IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

18^TH DAY OF DECEMBER, 2025                                         SUIT NO. NICN/CA/53M/2023

 

BETWEEN:

Dr. P. G. Akintunde ……….          Judgment creditor/respondent

AND

1.     University of Calabar

2.     Vice-Chancellor University of Calabar………………             judgement debtors/applicants

        RULING

1.     This deal with motion on notice dated 4^th day of August, 2025 and filed on the same date. The motion was brought pursuant to order 17 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017, section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended and under the inherent jurisdiction of the court.

2.     In the application, the judgment debtors/applicants are praying for:-

1.     An order setting aside the garnishee order nisi made by this court in the proceedings of 5^th day of June, 2024, for having been granted without jurisdiction.

2.     An order setting aside the garnishee order absolute made in the proceedings of 25^th day of July, 2025, having been premised on a void order nisi.

3.     And for such further order(s) as this court may deem fit to make in the circumstance.

3.     The grounds for this application are as set out hereunder:-

a.      The Honourable court did not possess the requisite jurisdiction to entertain the proceedings and grant the orders.

b.     The condition precedent for the commencement/institution of the garnishee proceedings by the judgment creditor/respondent was absent.

c.      By these reasons, the orders of the court first above mentioned are null and void.

d.     The facts contained in the judgment creditor/respondent’s affidavit in support of the motion exparte upon which the garnishee order nisi was made did not disclosed any cause of action against any of the garnishee Banks.

e.      None of the Garnishee Banks was indebted to the any of the judgment debtors at the time the application for the order nisi was made by the judgment creditor/respondent.

4.     Paul Eshemomoh, Esq; counsel for the judgment debtors/applicants in arguing in support of the application placed reliance on the 11 paragraphs affidavit filed in support of the application and the exhibits attached therein. Counsel also adopted the written address filed along with the motion on notice as his argument on the application.

5.     In the written address four issues were formulated for determination. They are:-

1.     Whether the judgment debtors are one and the same person as the University of Calabar Trust and Endowment Fund Ltd/GTE for the purpose of attaching its funds with the garnishee Banks,

2.     Whether at the time of the court granting the Garnishee Order nisi and the subsequent Garnishee Order Absolute, there was evidence before the court that the garnishee Banks where indeed indebted to the actual judgment debtors or had the funds of the judgment debtors in their custody, a condition precedent under S. 83 (1) of SCPA.

3.     If the above issues are resolved in the negative, whether this court had the jurisdiction to entertain the exparte application or grant the garnishee order absolute.

4.     Whether this court possesses the vires to set aside the Garnishee Orders upon this application.

6.     Counsel argued issues 1, 2 and 3, together, because according to counsel they have factual and legal nexus.

7.     The argument on the three issues is to the effect that the judgment debtors/applicants are separate and distinct from the University of Calabar Trust and Endowment Fund Ltd/GTE which is the owner of the funds in the accounts numbers with the 1^st garnishee bank (UBA), which was attached via the garnishee orders nisi and absolute issued by this court.

8.     Counsel went on to argue that the 1^st judgment debtor/applicant is a creation of statute with perpetual succession, while 2^nd judgment debtor/applicant is an office under the 1^st judgment debtor/applicant. While University of Calabar Trust and Endowment Fund on the other hand is a creation under section 41 of the Companies and Allied Matters Act, 2020 and by virtue of the provisions of :section 42 of the Act. It is separate and distinct from the judgment debtors/applicants.

9.     It was submitted that the University of Calabar Trust and Endowment Funds being a separate legal person distinct from the judgment debtors, cannot be held legally liable for the debt of the judgment debtors. In support of this submission reliance was placed on the case of Onwuekwusi v, Registered Trustees CMZC (2011) |7 NSCQR, p. 923 at pp 946-947 paras  D – A,

10.                        Counsel refers to exhibit A annexed to the affidavit to this application, which is the affidavit to show cause filed by the 1^st Garnishee Bank (UBA), wherein it deposed to the facts that the judgment debtors were neither its customers nor the owners of the accounts listed by the judgment Creditor/Respondents in its application for the Garnishee Order nisi. According to counsel, these facts were not contested or controverted by the judgment creditor, but, this court inadvertently proceeded to grant the Garnishee order nisi and the subsequent order absolute having being misled by the judgment creditor. Counsel urged the court to hold that the judgment debtors are separate and distinct from the University of Calabar Trust and Endowment Fund Ltd/GTE,

11.                        It was submitted by counsel that, if the court is in agreement with the submissions of the judgment debtors, it follows that in the absence of any other evidence that the funds of the judgment debtors were in the custody of the Garnishee Bank at the time the judgment creditor made the exparte application for the Garnishee Order nisi, it means that the requirement of the provisions of S. 83 (1) of the SCPA, has not been met. Section 83 (1) of the SCPA, provides:-

“the Court may, upon the exparte application of any person who is entitled to the benefit of a judgment for the recovery or payment or money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the Costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid”.

12.                        According to counsel the provisions of section 83(1) of SCPA, was not complied with by the judgment creditor/respondent when this court granted the garnishee orders nisi and absolute attaching the funds in the account listed in the motion paper.

13.                        Counsel submitted that the import of section 83 (1) of the SCPA (SUPRA) is that for a court to be seized of the vires to entertain and grant a garnishee order nisi to a judgment creditor, the judgment creditor must by the affidavit in support of the application proved and convince the court that:

1.     The judgment has been recovered and is still not yet satisfied;

2.     That the person (Garnishee Bank) is indeed indebted. To the judgment debtor and is within the state.

14.                        Counsel submitted that the proof of the above facts are the condition precedent for the court to possess the vires to entertain and grant the application. The burden of proving those condition precedent resides with the judgment creditor and it is not enough for the judgment creditor as deponent to the affidavit to merely averred that the Garnishee Bank(s) is indebted to the judgment debtors or had the judgment debtors; funds in their custody, on this submission counsel relied on the case of GT Bank v, Tafida (2021) LPELR – 5613 (CA) at (pp, 31.34, paras A-B).

15.                        Counsel submitted that in the face of the above, this court did not possess the requisite vires/jurisdiction to have granted the Garnishee order(s) nisi nay absolute, based on the defective application. Counsel further placed reliance on the case of Ekanem V Reg. Trustees of the Church of Christ, The Good Shepherd (2011) LPELR – 9098 (CA) at {pp 16-22, paras.D-G),

16.                        Counsel urged the court to hold that this court had no jurisdiction to have granted the Garnishee order nisi of 5^th June 2024 and the Garnishee order absolute of  25^th July, 2024 made pursuant to it.

17.                        It was submitted that it is trite that an order made by a court without jurisdiction is a nullity and Ipso facto void and liable to be set aside. On this contention counsel relied on the case of Ayman Ent. Ltd. V Akuma Industries ltd (2003) 14 NSCQR 1171. Since the order absolute was premised upon the void order nisi, the order absolute will suffer the same fate as you cannot put something on nothing. In support of this proposition counsel relied on the case of Macfoy v, UAC Ltd. (1841.-1973) Privy Council Judgment P. 866 at p. 870 or (1961) ALL ER 1169,

18.                        Issue 4: Whether this court possesses the vires to set aside the Garnishee Orders by this application.

19.                        In arguing this issue counsel submitted that that though the Garnishee Order nisi and the subsequent order absolute and final orders, this court has the inherent jurisdiction to set them aside, where as in this case it has been shown to the court that they were irregularly obtain and ipso facto void ab initio. In support of this contention counsel relied on the case of Jaiz Bank Plc. Vi GT Bank (2017) LPELR-45179 (CA) at (pp. 28-30, pars. E-F.

20.                        Counsel submitted that this court is still vested with the inherent jurisdiction to set aside the Garnishee order(s) nisi nay absolute of 5^th June 2024 and 25^th July, 2024 respectively having been granted without jurisdiction.

21.                        In concluding his submission counsel urges the court to grant this application and set aside your orders of 5^th June, 2024 and that of 25^th July, 2024 respectively.

22.                        The judgment creditor/respondent filed a 13 paragraphs counter affidavit in opposition to this application. A written address was also filed along with the counter affidavit which was deemed as having been argued due to absence of counsel to argue same when the application came up for argument before the court.

23.                        I have considered all the processes filed in this suit, as well as evaluated the affidavit evidence filed by the parties before the court. I have equally appraised and considered the cases cited by counsel in support of their various submissions.

24.                        The main reliefs being sought by the judgment debtors/applicants is for setting aside the order nisi of 5^th April, 2024 and order absolute of 25^th day of July, 2025. The said orders were said to have been made without jurisdiction.

25.                        Jurisdiction is threshold that give court power to adjudicate over dispute submitted to it by parties, without which any order made will be null and void no matter how well the proceedings were conducted. Jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. Jurisdiction defines the power of courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. Put differently, it is the power of the court to decide a matter in controversy and it presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction is a threshold issue, and where a trial is conducted without jurisdiction, the whole proceedings amount to a nullity however well conducted. Jurisdiction is the pillar upon which an entire case stands. Instituting an action in a court of law presupposes that the court has jurisdiction. But once the defendant shows that the court has no jurisdiction, the case crumbles. See Ngere v. Okuruket XIV (2017) 5 NWLR (Pt. 1559) 440.

26.                        Jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute.

27.                        The jurisdiction of the court is determined by the claim as disclosed in the complaint before the court.  In other words, it is the case of the complainant as elaborated in the originating process that determines the jurisdiction of the court. See Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt. 117) 517; Mustapha v. Gov., Lagos State (1987) 2 NWLR (Pt. 58) 539; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt. 1318) 423; Merill Guaranty Savings & Loans Ltd. v. Worldgate Building Society Ltd. (2013) 1 NWLR (Pt. 1336) 581; Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503; Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274; Dagazau v. Bokir Int’l Co. Ltd. (2011) 14 NWLR (Pt. 1267) 261.

28.                        In determining jurisdiction, the court is enjoined to consider the claim being sought, as it is the reliefs sought that confers jurisdiction, if they fall within the purview of ambit of jurisdiction of the court as encapsulated in the constitution or statute conferring jurisdiction. In the case at hand the reliefs sought by the judgment creditor/respondent is enforcement of judgment of this court. The critical question that needs to be answered is whether this court has jurisdiction to enforce its orders in the way it has done in this case.

29.                        Garnishee proceedings are a statutory method of enforcing a monetary judgment, allowing a judgment creditor to attach money belonging to the judgment debtor in the hands of a third party (the garnishee), typically a bank as in this case. The process is initiated by an ex-parte application for an order nisi, which is a provisional order requiring the garnishee to show cause why the money should not be paid to the judgment creditor. If no sufficient cause is shown, the order ‘nisi’ is made absolute, compelling the garnishee to pay. Section 83(1) of the Sheriffs and Civil Process Act (SCPA) is the enabling statute, stipulating that the court may make an order ‘nisi’ "upon affidavit by the applicant or his legal practitioner that judgment has not been recovered and that it is still unsatisfied, and that any other person is indebted to such debtor and is within the State." This section lays down the fundamental conditions’ precedent for the commencement of garnishee proceedings. See also section 287(3) of the constitution of the Federal Republic of Nigeria, 1999, as amended.

30.                        A careful perusal of the motion ex-parte and the affidavit in support filed 5/2/2024, coupled with the affidavit to show cause filed on  24/6/2024, by the 1^st Garnishee, the order nisi was made in full compliance with the provisions of section 83(1) of (SCPA). For proper appreciation paragraph 3 of the affidavit of 1^st garnishee read:-

31.                        That Chukwudi Etheah, the legal officer of 1^st Garnishee (United Bank for Africa Plc) informed me on the 20^th June 2024, at about 10:53am or so soon thereafter via email Inamakiki@gmail.com and I truly believe him that upon service of the Order Nisi of this Honorable Court, on the 1^st Garnishee, he has perused the banks records and has confirmed the following:

a.      That the 1^st Judgment Debtor maintains 4 accounts with the Garnishee with account numbers resident with the 1^st Garnishee Bank as follows:

                                                              i.      1025064374 THE UNIVERISTY OF CALABAR  TRUST AND ENDOWMET FUND LTD/GTE

                                                           ii.      3003715641 THE UNIVERSITY OF CALABAR TRUST AND ENDOWMENT FUND

                                                         iii.      303715665 THE UNIVERSITY OF CALABAR TRUST AND ENDOWMENT FUND

                                                         iv.      3003715689 THE UNIVERSITY OF CALABAR TRUST AND ENDORWMENT FUND

b.     That the available balance in the accounts of the 1^st judgment debtor are sufficient to satisfy the judgment sum in this suit.

c.      that the 2^nd Judgment Debtor does not maintain any account with the Judgment Creditor.

32.                        The above averment in paragraph 3 of the 1^st garnishee (UBA), has clearly debunked the ground of this application and the averments of the judgments debtors in the affidavit in support to the effect that the 1^st garnishee’s affidavit show that the accounts did not belonged to any of the judgment debtors/applicants but to University of Calabar Trust and Endowment Fund a company limited by guarantee.

33.                        It is pertinent to note in the affidavit to show cause filed by the 1^st garnishee it was made unequivocally clear that vide paragraph 3 b. that the available balance in the accounts of the 1^st judgment debtor are sufficient to satisfy the judgment sum in this suit. It was on the strength of this averment confirming availability of funds to satisfy judgment debt in the accounts of the 1^st judgment debtor that this court granted order nisi on 5/6/2024, which was subsequently made absolute on 25/10/2024.

34.                        If it is true the judgment debtors do not have any account with the 1^st garnishee, I do not understand why the judgment debtors should be worried about the assertion of the 1^st garnishee. They should allow the owner of the accounts to fight for it. Since they claimed they do not have accounts with the 1^st garnishee then why the worry, as they will suffer any loss with the order nisi made and subsequently made absolute.

35.                        In have no doubt in my mind with the averment contained in the affidavit to show cause the conditions precedent as stipulated by section 83(1) of (SCPA), have been fulfilled. Therefore, the orders of the cannot be faulted.

36.                        The judgment debtors/applicants have not made out any case to justify setting aside order nisi and order absolute made by this court in this case, when they are not the owners of the accounts said to be affected. They should allowed the owner to fight his own battle.

37.                        The way and manner counsel has been inundating this court with application challenging jurisdiction of this court to hear and entertain garnishee proceedings clearly shows that the judgments debtors are all out to go to any extent to frustrate the judgment creditor from reaping the benefit of his judgment. The judgment debtors have not in any way disputed the judgment which the judgment creditor has taken legal steps to ensure compliance. It is because the judgment debtors/applicants do not want obey the court order thus why they are resorting to using judicial process to frustrate the judgment creditor in order to deny him from enforcing the judgment given in his favour.

38.                        Taking into consideration the fact that the judgment debtors have in another application before this court challenged the order absolute in this case and by this application they are challenging it again, it shows that the judgment debtors are engaged in abuse of process of court. As at the time they file the application of 13/8/2024, they are aware of the existence of order nisi of 5/6/2024, but they decided to only challenged order absolute. Therefore, the present application wherein they are challenging both the order nisi and order absolute amount to abuse of court process. The reason being that as at the time they challenged the order absolute which this court delivered ruling on 19^th day of May, 2025, the order nisi was in existence, they cannot claim ignorance of its existence, therefore, challenging the two orders after the challenge to order absolute has been thrown away amount to abuse of process of court. Generally, Abuse of Court Process entails the multiplicity of processes aimed at annoying or frustrating the opposing party. In this case, the judgment debtors/applicants knowing fully well that they have challenged order absolute before filing of this application still went ahead to challenge the order absolute in this application, which means they are challenging the order absolute twice. Therefore, the second challenge to order absolute amount to abuse of process as by law they estopped from making such a challenge. As the said issue having been dealt with by this court in its ruling of 19^th day of May, 2025, cannot be challenged subsequently as the judgment debtors/applicants are estopped from raising the same issue in a subsequent proceeding like they have done in this application.

39.                        In view of the foregoing, even if there is no compliance with conditions precedent, the judgment debtors/applicants application must fail because parties are not allowed to ventilation of grievances in piecemeal.

40.                        On the whole the application of the judgment debtors/applicant failed same is hereby dismissed with cost of N200,000.00 granted in favour of the judgment creditor/respondent against the judgment debtors/applicants.

41.                        Ruling is hereby entered accordingly.

 

 

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

S. N. Brown, Esq; for the Judgment creditor

Jonas O. Abuo, Esq; for the judgment Debtor with Agnes Attrogor, Esq; holding brief of Paul Eshemomoh, Esq;