MR. Kamaru Gbadebo Shittu V. Kwara State Polytechnic, Ilorin & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment)

The appeal is against the ruling of the trial Court setting aside its earlier order nisi made pursuant to an ex-parte application under the Garnishee proceedings. In the said ruling spanning pages 83 to 94 of the record, the trial court set aside the order nisi following the application of the 1st and 2nd Judgment Debtors/Respondents who shall herein be referred to as the 1st set of Respondents.

The Appellant initiated, via an ex-parte application a garnishee proceedings against the accounts of the 1st set of Respondents kept with the 1st and 2nd Garnishees/Respondents, herein referred to as the 2nd set of Respondents. In the affidavit in support of the ex-parte application, the Appellant claimed the sum of N9, 037,794.46 (Nine million, thirty seven thousand, seven hundred and ninety four naira, forty six kobo) to be his salary arrears. The ex-parte application, the accompanying processes and documents span pages 1 – 13 of the record.

After hearing the application, the trial Court on 29th October, 2013 granted an Order nisi against the account of the 1st set of Respondents kept with the 2nd set of Respondents. The order nisi is contained at pages 14 and 15 of the record. The 1st set of Respondents filed an application for setting aside the order nisi on certain grounds listed on the motion paper.

The said motion dated 8th November, 2013 with all the accompanying documents and processes can be seen at pages 16 to 46 of the record. The Appellant’s counter affidavit with the Exhibits and the written address against the said motion span pages 47 -72 of the record. The 1st set of Respondents also filed a further affidavit and a written reply on point of law. The processes are contained at pages 73 – 79 of the record.

Consequent upon the adoption of addresses by Counsel to the parties, the trial court in its ruling contained at pages 83 to 94 of the record, discharged the Order nisi and struck out the garnishee proceedings.

Dissatisfied with the ruling, the Appellant has appealed to this court on the grounds contained in the Notice of Appeal which spans pages 95 – 100 of the record.

Appeal was heard on 15th May, 2014 after parties through their Counsel had exchanged briefs. On the day the appeal was heard, the learned counsel for the 1st set of Respondents invited the court to their Preliminary objection argued at pages 2 – 8 of their brief. Dr. Olatoke adopted the 1st set of Respondents’ brief and relied on the argument on the Preliminary Objection therein to urge the Court to uphold the objection.

The learned Counsel for the Appellant referred to, adopted and relied on the Appellant’s response to the 1st set of Respondents’ argument on the Preliminary objection in his reply brief at pages 1 – 4. He urged the Court to discountenance the objection and determine the appeal on its merit. Thereafter, Mr. Alajo for the Appellant argued his appeal and urged the Court to allow the appeal. Dr. Olatoke replied on behalf of the 1st set of Respondents and urged the Court to dismiss the appeal. Mr. Adedayo Adediji for the 3rd Respondent did not file any process as he said he had nothing to urge on the Court. Also, Prince J.O. Ijaodola (Jnr.) said the 4th Respondent did not file any brief.

In the Appellant’s brief settled by Mr. Y.A. Alajo, filed on 19th February, 2014, 2 issues were distilled for the determination of the appeal. The issues are:

“1. Considering the case of the Judgment Debtors/Respondents and the circumstances of this case, whether the trial court was not wrong to have set aside the order nisi on the grounds of uncertainty of the judgment sum and non attachment of the whole judgment sought to be enforced.

2. Whether the failure of the trial court to pronounce on the additional issue raised by the Appellant had not occasioned a miscarriage of justice.”

On their own, in the 1st set of Respondents’ brief which was prepared by Dr. J.O. Olatoke and filed on 28th April, 2014 but deemed properly filed and served on 8th May, 2014, the said Respondents also formulated 2 issues for determination, to wit:

“1. Whether the trial court was not right to have set aside the Order Garnishee nisi.

2. Whether the trial court is bound to pronounce on the additional issue raised by the Appellant which has no bearing on the application before it.”

The 2 sets of issues formulated by the parties are same except that the Appellant’s 2 issues are verbose. Since it is the Appellant’s case, I will as well determine the appeal based on the issues as formulated by him. However before I embark on the resolution of the issues I shall first determine the Preliminary Objection.