WHEN WILL A PARTY NOT BE TAGGED A JUDGMENT DEBTOR?

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CASE TITLE: GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC)

JUDGMENT DATE: 15^TH FEBRUARY, 2019

PRACTICE AREA: GARNISHEE PROCEEDINGS

LEAD JUDGMENT: JOHN INYANG OKORO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Garnishee Proceedings.

FACTS

This is an appeal against the judgment of the Court of Appeal Abuja, delivered on 10th May 2018 wherein the Court of Appeal set aside the judgment of the Federal High Court dated 8th June 2016. The trial Federal High Court had made a garnishee order nisi absolute against the 2nd Respondent which at the material time was alleged to be in custody of the 1st Respondent’s funds.

The Supreme Court of Nigeria had in its judgment delivered in Appeal No. SC.255/2013 between JENKINS GIANE DUVIE GWEDE VS (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2) EDOJA RUFUS AKPODIETE (3) JULIUS OGHENEVWEGBA BOBI (4) DEMOCRATIC PEOPLES PARTY (DPP) delivered on the 24th day of October 2014 entered judgment in favour of Appellant in that case as follows:-

“In consequence, I enter judgment in favour of the appellant in the following terms:-

1. Appellant, JENKINS GIANE DUVIE GWEDE is hereby declared to be the duly nominated candidate by substitution of the 4th Respondent for the election in respect of Ugelli North Constituency II of the Delta State House of Assembly and is entitled to be issued with a certificate of return in respect of same.
2. The 1st Respondent is hereby ordered to issue the said appellant with a certificate of return in respect of the State House of Assembly election held on 26th April 2011, forthwith.
3. The 2nd Respondent EDOJA RUFUS AKPODIETE is hereby ordered to vacate the seat of Ughelli North Constituency II in the Delia State House of Assembly forthwith.
4. It is further ordered that the said 2nd respondent: EDOJA RUFUS AKPODIETE refunds to the coffers of the Delta State House of Assembly all moneys/sums of money he collected by way of salary, allowances whatsoever and however described since he took his seat in the said House of Assembly under the pretext of being the duly elected candidate of the 4th respondent representing Ughelli North constituency II, within ninety (90) days of this order.

I award the sum of ₦150,000,000 costs at the High Court; ₦100,000 in the Court below and ₦500,000,000 in this Court in favour of Appellant and against the 1st and 2nd Respondents each.

Appeal and Cross Appeal of 4th Respondent allowed, cross-appeals of 1st and 2nd Respondents dismissed.”

The Appellant thereafter went back to the apex Court seeking to vary and/or correct the consequential Orders made by the apex Court in the judgment delivered on 24th October, 2014. On 26th October, 2015, the Supreme Court in SC.255/2013 made an Order as follows:

“the sum of money so refunded by the 2nd respondent, Edoja Rufus Akpodiete to the Delta State House of Assembly shall be paid to the appellant/applicant Jenkins Giane Duvie Gwede as salaries, allowances etc from June 2011 till October 2014.”

Consequent upon the Order, the appellant approached the Federal High Court, Abuja for Garnishee Order Nisi to attach the 1st respondent’s funds in Guaranty Trust Bank Plc to satisfy the sum of N490,803,002.00 which the appellant believed comprised the salaries and allowances which were collected by Edoja Rufus Akpodiete from the 1st respondent when he purportedly represented Ughelli North Constituency II in the Delta State House of Assembly. The Order Nisi was granted against Guaranty Trust Bank Plc on 7th March, 2016 and on 14th June, 2016, the learned trial Judge, Justice A.F.A. Ademola Rtd made the Garnishee Order Absolute in the sum of N83,256,648.71 (Eighty-Three Million, Two Hundred and Fifty-Six Thousand, Six Hundred and Forty-Eight Naira and Seventy-One Kobo) attaching same from the custody of Guarantee Trust Bank Plc. In another ex-parte motion filed on 3rd June, 2016, the appellant proceeded to garnishee the monies of the 1st respondent in Skye Bank Plc which was granted. The Court directed Skye Bank Plc to appear on 17th June, 2016 to show cause why the Garnishee Order Nisi should not be made absolute. The 1st respondent challenged the jurisdiction of the Federal High Court to further embark on adjudicating on Garnishee proceedings against the monies of the 1st respondent.

The learned trial Judge disagreed and stated that Garnishee proceedings is one of the numerous ways of enforcing a judgment and not one of the methods of commencing an action and that what he was doing is the enforcement of the Supreme Court judgment. He said that where the sum enforced is less than the amount due, the judgment creditor will have a right to continue with the enforcement; consequently the ex-parte motion to garnishee the monies of the 1st respondent in Skye Bank Plc is not a fresh action to determine a right but enforcement of a decision already given.

Dissatisfied with the judgment of the trial Court, the 1st Respondent which was the Appellant at the Court of Appeal, filed Notice of Appeal against the said judgment. In a considered judgment, the Court of Appeal allowed the appeal and set aside the judgment of the trial Federal High Court. The order absolute made by the trial Court was set aside, hence this appeal to the Supreme Court.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

1. Having regard to the peculiar circumstances of this case is the Delta State House of Assembly the Appellant’s judgment debtor in these proceedings.
2. Whether judgment debtors are passive spectators or active parties in garnishee proceedings.

DECISION/HELD

The appeal was unanimously dismissed by the apex Court for lack of merit.

RATIOS:

• PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: When a party will not be tagged as a judgment debtor
• PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: Principles governing garnishee proceedings
• PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: When a judgment debtor should be heard in a garnishee proceeding
• PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: Whether the judgment sum sought to be enforced in garnishee proceedings must be certain or ascertainable