Skye Bank Plc V. Yavat B. David & Ors (2016)

LawGlobal-Hub Lead Judgment Report

AMINA AUDI WAMBAI, J.C.A.

 In the Garnishee proceedings at the High Court of Kaduna State sitting at Kaduna, before Hon. Justice Isa Aliyu (now called the Lower Court) in suit No. KDH/KD/941/2010 in which the 1st, 2nd and 3rd Respondents were the Judgment creditors and the 4th and 5th Respondents were the Judgment Debtors, the Appellant was the Garnishee against whom a garnishee order Nisi was made. on the 19th January, 2011 (19/01/2011), the Order Nisi was made absolute against the Appellant. The Appellant’s application to have the Order absolute set aside was dismissed on the 19th January, 2012 (19/012012). This appeal is against the Rulings of the 19/01/2011 making the Nisi Order absolute and that of 19/01/2012 refusing to set aside the Order absolute.

The Appellant commenced this appeal by a Notice filed by its Counsel, Anigbogu Jude Obinna Esq. on the 21st February, 2013 which was by leave of this Court amended on the 01/07/2015. The amended Notice of Appeal is predicated upon 4 grounds.

?In compliance with the Rules of this Court, both parties filed their respective brief of argument. The Appellant’s brief of

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argument dated 29th May, 2014 and filed on 30/04/2014 but deemed properly filed and served on 20/10/2014 was settled by Anigbogu Jude Obinna Esq. The 1st, 2nd and 3rd Respondents’ brief of argument dated 14/11/2014 and filed on 17/11/2014 was settled by Emmanuel B. Kantiok Esq wherein a Preliminary Objection to the hearing of the appeal was also argued. In response, the Appellant’s Counsel filed a reply brief on 08/12/2014.

In ventilating his grievance against the Judgment of the lower Court, the Appellant’s Counsel in his brief of argument distilled two issues for determination as follows:-
“(1) Whether the Judgment of the Lower Court was not a Judgment in default and as such could be set aside by the same Court.
(2) Whether the Order absolute made by the Court below was not in error considering the fact that the whole of the judgment Debtor’s money with the Garnishee/Appellant had already been attached in an earlier Order absolute made by the High Court of Kano State.”

The 4th and 5th Respondents did not file any brief.

?In the event that their Preliminary Objection fails, the 1st, 2nd and 3rd Respondents adopted the two issues

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formulated by the Appellant’s Counsel.

At the hearing of the Appeal on 01/03/2016 while the learned Counsel to the 1st, 2nd and 3rd Respondents adopted their arguments on the Preliminary Objection and their brief of argument on the main appeal and urged that the appeal be struck out on the basis of the Preliminary Objection or be dismissed for lacking in merits, the learned Counsel for the Appellant adopted both his brief of argument and the reply brief and urged that the appeal be allowed.

Now, a Preliminary Objection as the name connotes, is an initial or introductory objection against the regularity or validity of a Court process, taken at the earliest opportunity expressing legal disapproval to the action. Thus, a Preliminary Objection is an initial objection taken before the actual commencement of the matter, issue or thing being objected to. See Akpan v. Bob & 4 Ors (2010) 17 NWLR (Pt. 1223) 421 SC, and where raised to the hearing of an appeal, it is not only prudent but mandatory that the preliminary objection be first determined before hearing the substantive appeal. See UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt. 890), Osun State Govt v.

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