ELDER DR. FRIDAY SANI (MAKAMA) V. KOGI STATE HOUSE OF ASSEMBLY & ORS. (2021)

Background

This appeal concerned the enforcement of a judgment through garnishee proceedings and the power of the Court of Appeal to stay execution while an appeal against the enforcement ruling remained pending. The appellant, Elder Dr. Friday Sani, had been a member of the Kogi State House of Assembly before his suspension. He commenced proceedings at the High Court of Kogi State, challenging the suspension. Although the Court of Appeal initially allowed an appeal by the House of Assembly and remitted the case for rehearing, the Supreme Court subsequently allowed the appellant’s appeal in part, restored the trial court’s judgment and ordered the respondents to pay him his pending salaries, allowances, emoluments and other monies due to him, in addition to permitting him to resume his legislative duties.

Following the Supreme Court’s decision, the appellant instituted garnishee proceedings at the High Court of the Federal Capital Territory. He sought to attach funds belonging to the judgment debtors in the custody of banks and claimed a specified amount of N210,820,000.00. The 1st respondent challenged the proceedings, arguing that the Supreme Court judgment did not specify any definite monetary sum and therefore could not support garnishment for the amount claimed. The trial court dismissed the objection and made the garnishee order nisi absolute against funds standing to the credit of the Kogi State Government in an account with Zenith Bank Plc.

The 1st respondent appealed to the Court of Appeal and applied for a stay of execution. The Court of Appeal granted the stay pending determination of the appeal. The appellant then appealed to the Supreme Court, contending that the Court of Appeal lacked jurisdiction, that the 1st respondent had no standing in the garnishee proceedings, and that a garnishee order absolute was a completed act incapable of being stayed.

Issues

1. Whether the Court of Appeal had jurisdiction to stay execution of the garnishee order absolute made by the trial court.
2. Whether the 1st respondent, as a judgment debtor, had sufficient legal interest and locus standi to appeal and seek a stay.
3. Whether the grounds of appeal were grounds of law requiring no prior leave.
4. Whether the garnishee order absolute was final and completed so that execution could no longer be suspended.
5. Whether the judgment debt was sufficiently certain and identifiable for enforcement by garnishee proceedings.

Ratio Decidendi

The Supreme Court dismissed the appeal and affirmed the stay. It held that the Court of Appeal did not review or sit on appeal over the Supreme Court’s judgment. The stay was directed at the subsequent ruling of the FCT High Court, which made the garnishee order absolute, rather than at the Supreme Court’s substantive judgment. A subordinate court cannot alter or review a decision of the Supreme Court, but it may examine an enforcement order made by a lower court and stay its execution where an appeal against that enforcement order is pending.

The Court further held that the judgment debtor is a necessary party in garnishee proceedings once the order nisi has been served. Although garnishee proceedings begin primarily between the judgment creditor and garnishee, they become tripartite at the later stage, involving the judgment creditor, garnishee and judgment debtor. A judgment debtor may be heard where he alleges irregularity, misidentification, misleading facts or uncertainty in the amount claimed. Such participation does not permit the reopening of matters already conclusively decided in the substantive judgment.

The Court emphasised that a judgment sum in garnishee proceedings must be certain and traceable to the judgment being enforced. The Supreme Court had ordered payment of pending salaries, allowances, emoluments and monies due, but had not itself fixed the amount of N210,820,000.00. The amount could not properly be left to unilateral computation or conjecture. This uncertainty justified hearing the judgment debtor and preserving the attached funds pending determination of the appeal.

Court Findings

The Court rejected the preliminary objections challenging the competence of the appeal. It held that the appellant’s grounds, read together with their particulars, alleged errors of law, including misunderstanding or misapplication of legal principles. Consequently, under section 233(2)(a) of the Constitution, no leave was required. The Court also reiterated that a preliminary objection is appropriate where the entire appeal is incompetent and should be terminated in limine. Where only particular grounds are challenged and the remaining grounds can sustain the appeal, the proper procedure is a motion on notice to strike out the defective grounds.

On execution, the Court held that attachment by a garnishee order absolute does not necessarily complete execution. Execution is completed when the attached money is paid to the judgment creditor. Until payment occurs, the court retains power to stay or suspend execution for recognised legal reasons, especially where there is a pending appeal and payment may render the appeal nugatory. The court has a duty to preserve the res so that the eventual winner does not obtain an empty or barren victory.

The Supreme Court distinguished Zenith Bank Plc v. John, U.B.N. Plc v. Boney Marcus Industrial Ltd and U.B.A. Plc v. Ekanem because those decisions involved materially different circumstances, including the absence of a pending appeal against the garnishee order absolute. The Court relied particularly on Gwede v. Delta State House of Assembly, which recognised the judgment debtor’s interest and right to be heard where the judgment debt or identity of the debtor is uncertain.

Conclusion

The Supreme Court unanimously dismissed the appeal as lacking merit. It affirmed the Court of Appeal’s ruling of 28 August 2019 staying execution of the FCT High Court’s garnishee order absolute pending determination of the substantive appeal in Appeal No. CA/A/579/2019. No order as to costs was made.

Significance

The decision confirms that garnishee proceedings are enforcement proceedings, not a forum for reopening the original dispute. Nevertheless, a judgment debtor is entitled to participate where the creditor seeks to enforce an uncertain or improperly computed judgment debt. It also establishes that a garnishee order absolute remains capable of being stayed before the attached funds are actually paid, particularly where an appeal raises substantial questions and immediate payment could defeat the appellate process. The case provides important guidance on the distinction between an appeal against the Supreme Court’s judgment, which is constitutionally impermissible, and an appeal against a lower court’s enforcement ruling, which is competent and may support an application for stay.