Hon. Justice Polycarp Hamman of the National Industrial Court, Portharcourt Judicial division has dismissed the application for a stay of execution filed by Judgment Debtor-National Salt Company of Nigeria Plc against the Judgment Creditor- Mr. Omunna Ekem and made the Garnishee Order Nisi granted on 3rd June 2002 absolute.

The Court ordered the Garnishee Bank (Access Bank) to pay the sum of N13,200,000.00 (Thirteen Million, Two Hundred Thousand Naira only) comprising of the judgment sum of N13,000,000 and cost of N200,000.00 into an interest yielding account opened in the name of the Court Chief Registrar pending the hearing and determination of any pending appeal. 

Justice Polycarp Hamman held that the mere filing of an appeal or an application for stay cannot operate as a stay of execution and since the Garnishee Bank had shown cause that the account of the National Salt Company of Nigeria has enough funds to satisfy the judgment sum, the appropriate order to make is to make the Garnishee Order Nisi Absolute for the judgment debt to be paid to the court in an interest yielding account pending the determination of the appeal in line with the Rules of the court.

From facts, the Judgment Debtor/Applicant’s- National Salt Company of Nigeria Plc had sought an order to set aside the Garnishee Order Nisi and also for an order staying the execution on the grounds that there is a pending Appeal against the judgment of the Court and the Judgment Creditor/Respondent does not have means to indemnify the Judgment Debtor/Applicant should the appeal succeed.

The applicant argued that since there is a pending appeal against the decision of the court sought to be enforced, the court lacks the jurisdiction to entertain the garnishee proceedings.  That it is only the Court of Appeal that can take further steps in the proceedings. The court was urged to set aside the Garnishee Order Nisi attaching the Applicant’s fund in the custody of the Access Bank.

In opposition, the learned counsel to the judgment creditor- N. D. Money Esq submitted that a garnishee proceeding is a separate and distinct proceeding, that mere filing of an appeal does not operate as a stay of execution of the judgment appealed against, that the judgment debtor who is not a party to the proceeding lacks the capacity in law to stay the execution of a garnishee order, urged the Court to discountenance the application and make the garnishee order nisi absolute in the interest of justice.

Delivering the ruling after careful evaluation of the submission of both parties, the presiding Judge, Justice Polycarp Hamman held that the mere filing of an appeal or an application for stay cannot operate as a stay of execution, and since the proceedings, before the court is a garnishee proceeding different from the substantive suit, the court is not functus officio after delivering final judgment on the 11th of December, 2018. 

“In the circumstance, and since the Garnishee Bank filed an affidavit to show cause on the 4th of July, 2022 indicating that the account of the Judgment Debtor/Applicant has enough funds to satisfy the judgment sum, the appropriate order to make is to make the Garnishee Order Nisi Absolute for the judgment debt to be paid to this court in an interest yielding account to be opened in the name of the Chief Registrar pending the determination of the appeal in line with the provisions of Order 51 Rule 8(b) of the Rules of this court, 2017.” Court ruled.

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