ECO BANK NIGERIA LTD V TEAK NATURALE INVESTMENT LTD & ORS

ECO BANK NIGERIA LTD V TEAK NATURALE INVESTMENT LTD & ORS


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

ON THURSDAY, 23RD MARCH, 2017


SUIT NO: CA/IB/185/2012

CITATION:

Before Their Lordships:

MONICA BOLNA’AN DONGBAN-MENSEM, JCA

MODUPE FASANMI, JCA

CHINWE EUGENIA IYIZOBA, JCA


BETWEEN
ECO BANK NIGERIA LTD
(APPELLANT)

AND

TEAK NATURALE INVESTMENT LTD
MRS. TAWA LASIS OYEKUNLE
MR. WALE ADEFUSI
DRURY INDUSTRY LTD
(RESPONDENT)


PRONOUNCEMENT


A. COURT
1. Jurisdiction – How an equitable jurisdiction can be exercised
When a Court is said to have jurisdiction

An equitable jurisdiction can be exercised only when a matter is placed before the Court in accordance with the law. (See Madukolu v. Nkemdilim (1962) 2 SCNLR Pg. 341). Per DONGBAN-MENSEM, JCA. read in context

B. JUDGMENT AND ORDER
2. Functus Officio – The definition of functus officio and its exceptions
The doctrine of functus officio and its exceptions

The term functus officio has been defined by the Apex Court in the case ofFBN PLC v. TSA INDUSTRIES LTD (2010) 15 NWLR pt. 1216 247 SC as follows:

“The phrase functus officio means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority…A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or re-visit the matter. Once a Court delivers its Judgment on a matter, it cannot re-visit or re-view the said Judgment except under certain conditions…” Per ADEKEYE JSC.

The most obvious condition is fraud, i.e when the Judgment is obtained by fraudulent representation to the Court.
In the case of Citec Int’l Estate Ltd & Ors v. Josiah Oluwole Francis & Ors LPELR 2231, my lord KEKERE-EKUN JSC states the exceptions as follows: “…The Supreme Court and any other superior Court of record, possesses inherent power to set aside its Judgment in appropriate cases. Such circumstances include:
a. When the Judgment is obtained by fraud or deceit.                                            b. When the Judgment is a nullity and a person affected by the order is entitled ex debito justitiae to have it set aside.
c. When the Court was misled into giving Judgment under the mistaken belief that the parties had consented to it.
d. Where Judgment was given in the absence of jurisdiction.
e. Where the procedure adopted was such as to deprive the decision or Judgment of the character of legitimate adjudication…”
Also in the case of Alao v. African Continental Bank Ltd (2009) 9 NWLR pt. 672, 264 it was stated per KARIBI WHYTE JSC that:

“The following three principles appear to be enshrined in the provision of this Rule. First, the Court shall not review any Judgment once delivered…. 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 to 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 part of a Judgment shall not be varied and a different form substituted.”

“Similarly, a Judgment which correctly represents the decision of the Court cannot be varied. The only aspect of a Judgment which can be interfered with subsequent to delivery is that which enables correction of clerical mistakes or some errors arising from accidental slips or omission, or to vary the Judgment or order to give effect to its intention.” Per DONGBAN-MENSEM, JCA. read in context

3. Final Judgment – The definition of a final decision
What constitutes a final judgment

The Black Law Dictionary (6th Edition) gives a definition of a final judgment a:

“One which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. So distinguished from interlocutory judgments. A judgment which disposes of the subject matter of the controversy or determines the litigations as to all parties on its merits. A judgment, which terminates all litigations on the same right…”

This definition of a final decision found judicial expression in the case of Sodeinde v. World Mission Agency Inc. (2010) 2 WRN p. 153 @ 165 which held that a final decision puts an end to the action between the parties and leaves nothing for further deliberations before the trial Court except for the enforcement of the decision arrived at. Per DONGBAN-MENSEM, JCA. read in context

C. PRACTICE AND PROCEDURE
4. Garnishee Proceedings – What garnishee proceedings is
Nature of garnishee proceedings

A garnishee order is often made in remedy of a right to money established against the judgment debtor. In the case of Citizens International Bank Ltd v. SCOA NIG. LTD & Anor (2006) 18 NWLR pt.1011 the Court explained the nature of Garnishee Proceedings as follows:

“…Garnishee Proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. By this process, the Court is competent to order the third party in whose hands the property of the judgment debtor is to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor or as much of it as may be sufficient to satisfy the judgment and the costs of the garnishee proceedings.” Per Salami, J.C.A. Per DONGBAN-MENSEM, JCA. read in context

5. Garnishee Proceedings – What an absolute garnishee order entails
Effect of order absolute in garnishee proceedings

The Apex Court in the case of Union Bank of Nigeria Plc v. Boney Marcus Ind. Ltd. & Ors (2005) 13 NWLR Pt. 943 p. 654 Unequivocally held that a Ganishee order absolute seals the proceedings before the trial Court and thereby renders the Court funtus officio on the said matter. It was Katsina-Alu JSC (AHTW) who rendered the order as follows:

“….The above was the final garnishee order. In other words, it was an order absolute. It was a final decision of the Court. A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication. Clearly, by the order of the Court above, the trial Court had determined the rights of the parties before it. I must state again that the Appellant promptly complied with the order of the Court. This Court, in Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) 574 re-stated the position of the law in this respect. The Court, per Kutigi, JSC held:

“An order or decision is final when it finally disposes of the rights of the parties, that is to say, the decision or order given by the Court is such that the matter would not be further brought back to the Court itself, as in this case.” See Akinsanya v. United Bank of Africa Ltd. v. Iron and Steel Workers Union (Supra); Omonuwa v. Oshodin & Anor. (supra). In my judgment, based on the authorities I have cited, the order of 17th February, 1998 was a final order.” Per Katsina-Alu, J.S.C. Per DONGBAN-MENSEM, JCA. read in context


LEAD JUDGMENT DELIVERED BY DONGBAN-MENSEM, JCA.


This appeal is against the decision of the High Court of Ogun State delivered by Hon. Justice O. S. Olusanya on the 2nd day of April, 2012.

Aggrieved by a garnishee order absolute made against the Appellant as the 8th garnishee in fulfillment of a Judgment debt, this appeal seeks a reversal of the said order by way of vacation of same.

The Appellant sought a reversal of the garnishee order on the grounds that the judgment debtor did not have enough fund in its possession to liquidate the judgment sum as ordered by the Court. The Court declined jurisdiction to entertain the application stating that it has become functus officio. The Appellant has submitted the following issues as arising for determination:

“1. Whether or not the trial Court was right in refusing to exercise its equitable jurisdiction in favour of the 8th garnishee Bank\Appellant to discharge/vacate its order of 16/05/2011 in its ruling of 2nd April 2012. From ground 1.

2. Whether or not the trial Court was right to have ruled on 2nd April 2012 that the Court was functus officio of the order made on the 16/05/2011.” From ground 2.

The 1st to 3rd Respondents raised similar issues to those of the Appellant as follows:

1. Whether the trial Court was not right in refusing to vacate/discharge the order of garnishee nisi which was made absolute by its ruling delivered on the 16th of May 2011?

2. Whether the honourable trial Court was not right to have declared itself functus officio of the order made on the 16th of May, 2011?

The 4th Respondent has also raised the following issues as arising for determination.

1. Having regard to the circumstances that gave rise to this appeal, is it right for the lower Court to hold that it has become functus officio at the time it did?

2. If the answer to issue 1 above is positive, has the Appellant complied with the conditions under which the lower Court could set aside its order allegedly made under misrepresentation of facts?

This appeal shall be determined on the two issues raised by the Appellant. The issues are however taken together.

The Appellant submits that the Court had not become functus officio of the proceedings because the said order was interlocutory and included a directive which was made in error. Cites amongst others EMMANUEL S. Daniang v. Teachers Service Commission (1996) NWLR pt. 446 p.97; Doherty v. Doherty (1984) 1 ALL WLR 279.

The respective Respondents on the other hand each maintain that the Order of 16/5/2011 was not interlocutory but permanently disposed of the matter, thereby robbing the Court of further jurisdiction. Cites Diamond Bank (2002) 28 WRN 100; U.B.A. Plc v. Ekanem (2010) 6 NWLR pt. 1190 270.

I find it necessary to reproduce part of the decision appealed against in its judgment. It is at pages 53-55 of the records for this appeal

“ ……. The facts of this case briefly is that the Respondents/Judgment Creditor obtained a Judgment in the sum of N31,287,194.00 (Thirty-One Million, Two Hundred and Eighty-Seven Thousand, One Hundred and Ninety-Four Naira), against the 1st Defendant – Drury Industries Ltd. However, the Respondents herein in their move to realize the fruits of the Judgment filed a Garnishee proceedings against twelve banks including the applicant herein who was the 8th Garnishee in the said application.

On the 29/4/2011, the 8th Garnishee – Oceanic Bank International Plc. filed its affidavit to show cause to which was annexed one Exhibit ‘OO’ which showed that the Judgment debtor had an effective available amount of N31,272,136.23 as at 19/4/2011 in its account. At the hearing of the Garnishee application, the 8th Ganishee maintained that the Judgment debtor had as much in its account with the 8th Garnishee and based upon this facts contained in Exhibit ‘OO’ this Honourable Court on 16/5/2011 discharged the other Garnishee Banks and made the earlier order, nisi granted absolute against the (8th Garnishee).

It is the order of the Court made absolute on the 16th of May, 2011 that the 8th Garnishee/Applicant is urging the Court to vacate on the ground that the order was made on a fundamental error of misinterpretation of the said exhibit ‘OO’.

The sole issue for determination is whether this Honourable Court should exercise its equitable jurisdiction in favour of the Applicant, 8th Garnishee Bank and set aside/vacate its order 16/5/2011 on the ground of fundamental error of misinterpretation of exhibit ‘OO’ annexed to the affidavit to show cause filed on 29/4/2011.

I have carefully considered the application of the applicant and the affidavit in support together with the arguments of the learned counsels.

There is no doubt that the order of this Court made on the 16th of May, 2011 was an absolute order and which of cause is a final order in respect of the matter before the Court.

A final order in law puts an end to the action between the parties before the trial Court and there will be nothing left for further deliberations by that trial Court.

See: Sodeinde v. World Mission Agency Inc. (2010) 2 WRN 153 AT 165; Akinsanya v. UBA (2001) 42 WRN 67; Olusookun v. Popoola (2010) 5 WRN 80.

I am of the firm view that the order of this Court made on 16/5/2011 was not an interlocutory order, it was the order that disposed off the subject matter of the controversy between the parties. The effect of this is that this Court is functus officio of the order made on 16/5/2011…..”

The issues nominated and argued by the Appellant are curious point of law in that the Appellant sought the invocation of the equitable jurisdiction of the Court.

An equitable jurisdiction can be exercised only when a matter is placed before the Court in accordance with the law. (See Madukolu v. Nkemdilim (1962) 2 SCNLR Pg. 341). The facts leading to the said application and this appeal are very clear and were unequivocally restated in the Ruling of the learned trial Court, part of which has been reproduced in this judgment. The Court entered an order absolute which thereby determined the rights of the parties before the Court on the said issue and as between the same parties.

The term functus officio has been defined by the Apex Court in the case of FBN Plc v. TSA Industries Ltd (2010) 15 NWLR pt. 1216 247 SC as follows:

“The phrase functus officio means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority….

A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or re-visit the matter. Once a Court delivers its Judgment on a matter, it cannot re-visit or re-view the said Judgment except under certain conditions….” per ADEKEYE JSC.

The most obvious condition is fraud, i.e when the Judgment is obtained by fraudulent representation to the Court.

In the case of Citec Int’l Estate Ltd & Ors v. Josiah Oluwole Francis & Ors LPELR 2231, my lord KEKERE-EKUN JSC states the exceptions as follows:

“….The Supreme Court and any other superior Court of record, possesses inherent power to set aside its Judgment in appropriate cases. Such circumstances include:

a. When the Judgment is obtained by fraud or deceit.

b. When the Judgment is a nullity and a person affected by the order is entitled ex debito justitiae to have it set aside.

c. When the Court was misled into giving Judgment under the mistaken belief that the parties had consented to it.

d. Where Judgment was given in the absence of jurisdiction. e. Where the procedure adopted was such as to deprive the decision or Judgment of the character of legitimate adjudication….”

Also in the case of Alao v. African Continental Bank Ltd (2009) 9 NWLR pt. 672, 264 it was stated per KARIBI WHYTE JSC that:

“The following three principles appear to be enshrined in the provision of this Rule. First, the Court shall not review any Judgment once delivered…. 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 to 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 part of a Judgment shall not be varied and a different form substituted.”

“Similarly, a Judgment which correctly represents the decision of the Court cannot be varied. The only aspect of a Judgment which can be interfered with subsequent to delivery is that which enables correction of clerical mistakes or some errors arising from accidental slips or omission, or to vary the Judgment or order to give effect to its intention.”

All the parties agree that the Appellant’s affidavit to show cause indicated that the Judgment debtor had an effective available balance of ₦31,272,136.23 in the account. The same figure was reflected in Exhibit ‘OO’ and there were no other figures in the affidavit to show cause for the Court to have been confused as to which is the actual balance in the account.

The Court declined jurisdiction because it no longer had power over the subject matter, having disposed of same. It has become functus officio, following its final decision on the matter.

The Black Law Dictionary (6th Edition) gives a definition of a final judgment a:

“One which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. So distinguished from interlocutory judgments. A judgment which disposes of the subject matter of the controversy or determines the litigations as to all parties on its merits. A judgment, which terminates all litigations on the same right…”

This definition of a final decision found judicial expression in the case of Sodeinde v. World Mission Agency Inc. (2010) 2 WRN p. 153 @ 165 which held that a final decision puts an end to the action between the parties and leaves nothing for further deliberations before the trial Court except for the enforcement of the decision arrived at.

For the avoidance of doubt, let us veer a little into the purport of a garnishee order. A garnishee order is often made in remedy of a right to money established against the judgment debtor. In the case of CITIZENS International Bank Ltd v. SCOA Nig. Ltd & Anor (2006) 18 NWLR pt.1011 the Court explained the nature of Garnishee Proceedings as follows:

“…Garnishee Proceedings are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. By this process, the Court is competent to order the third party in whose hands the property of the judgment debtor is to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor or as much of it as may be sufficient to satisfy the judgment and the costs of the garnishee proceedings.” Per Salami, JCA.

The Apex Court in the case of Union Bank of Nigeria Plc v. Boney Marcus Ind. Ltd. & Ors (2005) 13 NWLR Pt. 943 p. 654 Unequivocally held that a Ganishee order absolute seals the proceedings before the trial Court and thereby renders the Court funtus officio on the said matter. It was Katsina-Alu JSC (AHTW) who rendered the order as follows:

“….The above was the final garnishee order. In other words, it was an order absolute. It was a final decision of the Court. A judicial decision is said to be final when it leaves nothing to be judicially determined thereafter in order to render it effective and capable of execution. That is to say that the matter would not be brought back to the Court itself for further adjudication. Clearly, by the order of the Court above, the trial Court had determined the rights of the parties before it. I must state again that the Appellant promptly complied with the order of the Court. This Court, in Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) 574 re-stated the position of the law in this respect. The Court, per Kutigi, JSC held: “An order or decision is final when it finally disposes of the rights of the parties, that is to say, the decision or order given by the Court is such that the matter would not be further brought back to the Court itself, as in this case.” See Akinsanya v. United Bank of Africa Ltd. v. Iron and Steel Workers Union (Supra); Omonuwa v. Oshodin & Anor. (supra). In my judgment, based on the authorities I have cited, the order of 17th February, 1998 was a final order.” Per Katsina-Alu, J.S.C.

By these formidable pronouncements of the Apex Court and this Court as referred to above, I cannot but agree with the submissions of the Respondents. The learned trial Judge was right in declining jurisdiction.

Accordingly, I find no merit in this appeal which is hereby dismissed.

The decision of the High Court of Ogun State delivered on the 2nd day of April, 2012 coram Hon. Justice O. S. Olusanya is hereby affirmed.

A cost of N50,000.00 is hereby awarded to the Respondents and against the Appellant.

It is hereby so ordered.

FASANMI, JCA

I had the advantage of reading in advance the lead judgment of my learned brother Dongban-Mensem, JCA.

The learned trial judge rightly declined jurisdiction. The appeal is devoid of merit.

I agree entirely with the judgment and abide by consequential orders contained therein inclusive of the order on cost.

IYIZOBA, JCA.

I read before now the judgment just delivered by my learned brother, MONICA B. DONGBAN MENSEM JCA. She has dealt exhaustively with the issues in the appeal. The lower Court is functus officio. The trial judge was right in declining jurisdiction. I also find no merit in the appeal and hereby dismiss same. I abide by the consequential orders of my learned brother in the lead judgment including the order as to costs.