‘The Law Is Trite That A Document Speaks For Itself’ – TheNigerialawyer

This is an appeal against the judgment of the Court
of Appeal Abuja, delivered on 10th May, 2018 wherein the lower
court set aside the judgment of the Federal High Court dated 8th
June, 2016. The trial Federal High Court had made the garnishee
order nisi absolute against the 2nd Respondent which at the
material time was alleged to be in custody of the 1st Respondent’s
funds. A synopsis of the facts giving birth to this appeal will be
quite illuminating.

The Supreme Court of Nigeria had in its judgment
delivered in Appeal No. SC. 255/2013 between JENKINS GIANE DUVIE
GWEDE VS (1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2)
EDOJA RUFUS AKPODIETE (3) JULIUS OGHENEVWEGBA BOBl [4) DEMOCRATIC
PEOPLES PARTY (DPP) delivered on 24th day of October, 2014 by my
Noble Lord ONNOGHEN, ISC [now Chief Justice of Nigeria) entered
judgment in favour of Appellant in that case as follows:

“In consequence, I enter judgment in favour of
appellant in the following terms:

1. Appellant, JENKINS GIANE DUVIE GWEDE is hereby
declared to be the duly nominated candidate by substitution of the
4th Respondent for the election in respect of Ugelli North
Constituency 11 of the Delta State House of Assembly and is
entitled to be issued with a certificate of return in respect of
same.

2. The 1st Respondent is hereby ordered to issue the
said appellant with a certificate of return in respect of the State
House of Assembly election held on 26th April, 2011, forthwith.

3. The 2nd Respondent EDOJA RUFUS AKPODIETE is hereby
ordered to vacate the seat of Ughelli North Constituency II in the
Delia State House of Assembly forthwith.

4. It is further ordered that the said 2nd
respondent: EDOJA RUFUS AKPODIETE refunds to the coffers of the
Delta State House of Assembly all moneys/sums of money he collected
by way of salary, allowances whatsoever and however described since
he took his seat in the said House of Assembly under the pretext of
being the duly elected candidate of the 4th respondent representing
Ughelli North constituency ll, within ninety (90} days of this
order.

I award the sum of N150,000,000 costs at the High
Court; N100,000 in the court below and N500,000,000 in this court
in favour of Appellant and against the 18th and
2nd  Respondents each.

Appeal and Cross Appeal of 4th Respondent allowed,
cross appeals of 1st and 2nd Respondents dismissed.”

The Appellant thereafter went back to the apex court
seeking to vary and/or correct the consequential Orders made by the
apex court in the judgment delivered on 24th October, 2014. The
Order of the apex court on the Appellant’s application to it made
on 26th day of October, 2015 reads in full as follows:

IT IS ORDERED:

1. that the application be and is hereby granted by
varying the consequential orders made in the judgment of this court
in SC. 255/2013 delivered on 24th  October. 2014 the sum
of money so refunded by the 2nd respondent; EDOIA RUFUS AKPODIETE
to the Delta State House of Assembly shall be paid to the
Appellant/Applicant IENKINS GIANE DUVIE GWEDE as salaries,
allowances etc. from June. 2011 till October, 2014, and

2. that there shall be costs of two hundred thousand
(N200,000.00) against 2nd Respondent in favour of the
Applicant.

In order to enforce the judgment entered in his
favour by the Supreme Court of Nigeria, the Appellant approached
the Federal High Court Abuja Division vide a Motion Ex Parte filed
on 23rd February, 2016 for Garnishee Order Nisi to attach the 1st
Respondent’s money/funds in GUARANTY TRUST BANK PLC to satisfy the
sum of N490,803,002 which the Appellant believed comprised the
salaries and allowances collected by EDOJA RUFUS AKPODIETE from 1St
Respondent while purporting to represent UGELLI NORTH CONSTITUENCY
11 in the Delta State House of Assembly. The Order NISI was granted
against the GUARANTY TRUST BANK on 7th March, 2016. The 1st
Respondent was taken to be the judgment Debtor to the Appellant in
the said application. 0n 14th day of June, 2016 the learned trial
Judge (Hon. Justice A. F. A. ADEMOLA RTD) made the Garnishee Order
Absolute in the sum of N83,256,648.71 attaching same from the
custody of the Guaranty Trust Bank Plc.

Again by another MOTION EX-PARTE dated 2nd day of
June, 2016 and filed on 3rd June, 2016 pursuant to Section 83 of
the Sheriffs and Civil Process Act the Appellant proceeded to
garnishee the monies of the 1st Respondent in the Skye Bank Plc.
The Order prayed for in the said Motion Ex-Parte states as
follows:

“TAKE NOTICE that this Honourable Court will be moved
on the day of 2016 (sic) at 9 O’clock in the forenoon or so soon
thereafter as Applicant or counsel on his behalf may be heard
praying the court for the following reliefs:

A GARNISHEE ORDER NlSl directing the
Garnishee to attach all monies accruing and belonging to the
judgment Debtor/Respondent held by it in Accounts Number 4030013512
8; 1771088456 the name of clerk (sic) Delta State House of Assembly
in its custody for the purpose of satisfying the Judgment debt of
N490,803.002 only.

AND FOR SUCH FURTHER OR OTHER ORDERS as this
Honourable court may deem fit to make in the circumstances. TAKE
FURTHER NOTICE that the Grounds upon which this application is
brought are:

i. That the Supreme Court of Nigeria entered judgment
against the judgment Debtor on the 24th October, 2014.

ii. That the Supreme Court clarified the terms of the
judgment on the 26th October, 2015.

iii. That by virtue of section 287(1) of the 1999
Constitution (as amended) this court is enjoined to enforce
decisions of the Supreme Court.

iv. That the judgment of the Supreme Court has
remained unsatisfied AND TAKE FURTHER NOTICE that the judgment
creditor/Applicant shall at the hearing of this Motion seek the
leave of court to and shall rely on all the Processes and Exhibits
filed along in this proceedings,”

The said Federal High Court granted Decree NlSl
against the SKYE BANK PLC on the same 3rd day of June, 2016 and
directed the said Garnishee SKYE BANK PLC to appear on 17th June,
2016 to show cause why the Garnishee Order NlSl should not be made
absolute.

The 1st Respondent challenged the jurisdiction of the
Federal High Court to further embark on adjudicating on Garnishee
proceedings against the monies of the 1st Respondent.

After the adoption of addresses of learned counsel on
all application the learned trial Judge gave a considered Ruling on
8th day of July, 2016 and found against the Appellant as
follows:

“The final point was that since the suit number in
the previous Garnishee proceeding is the same with the second one,
this court lacked the jurisdiction to hear the garnishee order
proceeding.

Let me say away (sic) that garnishee proceeding is
one of the numerous ways of enforcing a judgment. It is not one of
the methods of commencing on action. What 1 am doing is the
enforcement of the Supreme Court judgment. Where the sum enforced
is less than the amount due, will the judgment creditor not have a
right to continue with the enforcement? This is not a fresh action
to determine a right but enforcement or a decision already
given.

I agree with the submission of the Learned Senior
Counsel that just like the bailiff of a court can continue to
execute a judgment where the sum attached is less than the judgment
sum, so also can the court through Garnishee proceedings issue for
a specific sum, if it is insufficient to meet the debt, the
judgment Creditor can proceed against any other Garnishee who is
keeping the judgment Debtors money. I have read the case of ODUMOSU
V. OLUWOLE (2004) FWLR (pt. 191) 1487 cited by the judgment debtor
and l rely on it and particularly the Latin Maxim “NEMO DEBT BIS
VEXARI PRO CADEM CAUSA meaning no one should be sued twice on the
same cause, on the some facts if there has been a final decision of
a competent court.”

That case of ODUMUSU is about final determination of
the matter and not when some issues are still pending. In the
circumstances, I hold that I have jurisdiction and do hereby in the
face of the affidavit to show cause sworn to by the Garnishee make
the Garnishee Order Nisi dated 3rd June, 2016 absolute and order
Skye Bank Pic to forthwith pay over the total sum of N76,
820,740.05 into the account of the judgment Creditors account. It
is further ordered that Skye Bank PIC shall file an affidavit of
compliance on or before the 11th July, 2016.

This shall be my order.

Sgn. Hon. Justice A. F. A. Ademola 8/7/2016”

Dissatisfied with the judgment of the trial court,
the 1st Respondent which was the appellant at the court below,
filed Notice of Appeal against the said judgment. In a considered
judgment, the Court of Appeal allowed the appeal and set aside the
judgment of the trial Federal High Court. The order absolute made
by the trial court was set aside, hence this appeal to this
court.

ISSUES FOR DETERMINATION

1. Whether the Court of Appeal has the power to
overrule the Supreme Court on an issue of law or fact in which the
Supreme Court had previously taken a position.

2. Whether by section 83 of the Sheriff and Civil
Process Act the Court of Appeal was right by holding that the
compliance with that law by the trial court amounted to denial of
fair hearing to the judgment debtor.

3. Whether the lower court was right to hold that
because garnishee order is a final order, a judgment debtor can
appeal without leave of court first had and obtained.

4. Whether the learned justices of the court below
were right to have held that the failure of the 1st Respondent to
dispute the amount stated in the appellant’s demand letter was not
admission and that the 1st Respondent is not estopped from dispute
(sic) the amount.

In the 1st Respondent’s brief settled by Isaiah
Bozimo. Esq and filed on 19th November, 2018, two issues have been
formulated for the determination of this appeal. The issues are as
follows:

1. Having regard to the peculiar circumstances of
this case, is the Delta State House of Assembly the
Appellant’s/judgment debtor in these proceedings.

2. Whether judgment debtors are passive spectators or
active parties in garnishee proceedings.

From the facts and circumstances surrounding this
case coupled with the judgment of the lower court and the grounds
of appeal giving birth to the issues donated by both parties, it is
my well-considered opinion that the two issues formulated by the
1st Respondent capture the complaint of the appellant and I shall
determine this appeal based on the said two issues.

ARGUMENT

The main contention of the learned Senior Counsel for
the Appellant in this issue is that whereas this court (the Supreme
Court) had held that the 1st Respondent is a judgment debtor in
this matter, the court below held otherwise, thus overruling the
Supreme Court as it were. He submitted that contrary to the attempt
by the court below to dictate to the appellant who, among the
Respondents he can proceed against to recover the judgment sum, a
judgment creditor like the appellant has the liberty of selecting
among the Judgment Debtors who he may proceed against to recover
his money, relying on Mobil Producing Nig. Unlimited v Monokpo
(2001) 18 NWLR (pt. 74-4) 212 at 244 245.

Furthermore, the learned Silk postulated that by
Order 2 Rule 16 of Judgment (Enforcement) Rules, judgment can be
enforced against a person who was not listed as a party in the
suit, citing and relying on the case of Central Bank of Nigeria v
Interstellar Communications Ltd & 3 Ors (2018) 7 NWLR (pt.
1618) 294-. The learned SAN went ahead to posit that the lower
court had no legal competence to overrule the Supreme Court citing
the case of Adegoke Motors Ltd v Dr. Babatunde Adesanya & anor
(1989) 5 SCN], 80, (1989) 3 NWLR (pt. 109) 250.

JUDGEMENT

Let me quickly state that l have painstakingly
perused both the judgment of this court in Appeal No. SC. 255/2013
(the Pre-Election Appeal) and the court’s varied consequential
order in the said matter but I am unable to find even in remotest
semblance where this court held that the 1st Respondent herein is a
judgment debtor. The learned senior counsel for the Appellant also
failed to refer to any portion of the said judgment or varied order
where it was so stated. The law is trite that a document, including
a judgment of the court, speaks for itself, and one cannot read
into the text what is not contained therein. See Ahmed v Central
Bank of Nigeria (2013) 11 NWLR (pt. 1365] 352 at 374 paragraphs A
C.

In this appeal, appellant has argued that the
liability for the debt in these proceedings has shifted from the
removed member to the 1st Respondent, thus making it the judgment
debtor, citing and relying on the case of Central Bank of Nigeria
vs lnterstellar Communications Ltd (supra). l have had the
opportunity to read this authority which was decided by this court.
With due respect to the learned senior counsel for the appellant,
the said authority does not avail the appellant as it is
distinguishable. The law is trite that a decision is authority for
which it actually decides. Also, judgments of the court should be
read in the light of its peculiar facts upon which they were
decided. See Dangtoe v CSC Plateau State (2001) 4 SC (pt. 11) 43,
Babatunde v P.A.S. & T.A. Ltd (2007) All FWLR (pt. 372) 1721 at
1759 paragraphs E F.

I agree with the learned counsel for the 1st
Respondent that in this appeal, there is no comparable intervening
event that transfers liability from Edoja Rufus Akpodiete to the
Delta State House of Assembly except and until the said removed
member had made refunds to the 1st Respondent. The 1st Respondent
did not negotiate an amicable settlement of the sums due from the
removed member to the Appellant. It never guarantied any of the
said sums due from the removed member and never released the
removed member of any liability to refund his salaries and
allowances.

Another issue which was wrong with the garnishee
proceedings is that the appellant presented to the High Court that
the 1st Respondent was indebted to him, when, in actual fact, the
real judgment debtor is the removed member, Edoja Rufus Akpodiete.
As observed by the learned counsel for the 1st Respondent, it was
neither alleged nor shown that the removed member had made a full
refund of the salaries and allowances required of him or that the
1st Respondent refused and/or neglected to pay any such refunded
sum to the Appellant. Another defect in the garnishee proceedings
is that the Appellant did not disclose to the trial court that
Guaranty Trust Bank Plc had complied with Garnishee order absolute
made by the trial court on 14th day of June, 2016 having paid the
said appellant the sum of N83, 256,648.71. Instead of disclosing
that such a huge part of the debt had been defrayed by the judgment
debtor, the appellant still presented the whole figure of the
“judgment debt” to the court requesting the 1st Respondent to
pay.

And yet again, the appellant failed to disclose that
he received the sum of N21,191,952.00 from the Delta State House of
Assembly, being monies so far refunded by the removed member.

It is my view that had the learned trial Judge
considered the motion filed by the 1st Respondent and the affidavit
annexed, the above anomalies, especially that the 1st Respondent
was not the judgment debtor, would have been clearly seen and the
learned trial Judge would not have made ‘ the order Nisi
absolute.

There is no doubt that the 1st Respondent, having
been served with order nisi and branded as judgment debtor and
having filed processes at the trial court to protest his being
labeled as judgment debtor, he was indeed a necessary party in the
proceedings. Consequently, since the trial court had made the Order
Nisi absolute against its funds with the garnishee, the 1st
Respondent had a right of appeal under section 242(1) (3) of the
Constitution of the Federal Republic of Nigeria. That order
absolute was a Final judgment and a party in the proceedings not
satisfied, had a right to appeal against same. Finally, I hold that
the 1st Respondent was not a passive spectator in the garnishee
proceedings because the Appellant did not present the case properly
before the High Court. Issue 2 is also resolved against the
Appellant.

Having resolved the two issues adopted for the
determination of this appeal against the appellant, I hold that
this appeal is devoid of merit and is hereby dismissed. I affirm
the decision of the Court of Appeal delivered on 10th May, 2018. I
make no order as to costs.

John Inyang Okoro, JSC.

Representations: Joe Agi, SAN with K.
E. A. Akonjom, Esq, Oladimeji Ekengba, Esq and Ewere A. Ahemeke,
Esq for the Appellant.

lsaiah Bozimo. Esq with Ebuka Enechebe, Esq for
1st Respondent. A. Uno Kanu. Esq for 2nd Respondent.

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