Before Their Lordships
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MRS. FRANCISCA PABLO-AMARAN- Appellant
AND
VIRGIN ATLANTIC AIRWAYS
-Judgment Debtor/Respondent
AND
1. ZENITH BANK PLC
2. GUARANTEE TRUST BANK PLC
-Garnishee /Respondents- Respondents
…………………….A…………………….
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court, sitting in Lagos, Coram ANEKE J., delivered on the 4th of April, 2017 wherein the Court below declined to make order nisi absolute and declined jurisdiction to determine the application while transferring same to the Court of Appeal because the Court of Appeal was seized of the substantive appeal. The Appellant filed an application for Garnishee proceedings against the judgment debtor and the 1st – 7th garnishee by motion ex parte dated 6th December, 2016. The order nisi was made and the application was adjourned to allow the garnishee show cause why they should not pay the judgment creditor, the credit balance in the account of the judgment debtor. Garnishee banks filed an affidavit showing cause as to why the order nisi should not be made absolute. The Court on a further date discharged some of the Garnishee banks except the 1st and 2nd Garnishee herein. The Appellant alleged that the 1st Garnishee filed a false affidavit with the intention to mislead the Court.
The main judgment was premised on a suit brought against the Respondent and judgment was entered in favour of the Appellant. The Respondent dissatisfied with the judgment filed a Notice of Appeal while Garnishee proceedings were on-going. Meanwhile, the Respondent filed an application opposing the garnishee proceedings at the Court below. After hearing the application, the lower Court agreed with the Respondent and declined jurisdiction on the 4th April, 2017 in view of the Court of Appeal being seized with the Respondents Appeal with No: CA/L/159/2017 which was entered on the 7th February 2017.
Dissatisfied with ruling of the Court below declining jurisdiction, the Appellant filed an Amended Notice of Appeal setting out 3 grounds of Appeal.
The Appellants brief settled by P. Amaran Esq., is dated 9th May, 2017 filed on the same day. It distilled 4 issues for determination which is in excess of the 3 grounds of Appeal filed by the Appellant. I will get back to it in due course.
The issues are as follows:
i. Whether the learned trial judge did not err in law in failing to make the garnishee order dated the 13th of January, 2017, absolute on the 1st garnishee having filed an affidavit to show cause that it had sufficient funds in the judgment debtor account and on the failure of the judgment debtor to file an affidavit to show cause after being served with the garnishee order nisi?
ii. Whether the judgment debtor on being served with the garnishee order nisi dated 13th January, 2017, and having failed to file an affidavit to show cause is a party to the garnishee order absolute proceedings?
iii. Whether the Notice of appeal filed on the 24th of January, 2017, which has no grounds of appeal against the garnishee nisi made on the 13th of January, 2017 is a ground to stay the garnishee proceedings as held by the lower Court?
iv. Whether the 1st garnishee, should not pay fine of the N50,000,000.00 for perverting the cause of justice in favour of the judgment debtor by filing a false statement of account? The Respondent on its part filed a Respondents brief settled by Victoria Adedapo dated 19th June, 2017, filed on the 16th of May, 2018 and deemed on the 23/5/18. It formulated 3 issues for determination as follows:
a. Whether the lower Court was right to have declined jurisdiction in view of the fact that the Respondents Appeal No; CA/L/159/2017, had been entered at the Court of appeal and a motion seeking stay of execution pending before the Court.
b. Whether it is a precondition of the law that a judgment debtor must have filed an affidavit to show
…………………….B…………………….
