Central Bank Of Nigeria V. James Ejembi Okefe (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Federal High Court sitting in Makurdi (the trial Court) delivered on 26th May, 2011.

The background facts of this matter are that, the Respondent herein got the judgment of the Benue State High Court sitting in Makurdi delivered on 15th December, 2010 in his favour and against Bank PHB Plc. for the total sum of Thirty-Six Million, Five Hundred and Twenty-Five Thousand, Nine Hundred and Eleven Naira (N36,525,911.00).

In a bid to enforce the said judgment, the Respondent as Judgment Creditor commenced garnishee proceedings before the trial Court “vide” an ex-parte motion dated and filed on 1st April, 2011, to attach the funds of the Judgment Debtor, Bank PHB Plc., in its account No. 0230252822017 with the Garnishee, the Appellant herein, in satisfaction of the total judgment sum – see pages 5 to 7 of the Record of Appeal.

The ex-parte motion was heard and granted by the trial Court on 7th April, 2011, for the proceedings of that day, see pages 21 to 23 of the Record of Appeal. The enrolled Order Nisi issued in respect thereof is at pages 24 to 26 of the Record of Appeal. In compliance with the said Order Nisi issued by the trial Court, an affidavit to show cause dated 4th May, 2011 was filed on the same date by the Garnishee/Appellant, stating “inter-alia” that it has set aside the said total judgment sum in the account of Bank PHB Plc, the Judgment Debtor – see page 74 of the Record of Appeal.

Before proceeding further, it is pertinent to note that, prior to the garnishee proceedings lodged at the trial Court, the Respondent had commenced similar proceedings before the High Court of Benue State. “Inter-alia”, the Order Nisi issued in the said earlier proceedings was however “struck out” by that Court vide its ruling delivered on 31st March, 2011, on the ground of want of jurisdiction to adjudicate thereupon, the Garnishee/Appellant being a Federal Government Agency – see pages 29 to 37 of the Record of Appeal/pages 133 to 149 of the Supplementary Record of Appeal. The Judgment Debtor, Bank PHB Plc. lodged an appeal against that ruling before this Court on 4h April, 2011 – see pages 150 to 156 of the Record of Appeal.

Now subsequent to the issuance of the Order Nisi but before 4th May, 2011 the return date set by the trial Court the Judgment Debtor, Bank PHB, filed a motion on notice on 24th April, 2011 against the Judgment Creditor, applying for the orders of the trial Court to set aside the Garnishee Order Nisi and suspend further proceedings or execution of the judgment of the Benue State High Court delivered on 15th December, 2010, which was being enforced at the trial Court – see pages 53 to 74 of the Record of Appeal.

The said application was predicated on the ground that the Judgment Debtor had on 1st April, 2011 filed a Notice of Appeal and motion for stay of execution of the said main judgment of the High Court of Benue State, at this Court. According to the Judgment Debtor’s learned senior counsel, the two processes were duly served on the Respondent/Judgment Creditor before the latter commenced the garnishee proceedings at the trial Court.

On 4th May, 2011, the return date, the said motion of the Judgment Debtor which was opposed by the Respondent/Judgment Creditor was duly heard by the trial Court, and the ruling in respect thereof reserved to 23rd May, 2011. The proceedings of that day are contained in pages 75 to 82 of the Record of Appeal. On the 23rd of May, 2011, the ruling was further adjourned to 25h May, 2011 for the report of the outcome of the alleged motion for stay of execution of the main judgment of the High Court of Benue State said to be pending before this Court – see pages 83 to 84 of the Record of Appeal.

On the 25th May, 2011, the learned trial Judge upon being informed that this Court had struck out the alleged motion for stay of execution, further adjourned the ruling to the following day, the 26th of May, 2011 – see page 87 of the Record of Appeal for the proceedings of the 25th May, 2011. There appears to be some irregularities in the entries of the proceedings of the 26th May, 2011, perhaps an error committed during the compilation of the Record of Appeal – see pages 88 to 89 of the Record of Appeal.

However, “ex-facie” the ruling of the trial Court, the subject of this appeal, contained in pages 90 to 100 of the Record of Appeal, took into consideration and indeed touched on both the application of the Judgment Debtor against the Respondent/Judgment Creditor on one part and the Garnishee Proceedings on the other part.

In the said ruling, the trial Court found that, although both the notice of appeal against the main judgment of the High Court of Benue State and the motion for stay of execution of the said judgment were served on the Respondent/Judgment Creditor on 31st March, 2011 prior to the commencement of the Garnishee Proceedings by the Respondent/Judgment Creditor, but that the motion for stay of execution was subsequently withdrawn by the Judgment Debtor and struck out by this Court on the 25th May, 2011.

Furthermore, the trial Court duly held that, the said notice of appeal against the main judgment of the High Court of Benue State with its adjunct ruling had not yet been entered in this Court and what is more, even if it had been, there being no pending application for stay of execution of that judgment, the pending Garnishee Proceedings initiated by the Respondent/Judgment Creditor could be concluded. The trial Court also noted that there being no appeal against the Order Nisi issued by it, the issuance of the Order Absolute became imperative. Therefore regarding the garnishee proceedings the learned trial Judge held thus:

Therefore in the light of no (sic) irregularity in proceedings(sic) of such serious nature that the order of garnishee nisi can be treated and no appeal against same(sic).