Sterling Bank Plc V. S. W. Ekwere & Anor (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 of the High Court of Akwa Ibom State sitting in Eket delivered on 6th July, 2009 in suit No HEK/MSC/29/09.

These are the facts of this suit as stated by the Appellant in his Appellant’s brief.

Appellant was the garnishee in suit HEK/MSC.28/09, while 1st Respondent was the judgment creditor and 2nd respondent the judgment debtor.

1st respondent in execution of his judgment against the 2nd respondent for the payment of N1, 663,712.90 obtained a garnishee order nisi dated 11th May 2009 against the appellant after which the matter was adjourned to 15th June, 2009 for hearing (p.5).

On the returned date of 15th June, 2009, the court found that the suit was not ripe for hearing as the appellant was only served on 12th June, 2009 (p.12). Appellant was not in court but was still within time allowed by the rules to appear in court and show cause.

Consequently, the court could not proceed under the circumstance and adjourned the matter to 6th July, 2009 for hearing. No hearing notice was ordered, issued or served on the appellant for this fresh hearing date (p .12)

On 30th June, 2009, appellant however filed an affidavit to show cause, principally that it does not have the amount sought to be attached (pp.6-7). On 6th July, 2009, appellant without knowledge of the new hearing date could not be in court and on the same day, the court made the garnishee order nisi absolute against the appellant ordering appellant to pay the sum of N1, 663,717.80 to the 1st respondent. Aggrieved, the appellant appealed to this.

The appellant filed his notice and 4 grounds of appeal on 28th July, 2009. An amended notice and 3 grounds of Appeal was filed on 8th March, 2011 and deemed properly filed and served on 6th June, 2011. Also filed is the Appellant’s brief on 8th March, 2011 but deemed properly filed and served on 6th June, 2011.

In it, the appellant articulated 2 issues for determination as follows:

Whether the failure to serve the Appellant a hearing notice before the order absolute did not violate appellant’s right to fair hearing and render the entire proceeding a nullity.

Whether appellant filed affidavit in response to the order nisi and if so whether the said affidavit dated 30th June, 2009 did not show cause in the garnishee proceeding.

The Respondents filed no briefs. By a motion on notice filed on 4th October, 2011, the Appellant/Applicant sought for an order of court to hear this Appeal on the appellant’s brief alone. This order was granted on 23rd April, 2012. On the 13th June, 2012 this Appeal was heard on the Appellant’s brief alone.

There are 2 issues articulated by the Appellant. The first is on jurisdiction of the lower court.