Densa Engineering Works Ltd. & Anor. V. Union Bank of Nigeria Plc. & Anor. (1998)

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UBAEZONU, J.C.A.

This appeal is by the judgment creditors (Densa Engineering Works Ltd. & Anor) against the ruling of Onnoghen J. delivered on the 17th day of July, 1997 whereby he discharged a garnishee order nisi made by him on the 28th day of May, 1997 against the respondent i.e. the Union Bank of Nigeria Plc.

The facts of this appeal art: simple and straight forward. The issue for determination comes within wry narrow confines even if the appellant’s brief has not been helpful in making things as simple as they ought to be.

The facts, briefly put, are that the appellant obtained judgment against the judgment debtor i.e. the Cross River Estates Ltd. in an undefended list for N2,719,000 with 21% interest and costs or N2.000 and out of pocket expenses of N296. The judgment debtor failed to satisfy the judgment debt. The appellant (judgment creditor) thereupon commenced a garnishee proceeding against the money allegedly belonging to the judgment debtor in the respondent’s bank. By a motion exparte, the appellant obtained a garnishee order nisi against the respondent for the money. By a motion dated 6th day of June, 1997. the respondent’s solicitors applied to discharge the garnishee order nisi made against it. In its ruling dated 17/7/97, the lower court discharged the said order. It is against this ruling that this appeal has come to this court.

The main grouse of the appellant is that after argument on the motion to discharge the garnishee order nisi, ruling on the motion was adjourned but before the date of the ruling, learned counsel for the respondent, by a letter dated 30th June, 1997 wrote the registrar of the lower court forwarding to him an authority, to wit, Decree No. 107 of 1993 for onward transmission to the trial Judge. The letter was duly copied to the appellant’s counsel. The appellant therefore complains that the learned trial Judge acted on the Decree without summoning counsel on both sides to address him. The appellant filed three grounds of appeal, which, without the particulars are as follows:-

1. The learned trial Judge erred in law in admitting and considering legal authority from the garnishee after full completion of submissions by counsel without inviting counsel for all parties thereafter to address specifically thereupon.”
2. “The learned trial Judge erred in law by having suo motu raised the issues as to application and applicability of the Constitution (Suspension and Modification) Decree No. 107 of 1993 to judgment enforcement rights over a limited liability company, and in founding his decision solely thereupon without opportunity to counsel for submissions thereupon.”
3. “The learned trial Judge erred in law in declining jurisdiction and in refusing the appellants’ application upon the following conclusion:

‘The judgment creditor not having obtained the fiat of the Attorney-General before prosecuting the application for order nisi that the order is incompetent and subject to discharge.”

It may be mentioned here, and this is important in this appeal, that the “relief Sought” from the Court of Appeal, is not only to set aside the ruling of the lower court of 17th July, 1997 but also to make a garnishee order absolute in favour of the appellants. I shall deal with this “relief sought” latter in this judgment.

The appellants formulated three issues for determination thus:-

“1. Whether the learned trial Judge was not duty-hound, once receiving fresh, or additional legal authority from the garnishee, and outside the ordinary context of proceedings, to invite the parties and their counsel for fresh addresses thereupon.

ii. Whether it was competent for the learned trial Judge to so proceed suo motu, either upon legal authority so supplied, or otherwise at all, for the purposes of reaching his decision.

iii. Whether section 251(4) of Decree No. 107 of 1993 envisages a distinct limited liability company, such as the judgment debtor, or is otherwise so applicable as to have warranted the decision of the learned trial Judge, refusing execution.”

Learned counsel for the appellant arguing his issues (1) and (11) together submits that throughout the argument for the discharge of the garnishee order nisi on 30th June, 1997 no reference was made to Decree 107 of 1993 by both counsel. The decision of the Judge based on the Decree was “exclusively from his own (Judge’s) thinking” – counsel submits. Counsel refers to

(i) Orji v. Zaria Industries Limited (1992) 1 NWLR (Pt. 216) 124,

(ii) Olusanya v. olusanya (1983)