convince the Court to discharge the order nisi by filing affidavits to that effect. After that hearing on notice, the Court may discharge the order nisi or make it an order absolute.

Thus, the judgment enforcement rules envisage two proceedings, one ex parte and the other one on notice. I agree with the learned Respondent’s Counsel and my learned brother that there can be no appeal against the order nisi made ex parte. See Section 14(1) of the Court of Appeal Act, Cap. C36, Laws of the Federation, 2004. On the other hand, the garnishee order absolute being proceedings in which all parties have been heard and the interest of the judgment debtor in the money in custody of the Garnishee determined is one in which an appeal can lie to this Court.”

In a more recent decision of this Court on the issue, in the case of C.B.N. v. Auto Import Export (2013) 2 NWLR (Pt. 1337) 80 AT 127 PARAS F-G per SAULAWA, JCA this was what this Court had to say on the issue;

“…both the Garnishor and the garnishee as well as the judgment debtor constitute the parties to the proceedings.”

See also the case of Sokoto State Govt. v. Kamdex (Nig.) Ltd (2004) 9 NWLR (Pt. 878) 345 AT 380, where this Court per CHUKWUMA-ENEH, JCA (as he then was) had this to say;

“The proceeding envisages three parties to it namely, the judgment creditor (garnishor), the judgment debtor and the garnishee in the instant case – the Standard Trust Bank Ltd. – 3rd Appellant.”

What seem most of the time to be lacking in the determination of who the proper parties are in Garnishee proceedings, is the failure to distinguish between the proceedings leading to the grant of the Garnishee nisi and the proceedings leading to the grant of the Garnishee absolute. The position remains that in the Garnishee order nisi proceedings, due to the nature of the application brought, which is by ex parte it can safely be said that the proceedings involving only the judgment creditor and the garnishee, is at that stage a different thing altogether, as it is at that stage the Judgment Debtor could rightly be said to be a nominal party as he is not expected to play any roles then. But where the proceeding goes beyond the level of the order nisi and when the proceedings leading to the grant of the Garnishee order absolute commences, three (3) parties are envisaged at this point. These are;

a. The judgment creditor,

b. The judgment debtor; and

c. The Garnishee.

It is important to note that at the stage of the Garnishee order absolute proceedings, the law envisages a more active participation of the Judgment Debtor due to a number reasons; First, by the wordings of Section 83(1) of the Sheriffs and Civil Process Act, the Judgment Debtor is expected before or after the rendering of the order nisi, to be examined orally or otherwise before the making of the order absolute. This position is further reinforced by the provisions of Section 83(2), which mandates the service of the order nisi on the Judgment Debtor at least fourteen (14) days before the hearing of the Garnishee proceedings leading to the grant of an order absolute. It is important to note that the fact that Section 83(2) makes it mandatory to serve the order nisi on the Judgment Debtor clearly pre-supposes that the Judgment Debtor is not a nominal, but a necessary party to Garnishee proceedings at the stage of the proceedings leading to the grant of a decree absolute.

After the service of the order nisi on the Judgment Debtor, he may at that stage be expected to convince the Court by the filing into Court of an application to have the order nisi discharged where there are cogent reasons for doing so. But where the Court refuses to discharge the order nisi and goes ahead to make the order nisi absolute, the Judgment Debtor, being a necessary party and not a nominal party, can appeal as of right since the order absolute is regarded as a final decision of the Court. See the case of UBN Plc v. Boney Marcus Ind. Ltd & Ors (2005) LPELR-3394 (SC) where the Supreme Court per AKINTAN, JSC had this to say;

“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 some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, 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 thereafter 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 arguments are presented to him.”

By virtue of the decisions of Court cited here above and by virtue of the provisions of Sections 83(1) of the Sheriffs and Civil Process Act, on the one hand and, which requires that the Judgment Debtor has to be examined orally or otherwise before the making of the order absolute; and Section 83(2) on the other hand, which mandates the service of the order nisi on the Judgment Debtor at least fourteen (14) days before the hearing wherein the order nisi will be made absolute; this Court hereby finds and do hold that;

1. The judgment Debtor becomes a necessary party after the grant of the Garnishee order nisi and rather than being referred to as a nominal party as he is expected henceforth, and upon the grant of the decree nisi to play the role of a necessary party in the rest of the proceedings either leading to the setting aside of the decree nisi or the grant of the decree absolute.

2. That the grant of the Garnishee Order absolute by the Court ultimately, signifies the final decision of the Court in respect of the Garnishee proceedings by virtue of the decision of the Supreme Court in the case of UBN Plc v. Boney Marcus (Supra). Per OHO, JCA. read in context

3. Garnishee Proceedings – The doctrine of functus officio
Effect of order absolute in garnishee proceedings

The question that should therefore be addressed at this stage is; whether the learned Court below, after having accomplished its functions in the Garnishee proceedings brought before it by the grant subsequently of the Garnishee order absolute, was in any position to review, reverse, rehear or revisit the issue of the Garnishee proceedings afresh, which was brought before it for adjudication by the Appellant/Judgment Creditor following the application of the 1st Respondent to that effect who was Judgment Debtor at the Court below?
The settled position of the law is that a Court is said to be functus officio in respect of a matter if the Court has accomplished its functions in respect of that matter and it lacks the jurisdiction to review, reopen, reverse or revisit the matter. See First Bank of Nigeria Plc v. TSA Industries Limited (2010) LPELR- 1283 (SC). In an earlier judgment of the Supreme Court, in the case of John Andy Sons & Co. Ltd v. National Cereal Research Institute (1997) LPELR-1691 (SC) on the issue, the Court per WALI, JSC had this to say on the subject;

“Once an issue or issues have been raised and determined by the between the litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the same issues before it for re-litigation. See Nnajiofor v. Ukonu (1985) 2 NWLR (Pt. 9) 686 AT 688.”

Also in the case of Sanusi v. Ayoola (1992) LPELR-3009 (SC), the Supreme Court per KARIBI-WHYTE, JSC had this to say;

“There is the well settled elementary and fundamental principle of law that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case; see Ekerele v. Eke (1925) 6 NLR 118; Akinyede v. The Appraiser (1971) 1 ALL NLR, 162; it cannot assume the status of an Appellate Court over its own decision, except there is statutory power to do so- See FRITZ v. HOBSON (1880) 14 Ch. D. 542.”

However, nothing prevents the trial Court where a judgment is in need of clarification or correction in respect of clerical slips or omissions from going ahead to effect necessary clarifications or corrections as the case may be as there is power under the law for the same Court that delivered the judgment to correct clerical slips or accidental omissions. See the cases of Asiyanbi & Ors v. Adeniyi (1967) 1 ALL NLR 82; Anyasinti Umunna & 5 Ors v. Animuda Okwuraiwe & 3 Ors (1978) 6-7 SC 1 and Berliet v. Kachalla (1995) 9 NWLR (Pt. 420) 478 AT 493-494, where the Supreme Court held that even where the judge of the High Court who delivered the judgment for any reason is not available, any other judge in exercise of the general powers under Section 6 (6)(a) and 236 (1) of the 1979 Constitution, should be in as good a position as the judge who delivered the judgment to correct any palpable slips or errors in the judgment. In Umunna & 5 Ors v. Okwuraiwe & 3 Ors (supra), the Supreme Court went ahead and affirmed the power of the trial High Court to amend or correct its judgment when its attention was drawn to the error while the judgment was being delivered. See also the case of Federal Public Trustee v. Mrs. C. A. Sobamowo (1967) NMLR 350 where the exercise of the power to correct accidental slips or omissions in the judgment and orders of Court was allowed.

Where however, there had been an error or omission by a Court on matters, which are not accidental slips or clerical mistakes but of law, the Court would not have the jurisdiction to correct such errors or omissions even though apparent on the face of the judgment or order. See the case of Race Auto Supply Co. Ltd v. Akib (supra). See also the cases of Bright v. Seller (1 04) I. K.B. 6 and Re: Gist (1904) 1 CH. 408 cited with approval in Umunna & 5 Ors v. Okwuraiwe & 3 Ors (Supra). In other words, the extent and scope of the exercise of power of Court to correct clerical errors, accidental slips or omissions should not be used as an excuse to review, reverse or rehear the case afresh. It is important to note that the nature of the application of the 1st Respondent in the instant Appeal filed at the Court below and by which the 1st Respondent has sought to have the Court hear arguments with regards to questions involving the consent of the Attorney General on the one hand and on the other hand, questions by which the 1st Respondent has sought to be joined as a party to the Garnishee proceedings, would no doubt entail the rehearing, the revisiting or the reviewing of issues which have previously been settled one way or the other by the Court below and the Court below has no powers to do so, whether inherent or statutory. See Ministry Of Lagos Affairs, Mines And Powers v. Akin-Olugbade (1974) 9 NSCC 489. See also the case of Alao v. A.C.B. (2000) 9 NWLR (Pt. 672) 264 where the Supreme Court per, KARIBI-WHYTE, JSC had this to say on the subject;

“The following three principles appear to be enshrined in the provision of this Rule. First, the Court shall not review any judgment once delivered. See Adefulu v. Okulaja (1998) 5 NWLR (Pt. 550) 435. The exception to this prohibition where it is intended to correct any clerical mistakes or some error arising from accidental slip or omission, or to vary the judgment or order so as to give effect its meaning or intention. This is known as the “slip rule.” Secondly, there is a total prohibition from review of a judgment which correctly represents what the Court decided. Such a judgment shall not be varied. Thirdly, the operative and substantive judgment shall not be varied and a different form substituted.”

This Court, in all seriousness wonders exactly what the 1st Respondent’s application before the Court below is all about. Here at the ninety-ninth hour, the 1st Respondent now seeks to be joined as a party to the Garnishee proceedings, which has since been concluded on its merits and under which the Court below had become functus officio. Per OHO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA.


This Appeal is against the Ruling of the High Court of Zamfara State sitting at Gusau and delivered on the 28-1-2013. The Court’s Ruling had followed an objection raised by the Appellant/Judgment-Creditor against the 1st Respondent’s motion to be heard, on the ground that under the Garnishee proceedings the Judgment Debtor is a nominal party who ordinarily should not be heard and that the Court below had earlier on ruled on the issue. The Court below, in delivering its Ruling on the objection, ruled thus;

“My attitude to application brought by Counsel is to hear such application and there for rule. This objection raised by Judgment Creditor Counsel in the hearing of this application will be dealt with as a preliminary objection to the application to be dealt with in a consolidated Ruling after hearing the Judgment debtor application, judgment debtor granted permission to move the application.”

The Appellant as Judgment Creditor being dissatisfied with this Ruling, has appealed to this Court vide his Notice of Appeal filed on the 29-1-2013. There are four (4) Grounds of Appeal which are reproduced here without their particulars as follows;

GROUNDS OF APPEAL

1. The learned trial Judge erred in law when he allowed the judgment debtor Respondent’s motion for joinder in the pending Garnishee proceedings to be set aside for hearing.

2. The learned trial judge erred in law which amounted to abuse of Court process when he held that the 1st Respondent/judgment Debtor’s Application for joinder and prayer to set aside the Garnishee Order Absolute should be heard when he has made a valid and subsisting ruling on the 8-1-2013 on the same subject matter, which has not been overturned nor Appealed, that the 1st Respondent/judgment debtor is a nominal party.

3. The Court erred in law by setting the 1st Respondent/Judgment Debtor’s motion for hearing as the Application amounts to rehearing of issues determined by the Court on the 8-1-2013.

4. The ruling of the Court is against the weight of evidence.

ISSUES FOR DETERMINATION

The Appellant nominated a total of three (3) issues for the Court’s determination thus;

1. Whether the judgment debtor who participated in the garnishee proceeding can be allowed to set aside the order absolute on the ground that the judgment debtor’s Attorney General consent is required when the Court had earlier ruled on same.

2. Whether the Court can consolidate two motions to be heard at the same time when one is seeking to be joined as a party to the garnishee proceeding and the other is seeking to terminate the Garnishee proceeding.

3. Whether the rehearing of judgment debtor on the same subject matter will not amount to abuse of Court process after the Order absolute has been granted.

On the part of the Respondent, the entire three (3) issues nominated by the Appellant were adopted and it is in respect of these issues that learned Counsel addressed Court extensively and cited a plethora of decided cases for the Court’s consideration in the resolution of the issues nominated. The Appellant’s Brief of argument dated the 20-5-2013 was settled by PRINCESS CHI O. IGWE, and filed on the 21-5-2013 while the 1st Respondent’s Brief of argument dated the 3-11-2016 and filed on the 4-11-2016, but deemed properly filed and served on the 13-3-2017 was settled by SIRAJO ABDULLAHI, ESQ.,. At the hearing of the Appeal on the 3-4-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF LEARNED COUNSEL

APPELLANT

ISSUE ONE

Whether the judgment debtor who participated in Garnishee proceeding can be allowed to set aside order absolute on the ground that the judgment debtor’s Attorney General consent is required when the Court had earlier ruled on same.

The contention of learned Counsel on this issue is that an application for garnishee proceedings is usually made to the Court by the judgment Creditor and that the orders of Court also come in two steps. According to Counsel, the first is a Garnishee Order Nisi, which is 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 why the payment ordered should not be made. Counsel argued that if no sufficient reason is proffered, the Garnishee order is then made absolute and that ends the matter. He cited in support, the following cases of U.B.N. PLC v. Boney Marcus Ind. Ltd (2005) ALL FWLR (Pt. 104) 1; Choice Investment Ltd v. Jerominon (Midland Bank Ltd, Garnishee) (1981)/ALL ER 225.

Learned Counsel also contended that in the instant Appeal, the Judgment Debtor/Respondent participated in the Garnishee proceeding, i.e. in the two steps stated above before the Court pronounced the order absolute and in the process not only ruled that the Judgment Debtor is a nominal party to the proceeding but also that the consent of the Attorney General is not required for money held by the Bank on behalf of the State. It was therefore submitted by Counsel that the trial Court should not have entertained a situation where the Judgment Debtor is subsequently allowed to bring applications to be joined as a party to the Garnishee proceeding after it has pronounced the order absolute. Counsel further argued that even in a situation in which the Court has not pronounced an order absolute, the Judgment Debtor remains a nominal party to the Garnishee proceeding. He referred Court to Section 83 Sheriffs & Civil Process Act.

Counsel in this regard, referred Court to the case of Lawani v. Yakubu Dawodu (1972) 8-9 SC 83 and argued that a trial Court cannot over rule itself in the same course of proceeding. Counsel submitted that the judge after making an order or giving a judgment becomes functus officio and has no powers to review such order or judgment except in cases of correcting mistakes or accidental Slips. He cited the case of Nicon v. Pie Co. Ltd (1990) 7 NWLR (Pt. 129); Asiyanbi v. Adeniyi (1961) 1 ALL NLR 82.

By so doing, Counsel contended that the trial Court allowed the judgment debtor to participate in the Garnishee proceedings, who thereafter raised the issue of Attorney-General’s consent on the money held under the control of the Garnishee (the Bank). He said that the trial Court in its earlier Ruling has said that the consent of the Attorney General is not required because the money garnisheed is under the control of the Garnishee and not the Judgment Debtor and that the Judgment Debtor is a nominal party. See page 69-74 of the Record of Appeal.

Counsel also argued that by Section 83 of the Sheriffs & Civil Process Act, Cap S.6 LFN 2004, the Judgment Debtor is a nominal party and cannot actively participate in the Garnishee proceedings, as the only parties are the Judgment Creditor and the Garnishee. Counsel urged this Court to so hold.

ISSUE TWO

Whether the Court can consolidate two motions to be heard at the same time when one is seeking to be joined as a party to the garnishee proceeding and the other is seeking to terminate the Garnishee proceeding.

Learned Counsel contended that in law two applications cannot be consolidated and heard at the same time particularly when one is by a party seeking to be joined as a party to the Garnishee proceedings and the other motion is one seeking to terminate the Garnishee proceedings. Counsel argued that the Garnishee proceedings is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the Judgment Debtor, which forms part of his property in the hands of a third party for attachment. By this process, Counsel said that the Court is competent to order the third-party in whose hands the property of the Judgment Debtor resides to pay directly to the Judgment Creditor as much of it as may be sufficient to satisfy the judgment debt and the cost of the Garnishee proceeding. In this regard, Counsel cited the case of Citizen Int. Bank v. SCOA (NIG) LTD (2006) 18 NWLR (Pt. 1011).

It was the contention of Counsel that where there are two motions for hearing, there are orders of precedence for hearing of motions placed before a Court. What Counsel argued was that it was appropriate for the Court to have first determined whether the judgment debtor can be given leave to be joined as a party in the Garnishee proceeding before allowing the application to set aside the order absolute to be heard. He further argued that it is rather novel to seek to hear the two applications together on the part of the trial Court. Against this background, Counsel argued that where there are two motions pending before Court, one capable of terminating the proceedings and the other seeking to regularize the same process, it has always been the practice to give priority to the motion seeking to regularize the process. Counsel cited the cases of Edward Batisan & Ors v. Chief Titus Okunniga (2005) ALL FWLR 809 at 812; Mobil Producing (Nig) Unlimited v. Monokpo (2003) 18 NWLR (PT. 852) 356.

It was also argued that the proper order the trial Court ought to have made is one determining whether the Respondent can be joined in the Garnishee proceeding or not, instead of consolidating it with a motion seeking to set aside the order absolute. Counsel submitted that it is not appropriate to consolidate the two motions to be heard together and urged this Court to so hold, and to resolve same in favour of the Appellant.

ISSUE THREE

Whether the rehearing of judgment debtor on the same subject matter will not amount to abuse of ourt process after the Order absolute has been granted.

This Court is informed that the trial Court in its Ruling of the 8-1-2013 held that the Judgment Debtor/Respondent is a nominal party and cannot be heard; that in a Garnishee proceedings the Debtor clearly has no roles to play; that the only legal option open to the Debtor in such circumstance when served with the Order Nisi was to Appeal the Judgment and apply for a stay, but certainly not to appear and file processes in the Garnishee proceedings.

Learned Counsel further told this Court that the Judgment Debtor’s grounds of objection was that the Accountant-General of the State was not made a party to the proceedings and that the consent of the Attorney-General of Zamfara State was not obtained before the proceedings was instituted. Against this backdrop, Counsel argued that the records of proceedings particularly the ruling of the Court of the 8-1-2013 at pages 70-73 dealt extensively with the objection of the Judgment Debtor and the ruling by the Court on the objection. It was therefore submitted that the subsequent motions are an abuse of Court process for the Judgment Debtor/Respondent who was a Party to the Garnishee Proceeding and who was heard on the merit before the Court’s ruling to bring another application seeking to reverse the ruling of the Court before the same trial Court.

Counsel also submitted that if the trial Court is allowed to hear the two applications before it, it would amount to sitting on appeal over its own Judgment since it already held that the Judgment Debtor cannot be heard and went ahead and ruled on the objection. It was also contended by Counsel that in a Garnishee proceeding, during the period between when the order nisi and the order absolute is made, the matter would still be pending before the Court. In other words, the proceeding would still be at the interlocutory stage, but that when once the order absolute is made, there would be nothing left before the Court in the matter. According to Counsel, the Court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned; that the Court would thereafter become functus officio and there would then be nothing left to be determined by the Court. Counsel cited the case of U.B.N. v. Boney Marcus Ind. Ltd (2005) ALL FWLR 1041. Counsel urged this Court to rule in favour of the Appellant.

1st RESPONDENT

ISSUE ONE

Whether the Judgment Debtor who participated in Garnishee proceedings can be allowed to set aside order absolute on the ground that the Judgment Debtor’s Attorney General Consent is required when the Court had earlier ruled on same.

It was submitted on behalf of the 1st Respondent by learned Counsel that there was nothing wrong with the 1st Respondent/Judgment Debtor to have applied before the lower Court, to have the order absolute made by the Court below set aside upon the failure of the Appellant to have first sought and obtained the consent of the Attorney-General in line with the provisions of Section 84(1) of the Sheriffs and Civil Process Act. Counsel also argued that the law is that a Court has no authority or legal competence to reverse itself or correct itself or set aside its previous Judgment or order. But that where, however, the Judgment or order is affected and inflicted with a fundamental vice, the party affected is entitled ex debitor justiciae to have it set aside; that the Court indeed has an inherent jurisdiction to do so as it was held in the case of Elebute v. Faleke (1995) 2 NWLR (Pt. 375) 88.

It was also submitted on behalf of the 1st Respondent that the trial lower Court was not wrong to have heard and determined the 1st Respondent’s Application dealing with the need to obtain the consent of the Attorney General of Zamfara State. This, according to Counsel is because the consent of the Attorney General is mandatory; besides, he said that the account sought to be garnisheed by the trial Court is the FAAC of the 1st Respondent. By the provision of Section 84(1) of the Sheriff’s and Civil Process Act, Counsel also argued that the consent of the Attorney General is sine qua non to the hearing of Garnishee proceedings. He urged this Court to so hold. Counsel referred Court to the following cases; Government Of Akwa-Ibom v. Power Com (2005) ALL FWLR (Pt. 246) 1356; Purification Technique v. A.G. Lagos State (2005) 3; Onyeju v. M.C.I.K.S. (2003) 10 NWLR (Pt. 227); Sky Bank v. Unity Bank (Unreported) Court of Appeal Sokoto CA/S/59/2015 delivered on 12/05/2016 and Jaiz Bank v. Unity Bank (Unreported) Court of Appeal Sokoto, CA/S/58/2015 delivered on 01/07/2016.

On the strength of these, Counsel urged this Court to resolve this issue in favour of the 1st Respondent and against the Appellant.

ISSUES TWO and THREE

Whether the Court can consolidate two motions to be heard at the same time when one is seeking to be joined as a party to the garnishee proceeding and the other is seeking to terminate the Garnishee proceeding.

Whether the rehearing of judgment debtor on the same subject matter will not amount to abuse of Court process after the Order absolute has been granted.

Under these issues, Counsel contended that the procedure for the enforcement of judgment by Garnishee is statutory and are well laid out in Sections 83, 84, 87 and 88 of the Sheriffs and Civil Process Act Cap., S6 Laws of the Federation of Nigeria. It was submitted by Counsel that the application of the clear words contained in the above Sections of the Act, will bring out the spirit and intendment of the law makers who intentionally couched the said provisions in such clear terms or languages to bring out the justice of each case to all parties concerned namely; the Judgment Debtor, the Judgment Creditor and the Garnishee. To make assurance doubly sure on the provisions of the law, Counsel reproduced Section 84 (1) thus;

“Where money liable to be attached by garnishee proceedings is in the custody under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer…” (Underline, that of Counsel.)

According to Counsel, it is a fundamental principle of law that all parties who will be affected one way or the other in litigation must be made parties as they are entitled to be heard and must be heard before a judgment of Court is handed down. Counsel said that if it were not to be so, it would have been against all known principles of fair hearing for a party to be condemned in a judgment in which he is not given an opportunity to lead evidence either in support or in defense of his right: Counsel cited the case of Onabanjo v. Ewetuga (1993) 4 NWLR (Pt. 288) 445.

Against the backdrop of this position, it was also submitted by Counsel that the trial Court was right to have heard and determined the 1st Respondent’s Application by “consolidating” the two Applications together on the ground that rights/reliefs sought by the Appellant against the 1st Respondent arose out of the same transaction and that same can conveniently be disposed of in the same proceedings. It was further submitted that the issue of consolidation of causes is totally at the discretion of a judge; that consolidation of suits is usually granted if a Court is satisfied that the issues in the suits sought to be consolidated can be resolved in one joint proceeding rather than in separate proceedings; that the Supreme Court has made it clear as to the conditions for the grant or refusal on an application for consolidation, before the Court could exercise its discretion on the matter which includes:

a) The case/suits to be consolidated must be pending in the same Court.
b) There is/are some common question(s) of law or fact bearing sufficient importance in proportion to the rest of the subject matter(s) of the actions to render it desirable that all the suits/cases sought to be consolidated be disposed of at the same time.
c) The same common question(s) of law or fact in each of the actions could conveniently be disposed of in the same proceeding.
d) The right to relief claimed in each action arises out of the same transaction or series of transaction, and/or
e) For any other reasons it is desirable to order consolidation.

On account of these, Counsel cited the cases of: Ngere v. Okuruket ‘XIV’ (2015) EJSC VOL. 23, 85 @ 88; Okwjagbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) 54. He further argued that by the ruling of the lower Court, the aforementioned conditions could be said to have been satisfied and he urged this Court to so hold.

Learned Counsel also contended that the obligation of the judge is to reach a decision which coheres best with the total body of authoritative legal standard he is bound to apply and that the paradigm of a rational decision is one which is reached according to the rules, principles and standards. He further contended that the law of evidence imposes upon the judge the duty to reject irrelevant matters and stick with the consideration of relevant matters. Counsel cited the case of Iloabachie v. Iloabachie (2000) NWLR (Pt. 656) 178 AT 223.

It was also argued by Counsel that adherence to the Rules of Court is sine qua non to a competent adjudication by parties since Rules of Court have been held to be sacrosanct. Counsel cited the Supreme Court in: F.B.N. Plc v. Tsa Ind. Ltd (2010) 38 WRN 1 at 51-52 lines 45-50 per ADEKEYE, JSC where the noble Lord had this to say:

“Rules of Court are to regulate matters in Court and help parties in the presentation of their case with a procedure made for the purpose of a fair and quick dispensation of justice in the trial. Strict compliance with the rules makes for quicker administration of justice. They are made to attain justice with ease and certainty and as such, they are made with that fundamental principles … rules of Court must be complied with, observed and obeyed; non-compliance often attracts the sanction of incompetency and ultimately striking out or dismissal as the case may be.” (Underline, that of Counsel for emphasis)

In view of the foregoing, and by the nature of the facts in dispute, it was submitted by Counsel that there is nothing wrong in joining the 1st Respondent in the Garnishee proceedings and consolidating the two Applications the way the trial Judge did as same amounted to the compliance with the rules of fair hearing and not an abuse of processes as contended by the Appellant. Counsel urged this Court to so hold and to resolve these issues two (2) and three (3) in favour of the 1st Respondent and against the Appellant and dismiss the Appeal.

RESOLUTION OF APPEAL

The events giving rise to this Appeal arose from a contract awarded by the Government of Zamfara State of Nigeria who is the Judgment Debtor, herein on the 26-6-2008 for the supplies of 12,500 metric tons of fertilizers for the 2008 cropping season. The failure of the Judgment Debtor to pay the contract sum resulted into disputes between the parties, which was subsequently referred to Arbitration; and on the 20-12-2011, both consent and trial Awards were published. The Award was later recognized by the Zamfara State High Court of Justice on the 8-10-2012 and no Appeal has been lodged against the Award/Judgment till date.

In order, therefore to enforce the Judgment, the Appellant filed an ex parte application in order to bring a Garnishee proceeding against the Judgment Debtor’s Account with the First Bank of Nigeria Plc and the Court granted the order nisi on the 29-11-2012, which was served on all the parties, i.e., the Appellant as Judgment Creditor, the Judgment Debtor and the Garnishee. Notwithstanding the fact that the Judgment Debtor participated in the Garnishee proceedings and moved its application to set aside the Garnishee Order nisi, the learned trial Court ruled on the 8-1-2013 that the Judgment Debtor is a nominal party to the Garnishee proceedings and that the Attorney’s-General consent is not required for money in the possession of the Bank and the Court proceeded from there to grant the order absolute.

It was after the grant of the order absolute that the Judgment Debtor filed two motions; the one seeking to have the Judgment Debtor formally joined as a party to the Garnishee proceedings (which has been concluded by the Judgment of the 8-1-2013) and the other, asking for an order to set aside the order absolute on the ground that there was an absence of the consent of the Attorney-General Zamfara State prior to the commencement of the Garnishee proceedings. When the motions came up to be heard, the Appellant raised a preliminary objection towards the hearing of the two motions on the ground that the Court had by that date become functus officio after the grant of the Garnishee order absolute and that the Judgment Debtor is a nominal party in the Garnishee proceeding as earlier held by the trial Court. While delivering a Bench Ruling on account of the preliminary objection raised, the Court held that the Respondent’s two motions (the one for joinder and the other seeking to set aside the order absolute) should be “consolidated” and heard together, hence the need for this Appeal by the Appellant/Judgment Creditor.

The first huddle that needs to be scaled here is the question of whether, it can be said in the real sense of the word that the Judgment Debtor is indeed a nominal party in a Garnishee proceedings as claimed by learned Appellant’s Counsel, and that if at all, at what stage can a Judgment Debtor be referred to as a nominal party? This Court in the case of Fidelity Bank Plc v. Okwuowulu (2012) LPELR-8497 (CA) per OGUNWUMIJU, JCA had this to say on the issue;

“A garnishee proceeding can be described in two stages; the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in Court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed to the judgment debtor. This is usually done ex parte and limited to the judgment creditor and the Court.

The second stage is where on the return date, the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the Court may subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor, judgment creditor and the garnishee. This is because on the return date, all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other.”

This Court also in an earlier case in N.A.O.C. v. Ogini (2011) 2 NWLR (Pt. 1230) 131 AT 152-153, per OGUNWUMIJU, JCA had this to say on the subject;

“If the judgment creditor knows that the judgment debtor has an amount of money with any Bank or institution, he will as Garnishor file for an ex parte application to be supported by an affidavit in Form 23 of the Judgment Enforcement Rules (JER) for an order that the Garnishee (in this case U.B.A. Plc.) shall show cause why he should not pay the amount due to the judgment debtor to him. These proceedings are strictly ex parte between the Garnishor (judgment creditor) and the Garnishee (the Bank or institution). Where the Court grants the order nisi on the garnishee, the Registrar through the Sheriff of the Court must serve on the garnishee, the judgment creditor and the judgment debtor the Order nisi on Form 26 of JER. The Registrar must then fix a date not less than 14 days after the service of the order nisi on the judgment creditor, the judgment debtor and the garnishee for hearing. This subsequent hearing envisages a tripartite proceeding, in which all interests are represented. That is when the judgment debtor has the opportunity to convince the Court to discharge the order nisi by filing affidavits to that effect. After that hearing on notice, the Court may discharge the order nisi or make it an order absolute. Thus, the judgment enforcement rules envisage two proceedings, one ex parte and the other one on notice. I agree with the learned Respondent’s Counsel and my learned brother that there can be no appeal against the order nisi made ex parte. See Section 14(1) of the Court of Appeal Act, Cap. C36, Laws of the Federation, 2004. On the other hand, the garnishee order absolute being proceedings in which all parties have been heard and the interest of the judgment debtor in the money in custody of the Garnishee determined is one in which an appeal can lie to this Court.”

In a more recent decision of this Court on the issue, in the case of C.B.N. v. Auto Import Export (2013) 2 NWLR (Pt. 1337) 80 AT 127 PARAS F-G per SAULAWA, JCA this was what this Court had to say on the issue;

“…both the Garnishor and the garnishee as well as the judgment debtor constitute the parties to the proceedings.”

See also the case of Sokoto State Govt. v. Kamdex (Nig.) Ltd (2004) 9 NWLR (Pt. 878) 345 AT 380, where this Court per CHUKWUMA-ENEH, JCA (as he then was) had this to say;

“The proceeding envisages three parties to it namely, the judgment creditor (garnishor), the judgment debtor and the garnishee in the instant case – the Standard Trust Bank Ltd. – 3rd Appellant.”

What seem most of the time to be lacking in the determination of who the proper parties are in Garnishee proceedings, is the failure to distinguish between the proceedings leading to the grant of the Garnishee nisi and the proceedings leading to the grant of the Garnishee absolute. The position remains that in the Garnishee order nisi proceedings, due to the nature of the application brought, which is by ex parte it can safely be said that the proceedings involving only the judgment creditor and the garnishee, is at that stage a different thing altogether, as it is at that stage the Judgment Debtor could rightly be said to be a nominal party as he is not expected to play any roles then. But where the proceeding goes beyond the level of the order nisi and when the proceedings leading to the grant of the Garnishee order absolute commences, three (3) parties are envisaged at this point. These are;

a. The judgment creditor,

b. The judgment debtor; and

c. The Garnishee.

It is important to note that at the stage of the Garnishee order absolute proceedings, the law envisages a more active participation of the Judgment Debtor due to a number reasons; First, by the wordings of Section 83(1) of the Sheriffs and Civil Process Act, the Judgment Debtor is expected before or after the rendering of the order nisi, to be examined orally or otherwise before the making of the order absolute. This position is further reinforced by the provisions of Section 83(2), which mandates the service of the order nisi on the Judgment Debtor at least fourteen (14) days before the hearing of the Garnishee proceedings leading to the grant of an order absolute. It is important to note that the fact that Section 83(2) makes it mandatory to serve the order nisi on the Judgment Debtor clearly pre-supposes that the Judgment Debtor is not a nominal, but a necessary party to Garnishee proceedings at the stage of the proceedings leading to the grant of a decree absolute.

After the service of the order nisi on the Judgment Debtor, he may at that stage be expected to convince the Court by the filing into Court of an application to have the order nisi discharged where there are cogent reasons for doing so. But where the Court refuses to discharge the order nisi and goes ahead to make the order nisi absolute, the Judgment Debtor, being a necessary party and not a nominal party, can appeal as of right since the order absolute is regarded as a final decision of the Court. See the case of UBN Plc v. Boney Marcus Ind. Ltd & Ors (2005) LPELR-3394 (SC) where the Supreme Court per AKINTAN, JSC had this to say;

“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 some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, 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 thereafter 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 arguments are presented to him.”

By virtue of the decisions of Court cited here above and by virtue of the provisions of Sections 83(1) of the Sheriffs and Civil Process Act, on the one hand and, which requires that the Judgment Debtor has to be examined orally or otherwise before the making of the order absolute; and Section 83(2) on the other hand, which mandates the service of the order nisi on the Judgment Debtor at least fourteen (14) days before the hearing wherein the order nisi will be made absolute; this Court hereby finds and do hold that;

1. The judgment Debtor becomes a necessary party after the grant of the Garnishee order nisi and rather than being referred to as a nominal party as he is expected henceforth, and upon the grant of the decree nisi to play the role of a necessary party in the rest of the proceedings either leading to the setting aside of the decree nisi or the grant of the decree absolute.

2. That the grant of the Garnishee Order absolute by the Court ultimately, signifies the final decision of the Court in respect of the Garnishee proceedings by virtue of the decision of the Supreme Court in the case of UBN Plc v. Boney Marcus (Supra).

The question that should therefore be addressed at this stage is; whether the learned Court below, after having accomplished its functions in the Garnishee proceedings brought before it by the grant subsequently of the Garnishee order absolute, was in any position to review, reverse, rehear or revisit the issue of the Garnishee proceedings afresh, which was brought before it for adjudication by the Appellant/Judgment Creditor following the application of the 1st Respondent to that effect who was Judgment Debtor at the Court below?

The settled position of the law is that a Court is said to be functus officio in respect of a matter if the Court has accomplished its functions in respect of that matter and it lacks the jurisdiction to review, reopen, reverse or revisit the matter. See First Bank Of Nigeria Plc v. Tsa Industries Limited (2010) LPELR- 1283 (SC). In an earlier judgment of the Supreme Court, in the case of John Andy Sons & Co. Ltd v. National Cereal Research Institute (1997) LPELR-1691 (SC) on the issue, the Court per WALI, JSC had this to say on the subject;

“Once an issue or issues have been raised and determined by the between the litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the same issues before it for re-litigation. See Nnajiofor v. Ukonu (1985) 2 NWLR (Pt. 9) 686 AT 688.”

Also in the case of Sanusi v. Ayoola (1992) LPELR-3009 (SC), the Supreme Court per KARIBI-WHYTE, JSC had this to say;

“There is the well settled elementary and fundamental principle of law that a Court on disposing of a cause before it renders itself functus officio. It ceases to have jurisdiction in respect of such case; see Ekerele v. Eke (1925) 6 NLR 118; Akinyede v. The Appraiser (1971) 1 ALL NLR, 162; it cannot assume the status of an Appellate Court over its own decision, except there is statutory power to do so- See Fritz v. Hobson (1880) 14 Ch. D. 542.”

However, nothing prevents the trial Court where a judgment is in need of clarification or correction in respect of clerical slips or omissions from going ahead to effect necessary clarifications or corrections as the case may be as there is power under the law for the same Court that delivered the judgment to correct clerical slips or accidental omissions. See the cases of Asiyanbi & Ors v. Adeniyi (1967) 1 ALL NLR 82; Anyasinti Umunna & 5 Ors v. Animuda Okwuraiwe & 3 ORS (1978) 6-7 SC 1 and Berliet v. Kachalla (1995) 9 NWLR (Pt. 420) 478 AT 493-494, where the Supreme Court held that even where the judge of the High Court who delivered the judgment for any reason is not available, any other judge in exercise of the general powers under Section 6 (6)(a) and 236 (1) of the 1979 Constitution, should be in as good a position as the judge who delivered the judgment to correct any palpable slips or errors in the judgment. In Umunna & 5 Ors v. Okwuraiwe & 3 Ors (supra), the Supreme Court went ahead and affirmed the power of the trial High Court to amend or correct its judgment when its attention was drawn to the error while the judgment was being delivered. See also the case of Federal Public Trustee v. Mrs. C. A. Sobamowo (1967) NMLR 350 where the exercise of the power to correct accidental slips or omissions in the judgment and orders of Court was allowed.

Where however, there had been an error or omission by a Court on matters, which are not accidental slips or clerical mistakes but of law, the Court would not have the jurisdiction to correct such errors or omissions even though apparent on the face of the judgment or order. See the case of Race Auto Supply Co. Ltd v. Akib (supra). See also the cases of Bright v. Seller (1904) I. K.B. 6 and Re: Gist (1904) 1 CH. 408 cited with approval in Umunna & 5 Ors v. Okwuraiwe & 3 ORS (Supra). In other words, the extent and scope of the exercise of power of Court to correct clerical errors, accidental slips or omissions should not be used as an excuse to review, reverse or rehear the case afresh. It is important to note that the nature of the application of the 1st Respondent in the instant Appeal filed at the Court below and by which the 1st Respondent has sought to have the Court hear arguments with regards to questions involving the consent of the Attorney General on the one hand and on the other hand, questions by which the 1st Respondent has sought to be joined as a party to the Garnishee proceedings, would no doubt entail the rehearing, the revisiting or the reviewing of issues which have previously been settled one way or the other by the Court below and the Court below has no powers to do so, whether inherent or statutory. See Ministry Of Lagos Affairs, Mines And Powers v. Akin-Olugbade (1974) 9 NSCC 489. See also the case of Alao v. A.C.B. (2000) 9 NWLR (Pt. 672) 264 where the Supreme Court per, KARIBI-WHYTE, JSC had this to say on the subject;

“The following three principles appear to be enshrined in the provision of this Rule. First, the Court shall not review any judgment once delivered. See Adefulu v. Okulaja (1998) 5 NWLR (Pt. 550) 435. The exception to this prohibition where it is intended to correct any clerical mistakes or some error arising from accidental slip or omission, or to vary the judgment or order so as to give effect its meaning or intention. This is known as the “slip rule”. Secondly, there is a total prohibition from review of a judgment which correctly represents what the Court decided. Such a judgment shall not be varied. Thirdly, the operative and substantive judgment shall not be varied and a different form substituted.”

This Court, in all seriousness wonders exactly what the 1st Respondent’s application before the Court below is all about. Here at the ninety-ninth hour, the 1st Respondent now seeks to be joined as a party to the Garnishee proceedings, which has since been concluded on its merits and under which the Court below had become functus officio. When the 1st Respondent was mandatorily served after the grant of the order nisi as Judgment Debtor, it had all the opportunity of making the objections it now considers important to make, thrust upon it on a platter of gold, courtesy of the provisions of Sections 83(1) and 83(2) of the Sheriffs and Civil Process Act. But unfortunately, these opportunities to say the least were frittered away for reasons best known to the 1st Respondent. Upon being served in accordance with Section 83(2) of the Sheriffs and Civil Process Act, the 1st Respondent became a necessary party and was expected to play the role of a necessary in the rest of the proceedings either leading to the setting aside of the order nisi or the grant of the order absolute. But this was not to be.

In the final analysis, this Appeal succeeds and the Ruling of the Court below i.e. the High Court of Zamfara State sitting at Gusau and delivered on the 28-1-2013 in suit number ZMS/GS/M16/2013 is hereby set aside. Parties to bear their respective costs.

MUKHTAR, JCA

I have had the privilege of previewing the lead judgment of my learned brother, Frederick O. Oho, JCA. I am in total agreement with the eloquent reasoning therein and the conclusion that the appeal is meritorious and deserves to be allowed. I adopt it as mine and hereby allow the appeal.

I subscribe to the orders made in the judgment inclusive of costs.

SHUAIBU, JCA

I had the opportunity of reading in draft the judgment just delivered by my learned brother, Frederick O. Oho, JCA. I am in complete agreement with his reasoning and conclusion. I wish to add that Garnishee proceedings commences with an exparte application for an order nisi and terminates with an order absolute after all the necessary parties were put on notice. Once an order absolute is granted, the Court becomes functus officio in respect of that matter and thus lacks jurisdiction to review, reopen or reverse its decision.