Union Bank Of Nigeria Plc. V. Boney Marcus Ind. Ltd.& Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

At the High Court of Abia State in the Osisioma Judicial Division, Boney Marcus Industries Limited as plaintiff, commenced an action against Nichimen Co. Nigeria Limited as defendant in suit No. HOS/229/96. Judgment was given in favour of the plaintiff on 19 May, 1997.

In due course, the plaintiff filed garnishee proceedings praying that it be paid the judgment debt in the hands of Met come Nigeria Limited and Union Bank Nigeria Plc as garnishees.

On 17th February, 1998 the High Court gave a ruling. In it, the High Court ordered as follows:

“It is hereby ordered, pursuant to section 85 of the Sheriffs and Civil Process Law Cap. 118. Laws of Eastern Nigeria, 1963 applicable in Abia State, that the money belonging to the judgment debtor in possession of the 1st garnishee which money is in the 1st garnishee’s account with the 2nd garnishee be attached to satisfy the judgment debt, together with the costs of the garnishee proceedings.”

Although dissatisfied with the ruling, the 2nd garnishee appellant promptly complied with the order embodied therein by sending to the Registrar of the trial High Court on 25th February, 1998 a cheque for amount representing the balance in the 1st garnishee’s account with it. Thereafter on 27th March, 1998, the 2nd garnishee, Union Bank Nigeria Plc filed a notice of appeal against the said ruling. It is as to the competence of that notice that the plaintiff/judgment creditor has raised the objection that has given rise to the present proceedings.

At this stage I wish to point out, although obvious, that the 2nd garnishee/appellant (Union Bank of Nigeria Plc.) was not a party to the proceedings in Suit No. HOS/229/96 which resulted in the judgment sought to be executed by the garnishee proceedings. It is not the decision in that suit against which the appeal under challenge has been filed. The decision in question as I have shown above, is the decision of 17th February, 1998 making the garnishee order absolute against the 2nd garnishee/appellant. It should be understood that it is to the garnishee proceedings that the 2nd garnishee/appellant was a party and in which it had rights and obligations.

As I have already indicated, the judgment creditor, Boney Marcus Industries Ltd., in its reaction to the appeal filed against the garnishee order absolute, filed a notice of preliminary objection under Order 3 rule 15 (1) of the Court of Appeal Rules challenging the competence of the appeal for the following reasons:

(i) The ruling made by the court below on the 17th of February, 1998, was interlocutory.

(ii) An appeal against that ruling ought to have been filed within 14 days.

(iii) The notice of appeal in this case was filed on the 27th day of March, 1998 and is therefore filed out of time and without leave of court.

(iv)The ruling of the court below made on the 25th day of May, 1998 to the effect that the notice of appeal is void and incompetent stands and has not been appealed against by reason of the foregoing, the notice of appeal is void and the Court of Appeal therefore lacks the jurisdiction to entertain any proceeding based on that.

On 7th December, 2000 the Court of Appeal by a majority decision upheld the preliminary objection and held that the garnishee order absolute made by the High Court on 17th February, 1998 was an interlocutory decision and that the appeal filed on 27th March, 1998 by the 2nd garnishee/appellant was out of time and therefore incompetent.

The 2nd garnishee has further appealed to this court. In the appellant’s brief filed on behalf of the 2nd garnishee, one issue was set down for the determination of this court. It reads: