The Presiding Judge, Calabar Judicial Division of the National Industrial Court, Hon Justice Sanusi Kado has struck out the entire garnishee proceedings filed by the judgment creditor, Dr. P. G. Akintunde against the judgement debtor for being incompetently before the court.
The Court held that the order nisi granted in favour of Dr. Akintunde on 24th March 2023 was made without the requisite jurisdiction as the process based on which it was granted was not commenced by due process of law.
Justice Sanusi Kado cautioned counsel to be extra conscious and circumspect when preparing enforcement proceedings to avoid falling into the fit falls of technicality that bogged down the proceedings of enforcement.
From facts, the applicant- Judgment Debtor- University of Calabar and Its Vice-Chancellor University of Calabar had filed an application and prayed for an order discharging and setting aside the garnishee order nisi made on 24/4/2023, and an order declining jurisdiction to make absolute, the garnishee order nisi on the ground that the order nisi was granted base on misrepresented facts, and the amount sought to the (sic) attached and which was attached by the order nisi, is not the judgment debt as contained in the judgment of the court.
The applicant averred that the monetary claim granted by the court to the judgment creditor- Dr. Akintunde as contained in the judgment is the sum of N2,226,558.50 only being 50% of Dr. Akintunde’s arrears of salary from 2006 to 2011 not the sum N52m and the amount granted could not be located in any part of the judgment.
The applicant further argued that Dr Akintunde’s failure to comply with the rules of the court, the failure to disclose the judgment sum as contained in the judgment, and the failure to include an ascertainable sum as contained in the judgment of the court constitute a virus that has robed the court of the jurisdiction to entertain the application and grant the consequential order nisi.
Counsel to the University of Calabar, Paul Eshiemomoh, Esq also submitted that the ex parte application granted by the court is incompetent as it was deposed to by a third party other than the judgment creditor or his counsel on record contrary to the provisions of the Sheriff and Civil Process Act, and urged the court to grant the reliefs sought.
In opposition, counsel for the judgment creditor submitted that the applicants have admitted in their affidavit that order nisi was proper and urged the court to dismiss the application.
In a well-considered ruling, the presiding Judge, Justice Sanusi Kado held that the judgment debtors’ grouse regarding infraction of the rules of the court cannot be categorised as falling within the fold of irregularity capable of vitiating the proceedings of the court leading to grant of order nisi.
However, the Court affirmed that the affidavit in support of the ex parte application based on which the order nisi of 24/4/2023 was granted was sworn to by one senior executive officer in the office representing the judgment creditor respondent, and the deponent of the affidavit not being the judgment creditor himself or being counsel for the judgment creditor lacked power to deposed to affidavit meant for use to support ex parte application.
Justice Sanusi Kado ruled that the said affidavit not having been deposed to by the judgment creditor or his lawyer is incompetent and not capable of supporting the ex parte application, and declared null and void and of no effect whatsoever the affidavit in support of ex parte applicant having not been found to have been properly filed before the court.
“In the circumstances, the ex parte order nisi was made without the requisite jurisdiction as the process based on which it was granted was not commenced by due process of law.”
