Nigerian Maritime Administration And Safety Agency V. Stephen Adi Odey & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment delivered by Federal High Court sitting in Calabar on 14th July, 2009 in which it made a Garnishee order absolute for the payment of N10,117,135.82 to the 1st Respondent. The 1st Respondent as plaintiff recovered judgment against the Appellant in the substantive suit before the court below on 31st October, 2008 wherein the court granted the reliefs of the 1st Respondent as per the claims in the Amended Statement of claim. The trial Judge held:

“An order directing the Defendants to pay the plaintiff forthwith all his emoluments including but not restricted to all his right, privileges, entitlements and promotion which accrued to him (the 1st respondent) during the period of the illegal/unlawful dismissal from service.”

The 1st Respondent by this many letters to the Appellant for the settlement of the judgment debt fell on deaf ears. The Appellant neither responded to these letters nor paid the judgment debt as per the statement of claim.

In frustration, the 1st Respondent instituted Garnishee proceedings. Upon service of an order nisi, the Appellant challenged the competence of the entire proceedings hence this appeal.

The Appellant filed a notice and 3 grounds of appeal. The Appellant also filed his Appellant’s brief on 11th September, 2010. In it, the Appellant articulated 1 issue for determination by the Court as follows:

“Whether considering the entire circumstances of the case, the garnishee proceeding was competent, particularly, without a judgment sum and in breach of Appellant’s right to fair hearing. (Grounds 1, 2 & 3).”

The 1st Respondent filed his brief on 9th February, 2012 and deemed properly filed and served on 12th March, 2012. The 1st Respondent filed a notice of preliminary objection and the grounds upon which it was brought are as follows:

“1. The Appellant (Judgment Debtor) has no right of appeal against a garnishee order made by the trial court.

2. The Appeal as constituted is an abuse of Court process.”

The learned counsel to the 1st Respondent submitted that a judgment debtor/Appellant was not a necessary party in the garnishee proceedings before the trial Court and consequently had no right of appeal. Learned counsel referred the court to section 243 of the 1999 constitution which provided as follows:

“Any right of appeal to the Court of Appeal from the decision of the Federal High Court or High Court conferred by this constitution shall be:

(a) exercised in the case of civil proceeding at the instance of a party thereto, or with leave of Court of Appeal at the instance of any other person having interest in the matter.”

See the unreported case of University of Uyo v. Chief (Mrs) Edu Anyawana Uye and Zenith Bank Plc where Jean Omokri, JCA (of blessed memory) held as follows:

“The right of appeal is not vested simply because the learned trial Judge, through inadvertence and failure of the opposing party to object to the participation of a stranger to the proceeding, with the right of appeal. The right of appeal is statutory; it is not due process for the appellant who has no right of appeal against the garnishee order absolute to bring an appeal. Therefore, the judgment debtor has no right of appeal against the garnishee order made by the trial Court.”