HABIB NIGERIA BANK LIMITED v WAHAB OPOMULERO & 13 OTHERS (CA/I/M.184/95) [2000] NGCA 1 (9 March 2000)

In The Court of Appeal

(Ibadan Judicial Division)

On Thursday, the 9th day of March, 2000

Suit No: CA/I/M.184/95

Before Their Lordships

 Between

 And

ADAMU, J.C.A. (Delivering the Leading Judgment): This appeal arose from an order of garnishee absolute made at the instance of 1st - 11th respondents by Edet J. of the Federal High Court sitting at Ibadan on 30th November, 1995. A judgment had been entered for the plaintiff. Wahab Opomulero (i.e. 1st respondent herein) against the defendants - Food Oils Limited and 2 Ors. namely Ayodele Subair and Adewale Subair. In the said judgment dated 3/11/94 which was in Suit No.FHC/IB/3/93 the court awarded N249,936.00 in favour of the plaintiff against the 3 defendants jointly and severally. After the judgment was delivered on 3/11/94, the learned Counsel for the plaintiff applied orally for the consolidation of the judgment with other 9 cases with similar facts and pending in the said court. The court granted the application and ordered that the judgment just delivered to 'apply to all the consolidated cases mentioned above'. This increased the judgment debt to N2,735,127.73 payable to the plaintiffs who now become 11 (eleven) in number as judgment creditors. The three defendants however remain the same after the consolidation and they were thus adjudged as joint judgment debtors to pay the above sum to the 11 judgment creditors.

On 12/5/95, the eleven judgment creditors brought a motion ex-parte and applied to the court for an interim order that the garnishee should satisfy the judgment of the Court from the deposit of the judgment debtor/respondent which was in the custody of the garnishee, the total sum of the judgment debt, in favour of the judgment creditors together with accrued interests in all the consolidated cases Nos. FHC/IB/2-13/93 and to order the garnishee to appeal before the court to show cause why it should not pay the judgment creditors. The garnishee as shown in the ex-parte motion was Habib Nigeria Bank (the present appellant).

When the motion ex-parte came up for hearing on 25/5/95, one Mr. Sowemimo announced his appearance for Food Oils Limited (One of the respondents in the exparte motion) the 12th respondent herein. The learned Counsel for the judgment creditors/applicants opposed the appearance of Mr. Sowemimo in the hearing of the motion which was ex-parte. The court consequently adjourned the matter to 30/5/95 for consideration and ruling. On 30/5/95, another counsel Mr. Umoh Umoh from Mr. Sowemimo's Chambers appeared again and insisted on the right of the 12th respondent to be heard on the ex-parte motion. After hearing the counsel and learned counsel for the judgment creditors, the court ordered that all the parties in the case should maintain status quo inter parties with effect from 25/5/95 when the motion first came up for hearing until further order. It clarified the effect of its order in the ruling to mean that the appellant herein (i.e. Habib Bank Nig. Ltd) shall not operate the current account No.11010148 and a deposit account titled FOOD OILS IN RECEIVERSHIP both being in its possession until further order of the court. Subsequently after the above interim order and on 31/7/95, the court issued a garnishee order nisi the enrolled order of which was served on the appellant on 4/8/95. In its subsequent reaction to the order nisi, the appellant indicated that it only got knowledge of the court's interim order and the garnishee proceeding for the first time when the order nisi was served on it on 4/8/95. Meanwhile, in its affidavit to show cause why the order nisi should not be made absolute, the appellant stated that after revoking the appointments of receivers/managers appointed to manage the affairs of the 12th respondent which was insolvent and was going into liquidation, the syndicate of lenders who were creditors to the said 12th respondent, instructed a firm of solicitors, Messers Paul Usoro & Co., to institute legal proceedings against the said receivers/managers to, inter alia, render accounts of all the money they received in their capacity as receivers/managers on behalf of the said 12th respondent. Messrs Paul Usoro & Co. were employed by the syndicate of lenders to carry out legal documentation as regards the sale of judgment debtors' assets (i.e. Food Oil Ltd's assets). It was also deposed in the appellant's affidavit at the lower court that consequent upon the above assignments and instructions the syndicate of lenders authorised the appellant to make payment of N1,984,216.00 (one million, nine hundred and eighty-four thousand, two hundred and sixteen Naira) from the receivership account to Messrs Paul Usoro & Co. for their professional service. The payment was duly made by the appellant on 29/5/95 before the service of the garnishee order on them on 4/8/95. As at the date of the service of the garnishee order nisi, the balance left in the receivership account after payment to Messrs Paul Usoro and which could garnisheed was N3,289.01(Three thousand, two hundred and eighty-nine Naira, one Kobo). The judgment creditors/applicants in the garnishee proceedings did not file any further affidavit to counter the appellant's depositions as set out above. After hearing counsel's arguments the court in its ruling of 30/11/95 made the garnishee order absolute- relying on the ground or presumption that the appellant had prior knowledge or notice of its interim order for the preservation of the funds in the disputed account before the payment to Messrs Paul Usoro & Co. on 29/5/95. This ruling of the lower court is the subject of the present appeal now before this court. 

The appellant initially filed only one (1) ground of appeal with their notice of appeal (i.e. the omnibus ground) but later applied and obtained leave of this court on 5/3/98 to file 6 (six) additional grounds. The appellant also filed their brief of argument on 19/6/98 which was duly adopted by their learned counsel at the hearing of the appeal on 19/1/2000. Only the 12th respondent filed its brief of argument on 29/9/98 which was also adopted at the hearing of the appeal. The 1st - 11th and 13th - 14th respondents did not file any brief of argument though they were duly served with the appellant's and 12th respondent' brief as well as the hearing notice. Thus, they do not like to take part in the appeal but are willing to abide by any outcome of the said appeal. In the appellant's brief, the following three (3) issues for determination are formulated:-
"2.ISSUESFOR DETERMINATION
2.1 Was the lower court justified in holding that the appellant had notice of the interim order prior to the disbursement of the funds on May 29, 1995 in consequence whereof the court granted the Garnishee order absolute?

2.1.1 Without prejudice to issue No. 1 afore-mentioned, was the court's Garnishee order absolute, as it was framed, capable of compliance by the appellant and/or execution by the court? 
2.2. Was the lower court justified in judging the appellant, the consortium of Banks and the appellant's counsel jointly and severally guilty of criminal conduct in consequence whereof it visited criminal sanctions on them?"
The above issues are adopted in the 12th respondent's brief in which their learned Counsel not only agrees with and subscribes to or associates himself with all the submissions made in the appellant's brief but also concludes by urging this court to allow the appeal. Even in his oral address at the hearing of the appeal, the learned Counsel to the 12th respondent reiterated his stand in the case by urging this court to allow the appeal. By this stance and concession of the 12th respondent (the only respondent who filed a brief of argument and took part at the hearing of the appeal) the appeal could have been summarily dealt with and disposed by the court. However, since there are many other respondents in the case who will be bound by this judgment (who did not file brief or participate in the hearing) it is in the interest of justice to still consider the merits of the appeal and to regard or treat or deem the said other respondents as having adopted their respective cases as presented at the lower court and contained in the record of proceedings. 

Under the first issue of the appellant's brief submits that the appellants did not have notice or knowledge of the interim order made by the lower court and pronounced by the court on 30/5/95 until 4/8/95 when the garnishee order nisi was served on it after disbursing the funds on 29/5/95 in accordance with the instruction of the consortium of bankers. The lower court was therefore in grave error in imputing or attributing knowledge or notice of the said order on the appellant. It is contended that the interim order of the lower court made on 30/5/95 and said to take effect retrospectively on 25/5/95 was never served on the appellant. Reference is made in the brief to Order x rules 1 and 3 of the Federal High Court (Civil Procedure) Rules which stipulate and provide for personal service on a party of petitions, notices, summons, orders or other documents for which service is required except where a party is represented by a legal practitioner in which case service on the counsel will be sufficient. As regards service of court processes or orders on companies, the appellant relies upon section 78 of the Companies and Allied Matters Decree as well as Order X rule 8 of the Federal High Court (Civil procedure) Rules (supra) both of which provide that service can be effected if the process or document is given to any director, trustee or other principal officer of the company or is left at its registered office. It is submitted that the interim order was never served on the appellant through any of the above recommended ways. The appellant's counsel has vehemently denied service or being aware of the interim order until 4/8/95 after the disbursement of the funds on 29/5/95 - see page 22 of the record and paragraphs 3(i) and (j) of their affidavit to show cause (at p.5 of the record). It is pointed out that the deposition in those paragraphs (or subparagraphs) of the affidavit in which the appellant denied service or notice of the interim order before disbursing the funds was not countered or controverted by any of the parties to the proceedings. It is also argued in the brief that there was no proof of service filed by the said order on the appellant either by way of oral testimony of the court's bailiff or by an affidavit of service filed by the said bailiff. 

Even the enrolled copy of the court's interim order was not tendered in court nor was any of the parties to the proceedings served with it prior to the hearing of the substantive garnishee proceedings on 1/11/95. Thus, it is stated in the brief, the lower court was in error in presuming and holding that the order was 'drawn up and served on all' see page 27 of the record. On the importance of service of court's processes on the parties to a judicial proceeding, the brief cites, Alli v. University of Ibadan (1992) 5 NWLR (Pt.240) 217 at 226; United Nigeria Press Ltd. and 6 Ors. v. Adebanjo (1969) 1 All NLR 431; Skenconsult Nigeria Limited v. Ukey (1981) 1 SC 6, NSCC 1; Abu v. Alele-Williams (1992) 5 NWLR (Pt.241) 340 at 349; Carribean Trading & Fidelity Corporation v. N.N.P.C. (1992) 7 NWLR (Pt. 252) 161 at 184; and Mayegun v. Ademola (1987) 4 NWLR (Pt.64) 236. 

In further submission, the brief states that the lower court made a serious mistake when it held in its ruling (at P. 27 of the record) that Mr. Seyi Sowemimo appeared on 25/5/95 to represent the appellant. It is indicated in the brief that Mr. Sowemimo in fact appeared on 25/5/95 to represent the 12th respondent (i.e. Foods Oils (Nig.) Ltd.) which was the 1st defendant/respondent at the lower Court instead of the appellant and throughout the proceeding in the lower court and in this court, the counsel has been representing the 12th respondent. The lower Court's ruling was therefore misconceived (see pages 14 and 15 of the record cited in support of the argument). Thus, the lower court was only speculating when it held that the garnishee (the appellant) had notice of the order or proceedings through its counsel Mr. Sowemimo. The brief cites State v. Aibangbee (1988) 3 NWLR (pt.84) 548 at 577 in which the Supreme Court frowned at and condemned such speculation by the trial Court which is neither borne by the record nor supported by evidence (per Eze, J.S.C.). See also Musa v. Ehidiamen (1994) 3 NWLR (Pt.334) 544 at 567; Seismograph v. Ogbeni (1976)4 SC 85 and Tijani v. C.O.P. (1994) 3 NWLR (Pt.335) 692 at 703 cited in the brief in support of the submission. Thus, it is submitted in the brief that contrary to what the lower court concluded, the appellant was neither served with the interim order nor represented by a counsel either before or on 30/5/95 before the disbursement of the funds in its custody on 29/5/95.

On the effective date of the interim order the appellant's brief points out that the said order though made on 30/5/95 was made to take retrospective effect from 25/5/95. This is said to be unknown to law and contrary to the principle in the maxim lex nemini facit injuriam- the law works injustice to no one - See Afolabi v. Govt. of Oyo State (1985) 2 NWLR (Pt.9) 734; Ojokolobo v. Alamu (1987) 3  NWLR (Pt.61) 377 at 391 both cited in the brief in support of the assertion. It is submitted finally that the Supreme Court in both cases frowned at and condemned the court or legislature making an order or law with retrospective effect as that will cause injustice to the persons affected. We are finally urged in the brief under issue No. 1 to allow the appeal and hold that the garnishee order absolute made by the lower court was erroneous both in law and in fact. 

As stated earlier, it is only the 12th respondent who filed a brief in this appeal. Other respondents (i.e 1st- 11th, and 13th-14th have not filed any brief. In the said 12th respondent's brief the three (3) issues formulated by the appellant are adopted. The facts of the case as recited in the appellant's brief are also adopted in the 12th respondent's brief which emphasizes the fact that neither the appellant nor the 12th respondent were served with the ex-parte application or the interim order of 25/5/95 prior to the disbursement of the funds. The brief only argues or addresses the 1st issue in which it is maintained that the 12th respondent (or its counsel) was not aware of the garnishee order in respect of its account under the custody of the appellant. It is reiterated in the brief that the ex-parte application was mentioned in the lower court on 25/5/95 while the order nisi was made on 30/5/95. Meanwhile, the disbursement of the fund proposed to be garnisheed was made on 29/5/95. Thus there was nothing before the lower Court to show that the respondent's counsel was aware of the terms of the ex-parte application. The 12th respondent's Counsel also never announced his appearance at the lower court for the appellant (i.e Habib Nigeria Bank Ltd.) on 25/5/95 or any subsequent date- the brief emphasised. It is submitted that in garnishee proceedings it is only after the service of the order nisi that the garnishee can be imputed with the knowledge or notice of the proceedings. See the Supreme Court Practice of England 1988 Edition Vol. 1, Notes at 49/3/1 at pages 745 -746 cited in the brief where the learned authors are quoted in a long passage in the brief. See also Giles v. Hamer 11 Ch.D 942; Holt v. Heatherfield Trust Ltd. (1942) 2 KB 1; Hirsch v. Coates (1856) 28 U Cp 315 (139 ER/568); The English & Empire Digest Vol. 21 page 732; and Glegg v. Bromley (1912) 3 KB 474 cited in the brief in support of the contention that an order nisi does not create a charge or an attachment until it is served on the garnishee and that solicitors are entitled to their costs or charges in priority to the claim of the creditor under the garnishee order. It is thus argued in the brief there that was no basis in the present case upon which the learned trial Judge could impute knowledge or service of the order nisi without proof of its actual service on the 12th respondent or the appellant prior to the disbursement of the fund. The order made by the learned trial Judge on 30/5/95 to have a retrospective effect from 25/5/95 is also described in the brief as most invidious.

The 12th respondent's brief adopts and abides by the appellant's submissions under the other two (2) issues as formulated in the appellant's brief. It adds that it was most invidious for the learned trial Judge to visit a criminal liability on or apply criminal sanction on persons who were not parties and not represented in the garnishee proceedings. The said persons, it is pointed out in the brief, were not given an opportunity to be heard or represented by counsel before their conviction and the sanctions imposed on them by the trial Court. We are finally urged in the 12th respondent's brief to allow the appeal and to reverse the orders made by the lower court.

From the above submissions in the two briefs under the 1st issue, the first and crucial question (or point) to determine is whether the appellant in the present appeal (which was the garnishee in the lower court) was aware of or had notice or knowledge of the interim order made by the said lower court on 30/5/95. In answering this question, we have to look at the record and recall the circumstances in which the order was made. Before the said order was made by the lower court, there was a motion ex-parte dated 12/5/95 for an order of garnishee nisi. The motion (or application) was brought on behalf of 1st-11th respondents herein against the 12th-14th respondents as judgment debtors (respondents and the appellant as Garnishee (see the motion paper at page II of the record). The ex-parte motion came up for hearing on 25/5/95 and when one Mr. Sowemimo announced his appearance with Mr. Okon Umoh for the 1st defendant (i.e. the 12th respondent herein), the learned counsel for the judgment creditor/applicant Mr. Yinka Muyiwa objected vehemently to the appearance of the said Mr. Sowemimo. The court then recorded the submission or arguments of both counsel as to the validity or right of the 1st respondent's counsel to appear at the hearing of the motion ex-parte and then adjourned the case to 30/5/95 for "consideration." By looking at the proceedings of that day (i.e. 25/5/95), the appellant's name was not even indicated or shown. Thus, going by the record (at p.14 thereof) the appellant (or the "garnishee") was not a party in the proceedings of 25/5/95 and the affair was solely between the judgment creditor as plaintiff and the three judgment debtors as defendants. In the same way, the same parties are also shown in the proceedings of 30/5/95. The only little difference is that the 2nd and 3rd judgment debtors/defendants are shown to be the receivers/managers to the 1st defendant (see page 15 of the record). Consequently, in my view, the garnishee/appellant though its name appeared in the motion paper was not shown to be one of the parties in both the proceedings of 25/5/95 and 30/5/95 when the interim order (or order nisi) was made by the lower court. In view of this, I agree with the submission that since the appellant was not represented by anybody at the said proceedings, it cannot be said to be aware of or to have notice or knowledge of the order of the court both interim and nisi which was made 30/5/95. This is more so when the motion/application that resulted into the making of that order was ex-parte. I also agree (and as reflected in the printed record) that Mr. Sowemimo did not represent the appellant in the lower court. The view or holding of the learned trial Judge that he did represent the said appellant was therefore misconceived as a mere confusion or misapprehension. It is to be noted that when the interim order was made by the lower court on 30/5/95, it is indicated therein that the enrolled order would be drawn and served on all the parties concerned. This is in appreciation and confirmation that it was made pursuant to an ex-parte motion and the respondents and the garnishee did not have either actual or constructive notice or knowledge thereof. The enrolled order was drawn on the following day 31/5/95. There is nothing throughout the record of proceedings to show when the said order was actually served on the respondents and the garnishee (i.e. the appellant). Under the circumstances, the lower court should have accepted the fact averred or deposed to in the garnishee's affidavit to show cause (paragraph 3(j) thereof) which was not controverted to the effect that the payment from the amount attached by the interim order had taken place on 29/5/95 before the interim order or the garnishee order nisi was actually made and served on the garnishee/appellant on 4/8/95. It is an elementary principle of law that facts contained in an affidavit form part of documentary evidence before the court and where an affidavit is filed deposing to certain facts and the other party does not file a counter- affidavit or a reply to counter-affidavit, as the case may be, the facts deposed to in the said affidavit would be deemed as unchallenged, uncontroverted or undisputed and therefore admitted and the court can rely on such admitted facts in resolving the issue- See Alagbe v. Abimbola (1978) 2 SC 39; Agbaje v. Ibru Sea Foods Limited (1972) 5 SC 50; National Bank of Nigeria Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 SC 97; Egbuna v. Egbuna (1989) 2 NWLR (Pt.1 06) 773 and Orient Bank (Nig.) Plc. v. Bilante International Ltd. (1996) 5 NWLR (pt.447) 166 at 180.

On the service of the interim order (or the order nisi) on both the appellant and the 12th respondent, I am of the firm view that apart from the uncontroverted fact deposed to in the affidavit of the garnishee to show cause in which it stated that it was not served with the said order until 4/8/95, the prescribed manner or way of showing proof of service of writ or other court processes as provided by the Rules of court is by tendering of an affidavit of service duly sworn to be the person affecting the service. Where it was effected by an officer of the Court (e.g. a Sheriff, a deputy Sheriff or a bailiff) such can be proved by a certificate of service or by an affidavit of service. 

Service of process of the court on the person affected or to be affected is very fundamental to any judicial proceedings as the non-service or failure of service of such processes have been held in numerous decided cases to be a fundamental vice which is capable of robbing the court of its jurisdiction over the party who was not served with the said process - see Skenconsult (Nig.) Ltd & Anor v. Godwin Sekoudy Ukey (supra); Madukolu & Ors. v. Nkemdilim (1962)2 SCNLR 341,(1962) 1 All NLR 587 at 595 and Schroder v. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 1 at 20; Mark v. Eke (1997) 11 NWLR (pt.529) 501; and Unipetrol (Nig.) Ltd v. Bukar (1997) 2 NWLR (Pt.488) 472.

I therefore agree with the appellant's submission that the appellant and 12th respondent being companies under the Companies and Allied Matters Decree the minimum statutory requirement of service on them was not complied with by leaving the order at their registered office (i.e. their head offices) - see Palm Beach Insurance v. Bruhns (1997) 9 NWLR (Pt. 519) 80; N.N.P.C. v. Elumah (1997) 3 NWLR (pt.492) 195; Texaco (Nig.) Plc v. Lukaka (1997) 6 NWLR (pt.5 10)651; and Odu'a Investment Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1; S.78 of Companies & Allied Matters Act, 1990; Orders X, rr. 1, 3 & 8; XIX r.1(a) Federal High Court (Civil Procedu