Wema Bank Plc V. Brastem-sterr Nigeria Ltd. & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Lagos State made on the 2nd November, 2004. Briefly the facts that lead to the decision are as follows:

The 1st Respondent as Claimant in the High Court commenced a suit by Writ of Summons and Statement of Claim against the 2nd Respondent who was then the Defendant claiming the sum of N7,304,795 (seven million, three hundred and four thousand, seven hundred and ninety five naira) as damages for Breach of Contract together with interest at 35% per annum from 31st of July, 2002 until Judgment. Judgment was entered in the suit on the 8th of December, 2003 as per the terms of settlement dated 15th of May, 2003.

The 1st Respondent subsequently filed an ex-parte application for garnishee proceedings dated 23rd September, 2004. The application was granted and a garnishee order nisi made. On the 2nd of November, 2004 the learned Trial Judge making an order absolute held:

“Upon hearing the Applicant/judgment Creditors’ Counsel on his request that the garnishee order Nisi made in this suit on 4th November, 2004 be made absolute as he had served the judgment Debtor/Respondent whose Counsel has always appeared in Court in respect of the proceedings and the garnishee vide affidavit of service of Sola Oladipo- a senior bailiff of this Court dated 18th November, 2004. The garnishee having had 14 days to file their return but failed to do so. This Court is vested with discretionary powers to order that the writ of garnishee do issue against Wema Bank Ojota branch Lagos. The order Nisi made in this suit on 18th November, 2004 in the circumstance can only be made absolute as I have no reason to believe that the garnishee is not in legal custody of monies of the judgment Debtor to the tune of N3,651,700.00 (three million six hundred and fifty one, seven hundred naira). The writ of garnishee shall issue to the garnishee in the said sum which sum shall be made payable to the Judgment Creditor/Applicant within 30 days of today hereof. If the garnishee fails to show no other just cause why the order absolute should not have been made. The complaint of non-service of the proceeding on the Judgment Debtor is unmeritorious as Counsel for that party has been attending the proceedings since the order Nisi was made. The proceedings however is one between the judgment Creditor/Applicant and garnishee strictly”.

Dissatisfied with the decision of the court, the Appellant filed a Notice of Appeal on 6/1/05 containing 3 Grounds of Appeal. At the hearing of the Appeal on 18-02-10 the learned counsel for the Appellant Chief Wale Taiwo adopted the Brief of Argument filed on 28/4/06 deemed filed with leave of court on 17/10/06.

Learned counsel for the 2nd Respondent Mr. Rotimi Seriki adopted the 2nd Respondent’s Brief filed 17/11/08 deemed properly filed and served on 19/3/09. The 1st Respondent counsel was not in court though served. The 1st Respondents’ Brief of Argument settled by Aaron Nwachukwu was taken as argued. The Appellant in his Brief formulated 3 issues for determination which reads as follows:

“Whether the learned trial judge was right when she pronounced an Order Absolute against the Garnishee on 2nd November, 2004 when there was on record no issuance and service of the Order Nisi on both the Garnishee and the judgment Debtor.

Whether the learned trial judge was right when she pronounced a conditional Order Absolute against the Garnishee in contravention of the provisions of S.86 of the Sheriff & Civil Process Act Cap 407 Laws of the Federation of Nigeria.

Whether the learned trial Judge was right in continuing with the Garnishee proceedings, the Garnishee having shown a just cause pursuant to the conditional Order Absolute made by her”.

The 1st Respondent in his Brief distilled the following 3 Issues for determination which are not tied to the Grounds of Appeal.

“Whether the Garnishee Order absolute was made without proof of service.

Whether the Garnishee Order absolute as made by Hon. justice D. T. Okuwobi warrants the Appellant/Applicant’s disobedience of not showing cause.

Whether the format of Garnishee Order Nisi and Absolute used by the Hon. justice D. T. Okuwobi (Mrs.) is a nullity for not conforming with Form 26 & 27 of the Sheriff and Civil Procedure Act, Cap. 470 LFN 1990”.