Nigerian Breweries PLC V. Chief Worhi Dumuje & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

From the records transmitted by the Appellant to this court, this is an appeal against a garnishee order absolute of the High Court of Delta State delivered on 21/5/2009 by Hon. Justice T. O. Uloho. The background facts that led to this appeal as gathered from the record are as follows: In Suit no E/236/94, the 1st Respondent as plaintiff had sued the Appellant and two others jointly and severally.

The 1st Respondent had claimed that he drank a bottle of Maltina malt drink manufactured by the Appellant which said drink contained a dead slimy cockroach as a result of which the 1st Respondent suffered a plethora of ailments.

He had asked for damages of N3,000,000M (Three Million Naira).

After several adjournments the 1st Respondent as plaintiff called witnesses and testified in support of his case.

At the end of the trial and address, the trial court entered judgment for the Appellant on 4/7/2001 in the total sum of N2,006,000 to be paid immediately. The Appellant filed a motion to set aside the said judgment of the trial court. The motion to set aside was taken and ruling delivered on 13/03/02.

The notice of appeal against the refusal to set aside the ruling was filed on 22/3/2002 from pages 44-46 of the record.

By a motion EHC/M/20/2009, nearly a year after the judgment was delivered the 1st Respondent instituted garnishee proceedings against the Appellant and the 2nd Respondent who are bankers to the 1st Respondent. Order Nisi was granted on 12/3/09.

The Appellant and the 2nd Respondent resisted the garnishee proceedings and filed affidavits to contest same. On 21/5/09, the court delivered a ruling making the garnishee order absolute. The Appellant is the judgment debtor and the 1st and 2nd Respondents are the judgment creditor and garnishee respectively. Notice of appeal was filed on 3/6/2009 and the relief sought is an order setting aside the ruling of the trial judge making the garnishee order absolute.

The Appellant’s brief was settled by V. O. Nwafor, Esq. and filed on 30/11/2009 while it was deemed filed on 19/10/2010. Therein counsel identified six issues for determination and they are set out below:-

1. Whether an application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment (Ground 1).
2. Whether in the circumstances of this case the judgment debtor/appellant served with a garnishee order nisi as directed by the Sheriffs and Civil Process Act is not a necessary party to the garnishee proceedings (Ground 2).
3. Whether the learned trial judge was right in holding that a pendency of an application for stay of execution at the Court of Appeal does not prevent a judgment creditor from initiating garnishee proceedings (Ground 3).
4. Whether failure to name the other judgment debtors in the substantive suit in the garnishee proceedings does not make the proceedings incompetent (Ground 4).
5. Whether the learned trial judge exercised her discretion judicially and judiciously in refusing to give effect to the unchallenged and uncontradicted affidavit evidence of the judgment debtor/appellant (Ground 5).
6. Whether the resort to Garnishee proceedings by the judgment creditor does not amount to double execution of one judgment (Ground 6).

In the brief settled by Irikefe Ovwighorienta, Esq., filed on 12/11/10 the learned Respondent’s Counsel distilled the issues as follows:-

1. Is the Appellant in this case a necessary party to garnishee proceedings and if so has she suffered any miscarriage of justice in this case.
2. Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not preclude a Judgment Creditor from seeking to use Garnishee Proceedings to enforce Judgment.
3. Whether the learned trial Judge was right in holding that the garnishee proceedings in this case is an independent action from the judgment sought to be enforced and failure to name other parties to the judgment does not invalidate the garnishee proceedings.

After judgment was reserved on 10/2/15 and during conference on the appeal, it was decided that because of the contentious issues of contemporary interest raised by the issues distilled for determination, the court should seek and consider wider opinion of senior counsel who may proffer arguments as amicus curiae on the matter. The court then directed all counsel in the matter to submit further brief and also several counsel (as amici curiae) who were felt competent to do so to submit briefs on the following issues:

1. Whether the application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment.
2. Is the Appellant in this case a necessary party to garnishee proceedings and if so, has it suffered any miscarriage of justice?
3. Whether in the circumstances of this case, the learned trial judge was right in holding that the existence of an application for stay of execution does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment.
4. Whether the learned trial judge was right in holding that the garnishee proceedings in this case is an independent action from the judgment sought to be enforced and failure to name the other parties to the judgment does not invalidate the proceedings.

The Appellant’s supplementary brief as directed was filed on 25/5/15. The 1st Respondent’s supplementary brief was filed on 8/5/15. Dr. Alek Izinyon, SAN OFR filed an amicus brief on 25/5/15. Dr. Onyechi Ikpeazu, OON, SAN filed an amicus brief on 25/5/15. Mr. P. I. N. Ikwueto, SAN filed an amicus brief on 26/5/15. Mr. Ken Mozia, SAN also filed an amicus brief on 25/5/15. Mr. Aham Eke Ejelam, SAN filed an amicus brief on 27/5/15. Dr. Muiz Bamire filed an amicus brief on 26/5/15. Dr. Olumide Ayeni also filed an amicus brief on 27/5/15. Dr. Dapo Olanipekun filed an amicus brief on 25/5/15.

At the re-hearing of the appeal on 27/5/15, some of the said briefs were adopted by counsel present and the other counsel who were absent due to severe petrol and aviation fuel shortage were deemed adopted pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules 2011. In the determination of this appeal, the briefs adopted by counsel to the parties and all the briefs filed by the amici curiae will be considered.