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(2018) LPELR-44997(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 17th day of July, 2018


Before Their Lordships

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria





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This appeal borders on Garnishee Proceedings.
This appeal is against the Ruling of the Federal High Court, Benin Division delivered on the 11th day of April, 2016.

Sequel to a judgment entered in favour of the Respondent herein against the Defendants/Judgment debtors. The Respondent commenced garnishee proceedings in the Federal High Court, Benin and the Appellant herein is 3rd amongst the garnishees. The Respondent obtained an Order Nisi from the lower Court and served same on the garnishees including the Appellant on the 30/6/2012. The Appellant complied with the said order Nisi by placing a lien on the account of the judgment debtor which was to the tune of N89,782,082.61 and filed an affidavit to that effect as per the order of the Court.

The judgment debtors however filed a motion on notice seeking an order of the lower Court to set aside the judgment being executed. In a ruling delivered by the lower Court coram Liman J., on the 15/12/2015, the said motion was dismissed and on the application by the Respondent's counsel, the garnishee Order Nisi was made absolute that same day and was subsequently served on the Appellant. 

However, the Appellant filed a motion on notice on 7/1/2016 praying the Court for an order to vary the garnishee order absolute made on 15/12/2015 and to set aside the writ of execution filed by the Respondent. Upon hearing arguments from both parties, the learned trial Judge in a considered Ruling delivered on the 11th day of April, 2016 dismissed the said application.

Aggrieved with the outcome of the said ruling, the Appellant appealed to the Court of Appeal.

The Court adopted the following issues for the determination of the Appeal:
1. Whether the learned trial Judge did not err in law when he held that the lower Court became funtus officio after the garnishee order nisi was made absolute against the appellant herein when Exhibits B, C, D, E, F, G, H, I, J, J1, J2, K, K1, K2 AND L attached to the appellant's motion on notice were not brought to the Court's attention before the garnishee order was made absolute on 15th December, 2015. 
2. Whether the learned trial Judge's (mis)interpretation of the sole issue for determination formulated by the appellant to read "whether the Court can make an order to vary the order absolute made on 15/12/15 by his Lordship, Hon. Justice A.M. LIMAN to accommodate the 3rd garnishee/Applicant's unilateral decision to lift the lien imposed by this Court on the sum of N89,782,082.61 standing to the credit of the 1st judgment debtor as at 30th June, 2012 when the 3rd garnishee was served with the order nisi of this Federal Capital Territory High Court did not occasion a grave miscarriage of justice and the  ruling subject matter of this appeal not liable to be set aside. 
3. Whether the learned trial Judge was not wrong in law and in fact when in the face of overwhelming evidence that the appellant was compelled by the Federal Territory High Court to lift the lien placed on the 1st Judgment debtor's account, he held that the appellant had no power to remove the lien placed on the account by the order nisi and that the appellant was clearly in error when it made the funds a subject of affidavit to show cause in subsequent orders nisi served on it in other garnishee cases.
4. Whether the failure of the learned trial Court to consider the totality of the case put forward by the appellant is not a breach of the appellant right to fair hearing and did not therefore occasion a miscarriage of justice.

In the final analysis, the Court of Appeal in a unanimous decision dismissed the appeal.

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