BACK

NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT-HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT-HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA 

 

DATE: 2ND JULY, 2026 

SUIT NO: NICN/ABJ/246/2025

 

BETWEEN:     


 

  1. DTD SERVICES LIMITED    
  2. DTD HOLDINGS LIMITED                          ………..…… CLAIMANTS    
  3. DTD OIL & GAS SERVICES LIMITED             

 

AND 

 

  1. ACCESS BANK PLC
  2. STANBIC IBTC BANK PLC      …….……….................... DEFENDANTS

 

REPRESENTATION:

G. Amadi for the Claimants.

N. M. Nwakama for the Defendants.

 

JUDGMENT

1.      On the 15th of August 2025, the Claimant commenced this action against the Defendant by way Originating Summons seeking for the determination of the following:

Whether by the Rules of this Honourable Court a garnishee order nisi is not an exparte order and whether by the extant state of the law on exparte orders, the garnishee order nisi of this Honourable Court made on 19th March, 2024 in NICN/PH/7M/2024, is not stale, otiose and spent by operation of law.

 

The Claimant also claimed against the Defendant for the following reliefs: 

  1. A DECLARATION that the Garnishee Order Nisi made by this Honourable Court on 19th March, 2024, in NICN/PH/7M/2024 between MR. OMOLOLA ROBERTS& 21 ORS. VS. DTD HOLDINGS LTD & 19 ORS, attaching the funds in the Bank Accounts of the respective Claimants, domiciled with the Defendants respectively, is stale, otiose and spent by operation of law.
  2. AN ORDER MANDATING the Defendants to forthwith discountenance and disregard the said Garnishee Order Nisi made on 19th March, 2024, in NICN/PH/7M/2024, and grant the Claimants immediate and unhindered access to all their Bank Accounts and funds domiciled with the Defendants.

 

2.      The Originating Summons is supported by a 19 paragraphs affidavit deposed to by Mark Ushar Asu-Obi. From the written address in support, Learned Counsel for the Claimants formulated a sole issue for determination, namely;

Whether a garnishee order nisi is an ex parte order under the Rules of this Court and, if so, whether the garnishee order nisi made on 19 March 2024 in Suit No. NICN/PH/7M/2024 has become stale, spent, otiose and inoperative by operation of law.

 

Summary of the Claimant’s Written Address in Support of the Originating Summons at page 27 of the record

3.      Counsel argued that a garnishee order nisi is, by its very nature and by virtue of the Rules of Court, is an ex-parte order. Reliance was placed on Order 51 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, which expressly provides that an application for a garnishee order nisi shall be made ex-parte. Counsel further referred the Court to the case of UBN PLC VS. ONIKOYI& ORS (2022) LPELR-58164 (CA), where the Court of Appeal, per Abdullahi Mahmud Bayero, JCA, recognized that garnishee order nisi proceedings commence by an ex-parte application and held that an order nisi made ex-parte is not appealable by virtue of Section 14(1) of the Court of Appeal Act.

4.      Counsel further submitted that judicial authorities have consistently defined an ex-parte order as one made without notice to, or participation of the adverse party. In support, reliance was placed on IBRU VS. IKEJA HOTELS PLC (2017) LPELR-49869, at page 9, paragraph A, where it was held that an ex-parte order is intended to subsist only for a very brief period, and in OKADIGBO VS. EMEKA & ORS (2011) LPELR-9187 (CA), at page 27, paragraphs A–B, where the Court of Appeal described an ex-parte order as one made upon the application of one party without notice to the other.

Having established that a garnishee order nisi is an ex-parte order, Counsel contended that such an order cannot endure indefinitely. Reliance was placed on FAGBOLA VS. TITILAYO PLASTIC INDUSTRIES LIMITED & ORS (2003) LPELR-11112 (CA), per Muntaka-Coomassie, JCA, at pages 18–19, paragraphs E–B, where the Court held that the lifespan of an ex-parte order is intended to be very short and that such an order should terminate with minimal delay unless extended upon consideration of a motion on notice. Counsel also referred to TSA INDUSTRIES LTD VS. ABACUS MERCHANT BANK LTD (1996) 2 NWLR (Pt. 430) 305 at 317, wherein the Court emphasized the necessity of promptly hearing the motion on notice to determine whether the ex-parte order should remain in force.

5.      Counsel further argued that the temporary nature of a garnishee order nisi is reinforced by Section 83(2) of the Sheriffs and Civil Process Act and Order 51 Rule 3(1) of the National Industrial Court Rules 2017, both of which prescribe time limits for service of the order nisi and contemplation of further proceedings within a short period. Particular reliance was placed on ABRAHAM VS. AMODENI & ORS (2019) LPELR-48209(CA), per Mohammed Ambi-Usi Danjuma, JCA, at pages 4–8, paragraphs B–C. Counsel submitted that the Court of Appeal in that case held that a garnishee order nisi has a lifespan of fourteen days and, where it is neither made absolute nor set aside within that period, it becomes spent, vacuous, moribund and devoid of legal efficacy. Counsel contended that the reasoning in that decision applies directly to the facts of the present case and supports the conclusion that the garnishee order nisi made on 19 March 2024 has become stale and inoperative.

6.      Counsel further relied on Order 17 Rule 14(6), (7) and (8) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, particularly the provisions stipulating that an ex-parte order lapses after the prescribed period where no application to vary or discharge it is pursued, and submitted that these provisions lend statutory support to the principle that ex-parte orders are inherently temporary. In addition to the legal argument on the lifespan of the order nisi, Counsel submitted that the Claimants had demonstrated exceptional circumstances warranting the discharge of the order. Reference was made to the affidavit evidence showing that the restrictions placed on the Claimants’ bank accounts had crippled their operations, prevented access to funds, impaired their ability to meet contractual obligations, and jeopardized the payment of salaries to over one hundred employees. Counsel argued that the continued restriction of the accounts threatens the Claimants’ survival as a going concern and may ultimately lead to loss of employment and disruption of business relationships.

7.      Counsel further contended that public policy considerations favour the discharge of the order nisi. In that regard, reliance was placed on TOTAL NIGERIA PLC VS. AJAYI (2004) 3 NWLR (Pt. 860) 270 at 293–294, where public policy was described as the policy of the law against sanctioning acts injurious to public welfare or the public good. Counsel also cited STATOIL (NIG) LTD VS. INDUCON (NIG) LTD & ANOR (2012) LPELR-7955(CA), at pages 54–55, paragraph D; LIMAK YATIRIM ENERJI URETIM ISLETME HIZMETLERI VE INSAAT A.S. & ORS VS. SAHELIAN ENERGY & INTEGRATED SERVICES LTD (2021) LPELR-58182(CA), per Peter Olabisi Ige, JCA, at pages 60–64, paragraph D; CONOIL PLC VS. VITOL S.A. (2011) LPELR-19951(CA), per Jimi Olukayode Bada, JCA, at page 45, paragraphs A–B.

8.      Counsel also submitted that the pending appeal against the substantive judgment does not deprive this Court of jurisdiction to determine the status of the garnishee order nisi because the garnishee proceedings are separate and distinct from the substantive action. It was argued that there is no appeal against either the garnishee order nisi or the order adjourning the garnishee proceedings sine die, and therefore the Court retains the power to determine whether the order nisi remains alive and enforceable. In support of the need to do substantial justice, Counsel relied on SALISU & ORS VS. ABUBAKAR & ORS (2014) LPELR-23075(CA), at page 64, paragraph A, where the Court of Appeal, per Abiru, JCA, reiterated that justice is a three-way traffic encompassing the interests of the Claimant, the Defendant and society at large, citing OKOMU OIL PALM CO. LTD VS. OKPAME (2007) 3 NWLR (Pt. 1020) 71.

In conclusion, Counsel urged the Court to hold that the garnishee order nisi made on 19 March 2024, being an ex-parte order, has become spent, stale and inoperative by operation of law; that exceptional circumstances and public policy considerations justify its discharge; and consequently to grant the Claimants the reliefs sought in the Originating Summons.

1st Defendant’s Response

9.      Counsel to the 1st Defendant filed a 4 paragraph Counter affidavit deposed to by Winner Joy Solomon, and a written address. Learned Counsel for the 1st Defendant formulated a sole issue for determination as:

“Whether or not the 1st Defendant was duty bound to obey the Court Order Nisi till date?”

In arguing the sole issue, Counsel submitted that the 1st Defendant merely complied with a valid and subsisting Garnishee Order Nisi served upon it in the garnishee proceedings. According to Counsel, the Order Nisi directed the 1st Defendant, as garnishee, to show cause why the funds standing to the credit of the Claimants’ account should not be attached in satisfaction of the judgment debt. Consequently, the 1st Defendant placed a restriction on the said account pending compliance with the order and the filing of an Affidavit to Show Cause.

10.    Counsel contended that it is a settled principle of law that every order of a court of competent jurisdiction remains binding and enforceable until it is set aside by the Court that made it or by an appellate Court. In support of this proposition, Counsel relied on ATTORNEY GENERAL OF ANAMBRA STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2005) All NLR page 90. Relying on the foregoing authority, Counsel submitted that the 1st Defendant did not act arbitrarily in restricting the Claimants’ account, as it was under a legal obligation to comply with the Garnishee Order Nisi, which remained valid and binding until set aside. It was further argued that the 1st Defendant had no authority to question, review, or determine the validity of a Court order on its own initiative. According to Counsel, once an order is issued by a Court of competent jurisdiction and served on a bank, the bank is bound to comply with it until a contrary order is made.

In support of this position, Counsel relied on OLORUNTOBA VS. GTB (2020) LPELR-49586 (CA) (Pp. 48 paras. D), where the Court of Appeal held: “The Respondent has an obligation to obey every order of Courts of competent jurisdiction served on it in relation to issues concerning accounts of its customers, and it would be acting outside its powers, to interrogate such orders in order to fault its authenticity so as to defy the directives contained therein.” Counsel submitted that the principle enunciated in the above case applies squarely to the present circumstances, as the 1st Defendant, being a bank, was under a duty to obey the Garnishee Order Nisi and could not unilaterally lift the restriction placed on the Claimants’ account without a further order of Court.

11.    Counsel further argued that the Claimants were aware of the existence of the Garnishee Order Nisi but failed to take immediate steps to challenge or set it aside. It was submitted that where a party considers a Court order to have been wrongly made, the proper course is to apply for its discharge, variation, or correction, or to appeal against it, rather than disregard it citing VICTOR OLUROTIMI VS. FELICIA IGE (1993) 10 SCNJ Page 1. Counsel maintained that since no order setting aside or varying the Garnishee Order Nisi had been produced before the 1st Defendant, the order remained operative and binding on it.

Finally, Counsel cited ALIMS NIG. LTD VS. U.B.A. PLC. (2007) All FWLR (Pt. 347) 971 at 981, and based on the foregoing authorities and submissions, learned Counsel contended that the 1st Defendant acted strictly in compliance with a valid Court order and remained under a continuing obligation to obey the Garnishee Order Nisi until it is discharged, varied, or set aside by a competent Court. Counsel therefore urged the Court to dismiss the suit against the 1st Defendant for lacking merit and substance.

 

2nd Defendant’s response 

12.    Counsel to the 2nd Defendant filed a 13 paragraph Counter affidavit deposed to by Jonathan Oriaku, attached with Exhibit marked Exhibit A and a written address. The Defendant formulated these issues for determination, namely:

  1. Whether the Claimants’ suit is competent, having failed to join Mr. Omolola Roberts and 21 others, the Judgment Creditor in the garnishee proceedings, as parties to this suit?
  2. Whether from the facts, circumstances, and applicable law, the Claimants are entitled to the reliefs sought against the 2ndDefendant?

Arguing Issue One on whether the suit is competent in the absence of the Judgment Creditors as parties. Counsel submitted that the instant suit is fundamentally defective for failure to join the judgment creditors in the garnishee proceedings, namely Mr. Omolola Roberts and 21 others, whose garnishee proceedings gave rise to the Garnishee Order Nisi being challenged in this action.

13.    It was argued that the doctrine of necessary parties is a substantive requirement founded on the principles of natural justice and fair hearing. Counsel relied on GREEN VS. GREEN (1987) 3 NWLR (Pt. 61) 480, where the Supreme Court held that a necessary party is one whose presence is essential for the fair and complete determination of the issues in dispute. Counsel further referred to GASSOL VS. TUTARE (2013) 14 NWLR (Pt. 1374) 224 at 249 paras. C–E, wherein the Supreme Court, per Galadima, JSC. While acknowledging the general principle that an action is not ordinarily defeated by non-joinder or misjoinder of parties, counsel contended that an exception arises where the non-joinder would occasion a breach of fair hearing. Reliance was placed on APUGO VS. UGOJI (2022) 16 NWLR (Pt. 1857) 669 at 694 paras. C–E and 699 paras. D–F.

 

14.    Counsel also cited NDUKWE VS. U.B.N. PLC (2021) 4 NWLR (Pt. 1765) 165 at 199 paras. E–H, where the Supreme Court held that failure to join a party whose rights would be adversely affected by the reliefs sought would render the suit improperly constituted and amount to a denial of fair hearing.It was submitted that the Garnishee Order Nisi forming the subject matter of the present suit was obtained by the judgment creditors in Suit No. NICN/PHC/7M/2024 against the Claimants. According to Counsel, the Claimants now seek declarations that the Garnishee Order Nisi has become spent and orders compelling the Defendants to remove the restrictions placed on their accounts pursuant to that order. Counsel argued that any such orders would directly affect the rights and interests of the judgment creditors.

 

The 2nd Defendant contended that the judgment creditors are indispensable parties because: [a.] they initiated and prosecuted the garnishee proceedings; [b.] any declaration invalidating or rendering the Garnishee Order Nisi unenforceable would extinguish their accrued rights under the order; and [c.] the issues raised by the Claimants cannot be effectually and completely determined in their absence. In support, Counsel relied on OKWU VS. UMEH (2016) 4 NWLR (Pt. 1501) 120 SC at 143–144 paras. H–C. Counsel further submitted that proceeding to determine the suit without the participation of the judgment creditors would violate the principle of audi alteram partem. Reliance was placed on BOYE IND. LTD VS. SOWEMIMO (2022) 3 NWLR (Pt. 1817) 195 at 214 paras. D–G, where the Supreme Court emphasized that a Court cannot validly make orders affecting the rights of a person who has not been heard. Accordingly, Counsel urged the Court to hold that the judgment creditors are necessary parties and to order their joinder before the suit can be competently determined.

 

15.    On Issue Two: Whether the Claimants are entitled to the reliefs sought against the 2nd Defendant.

On the substantive issue, Counsel argued that the Claimants’ case is founded on a misconception of the law regulating garnishee proceedings and ex-parte orders. Counsel submitted that by virtue of Order 51 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and the Sheriffs and Civil Process Act, a Garnishee Order Nisi is a preservatory order intended to attach and preserve funds in the hands of a garnishee pending the determination of whether the order should be made absolute. It was contended that neither Order 51 of the NICN Rules nor the Sheriffs and Civil Process Act provides that a Garnishee Order Nisi automatically lapses after any period. According to Counsel, Garnishee Order Nisi can only cease to have effect where: It is discharged or set aside by a competent Court; it is made absolute; or the judgment upon which it is founded is set aside on appeal.

16.    Counsel argued that the Claimants’ contention that the Order Nisi lapsed by reason of the passage of time finds no support in law. Garnishee proceedings, it was submitted, are special post-judgment enforcement proceedings in which an ex-parte application is expressly contemplated by law.

In support of the proposition that Court orders remain binding until set aside, Counsel relied on VASWANI TRADING CO. VS. SAVALAKH & CO. (1972) 12 SC 77; GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR (Pt. 18) 621, where the Supreme Court held that parties are bound by subsisting Court orders until they are varied or set aside by a competent Court.

Counsel also cited FBN v. JACOB AGIDI (NIG) LTD. (2018) LPELR-44997 (CA) for the proposition that a Garnishee Order Nisi remains binding on the garnishee until discharged or set aside, and that a garnishee is not at liberty to release attached funds while the order subsists.

 

17.    It was further submitted that the adjournment of garnishee proceedings sine die does not extinguish the proceedings or any subsisting interlocutory orders made therein. According to Counsel, such adjournment merely places the proceedings in abeyance pending further directions of the Court. Reliance was placed on TINUBU VS. I.M.B. SECURITIES PLC. (2001) 16 NWLR (Pt. 740) 712 paras. B–D; AMAEFULE VS. STATE (1988) 2 NWLR (Pt. 75) 75. Regarding the Claimants’ reliance on ABRAHAM VS. AMODENI & ORS, Counsel argued that the decision is distinguishable. It was submitted that the case concerned a situation where a trial Court continued execution proceedings despite a pending appeal and an application for stay of execution. Counsel maintained that, unlike the present case, there was no adjournment sine die in ABRAHAM VS. AMODENI, and the decision was based on the principle that a Court becomes functus officio in relation to matters pending before an appellate Court.

 

Counsel contended that in the instant case, the garnishee proceedings were properly adjourned sine die pending the outcome of the appeal and that no further substantive steps were taken. Consequently, the Garnishee Order Nisi, being preservatory in nature, continued to subsist.

Counsel also challenged the Claimants’ reliance on Order 17 Rule 14 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. It was submitted that the provision applies only to ordinary interlocutory ex-parte applications made in the course of substantive proceedings and not to garnishee proceedings.

 

18.    According to Counsel, garnishee proceedings are sui generis and are specifically regulated by Order 51 of the NICN Rules and the Sheriffs and Civil Process Act. A Garnishee Order Nisi, although initially made ex-parte, is not an interim order intended to lapse by effluxion of time but a statutory order of attachment designed to preserve funds pending the determination of whether it should be made absolute. Counsel argued that importing the lifespan provisions of Order 17 Rule 14 into garnishee proceedings would undermine the entire framework of post-judgment enforcement and render garnishee jurisdiction ineffective. It was emphasized that Order 51 contains no provision stipulating that a Garnishee Order Nisi abates after seven or fourteen days.

 

The 2nd Defendant therefore maintained that the Garnishee Order Nisi made on 19 March 2024 remains valid, subsisting, and enforceable, and that the Post-No-Debit restriction placed on the Claimants’ account pursuant to the order was lawful and must remain in force until discharged by a competent Court. On the whole, Counsel urged the Court to hold that the suit is incompetent for failure to join the judgment creditors as necessary parties and, in any event, to dismiss the suit for lacking merit.

                                                                                                                   

Claimant’s Reply on Points of Law to the 2nd Defendant Written Address

19.    In response to the Counter-Affidavit and Written Address filed by the 2nd Defendant, learned Counsel for the Claimants filed a Further Affidavit and Reply on Points of Law, wherein two issues were identified for determination, namely:

  1. Whether it is the prerogative of the Claimants to determine the parties against whom reliefs are sought; and
  2. Whether from the facts, circumstances and applicable law, the Claimants are entitled to the reliefs sought against the 2nd Defendant.

On Issue One: Whether it is the prerogative of the Claimants to determine the parties against whom reliefs are sought

Learned Counsel submitted that the law is settled that in determining whether a person is a proper or necessary party to a suit, the Court must examine the Claimants’ claims and reliefs before it. Counsel argued that a party will only qualify as a necessary party where his presence is essential for the effectual and complete determination of the issues in controversy. In support of this proposition, Counsel relied on GREEN VS. GREEN (1987) 3 NWLR (Pt. 61) 480 at 493, paras. E–F. Counsel contended that although the judgment creditors may have an interest in the outcome of the suit, such interest alone does not make them necessary parties. According to Counsel, the true test is whether the matter can be effectually and completely determined in their absence and whether their interests would be irreparably prejudiced if they are not joined. Reliance was placed on BELLO v. INEC (2010) 3 SCNJ 127, AJAYI VS. JALAYEMI (2001) 10 NWLR (Pt. 722) 516, and TRUSTEES OF AMORC (2000) 10 NWLR (Pt. 676) 522.

20.    It was further argued that the 2nd Defendant failed to demonstrate how the instant suit could not be effectively determined without joining the judgment creditors. Counsel submitted that the only question before the Court is whether the Garnishee Order Nisi has become spent by reason of its prolonged subsistence, and that the resolution of that question does not require the participation of the judgment creditors. Counsel relied on P.D.P. v. ABUBAKAR (2004) 16 NWLR (Pt. 900) 455and BUHARI VS. YUSUF (2003) 4 WRN 124, and submitted that a person can only be regarded as a necessary party where there exists an issue which cannot be effectually and completely determined in his absence. Counsel argued that the reliefs sought in the suit are directed solely against the Defendants, who are the parties responsible for maintaining the restrictions on the Claimants’ accounts. It was submitted that no act of compliance is required from the judgment creditors and that the Court does not require their presence to determine whether a Garnishee Order Nisi can subsist indefinitely.

21.    Counsel further maintained that the Claimants, being dominus litis, possess the exclusive right to determine the parties against whom reliefs are sought. Reliance was placed on MOBIL PRODUCING NIGERIA UNLIMITED VS. LASEPA (2002) 18 NWLR (Pt. 798) 1 CA, Green v. Green (1987) 3 NWLR (Pt. 61) 480 SC;ADEJUGBE VS. ADELOJU (2015) LPELR-24916 (CA). It was also contended that the apprehension expressed by the 2nd Defendant that the judgment creditors’ rights would be extinguished if the reliefs sought were granted was misconceived, as the judgment creditors would still retain the right to commence fresh garnishee proceedings or otherwise enforce their judgment in the future. Counsel therefore urged the Court to hold that the suit is properly constituted and that the judgment creditors are not necessary parties to the proceedings.

On Issue Two: Whether the Claimants are entitled to the reliefs sought against the 2nd Defendant

By way of preliminary objection to the Counter-Affidavit of the 2nd Defendant, Counsel submitted that paragraph 10 thereof offended the provisions of Section 115 (3) and (4) of the Evidence Act, in that it contained information allegedly received from third parties without disclosing the source, time, place and circumstances under which such information was received. Counsel argued that the provisions of Section 115 (3) and (4) of the Evidence Act are mandatory and relied on ACHINEKU VS. ISHAGBA (1988) 4 NWLR (Pt. 89) 411 at 420, where the Court of Appeal held that the word “shall” ordinarily denotes a mandatory and obligatory requirement.

22.    It was further submitted that affidavit paragraphs which offend Section 115 of the Evidence Act are liable to be struck out. Reliance was placed on A.G. ADAMAWA STATE VS. A. G. OF THE FEDERATION (2005) 18 NWLR (Pt. 958) 581 at 625 &657; A.I.C. LIMITED VS. THE EXECUTIVE GOVERNOR OF EDO STATE (2016) LPELR-40132 (CA); IZEDOMWEN VS. U.B.N. Plc (2012) 6 NWLR (Pt. 1269) 1. Counsel consequently urged the Court to strike out paragraph 10 of the 2nd Defendant’s Counter-Affidavit and argued that once the said paragraph is expunged, the Counter-Affidavit would be rendered incompetent.

On the substantive arguments, Counsel submitted that contrary to the position advanced by the 2nd Defendant, a Garnishee Order Nisi remains merely a provisional order which does not finally determine the rights of the parties until it is made absolute. Reliance was placed on CENTRAL BANK OF NIGERIA VS. INTERSTELLA COMMUNICATION LTD. (2018) 7 NWLR (Pt. 1618) 294 SC. Counsel contended that the Garnishee Order Nisi in question had remained unresolved and dormant for approximately two years without being made absolute or discharged. According to Counsel, such prolonged dormancy has resulted in an oppressive and unjust attachment of the Claimants’ funds, thereby preventing the Claimants from operating their businesses, paying employees, and meeting their financial obligations.Counsel further argued that the submissions of the 2nd Defendant in paragraph 4.2.4 of its Written Address regarding the recognized modes by which a Garnishee Order Nisi may cease to exist were unsupported by any statutory provision, rule of court, or judicial authority and should therefore be discountenanced.

23.    It was also submitted that the distinction drawn by the 2nd Defendant between a Garnishee Order Nisi and other ex-parte orders is not supported by any statutory provision or judicial authority. Counsel maintained that since a Garnishee Order Nisi is obtained through an ex-parte application, the legal principles governing ex-parte orders remain applicable. With respect to FBN v. JACOB AGIDI (NIG.) LTD. (2018) LPELR-44997 (CA) relied upon by the 2nd Defendant, Counsel argued that the authority actually supports the Claimants’ case because the Court of Appeal acknowledged that a garnishee may only deal with attached funds in accordance with the direction of the Court. Counsel submitted that the present suit was instituted precisely to obtain such judicial direction.

Counsel further submitted that paragraphs 12 and 12(i)–(vii) of the Affidavit in support of the Originating Summons were not specifically denied or controverted by the 2nd Defendant and should therefore be deemed admitted. The Court was urged to rely on those unchallenged facts in finding that the Garnishee Order Nisi has become spent and otiose. Regarding the authority of ABRAHAM v. AMODENI & ORS, Counsel argued that the attempt by the 2nd Defendant to distinguish the decision from the facts of the present case was unpersuasive. It was submitted that the legal principles enunciated therein remain directly applicable to the issues before the Court. Counsel therefore urged the Court to adopt the reasoning of Mohammed Ambi-Usi Danjuma, JCA in ABRAHAM v. AMODENI & ORS in resolving the matter.

Finally, Counsel submitted that it would be just and equitable, in the circumstances of the case, for the Court to declare the Garnishee Order Nisi stale, spent and ineffective, and to direct the Defendants to permit the Claimants access to the funds in their accounts so as to prevent the collapse of their business operations. In support of this submission, reliance was placed on FIDELITY BANK PLC VS. OKWUOWULU (2013) 6 NWLR (Pt. 1349) 197 CA; ECOBANK NIGERIA PLC VS. MBANEFO (2014) 12 NWLR (Pt. 1420) 171 CA. Accordingly, Counsel urged the Court to resolve all the issues in favour of the Claimants and grant the reliefs sought in the Originating Summons.

COURT’S DECISION.

24.    Having carefully considered the Originating Summons, affidavit evidence, exhibits, the Counter-Affidavits of the Defendants, the written arguments of Counsel and the Reply on Points of Law, I am of the view that the issue calling for determination as being the thrust of action is:

Whether the Garnishee Order Nisi made on 19 March 2024 in Suit No. NICN/PH/7M/2024, having not been made absolute or discharged and the garnishee proceedings having been adjourned sine die pending appeal, has become stale, spent, otiose and unenforceable by operation of law, thereby entitling the Claimants to the declaratory and consequential reliefs sought.

A careful consideration of the processes before the Court reveals that there is no dispute as to the material facts. It is common ground that following the judgment delivered against the 1st Claimant, the Judgment Creditors commenced garnishee proceedings in Suit No. NICN/PH/7M/2024. Pursuant thereto, this Court on 19 March 2024 made a Garnishee Order Nisi attaching funds standing to the credit of the Claimants in the accounts maintained with the Defendants. It is equally undisputed that the Defendants complied with the Order Nisi by placing restrictions on the accounts. It is further not disputed that on 29 April 2024, following information placed before the Court regarding a pending appeal against the substantive judgment, the garnishee proceedings were adjourned sine die and no Order Absolute has been made till date.

25.    The principal argument of the Claimants is that a Garnishee Order Nisi is an ex-parte order and, by virtue of Order 17 Rule 14 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the decision in ABRAHAM VS. AMODENI & ORS (Supra), such order possesses only a limited lifespan and becomes spent if not converted into an Order Absolute within a reasonable time. There is no doubt that garnishee proceedings commence by an ex-parte application. Order 51 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 expressly so provides. Equally, the Courts have consistently described a Garnishee Order Nisi as an order initially obtained ex-parte. See UBN PLCVS. ONIKOYI & ORS (2022) LPELR-58164(CA)(Pp 5 - 8 Paras F - A).

However, the mere fact that a Garnishee Order Nisi is obtained ex-parte does not automatically subject it to every rule governing ordinary interim ex-parte injunctions. Garnishee proceedings are a special statutory mode of execution regulated principally by Sections 83–92 of the Sheriffs and Civil Process Act and Order 51 of the Rules of this Court.

Section 83(1) of the Sheriffs and Civil Process Act provides:

"The Court may, upon the ex-parte application of any person who has obtained a judgment for the payment of money, either before or after any oral examination of the judgment debtor, 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 judgment debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such judgment debtor shall be attached to answer the judgment debt."

The statutory scheme clearly contemplates a two-stage process; first, the making of the Order Nisi and secondly, the determination whether same should be made absolute after parties have been heard.

The question therefore is whether the Order Nisi automatically lapses merely because it has not been made absolute within a particular period. I have carefully examined the provisions of the Sheriffs and Civil Process Act and Order 51 of the Rules of this Court. Neither contains any provision prescribing that a Garnishee Order Nisi shall automatically expire after seven days, fourteen days, or any other specified period. The provisions relied upon by the Claimants under Order 17 Rule 14 deal generally with interim ex-parte orders made in the course of substantive proceedings. Garnishee proceedings, being a special post-judgment enforcement procedure, are governed by their own statutory framework.

26.    The law remains settled that a subsisting order of Court, whether rightly or wrongly made, remains valid and binding until set aside by a Court of competent jurisdiction. In GOVERNOR OF LAGOS STATE VS. OJUKWU (Supra), the Supreme Court emphatically held that parties must obey Court orders until they are set aside. Similarly, in ATTORNEY GENERAL OF ANAMBRA STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2005) All NLR 90, relied upon by the 1st Defendant, the Supreme Court held that an order of Court remains binding until discharged by due process of law. The same principle was reiterated in IBRAHIM v. C.O.P ZAMFARA STATE & ANOR (2025) LPELR-82791(CA) Pp 11 - 12 Paras E – A.

Consequently, I agree with the submissions of learned Counsel for the Defendants that neither the 1st Defendant nor the 2nd Defendant possessed the legal authority to disregard the Garnishee Order Nisi or lift the restrictions placed pursuant thereto without a further order of Court. Their duty was to obey the order while it remained extant. See OLORUNTOBA VS. GTB (2020) LPELR-49586(CA); FBN VS. JACOB (Supra). I have also considered the Claimants' heavy reliance on ABRAHAM VS. AMODENI (Supra). With respect, I am unable to accept the interpretation urged upon the Court.

That decision did not lay down any universal principle that every Garnishee Order Nisi automatically expires after fourteen days. The decision was rendered in the peculiar context of execution proceedings undertaken despite a pending appeal and application for stay. It cannot be elevated into a statutory rule creating an automatic lifespan for all Garnishee Orders Nisi irrespective of circumstances. Indeed, if the argument of the Claimants were accepted, every Garnishee Order Nisi not made absolute within fourteen days would automatically collapse regardless of pending proceedings, adjournments, interlocutory applications, or appellate processes. Such a proposition finds no support in either the Sheriffs and Civil Process Act or Order 51 of the Rules of this Court.

I further agree with the 2nd Defendant that an adjournment sine die does not amount to a dismissal or termination of proceedings. It merely places the matter in abeyance until reactivated by the Court or the parties. Existing orders made in the proceedings remain operative unless expressly discharged. See TINUBU VS. I.M.B. SECURITIES PLC. (Supra) and AMAEFULE VS. STATE (1988) 2 NWLR (Pt. 75) 156.

27.    Another issue that cannot be ignored is the non-joinder of the judgment creditors, namely Mr. Omolola Roberts and 21 others. The reliefs sought in this suit directly challenge the efficacy and continued existence of the Garnishee Order Nisi obtained by those judgment creditors. Any declaration that the order is stale, spent, otiose or unenforceable would directly affect their legal rights and interests. The Supreme Court in GREEN VS. GREEN (1987) 3 NWLR (Pt. 61) 480 defined necessary parties as persons whose presence is essential for the effectual and complete determination of the issues in controversy. See also ADISA VS. OYINWOLA (2000) 10 NWLR (Pt.674) 115; SAPO VS. SUNMMONU (2010) 11 NWLR (Pt. 1205) 374; AYORINDE VS. ONI (2000) 3 NWLR (Pt.649) 348; BELLO VS. INEC (2010) 8 NWLR. (Pt. 1196) 342. The Supreme Court emphasized that where the rights of a person will be directly affected by the outcome of a suit, such person is a necessary party.

In the instant case, granting the reliefs sought would substantially affect the judgment creditors' rights under the garnishee process. Yet they were not joined to the proceedings. While non-joinder does not ordinarily defeat an action, the Court must be cautious not to make orders extinguishing accrued rights of persons who have not been heard. It amounts to a breach of fundamental rights to fair hearing by virtue of Section 26(1) of the 1999 Constitution for a Court not to have joined a necessary party at every stage of the proceedings before it. See IMEGWU VS. ASIBELUA (2012) 4 NWLR p. 119 (CA). Thus, any judgment given with an order against a necessary and desirable party behind its back will be to no avail it cannot be allowed to stand. See N.U.R.T.W. VS. R.T.E.A.N. (2012) 10 NWLR (Pt. 1370) p.170.

Finally, the Court appreciates the evidence regarding the hardship allegedly suffered by the Claimants as a result of the continuing restrictions on their accounts. However, hardship alone cannot justify the nullification of a subsisting Court order in the absence of any legal basis for doing so. Judicial sympathy cannot override settled principles of law.

Accordingly, I hold that:

  1. The Garnishee Order Nisi made by this Court on 19 March 2024 in Suit No. NICN/PH/7M/2024 has not been shown to have automatically lapsed, become stale, spent or otiose by operation of law. 
  2. The adjournment of the garnishee proceedings sine die did not extinguish or discharge the said Garnishee Order Nisi. 
  3. Until discharged, varied, set aside, or made absolute by a Court of competent jurisdiction, the Garnishee Order Nisi remains valid and binding. 
  4. The Defendants were legally justified in maintaining the restrictions placed on the affected accounts pursuant to the subsisting Order Nisi. 
  5. The judgment creditors in Suit No. NICN/PH/7M/2024 are persons whose interests are directly affected by the reliefs sought in this action and ought to have been joined to the proceedings. 

In consequence, the Claimants have failed to establish entitlement to the declaratory and consequential reliefs sought. The Originating Summons accordingly fails and is hereby dismissed.

I make no order as to costs.

Judgment is entered accordingly.

 

------------------------------------------------

Hon Justice M. A. Hamza

JudgeTop of FormBottom of Form

Email Signature with Banner