HON. MINISTER OF MINES & STEEL DEVT & ANOR v. GREENBAY INVESTMENT & SECURITIES LTD & ORS (2020)

HON. MINISTER OF MINES & STEEL DEVT & ANOR v. GREENBAY INVESTMENT & SECURITIES LTD & ORS

(2020)LCN/14127(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, April 17, 2020

CA/A/827/2019

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Between

THE HON. MINISTER OF MINES & STEEL DEVELOPMENT 2. FEDERAL MINISTRY OF MINES AND STEEL DEVELOPMENT APPELANT(S)

And

1. GREENBAY INVESTMENT & SECURITIES LIMITED 2. AJAOKUTA STEEL COMPANY LIMITED 3. CENTRAL BANK OF NIGERIA RESPONDENT(S)

RATIO

NOTICE OF PRELIMINARY OBJECTION

The trite position of the law is that in situation such as this the Notice of Preliminary Objection of the 1st Respondent must be considered first because if it succeeds that will signal the end of this appeal.
A Preliminary objection to the hearing of an appeal is meant to scuttle an appeal in limine and it is the duty of the Court to rule one way or the other on it before taking any further step in the Appeal. Its intendment is to terminate in limine the life of the appeal or suit due to an obvious defect or incompetence of the suit or appeal. See: CHIEF UFIKAIRO MONDAY EFET VS. INDEPENDENT ELECTORAL COMMISSION (2011) 7 NWLR (PT. 1247) 423 at 438 F-G. PER IGE, J.C.A.

PRACTICE AND DIRECTIONS

That the law is trite that where a statute had laid down procedure for doing something, that procedure must be followed relying on INCORPORATED TRUSTEED OF NIGERIA GOVERNORS FORUM & ANOR VS RIOK NIG. LIMITED & ORS (201) LPELR – 44915 CA and ECOBANK v. UDOFIA & ANOR (2018) LPELR – 45164 per ADAH JCA. PER IGE, J.C.A.

GARNISHEE PROCEEDINGS

It is here apposite to bring to the fore what Garnishee proceedings and procedure entail in order to fully lay to rest and resolve all issues that have been agitated and vehemently argued by Learned Counsel to the Appellant and the Learned Senior Counsel to the 1st Respondent.
The whole essence, meaning and intendment of a garnishee proceedings and procedure have been explained and reiterated recently by the superior Court in the land. I refer the following cases:
“1. GUARANTY TRUST BANK PLC VS. INNOSON NIGERIA LIMITED (2017) 16 NWLR (PART 1591) 181 AT 197 F – H TO 198 A – H per EKO, JSC who said:
“Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the Judgment debtor, which form part of his property available in execution. The third party holds the debt or property of the Judgment debtor. By this process, the Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of Phrases Legally Defined 3rd Ed. Vol. 2, pages 13-14 cited by Akintan, JSC, in his concurring judgment in Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd. (2005) 13 NWLR (Pt. 943) 654 at page 666. Lord Denning, Mr. in Choice Investment Ltd. v. Jerominimon (1981) QB 1 9 at 154-155, gives a simple illustration of garnishee proceeding thus:
“A creditor is owed £100 by a debtor. The debtor does not pay. The creditor then gets Judgment against him for the £100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has £150 at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the (judgment creditor) out of the customer’s £150 – the £100 which he owes to the creditor”. The Master of the Rolls went on, in the case, to state further:
“There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay £100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See Pritchard v. Westminster (1969) 1 ALL ER 999 and Rainbow v. Mortgage Properties Ltd. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute to pay to the judgment creditor or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer just as if he himself directed the bank to pay it”.
I did this detour for a purpose. That is, to show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to.” PER IGE, J.C.A.

GARNISHEE PROCEEDINGS

A garnishee is therefore, a debtor to the judgment debtor – see Skye Bank v. Colombara & Anor (2014) 2 BFLR 177: (2015) 5 NWLR (Pt. 1453) 538, wherein it was held:
“A garnishee is essentially a third party, who being indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor from the creditor of the judgment debtor in the account thereof with the third party. “
The third party envisaged as a prospective garnishee under Section 83 of the said Sheriff and Civil Procedure Act must be a person, who holds sums amounting to “debts due or accruing to the judgment debtor” C.B.N. v. Auto Import Export & Anor (2012) 4 BFLR 1, 34: (2013) 2 NWLR (Pt. 1337) 80. Thus, banks/bankers have become the typical garnishee given the nature of a banker-customer relationship. The nature of the relationship between a banker and his customer is contractual – Linton Industrial Training (Nig.) Ltd. v Central Bank & Anor. (2014) 1 BFLR 231 at 233; (2015) 4 NWLR (Pt. 1448) 94. See also Akwule v. Queen (2012) BFLR 90, where this Court stated:-
“The relationship between a banker and customer is that of debtor and creditor in respect of the money deposited with the banker by the customer. This position becomes clearer when a customer asks for his money. The bank undertakes to pay cheques of the customer drawn on his current account; thus the bank becomes a debtor for the amount, which must be paid on demand. If the amount is not paid, the customer can sue the bank.”
“Debt” and “Debtor” have also been explained for purposes of a Garnishee proceedings in the said case on pages 295 F-H to 296A-H the report by my Lord PETER-ODILI, JSC who said:
“Aligned with the above principles and situating them contextually with the facts of this case and the wordings of Section 83 of Sheriffs and Civil Process Act, it is clear that the intention of the legislature in setting up the procedure of recovery of debt by garnishee such as the one in contest in this case, envisions that the money available to be garnisheed is debt owing from such third person to the judgment debtor which could arise in four ways as Follows:-
1. That judgment has been recovered against a judgment debtor which judgment had remained unsatisfied;
2. That a third party known as the garnishee is indebted to the judgment debtor;
3. That an order is made by a Court of competent jurisdiction that debts owing from such third person, called the garnishee, to such debt or be attached to satisfy the judgment or order; and;
4. That the Court after making the order of attachment, either by the same or any subsequent order, makes an order that the garnishee appears before the Court to show cause why the garnishee should not pay to the judgment creditor the debt due from the garnishee to the judgment debtor or so much it as may be sufficient to satisfy the judgment. Uwaifo JCA (as he then as) well captured the procedure above stated when interpreting Section 81 of the Sheriffs and Civil Processes Law which is an impari materia to the current Section 83 of the Sheriffs and Civil Process Act in the cases of: United Bank for Africa Limited v. Societe Generale Bank Limited & 3 Ors (1996) 10 NWLR (Pt. 478) page 381 at 390, paras A B thus: –
“By the process of garnishee, the Court has power under Section 81 of the Sheriffs and Civil Process Law to order a third person to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or so much of it as may be sufficient to satisfy the amount of the judgment and the cost of the garnishee proceedings. It is a condition that the money must be due or have accrued to the judgment debtor for it to be liable to garnishment. For it is said that a judgment creditor cannot, by means of attachment, and the judgment debtor because “he can only obtain what the judgment debtor could honestly give him”.
5. The Black’s Law Dictionary, 7th Edition 1999 at page 410 defines “Debt, as liability on a claim, a specific sum of money due by agreement or otherwise, the aggregate of all existing claims against a person entity or State, A non-monetary thing that one person owes another, such as goods or services. “
6. “Debtor is defined as “One who owes an Obligation to another, especially an obligation to pay money; indebtedness is defined as “The condition or state of owing money, something owed, a debt.” PER IGE, J.C.A

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against Ruling of the Federal High Court, Abuja delivered by Hon. Justice I. E. EKWO on 10-7-2019 wherein the Garnishee Orders Nisi made on 7th November, 2007 and 28th May, 2008 as modified by the Order of the said Court on 6th February, 2018 absolute against the accounts of the judgment debtor, the 3rd and 4th Garnishees kept with the 1st Garnishee, the central Bank of Nigeria.

It is here relevant to allude to the chequered history of this Ganishee proceedings with its commencement in 1999 of the suit leading to the judgment sought to be enforced which judgment was rendered by the Federal High Court Lagos Division on 3rd day of May, 2001.

The cumulative facts have been aptly narrated in the Appellant’s Brief of Argument dated and filed the 30th October, 2019 paragraphs 1.0 – 2.08 thereof as follows:
“1.01 This appeal emanates from the ruling of Honourable Justice I. E. Ekwo of the Federal High Court, Abuja Division delivered on the 10th July, 2019 where the learned trial Judge (hereinafter referred to as the lower Court/trial Judge) made an order

absolute against the accounts of the 2nd Respondent (judgment debtor) and the Appellants (3rd and 4th Garnishees) domiciled with the 3rd Respondent. Dissatisfied with the ruling, the Appellants have appealed to this Honourable Court vide a Notice or Appeal filed on 19th July, 2019 on the ground that the Appellants were joined in the garnishee proceeding as Garnishees and therefore, should not be made to pay the judgment debt of the 2nd Respondent.
1.02 It is pertinent to note that initially, the 2nd Appellant was sued as judgment debtor in the garnishee proceeding and sequel to an order nisi dated 7th November, 2007 which was modified on the 28th May, 2008, the 3rd Respondent set aside the sum of USD17, 187, 511.89 from the account or the 2nd Appellant domiciled the 3rd Respondent. The concurrent decisions of the lower Court and this Court in appeal No CA/A/1718/2016 however held that the 2nd Appellant was not a judgment debtor in the garnishee proceeding (see pages 34-99 of the Record of appeal). On further appeal (cross-appeal) by the 1st Respondent to the Supreme Court in SC NO: 254/2018, the Cross-appeal was dismissed (see pages 378-436 of the Record

of appeal). Yet, the 1st Respondent joined the Appellants as 3rd and 4th Garnishees, and despite the uncontroverted evidence that the funds set aside by the 3rd Respondent belong to the 2nd Appellant, the trial Court still went ahead and made order absolute against the said funds.
2.00 FACTS OF THE CASE
2.01 The facts of this case in summary is that the 1st Respondent was awarded contract by the 2nd Respondent but due to failure to pay the contract sum the 1st Respondent commenced a suit at the Federal High Court, Lagos Division.
After years of legal tussle, the learned trial Judge, Sanyaolu J, on 3rd May, 2001 entered judgment on the sum of USD1,672,351.50 and accrued interest in favour of the 1st Respondent against the 2nd Respondent only.
See pages 11-29 of the record of appeal.
2.02 Pursuant to the judgment and in response to the 1st Respondent’s requests to settle the debt, the Federal Government through Debt Management Office allotted Bonds to the 1st Respondent at the CBN prevailing rate in the sum of N142 Million which the 1st Respondent’s agent accepted as full and final settlement of all payment obligations arising from

the debt and executed an indemnity to that effect.
2.03 Despite the settlement of the judgment debt, the 1st Respondent commenced garnishee proceeding and got an order Nisi dated 7th November, 2007 which was modified on the 28th May, 2008 attaching the sum of USD 17,187,511.89 from the account of the 2nd Appellant who was neither a Judgment Debtor nor a Garnishee. However, both orders were set aside by Umar J. for failure to obtain the consent of the Attorney General of the Federation before commencing the garnishee proceeding and subsequently dismissed the garnishee proceeding, but with the intervention of this Court in Appeal No: CA/A/260/08, the matter was remitted back to the lower Court to hear the 1st Respondent’s application why the Order nisi should not be made absolute.
2.04 It was on that background that the matter was reassigned to Abang J., consequent upon which the 2nd Appellant filed an application asking for the striking out of its name from the garnishee proceeding and for the dismissal of the garnishee proceeding on the ground that the 1st Respondent had accepted the sum of N142 Million as full and final settlement of the

judgment sum.
2.05 In his ruling, Abang J. held that the 2nd Appellant was not a judgment debtor in the matter and as a result struck out its name from the matter. His Lordship also dismissed the garnishee proceeding on the ground that the judgment debt had been settled. See pages 482-516 of the record of appeal.
2.06 The 1st Respondent appealed against the said ruling in appeal No/CA/A/718/2016 wherein this Honourable Court affirmed the decision of the lower Court that the 2nd Appellant was not a judgment debtor but allowed part of the appeal to the effect that the judgment debt of the 2nd Respondent had not been fully satisfied. The case was therefore remitted back to the lower Court to conclude the garnishee proceeding. The judgment is at pages 34-99 of the record of appeal.
2.07 Dissatisfied, the 2nd Respondent appealed against the judgment to the Supreme Court whilst the 1st Respondent’s cross-appealed in Appeal No. SC NO: 254/2018. However, the appeal was struck out while the cross-appeal was dismissed by the Supreme Court. See pages 378-436 of the record of appeal. In effect, the decision of this Court subsists, and the matter was

remitted back to the lower Court for conclusion of the garnishee proceeding.
2.08 The lower Court on 6th February 2018, upon the application of the 1st Respondent, modified the order nisi to reflect the current indebtedness of the Respondent, modified the order nisi to reflect the current indebtedness of the 2nd Respondent and also joined the Appellants as 3rd and 4th Garnishees. The lower Court further ordered the Appellants and the 3rd Respondent to show cause why the sum of $21,373,571.60 due, belonging or accruing to the 2nd Respondent (Judgment Debtor) from the Appellants or howsoever standing to the credit of the 2nd Respondent in possession/custody of the Appellants and 3rd Respondent should not be attached to satisfy the judgment debt. The order nisi of 6th February, 2018 is at pages 474-478 of the record of appeal.

The facts reproduced above are substantially in tandem with the history of this case as stated in paragraphs 1-1.13 of the 1st Respondent’s Brief of Argument dated and filed on 12th November, 2019.

For further elucidation of the matter it is apposite also to quote the motion Ex-parte which initiated the proceedings herein

sequel to order of the apex Court in the land remitting the case back for continuation of the Garnished proceedings that began in 2007 viz:
“BROUGHT PURSUANT TO SECTIONS 6(6) (B) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED) ORDER 26 RULES 15 AND 17 OF FEDERAL HIGH COURT (CIVIL PROCEDURE RULES(2009) AND UNDER THE INHERENT JURISDICTION OF THE COURT
TAKE NOTICE that this Honourable Court shall be moved on the —- day of —- 2018 at the hour of 9 0’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the judgment Creditor/Appellant praying this Honourable Court for following orders:
1. AN ORDER further modifying the Orders Nisi made by the Court on 7th November, 2007 and 28th of May, 2008 to reflect the judgment of the Court of Appeal in Suit No. CA/A/718/2016 delivered on 18/12/2017 and for same to now read:
“That the Garnishees are ordered to show cause why the sum of $21, 373, 571.69 due, belonging, allocated or accruing to the Judgment Debtor from the Federal Ministry of Mines and Steel Development (the Judgment Debtor’s parent Ministry) or howsoever standing to the credit of the

judgment Debtor in possession/custody of the garnishees shall not be attached to satisfy the following:
i. The Sum of US $565,397.96 being the outstanding or remaining unpaid balance of the judgment sum of US $1, 672,351.50 as per the judgment of the Court of Appeal in CA/A/718/2016.
ii. The sum of US $16, 529, 446.09 representing the 21% interest per annum on the judgment sum of US from 24th April, 1994 to October, 2006 when part payment of the judgment sum in treasury bill worth of N142Million was paid.
iii. The sum of US $4,844,125.60 being the 21 % interest on the outstanding judgment sum of US $565,397.96 from October, 2006 to January 2018.
iv. 21% interest on US $565, 397.96 from February, 2018 until full liquidation.
AND
v. The sum of N100, 000.00 being cost awarded against the judgment debtor in CA/A/718/2016 and cost this garnishee/proceeding.”
2. AN ORDER joining
(a) The Hon. Minister of Mines & Steel Development.
(b) Federal Ministry of Mines and Steel Development as Garnishees in this matter.
3. AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as the Honourable Court may deem fit to make in the

circumstance.
FURTHER TAKE NOTICE THAT the grounds upon which this application is based are as follows:
1. On 3rd May, 2001, the Judgment Creditor/Applicant obtained judgment in this suit against the Judgment Debtor/Respondent in the sum of US $1,672,351.50 (one Million, Six Hundred and Seventy Two Thousand, Three Hundred and Fifty One Dollar Fifty Cents) from 23/2/94 and 21 % interest from 24th, April, 1994 till date or date of payment of the debt whichever is earlier.
2. After much dilly-dallying and entreaties to the judgment Debtor, on 10/10/2006 the 2nd Garnishee on behalf of the Judgment Debtor paid the Judgment Creditor the sum of N142 Million in form of Treasury bill and purported same to be full and final payment of the judgment sum of US $1,672,351.50.
3. The judgment Creditor in rejection of the payment as full and final payment commenced the instant garnishee proceedings whereby on 7th November, 2007 this Court presided over by Hon. Justice Kuewumi issued an Order Nisi against the 1st and 2nd Garnishees to show cause why the outstanding sum should not be attached from the funds standing to the credit of both Ajaokuta Steel

Company and Minister For Power and Steel then represented as Judgment Debtors. The Minister for Power and Steel then, is now known as Minister for Mines and Steel Development.
4. The Order Nisi of 7th November, 2007 was on 28th May, 2008 upon Judgment Creditor application modified by this Court preside over by Hon. Justice M. G. Umar when name of the Federal Ministry of Power and Steel changed to Ministry of Mines and Steel.
5. On 18th November, 2016, ruling on the application of the judgment Creditor to make the Order Nisi Absolute, Hon. Justice O. Abang of this Court dismissed the Order nisi principally on the footing that the N142 Million paid in October 2006 was in full and final settlement of the judgment sum of US $1,672,351.50.
6. In Appeal No. CA/A/718/2016 commented by the Judgment Creditor against the ruling of Abnag J. of 18/11/16, the Court of Appeal held that the N142 million paid was not full and final settlement of the judgment sum US $1, 672, 351.50 and that the sum of US $565, 397.96 was outstanding together with 21% interest per annum on the principal judgment which was not paid at all.
7. The Court of Appeal restored the

Order Nisi of November, 2007 and 28th May, 2008 earlier set aside by Abang J. and remitted this garnishee proceedings back to this Court for consideration on why the Order Nisi should not be made Absolute.
8. The Court of Appeal also held that the Federal Ministry of Mines and Steel Development is not a judgment debtor as represented in the garnishee proceedings from the judgment sum and accrued interest before this Honourable Court can proceed with consideration of making same Absolute.
9. It is necessary to further modify the Orders Nisi of 7th November, 2007 and 28th May, 2008 to reflect the figure now adjudged by the Court of Appeal as outstanding from the judgment sum and accrued interest before this Honourable Court can proceed with consideration of making same Absolute.
10. By reason of deleting her name as a judgment Debtor, the judgment Creditor is seeking to join both the hon. Minister of Mines and Steel Development and Federal Ministry of Mines and Steel Development as Garnishees instead in order to be able to realize the judgment debt and accrued interest. Hon. Minster of Mines and Steel Development was represented as judgment

Debtor in the Order Nisi of 7th November, 2007.
11. In the earlier appeal No. CA/A/260/M/2008 which also arose from this garnishee proceedings, the Federal Ministry of Mines and Steel Development consistently argued that she is not a judgment Debtor but a garnishee to Ajaokuta Steel Company, the latter being her ParastataI/Agency which it also funds as evidenced by the Appropriation Act and Bill of 2017 and 2018 respectively. The affirmation of the Judgment Debtor being her Agency is also conspicuously displayed to the world on the Ministry website.
12. Only recently, the Federal Ministry of Mines and Steel Development made public its allocations to the Judgment Debtor and expressed desire to also settle ongoing litigations against the Judgment Debtor as reported in the media and her we site.
13. The 1st Garnishee in compliance with Order Nisi of 7/11/2007 and 28/5/2008 on 10th June, 2008 filed an affidavit before this Court setting aside the sum of $17, 187,511.89 (Seventeen Million, One Hundred and Eighty Seven Thousand, Five Hundred and Eleven Dollar Eighty Nine Cents) from the account of Federal Ministry of Mines and Steel Development party

sought to be joined as Garnishee and which sum is still intact while the Honourable Minister of Mines and Steel Development superintend the Ministry and the Judgment Debtor.
14. This application is in line with the judgment of the Court of Appeal in Appeal No. CA/A718/2016 and it would not prejudice the Respondent and the Garnishees and party sought be joined as Garnishee.
Dated this 2nd day of February, 2018.”

The order made pursuant to the said application by the lower Court (Coram KOLAWOLE as he then was) on pages 474-478 of record of appeal reads:-
“ORDER
UPON THE MOTION EX-PARTE dated 2nd day of February, 2018 and filed the 6th day of February, 2018 praying the Honourable Court for the following orders.
AN ORDER further modifying the Orders Nisi made by the Court on 7th November, 2007 and 28th of May, 2008 to reflect the judgment of the Court of Appeal in Suit No. CA/A/718/2016 delivered on 18/12/2017 and for same to now read:
“That the Garnishees are ordered to show cause why the sum of $21,373,571.69 due, belonging, allocated or accruing to the Judgment Debtor from the Federal Ministry of Mines and Steel Development

(the Judgment Debtor’s parent Ministry) or howsoever standing to the credit of the judgment Debtor in possession/custody of the garnishees shall not be attached to satisfy the following:
i. The Sum of US $565,397.96 being the outstanding or remaining unpaid balance of the judgment sum of US $1,672,351.50 as per the judgment of the Court of Appeal in CA/A/718/2016.
ii. The sum of US $16,529,446.09 representing the 21% interest per annum on the judgment sum of US 1,672,351.50 from 24th April, 1994 to October, 2006 when part payment of the judgment sum in treasury bill worth of N142Million was paid.
iii. The sum of US $4,844,125.60 being the 21 % interest on the outstanding judgment sum of US $565, 397.96 from October, 2006 to January, 2018.
iv. 21% interest on US $565, 397.96 from February, 2018 until full liquidation.
AND
v. The sum of N100, 000.00 being cost awarded against the judgment debtor in CA/A/718/2016 and cost of this garnishee/proceeding.”
2. AN ORDER joining
(a) The Hon. Minister of Mines & Steel Development.
(b) Federal Ministry of Mines and Steel Development as Garnishees in this matter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; font-size: 14px;”>

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AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstance.
AFTER READING the Affidavit in Support of the application deposed, to by AKINTUNDE OGBONTOLU, Male, Adult, Christian, Nigerian Citizen of Suite 61 Dansville Plaza, Behind Forte Oil Filling Station, Apo, Abuja, together with the Exhibits attached thereto and filed in this Court Registry.
AND AFTER HEARING O. I. OLORUNDARE, ESQ. SAN with him are E. G. SHAIBU, ESQ. and A. OGBONTOLU, ESQ. of Counsel to the Applicant move in terms of the Motion paper. IT IS HEREBY ORDERED AS FOLLOWS:
1. That the Appellant’s Motion Ex-parte dated 2/2/18 and filed on 6/2/18 is granted as prayed in the overall interest of Justice and in order to salvage the integrity of the Nigerian Judicial system.
2. That the judgment Creditor/Applicant’s Counsel, shall obtain a certified true copy of the orders contained in this Ruling, including the order made to join the Hon. Minister of Mines and Steel Development and Federal Ministry of Mines and Steel Development in the exercise of the Court’s inherent jurisdiction pursuant to

Order 9 Rule 14 (2) of the Federal High Court (Civil Procedure) Rules, 2009 and cause same to be served on all the parties.
3. That the Garnishees named in this Ruling, shall within seven (7) days of being served with the certified true copy of enrollment of these orders contained in this Ruling, shall file their respective “Affidavit” to Show Cause”
as to why the prayer 1 granted in this ruling shall not be pronounced absolute in favour of the Judgment Creditor/Applicant who had obtained a valid Judgment of this Court since 8/5/2011.
4. That the return date shall be 21/2/18 and the case shall be called up by 12.00 noon in order for the Court to consider the Affidavit to “Show Cause” which the garnishee are directed to file within 7 days of being served with the certified true copy of the enrollment of these orders in this Ruling and to proceed with the making of the order nisi to become absolute in favour of the Judgment Creditor/Applicant.
5. That this shall be the Ruling of this Court.
6. That case is adjourned to 21/2/18 for further consideration.
ISSUE AT ABUJA under the Seal of the Court and the Hand of the Presiding Judge, this 6th day of February, 2018.”

The 1st Respondent’s application for Garnishee was duly heard and on 10th day of July, 2019 as aforesaid the order NISI was made ABSOLUTE in a Ruling delivered by Hon. Justice D. E. Ekwo.

The Appellants were dissatisfied with the Garnishee ORDER ABSOLUTE made against them and have by their NOTICE OF APPEAL filed on 19th day of July, 2019 appealed to this Court on three grounds as follows:
“THE DECISION OF THE LOWER COURT COMPLAINED OF:
Part of the Decision
GROUND ONE: ERROR IN LAW
The Learned Trial Judge erred in law when he held thus:
I therefore make the order of this Court of 6th February, 2018 absolute against the accounts of the judgment debtor, the 3rd and 4th Garnishees with the 1st Garnishee,” which occasioned grave miscarriage of justice to the Appellants.
PARTICULARS OF ERROR
i. By the trial Court’s order nisi made on the 6th February, 2018 the Appellants and 3rd Respondent (Garnishee) were ordered to show cause why the sum of $21,373,571.60 due, belonging or accruing to the 2nd Respondent (Judgment Debtor) from Appellants or however standing to the credit of the 2nd Respondent in

possession/custody of the Appellants and 3rd Respondent shall not be attached to satisfy the judgment debt.
ii. The Learned Trial Judge however made the order nisi absolute against the accounts of both the 2nd Respondent and the Appellants.
iii. The Appellants were not Judgment Debtors in the Garnishee Proceedings before the trial Court.
iv. The Appellants adduced uncontroverted evidence before the trial Court that they are not Judgment Debtors in the Garnishee proceedings and it would occasion serious hardship if the trial Court made the order nisi absolute against their accounts.
v. It is trite that garnishee orders are made against funds of a Judgment Debtor in the custody or possession of Garnishees and not against the funds of Garnishees.
GROUND TWO: Error in Law
The Learned Trial Judge erred in law when he held as follow: “the funds of the judgment Debtor and the 3rd and 4th Garnishees are kept with the 1st Garnishee. The 1st Garnishee has set aside part of the money by her affidavit of compliance filed on 10th June, 2018, that is, Exh. “C” of the Garnishor,” which occasioned grave miscarriage of justice of the

Appellants.
PARTICULARS OF ERROR
i. The uncontroverted evidence before the trial Court is that the funds set aside by the 3rd Respondent vide her affidavit of compliance was from the account of the Appellant when the 2nd Appellant was earlier joined wrongly as Judgment Debtor.
ii. By concurrent decision of the trial Court and this Court in Appeal No. CA/A/718/2016 held that the 2nd Appellant was not a Judgment Debtor in the Garnishee Proceedings, and upon further appeal (Cross-Appeal) by the 1st Respondent to the Supreme Court the Cross-Appeal was dismissed.
iii. Despite the uncontroverted evidence that that the funds set aside by the 3rd Respondent belongs to the 2nd Appellant, the trial Court still went ahead and made order absolute against the said funds.
iv. Upon decision of this Court and that of the Supreme Court that the 2nd Appellant was not a judgment debtor, the 2nd Appellant’s funds attached pursuant to that proceeding cannot subject of attachment.
GROUND THREE: ERROR IN LAW
The Learned Trial Judge erred in law when he held thus:
“the 3rd and 4th Garnishees direly oversee the judgment Debtor and supervises

it as the parent Minister and Ministry of the judgment Debtor. The 4th Garnishee where the 3rd Garnishee superintend makes yearly budgetary allocation to the judgment Debtor as evidenced by the Appropriate Act and Bill of 2017 and 2018 respectively attached as Exhibits “A” and ‘B’ of the Garnishor. The 3rd and 4th Garnishees are therefore in possession of the funds belonging to the judgment Debtor,” which occasioned grave miscarriage of justice to the Appellants.
PARTICULARS OF ERROR
i. The Learned Trial Judge failed to consider the Appellants’ affidavit evidence to the effect that the Appellants were not in possession of 2nd Respondent’s fund.
ii. The yearly budgetary allocation as evidence by the Appropriation Act and Bill of 2017 and 2018 respectively was made by the National Assembly and not the Appellants.
iii. Following the implementation of Treasury Single Account (TSA) by the Federal Government of Nigeria it is impossible for the Appellants to be in possession of the 2nd Respondent’s funds.
iv. The funds appropriated for the 2nd Respondent in the Appropriation Act and Bill of 2017 and 2018 were not ‘actual’ credit

balance of the 2nd Respondent in possession or custody of the Appellants nor were they due or accruing to the 2nd Respondents but rather contingent funds which may not materialize.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
i. AN ORDER allowing this Appeal.
ii. AN ORDER setting aside the order absolute of 10th July, 2019 made by Honourable Justice J. E. Ekwo against the Appellants;
iii. AN ORDER discharging the Appellants from garnishee proceedings;
iv. AN ORDER awarding costs against the 1st Respondent in favour of the Appellants.”

The Appellant’s Brief of Argument dated 30th October, 2019 was filed same day. The 1st Respondent’s Brief of Argument dated 12th November, 2019 was also filed same day. The 1st Respondent’s Brief of Argument also contains a Notice of Preliminary Objection.
The Appeal was heard on 21st January, 2020 along with the NOTICE OF PRELIMINARY OBJECTION.

the hearing of an appeal is meant to scuttle an appeal in limine and it is the duty of the Court to rule one way or the other on it before taking any further step in the Appeal. Its intendment is to terminate in limine the life of the appeal or suit due to an obvious defect or incompetence of the suit or appeal. See: CHIEF UFIKAIRO MONDAY EFET VS. INDEPENDENT ELECTORAL COMMISSION (2011) 7 NWLR (PT. 1247) 423 at 438 F-G.

It must be stated at this stage for the record that the 2nd & 3rd Respondents filed no process or Briefs of Arguments in this appeal.

The 1st Respondents’ Notice of Preliminary Objection reads:
2. NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that at the hearing of this appeal the 1st Respondent shall raise a Preliminary Objection to wit:
That the Appellant Ground 3 and Issues formulated around it are incompetent.
TAKE FURTHER NOTICE THAT THE GROUNDS UPON WHICH THIS PRELIMINARY OBJECTION IS PREDICATED ARE:
a. The particular of the ground of appeal 3 did not relate to or cover the ground of appeal.
b. It is when the error in a ground of appeal is properly review the findings or the decision of the lower

Court appeal against.
c. Where the particular of a ground of appeal is at variance with the ground of appeal, the appellant is deemed not to have appealed on the issue raised in the ground of appeal.
d. No issue for determination was distilled from the Appellants’ ground 3 of the notice of appeal filed on 19th July, 2019.
e. The issue 1 raised and canvassed in the Appellants’ brief of argument filed on 30/10/19 did not relate to ground 3 of the Appellants’ notice of appeal.
f. A ground appeal from where no issue for determination is distilled is deemed abandoned.
RELIEFS SOUGHT
1. AN ORDER striking out ground 3 of the Appellants’ notice of appeal filed on 19th of July, 2019 for being incompetent and or abandoned.
2. FURTHER ORDER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstances.
3.00 ARGUMENT IN SUPPORT OF THE PRELIMINARY OBJECTION
The sole issue for determination in this objection with respect is:
WHETHER GROUND 3 OF THE APPELLANTS’ NOTICE OF APPEAL IS NOT INCOMPETENT OR AT LEAST ABANDONED AND LIABLE FOR STRIKING OUT.
3. ARGUMENT ON THE SOLE ISSUE
3.01 For ease of reference,

ground 3 of the Appellants’ Notice of Appeal which can be found at page 554 of the records of appeal reads:
GROUND THREE: ERROR IN LAW
The Learned Trial Judge erred in law when he held thus: “the 3rd and 4th Garnishees directly oversee the judgment Debtor and supervises it as the parent Minister and Ministry of the judgment Debtor. The 4th Garnishee where the 3rd Garnishee superintend makes yearly budgetary allocation to the judgment Debtor as evidenced by the Appropriate Act and Bill of 2017 and 2018 respectively attached as Exhibits “A” and ‘B’ of the Garnishor. The 3rd and 4th Garnishees are therefore in possession of the funds belonging to the judgment Debtor,” which occasioned grave miscarriage of justice to the Appellants.
PARTICULARS OF ERROR
i. The Learned Trial judge failed to consider the Appellants’ affidavit evidence to the effect that the Appellants were not in possession of 2nd Respondent’s fund.
ii. The yearly budgetary as evidenced by the Appropriation Act and Bill of 2017 and 2018 respectively was made by the National Assembly and not the Appellants.
iii. Following the implementation of Treasury Single

Account (TSA) by the Federal Government of Nigeria it is impossible for the Appellants to be in possession of the 2nd Respondent’s funds.
iv. The funds appropriated for the 2nd Respondent in the Appropriation Act and Bill of 2017 and 2018 were not actual credit balance of the 2nd Respondent in possession or custody of the Appellants nor were they due or accruing to the 2nd Respondents but rather contingent funds which may not materialize.”

The Learned Senior Counsel to the 1st Respondent O. I. OLORUNDARE ESQ. SAN incorporated the argument in support of the Preliminary Objection into 1st Respondent’s Brief of Argument on pages. 5-11 thereof. The Learned Counsel to the Appellant A. B. Mustapha, Esq. filed Appellant’s Reply Brief wherein he responded to the arguments of 1st Respondents on the Notice of Preliminary Objection on pages 1-5 of the Appellant’s Reply Brief.

The Learned Senior Counsel to the 1st Respondent and Appellants’ Learned Counsel adopted their respective Brief of Argument pertaining to the Notice of Preliminary Objection. The Notice of Preliminary Objection had been reproduced earlier in this Judgment. It contains six ground and

a sole issue for determination in respect of the objection was formulated thus:-
“Whether Ground 3 of the Appellants’ Notice of Appeal is not incompetent or at least abandoned and liable for striking out.”

The 1st Respondent reproduced Ground 3 of the Appellant’s Notice of Appeal which can be found at page 554 of the record already reproduced above.

Learned Senior Counsel submitted that a ground of appeal and its particulars must go together otherwise the ground will be incompetent. He relied on OMOTADOWA V. PDP (2016) 15 NWLR (PT. 1536) page 518 at page 527 paragraph D.

That the particulars of appeal in ground 3 ought to particularize the error in the lower Court’s findings that:
1. The Appellants directly oversee the 2nd Respondent.
2. The Appellants are the parent Minister and Ministry of the 2nd Respondent, and allocations to the 2nd Respondent.

That it is when the error is properly particularized that an appellate Court can properly review the findings of the lower Court appealed against.

That there are no particulars of appeal highlighting the errors in the findings of the lower Court on the relationship or

between the Appellants and the 2nd Respondent and on the issue of yearly budgetary allocation made in favour of the 2nd Respondent by the Appellants’ notice of appeal purporting to be a complaint against such findings should be adjudged incompetent and liable for striking out. He relied on the case of Asimi v. State (2016) 12 NWLR (Pt. 1527) P. 414.

That if in the alternative this Court finds grounds of the notice of appeal as a competent ground of appeal. He urged this Court to treat same as abandoned upon finding that no issue for determination was distilled from the grounds.

That an issue or issues for determination must arise from the grounds of appeal relied upon and any ground upon which no issue is formulated is deemed abandoned. He relied on the case of:
1. NSIRIM V. AMADI (2016) 5 NWLR (PT. 1504) page 60 paras. B – C
2. SALIHU V. WASIU (2016) 5 NWLR (PT. 1506) Page 423 at page 435.

That the 1st Respondent expected that the issue to be distilled and canvassed from ground will be one tending to show that the Appellants are not in possession of the funds of the 2nd Respondent and by implication are not “Garnishee”

within the meaning and intendment of Section 83(1) of the Sheriff and Civil Process Act. That the importance of particulars of appeal in formulation of issues for determination in appeal cannot be over-emphasized. He relied on the cases of:
1. WAZIRI V. GEIDAM (2016) 11 NWLR 1523) Page 256, Paras. A- E.
2. STATOIL (NIG) (PT. 1485) page 256, para. A – E (2015) 16 NWLR (PT. 1485) page 361 at pages 384 -385.

Learned Senior Counsel further submitted that an issue for determination can be formulated from two or more grounds of appeal, but the law is that such issue must flow from the ground of appeal. That the grounds of appeal from which the issue is distilled should not be mutually exclusive of each other. He relied on the case of:
1. LABIYI V. ANRETIOLA (1992) 8 NWLR (PART 258) 139.
2. PATRICK V. STATE (2018) 16 NWLR (PART 1645) Page 263 at page 274.

That the Appellants’ issue 1 purportedly distilled from both grounds 1 and 3 of the notice of appeal do not cover ground 3 where the Appellants are denying being Garnishee. That the Appellants’ issue 1 conceded to the finding that Appellants are Garnishees. That issue 1 formulated by

the Appellants in their brief of argument does not emanate from ground 3 of the Appellants notice of appeal in so far as that ground is contesting the factual findings of the lower Court and their adjudged status as Garnishees.

That the status of the Appellants was not in contention, as the central theme was whether the accounts of the Appellants as Garnishees can be used to settle the judgment debt of the 2nd Respondent as Judgment Debtor.

He urged this Court to treat ground 3 of the Appellants’ Notice of Appeal as abandoned and strike same out. He relied on the cases of:
1. SANMI V. STATE (2019) 13 NWLR (PART 1690) page 551 at page 576.
2. NWORA V. NWABUEZE (2019) 7 NWLR (PT. 1670) page 1 at page 24.

The Learned Counsel to the Appellant argued that Order 10 of the Court of Appeal Rules 2016 was wrongly invoked by the 1st Respondent. That Order 10 is only available to a Respondent who objects to the hearing of the appeal and wants it terminated on limine, which is not the case in this appeal.

He further argued that even if there is merit in the 1st Respondent’s contention, it would still not terminate the hearing of the appeal.

That the law is settled that an attack on one ground of appeal leaving several grounds that can sustain the appeal does not come within the realm of preliminary objection. He urged this Court to discountenance the preliminary objection of the 1st Respondent for being inappropriate and abuse of Court process, he relied on the cases of;
1. CBN V. UBANA (2016) LPELR 40366
2. NNPC V. FAMFA OIL LIMITED (2012) 5 – 7 MJSC, 1 at 29.

That the objection of the 1st Respondent is misconceived since it did not complain of misunderstanding the ground of appeal or that he was misled. That the main grouse in ground 3 is simply against the trial Court’s error that Appellants made yearly budgetary allocation to the 2nd Respondent and therefore are in possession of the 2nd Respondent’s funds, which error was clearly amplified as the particulars thereof.

That Courts must look at the substance of complaint in the ground of appeal and give effect to it and must not allow technicality to defeat the end of justice. He relied on DAILY TIMES (NIG) PLC v. D.S.V LIMITED (2014) 5 NWLR (PART 1400) 327 at 349 PARA D – E.

That the particulars of error under Ground

3 are consistent with said ground as they flow seamlessly. Particulars of error numbers (i) and (iii) amplified the Appellants’ complaint of being in possession of the 2nd Respondent’s funds while particulars of error numbers (i) and (iv) relate to the issue of budgetary allocations. That even if the particulars are defective it will not render the ground incompetent. He relied on the following cases:
1. ABE v. UNILORIN (2013) 16 NWLR (PT 1379) 183 at 199 PARA F – H
2. OMISORE v. AREGBESOLA (2015) 15 NLWR (PT. 1482) 205 at 257.
3. CENTRAL BANK OF NIGERIA v. OKEB NIGERIA LIMITED (2014) LPELR – 23162 (CA) 20.

That the case of Asimi v. State (2016) 12 NWLR (Pt. 1527) page 414 cited by the 1st Respondent is not apposite to this case.

On the assertion of the 1st Respondent that Ground 3 should be treated as abandoned, as no issue for determination was distilled therefrom, the Appellants submit they are challenging the order absolute made against their accounts. That Ground 3 is the reasoning upon which the order absolute was made against the account of the Appellants who were only garnishee before the lower Court. That Issue 1 in the

Appellants’ Brief of Argument covers both grounds 1 and 3 of the notice of Appeal.

That this Court can disregard the issues formulated by parties and formulate its own issues for the just determination of the appeal. He relied on the following cases:
1. PATNASONIC INDUSTRIES LIMITED vs. BASSEY (2019) LPELR – 46914 (CA).
2. OBARO vs. HASSAN (2013) 8 NWLR (PART 1357) 425 at 441.
3. UGWU vs. STATE (2013) 14 NWLR (PART 1374) 257 at 274.

He urged the Court to dismiss the 1st Respondent’s Preliminary Objection for lacking in merit.

It must be stated that a Preliminary Objection must conform with the provision of the Court of Appeal Rules 2016 which provides:
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registry within the same time.”
It must be an objection that is capable of terminating the appeal or its hearing in limine.
I have read the Notice of Preliminary Objection incorporated into the

1st Respondent’s Brief paragraph 2 thereof. The said Notice of Preliminary is only challenging the competence of ground three contained in the Appellant’s Notice of Appeal itself nor is the objection geared toward lack of jurisdiction to entertain the appeal for a defect that cut at the foundation of the appeal. The objection of the 1st Respondent does not fall within the penumbra of Order 10 Rule 1 of Court of Appeal Rules 2016.
The settled position of the law is that where a ground or few grounds of appeal is challenged for incompetence, a respondent is only required to file Motion on Notice in that behalf, and not a preliminary objection.
I have carefully read the Notice of Preliminary Objection, the extensive arguments of Learned Counsel to the 1st Respondent and ground three of the Notice of Appeal filed by the Appellant. I have also read the arguments of Learned Counsel to the Appellants.In all, the arguments of the Learned Counsel to the 1st Respondent has not shown that 1st Respondent was misled or that she did not understand the purport or intendment of the said ground 3 contained in the Notice of Appeal. l am of the view that ground three

of the appeal even without any of the particulars ascribed to it is very clear and it is not an appeal against an obiter dictum but strictly against ratio of the decision reached by the lower Court. The ground challenges the finding of the lower Court which held point blank that “The 3rd and 4th Garnishees are therefore in possession of the funds belonging to the Judgment Debtor” and Issue 1 was validly raised from grounds 1 and 3 of the Notice of Appeal. The said ground (3) cannot under any guise be said to have been abandoned. Rather, it is the Preliminary Objection of the 1st Respondent that is grossly misplaced and not in tandem with Order 10 Rule 1 of the Court of Appeal Rules 2016. I call in aid the decision in OSUADE ADEYINKA AKINBADE V. BABATUNDE & ORS (2018) 7 NWLR (PART 1618) 366 at 384 F – H to 385 A – C JSC who said:
“It is very glaring that the obligation raised by the respondents is only levied against some and not the entire grounds in the notice of appeal. By their own showing, the respondents appear to concede the fact that the appeal is sustainable on basis of those other grounds against which no objection has been raised.

A preliminary objection, it is settled, is only raised against the competence of the appeal rather than some grounds against in the appeal. See Odunukwe v. Oformata Yaro v. Arewa Construction Limited (2008) ALL FWLR (PT. 400) 603, (2007) 17 NWLR (Pt. 1063) 333.
Secondly, I agree with learned appellants’ counsel that grounds of the appeal as well as the particulars in their support, on perusal, do not manifest the defects the respondents ascribe to them. Most importantly, the respondents are not left in any doubt as to what complaints the grounds circumscribe. To this end learned appellants’ counsel must be obliged in his reliance on the decisions of this Court, in particular, the dicta of Ayoola JSC in Aderounmu v. Olowu (2004) 4 NWLR (Pt. 652) 265 thus:
“The rules of our appellate procedure relating to formulations of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality; whereby the Court will look at the form rather than substance. The prime purpose of the rules of appellate procedure, both in this Court and the Court of Appeal that the appellant

shall file a notice of appeal, which shall set forth concisely the grounds should not be vague or general in terms and must disclose a reasonable, to the other side of the precise nature of the complaint of the appellant and consequently, of the issues that are likely to raise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.
See also Oloruntoba-Oju v. Abdul-raheem (2009) 13 NWLR (Pt. 1157) 83. Drawing from the principles enunciated in the foregoing, the preliminary objection the respondent purport to raise against the appeal is accordingly hereby discountenanced.”
The 1st Respondent Notice of Preliminary Objection is hereby dismissed.

NOW TO THE MERIT OF THE APPEAL
The Learned Counsel to the Appellant raised two Issues for determination namely:
“1. Whether an order Nisi can be validly made absolute against the accounts of the Appellants who were joined as garnishees to settle the judgment debt incurred by the 2nd Respondent?
2. Whether the 2nd Appellant’s fund set aside by the 3rd Respondent can be used to settle the judgment debt

of the 2nd Respondent?

The Learned Senior Counsel to the 1st Respondent on his part also nominated two issues for determination viz:
1. Whether the order nisi made absolute against the account of the Appellants with the 3rd Respondent is not valid and proper in the circumstance of this case or this matter.
2. Whether the Appellants’ funds already set aside by the 3rd Respondent in compliance with the order nisi of 2007 and 2008 which was further modified in 2018 in the light of this Court’s decision in appeal no. CA/A/718/2016 cannot be used to satisfy the outstanding judgment debt against the 2nd Respondent in this matter (Ground 2).

The Learned Counsel to the 2nd and 3rd Respondents did not file Brief of Argument(s).

The appeal can be determined on the two issues formulated by the Appellant:
1. Whether an order nisi can be validly made absolute against the accounts of the Appellants who were joined as Garnishees, to settle the judgment debt incurred by the 2nd Respondent.
2. Whether the 2nd Appellants funds set aside by the 3rd Respondent can be used to settle the judgment debt of the 2nd Respondent?

The two issue will be taken together:

The Learned Counsel to the Appellant submitted that the procedure for attachment of funds in garnishee proceeding is as expressed in Sections 83, 85 and 94 of the Sheriffs and Civil Process Act Cap. 56 Law of the Federal Republic of Nigeria (SCPA).

He contended that the whole essence of garnishee proceeding is to compel the garnishee having the custody of Judgment debtor’s money to satisfy the judgment from his indebtedness to the judgment debtor and not for the garnishee to satisfy the debt from his own personal money. He relied on:
1. SKYE BANK v. COLOMBARA & ANOR (2015) 2 NWLR (PT. 1453) 538.
2. CBN v. AUTO IMPORT EXPORT & ANOR (2013) 2 NWLR (PT. 1453) 80.
3. TOTAL UPSTREAM (NIG) LIMITED v. A.I.C LIMITED & ORS 2015 LPELR – 25388.

That the Learned trial Judge has the duty to ensure that the money sought to be attached belongs to the 2nd Respondent before making the order absolute against the Appellant. That the lower Court committed a grave error when it made the order absolute against both the funds of the 2nd Respondent (judgment debtor) and the Appellants (3rd & 4th garnishees) domiciled with the 3rd

Respondent.

That the lower Court was in error of revisiting the issue of the Appellants being parent Ministry and Minister, as this issue has been decided upon by the Court of Appeal. Appeal No. CA/A/718/2016 and the Supreme Court in Appeal No SC. 254/2018. Therefore the issue is res judicata and the lower Court erred on law by granting an order absolute against the Appellants. He relied on
1. OGBOGU & ORS VS. NDIRIBE & ORS (1992) LPELR – 2283 SC.
2. OSUNRINDE & ORS vs. AJAMOGUN & ORS (1992) LPELR – 2819 (SC)
3. RE: ALFRED ASAGBA (1972) LPELR – 571 (SC)

That it is clear from the evidence before the Court (Exhibit A and B attached to the 1st Respondent’s counter affidavit at pages 147 – 155 of the record) that the Appellants did not make any yearly budgetary allocation to the 2nd Respondent, as it was the sole responsibility of the National Assembly. That the 2nd Respondent as an independent entity personally defended her budget before the National Assembly. That by virtue of the provision of Section 122 (2) (a) of the Evidence Act, 2011, the lower Court was duty bound to take judicial notice of the said Exhibits which are

Appropriation Act of 2017 and 2018 passed by the National Assembly. He relied on-
1. IGBA v. STATE (2017) LPELR – 42990 CA
2. INEC & ANOR v. ETENE & ANOR (2013) LPELR 22108 (CA).

That the funds appropriated for the 2nd Respondent in the Appropriation Act and Bill of 2017 and 2018 were not ‘actual’ Credit balance of the 2nd Respondent in possession or custody of the Appellants nor were they due or accruing to the 2nd Respondent but rather contingent funds which may not materialize, depending in the release of fund by the Federal Government of Nigeria. He relied on:
1. CBN vs. AUTO IMPORT EXPORT (supra) at pages 126 -127, paras. H – A
2. FIDELITY BANK PLC VS. OKWUOWULU (SUPRA) at page 223 paragraph E – H.

He further contends that it is common knowledge which does not require any proof that following the implementation of the Federal Government’s Treasuring single Account (TSA), it is impossible for the Appellants to be in possession of the 2nd Respondent’s funds. That the 2nd Respondent is liable to pay her own debt and not the Appellant or any other person.

That the lower Court was wrong to have made the order absolute

against the accounts of the Appellants in satisfaction of the 2nd Respondent’s Judgment debt. He urged this Court to resolve issue 1 in their favour.

In response to submission under issue 1, Learned Counsel to the 1st Respondent submitted that there is no ground of appeal herein touching on the findings of the lower Court. That paragraph 4 was not effectively countered by the Appellants, that the Appellants directly oversee the 2nd Respondent and supervises it as the parent Minister and Ministry and the Appellants superintends and make yearly budgetary allocation to the 2nd Respondent.

That there is really no ground or particulars of appeal from which this court’s crucial findings upon which the order absolute was predicated. That where a party has not challenged a finding by way of appeal, that finding stands.
He relied on the cases of:
1. EZIKE v. EGBUABA (2019) 6 NWLR (PART 1669) page 551 at page 562, paras. E – F
2. MAIAMI v. ONIKUARE (2019) 7 NWLR (PT. 1670) page 132 at page 171.

On the alleged improper evaluation of their affidavit to show cause, Learned Counsel submit that there is no ground of appeal challenging the

evaluation the lower Court made on the contend of the affidavit of the Appellants on the basis of which this court can be called upon to re-evaluate same. That where a party is complaining of improper evaluation of his evidence, he should particularize the specific areas in his ground of appeal, not properly evaluated and show how the error was committed by the lower court. He relied on the case of OZUZU v. EMEWU (2019) 13 NWLR (PT. 1688) page 159, paras. A – C.

That there are no particulars showing that the lower Court discountenanced the Appellants’ affidavit expunged it or failed to give probative value to it. There are equally the particulars showing that the Appellants’ affidavit contain information denying the alleged relationship between the Appellant and the 2nd Respondent which the Court below failed to consider, or that there is a paragraph in the affidavit showing that the funds in the attached accounts was for the exclusive use and benefit of the Appellants and to the exclusive of the 2nd Respondent which the Court below failed to consider or generally that there are paragraphs in the Appellants’ affidavit which were not considered by the

lower Court and which if considered would have changed the conclusion of the lower Court.

He urged this Court to discountenance all the arguments of Appellants particularly contained in paragraphs 411 to 412 of the Appellants’ brief of argument aimed at urging this Court to re-evaluate the affidavit evidence of the Appellants. He relied on the case of OKIN v. OKIN (2019) 11 NWLR (PT. 1682) page 138 at pages 162 -163 paras. C – G.

Learned Counsel contends that the order absolute made in this case was well founded, proper and valid as it was based in materials placed before the lower Court.

That the finding of the lower Court is supported by Credible documentary evidence through Exhibits A and B. Exhibit A, which is 2017 Appropriation Act, shows that the 2nd Appellant makes allocations to the 2nd Appellant and the second page thereof reveals that the total allocation accruing to the 2nd Respondent from the Appellant for that year was N4,272,797,372. In Exhibit B, the total figure accruing to the 2nd Respondent from the Appellants for 2018 is N4,188,566,163. That the Court below was on a firm ground to draw inference from Exhibits A and B both on the relationship

between the Appellants and 2nd Respondent in the allocations made to the latter in the Exhibits. He relied on the case of MTN (Nig) Comm. Limited v. CORPORATE COMM. INV. LTD (2019) NWLR (PART 1678) page 427.

That the funds exemplified in Exhibits A and B are in the nature of allocations and they accrue to the 2nd Respondent which is within the tenor of the modified order nisi of 6/2/2018.

He submitted that “communal reading of the Sheriffs and Civil Process Act show that what is attachable in garnishee proceedings are debts due or accruing to the judgment debtor. The term debt due was used disjunctively in the Act with term debt accruing, meaning we submit, either the former or the later.”

That the Appellants themselves cited the case of SKYE BANK v. COLOMBARA (2015) 5 NWLR (PT 1453) 538 to illustrate that funds attachable are debts due or accruing to the judgment debtor.

That the allocations accruing to the 2nd Respondent are in the nature of debts within the meaning of the term under Sections 83 and 85 of the Sheriffs and Civil Process Act and the Appellants are effectively debtors to the 2nd Respondent because as parent supervising

Ministry/Minister, they are under obligation to the 2nd Respondent to discharge through the yearly budgetary allocations. He relied on the cases of:
1. BARBEDOS VENTURES LIMITED v. FBN PLC (2018) 4 NWLR (PT. 1609) page 241 at p. 296.
2. CBN v. UBANA (2017) 15 NWLR (PT.1587) page 151 at page 173

On Issue two as to whether the 2nd Appellant’s fund set aside by the 3rd Respondent can be used to settle the judgment debt of 2nd Respondent. Learned Counsel to the Appellant submitted that the Learned trial Judge was wrong to have made orders absolute against the funds of the

Appellants despite the fact that the Appellant were merely Garnishee in the proceeding. That the funds attached by the order absolute belongs to the 2nd Appellant and not to the judgment debtor. He relied on the case of UBA PLC v. ACCESS BANK PLC & ANOR (SUPRA).

He submitted that notwithstanding the uncontroverted evidence before him the Learned trial Judge made the order absolute against the accounts of the Appellants on the grounds that “the funds of the Judgment Debtor and the 3rd and 4th Garnishees are kept with the 1st Garnishee. The 1st Garnishee had set aside part

of the money by her affidavit of compliance filed on 10th June, 2008, that is Exhibit “C” of the Garnishee.”

That failure of the lower Court to carefully consider the evidence placed before it by the Appellants before making the order absolute against their accounts accessioned grave miscarriage of Justice to the Appellants. He relied on the case of ZENITH BANK PLC v. KANO & ORS (2016) LPELR 40335 (CA) pages 17 -18, paras F – D
He urged this Court to resolve 1 and 2, in his Appellants’ favour

In response, Learned Senior Counsel to the 1st Respondent submitted that the Appellants neither applied to set aside the further modified order nisi nor their joinder as Garnishees upon becoming aware of the order. That there is no ground challenging the further order nisi or the Appellants’ joinder as Garnishees which are appealable decisions by Section 241 of the 1999 Constitution as Amended. He relied on the case of OKIN v. OKIN (SUPRA) pages 159 – 160, paras, H – D

That the Appellant did not discharge the burden of proof of their “personal account/money” as oppose to account from which yearly allocation accrues to the 2nd Respondent.

That the Appellants’ funds with the 3rd Respondent already set aside by the 3rd Respondent in compliance with the order nisi of 2007 and 2008. remains valid for purposes of satisfying the outstanding Judgment debt against the 2nd Respondent.

That the further modification of the order nisi on 6/2/18 pursuant to the judgment of this Court in Appeal No. CA/A/718/2016 has the effect of regularizing whatever defect inherent in the order nisi of 2007 and 2008 in the designation of the Appellants in the proceedings.

That the lower Court further modifying the order nisi of 7th November, 2007 and 28th May, 2008 on 6th February, 2018 an amendment had occurred which introduces new element into the details or cancel some of them. That the attachment of the accounts for funds as set aside by the 3rd Respondent dates back to 7th of November, 2007 when the original Order nisi was first made and the attachment of the funds/account remained valid and subsisting. He relied on the cases of:
(1) ADAMU v. STATE (2017) 16 NWLR (PT. 1597) page 353 at page 392, paras G – H.
(2) OKAFOR v. BDU JOS BRANCH (2017) 5 NWLR (PT 1559) page 407 at page 415, paras B- D.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That at no time has the order of attachment of the account/funds of the 2nd Appellant with the 3rd Respondent been vacated since 7th November, 2007 when it was first made. He urged this Court to resolve this issue in the 1st Respondent’s Favour.

The Appellants’ Learned Counsel in his Reply in the Appellants Brief to the 1st Respondent’s submission contended that the 1st Respondent’s submissions cannot remedy the grave error committed by the Court below having regard to Section 83, 85 and 94 of the Sheriff and Civil Process Act. That the position of the law is that a Court can only make Decree Nisi absolute against judgment Debtors funds/accounts in possession/custody by a garnishee and not against account of Garnishees.

That the funds attached and set aside by 3rd Respondent vide its Affidavit of Compliance at page 123-124 of the Record

of Appeal paragraph 6 thereof proved beyond doubt that the fund belong to the 2nd Appellant.

That the order absolute is at variance with the modified amended order Nisi of 6/2/2008 and it should not be allowed to stand.

Judgment debtor. By this process, the Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of Phrases Legally Defined 3rd Ed. Vol. 2, pages 13-14 cited by Akintan, JSC, in his concurring judgment in Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd. (2005) 13 NWLR (Pt. 943) 654 at page 666. Lord Denning, Mr. in Choice Investment Ltd. v. Jerominimon (1981) QB 1 9 at 154-155, gives a simple illustration of garnishee proceeding thus:
“A creditor is owed £100 by a debtor. The debtor does not pay. The creditor then gets Judgment against him for the £100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has £150 at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the (judgment creditor) out of the customer’s £150 – the £100 which he owes to the creditor”. The Master of the Rolls went on, in the

case, to state further:
“There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay £100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See Pritchard v. Westminster (1969) 1 ALL ER 999 and Rainbow v. Mortgage Properties Ltd. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute to pay to the judgment creditor or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer just as if he himself directed the bank to pay it”.
I did this detour for a purpose. That is, to show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the

merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to.”
2.BARBEDOS VENTURES LTD V FIRST BANK OF NIGERIA PLC (2018) 4 NWLR (PART 1609) 241 AT 270H – 272A – C per AUGIE, JSC who said:-
“However before resolving the main issue, there is an underlying and threshold procedural and jurisdictional (party) issue to be resolved whether the respondent is a proper garnishee in these circumstances?
To start with, garnishee proceedings are governed by the Sheriffs and Civil Process Act, and Section 83(1) thereof provides as follows-
“The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of 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 is, 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 to 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:
A garnishee is therefore, a debtor to the judgment debtor – see Skye Bank v. Colombara & Anor (2014) 2 BFLR 177: (2015) 5 NWLR (Pt. 1453) 538, wherein it was held:
“A garnishee is essentially a third party, who being indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor from the creditor of the judgment debtor in the account thereof with the third party. ”
The third party envisaged as a

prospective garnishee under Section 83 of the said Sheriff and Civil Procedure Act must be a person, who holds sums amounting to “debts due or accruing to the judgment debtor” C.B.N. v. Auto Import Export & Anor (2012) 4 BFLR 1, 34: (2013) 2 NWLR (Pt. 1337) 80. Thus, banks/bankers have become the typical garnishee given the nature of a banker-customer relationship. The nature of the relationship between a banker and his customer is contractual – Linton Industrial Training (Nig.) Ltd. v Central Bank & Anor. (2014) 1 BFLR 231 at 233; (2015) 4 NWLR (Pt. 1448) 94. See also Akwule v. Queen (2012) BFLR 90, where this Court stated:-
“The relationship between a banker and customer is that of debtor and creditor in respect of the money deposited with the banker by the customer. This position becomes clearer when a customer asks for his money. The bank undertakes to pay cheques of the customer drawn on his current account; thus the bank becomes a debtor for the amount, which must be paid on demand. If the amount is not paid, the customer can sue the bank.”
“Debt” and “Debtor” have also been explained for purposes of a Garnishee proceedings in the said

case on pages 295 F-H to 296A-H the report by my Lord PETER-ODILI, JSC who said:
“Aligned with the above principles and situating them contextually with the facts of this case and the wordings of Section 83 of Sheriffs and Civil Process Act, it is clear that the intention of the legislature in setting up the procedure of recovery of debt by garnishee such as the one in contest in this case, envisions that the money available to be garnisheed is debt owing from such third person to the judgment debtor which could arise in four ways as Follows:-
1. That judgment has been recovered against a judgment debtor which judgment had remained unsatisfied;
2. That a third party known as the garnishee is indebted to the judgment debtor;
3. That an order is made by a Court of competent jurisdiction that debts owing from such third person, called the garnishee, to such debt or be attached to satisfy the judgment or order; and;
4. That the Court after making the order of attachment, either by the same or any subsequent order, makes an order that the garnishee appears before the Court to show cause why the garnishee should not pay to the judgment creditor the

debt due from the garnishee to the judgment debtor or so much it as may be sufficient to satisfy the judgment. Uwaifo JCA (as he then as) well captured the procedure above stated when interpreting Section 81 of the Sheriffs and Civil Processes Law which is an impari materia to the current Section 83 of the Sheriffs and Civil Process Act in the cases of: United Bank for Africa Limited v. Societe Generale Bank Limited & 3 Ors (1996) 10 NWLR (Pt. 478) page 381 at 390, paras A B thus: –
“By the process of garnishee, the Court has power under Section 81 of the Sheriffs and Civil Process Law to order a third person to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or so much of it as may be sufficient to satisfy the amount of the judgment and the cost of the garnishee proceedings. It is a condition that the money must be due or have accrued to the judgment debtor for it to be liable to garnishment. For it is said that a judgment creditor cannot, by means of attachment, and the judgment debtor because “he can only obtain what the judgment debtor could honestly give him”.
5. The Black’s Law Dictionary, 7th Edition 1999 at page 410

defines “Debt, as liability on a claim, a specific sum of money due by agreement or otherwise, the aggregate of all existing claims against a person entity or State, A non-monetary thing that one person owes another, such as goods or services. ”
6. “Debtor is defined as “One who owes an Obligation to another, especially an obligation to pay money; indebtedness is defined as “The condition or state of owing money, something owed, a debt.”

It is now very important to say that there is no dispute between the parties herein on the following matters:-
“1. That after the judgment in the sum of US$1,672,351.50 or its equivalent was entered against the 2nd Respondent in this appeal with payment of 21% interest from 24-4-1994 until the judgment sum is paid, the Federal Government through Debt Management Office assumed responsibility to pay the judgment sum.
2. In furtherance of 1 above the Debt Management Office engaged the 1st Respondent/Judgment Creditor in discussions and part of the post judgment was that the Debt management Office allotted Bonds to the 1st Respondent at CBN prevailing rate in the sum of N142

Million.
3. The 1st Respondent insisted that the sum of N142 Million represents only a part payment of the judgment sum and interest thereon while the Appellants contended the contrary.
4. The issue relating to whether the sum of N142 Million was payment of the judgment sum as entered against the Respondent in suit No. FHC/1/CS/1223/99 on 3rd May 2001 was resolved by the Court in one of the earlier appeals between the parties viz CA/A/718/2016 delivered on 18th December, 2017 wherein this Court found as follows:-
“It is clear that all parties agreed the judgment ordered that the sum of $1,672,351.50 or its equivalent in naira with interest of 21 percent per annum be paid to the appellant. The appellant authorized its agent to negotiate and receive the judgment debt in dollars or the naira equivalent. The payment, made to the appellant was in naira. The question that follows is what was the dollar equivalent of that amount as at October, 2006 when it was paid to the appellant. The answer to this question can be found in the document at page 318 of the record of this appeal which contains the monthly exchange rate of the naira to the dollar from

1994 to 2006. The document has the official stamp of the 3rd respondent, it is signed as issued on 17-2-2016. It bears the name of one L. Y. Mustapha, Director Financial Market. It shows that as at October, 2006 the naira exchanged for the dollar at 128.28 naira. So to arrive at the dollar equivalent of 142 million naira as at that date would require dividing 142 million naira by 128.28 naira. This division shows that the dollar equivalent of 142 million naira as at that date is US $1, 106, 953.539. This is obviously lesser that the judgment sum of US$1, 672, 351.50 by US $565,397.961. It is noteworthy that this amount does not include the 21 % interest that had accrued per annum on the principal judgment debt of US $1,672,351.50. So the appellant was correct when it stated in its letter of 28-6-2007 that the 142 million naira paid to it covered only a part of the principal judgment debt and that the balance of the judgment debt remain unpaid and all the interest that accrued on the judgment debt up till October, 2006 when the appellant was paid 142 million naira.”

The appeal of the 2nd Respondent against the findings part of which are produced above

and the cross appeal of 1st Respondent failed, 3rd Respondent’s appeal was adjudged incompetent by Supreme Court while the cross appeal was found to be an abuse of Court process in SC. 254/2018 delivered on 8-3-2019 by my Lord M. M. MUHAMMAD, JSC.

In effect the outstanding amount remaining to be paid as the judgment debt by the 2nd Respondent to the 1st Respondent now stands at USD$565,397.96 as shown in the application of the 1st Respondent contained on pages 3 and 4 of the record and the Order NISI of lower Court made thereon by KOLAWOLE, J.

The case of the 1st Respondent remains that the Appellants particularly the 2nd Appellant being the parent body of the 2nd Respondent and that the 2nd Appellant makes yearly budgetary allocation to the Judgment Debtor as could be seen in the Appropriation Act and Bill of 2017 and 2018 which was attached as Exhibits A and B to the 1st Respondent’s Counter Affidavit against the Affidavit showing cause filed by the two Appellants at the Court below. They form the basis or fulcrum of the 1st Respondent’s Garnishee proceedings against the Appellants and the 3rd Respondent at the Court below.

To the 1st Respondent, the above facts confirmed that the Judgment/debtor’s money or monies accruing to Judgment Debtor from budgetary allocation made to the Judgment Debtor by the Appellants Garnishee Order NISI and Absolute against the Appellants are in order.

The major submissions of the Appellants against the position of the 1st Respondent can be found in paragraph 4.11 and 4.12 of the Appellant(s) Brief of Argument.

It will be recalled that the Appellants filed Affidavit to show cause why the Order NISI should not be made absolute and the 1st Respondent filed a Counter Affidavit to debunk the position of Appellant that they are not in possession of Judgment Debtor’s money. In the interest of justice I will reproduce the said Affidavits. Affidavit filed by the Appellants contained on pages 144 – 145 of the record states as follows:-
“3RD AND 4TH GARNISHEES’ AFFIDAVIT TO SHOW CAUSE
I, IBRAHIM ALBASU, Male, Adult, Nigerian, Civil Servant, of the Federal Ministry of Mines and Steel Development, do hereby make Oath and give evidence as follows:-
1. That I am the Litigation Clerk in the Legal unit Federal Ministry of Mines and Steel Development, and by

virtue of my position, I am familiar with the facts deposed in this affidavit.
2. That I have the consent and authority of my employers to depose to this Affidavit.
3. That I have been informed by A. B. Mustapha, Esq. in our office No. 2 Luanda Crescent, Wuse Abuja on the 26th February, 2018 at about 11.00am of the following fact which I verily believe to be true and correct as follows:-
a. That the 2nd and 4th Garnishees were served on the 8th February, 2018 with the Court Order nisi dated 2nd day of February, 2018 granted by this Honourable Court.
b. That the Order directed the Garnishees where to show cause why the sum of $21.373,571.60 due, belonging, allocated or accruing to the Judgment Debtor from the Federal Ministry of Mines and Steel Development (the Judgment Debtor’s parent ministry), or howsoever standing to the credit of the Judgment Debtor in possession/custody of the garnishees shall be attached to satisfy the judgment debt and the interest.
c. That sequel to the above paragraph, he requested the Finance and Account Department of the 4th Garnishee to give details of accounts/fund of the Judgment Debtor in the

custody/possession of the 3rd and 4th Garnishee to enable him respond to the garnishee.
4. That I have further been informed by M. O. E. Ikotun, the Director Finance and Account Department of the 3rd and 4th Garnishees in our office No. 2 Luanda Crescent Wuse II Abuja on the 26th February, 2018 at about 4.00 pm of the following fact which I verily believe to be true and correct as follows:-
a. That the 3rd & 4th Garnishees are not holding or in possession of any fund belonging, allocated, accruing or howsoever standing to the credit of Ajaokuta Steel Company Limited, the Judgment Debtor.
5. That I depose to this affidavit in good faith believing the contents to be true and correct in accordance with the Oaths Act. ”

The Counter Affidavit of 1st Respondent reads:-
“COUNTER AFFIDAVIT TO 3RD AND 4TH GARNISHEES’ AFFIDAVIT TO SHOW CAUSE
I, Akintunde Ogbontolu, Male, Adult, Chr1stian, Nigerian Citizen of Suite 61, Dansville Plaza, Behind Forte Oil Filling Station, Apo, Abuja make Oath and state as follows:-
1. That I am a Legal practitioner in Okunade Olorundare SAN & Co. counsel to the Judgment Creditor.
2. That by virtue of

my responsibilities, I am conversant with the facts of this case.
3. That I have the consent of the Judgment Creditor through Arch. Felix Jokotola Sokera her Chief Executive and my employers to depose to the facts herein.
4. That Paragraph 4 of the 3rd and 4th Garnishees affidavit to show cause is not true for the following reasons:-
a. The 3rd and 4th Garnishees directly oversee the Judgment Debtor and supervises it as the parent Minister and Ministry of the Judgment Debtor.
b. That 4th Garnishee where the 3rd Garnishee superintend makes yearly budgetary allocation to the Judgment Debtor as evidenced by the Appropriation Act and Bill of 2017 and 2018 respectively attached as Exhibit “A” and “B”.
c. That it was in the news a fortnight ago when the 3rd Garnishee and the Vice President of the Federal Republic of Nigeria addressed an Investor’s Meeting that the Government is making arrangement to concession the Judgment Creditor out to private investors. Money realized from the concession is to be retained by the 4th Garnishee. This is on the website of the Judgment Debtor for the whole world to see.
d. The 3rd and 4th Garnishees are therefore in

possession of the funds belonging to the Judgment Creditor.
e. The funds of the Judgment Debtor and the 3rd and 4th Garnishees are kept with the 1st Garnishee.
f. The 1st Garnishee had set aside part of the money by her affidavit of compliance filed on 10/6/2008 attached here with as Exhibit “C”.
g. It is in the interest of justice to make the Orders Nisi of 7/11/2007 and 28/5/2008 as modified by the Order of this Honourable Court on 6/2/2018 Absolute against the accounts of the Judgment Debtor, the 3rd and 4th Garnishees with the 1st Garnishee.
5. That I make this Oath in good faith believing same to be true to the best of my knowledge in accordance with the Oaths Act.”

The Further Affidavit of the Appellant in response to the 1st Respondent’s Counter Affidavit deposed as follows:
“FURTHER AND BETTER AFFIDAVIT
I BILIKISU YAHAYA, Female, Adult, Civil Servant and Nigerian Citizen of No. 2 Luanda Crescent Wuse II Abuja do hereby make Oath and state as follows:-
1. That I am a Litigation Secretary in the Legal unit of the 4th Garnishee.
2. That by virtue of my position, I am familiar with the facts deposed

herein.
3. That I have the consent and authority of my employers to depose to this Affidavit.
4. That I have been informed by A. B. Mustapha, Esq. in our office No. 2 Luanda Crescent Wuse II Abuja on the 26th March, 2019 about 2.00pm of the following fact which I verily believe to be true and correct as follows:-
a. The 3rd and 4th Garnishees were served with the Court order nisi issued on the 6th February, 2018 ordering the Garnishee to show cause why the sum of 421, 373,571.60 in the custody of the Garnishees shall not be attached. In response thereof the 3rd and 4th Garnishees filed affidavit to show cause on the 27th February, 2018.
b. The Judgment Creditor responded to the 3rd and 4th Garnishees affidavit to show cause by filing counter affidavit on 28th February, 2018.
c. The 3rd and 4th Garnishees deny paragraphs 4c, d, f and g of the Judgment Creditor’s Counter Affidavit.
d. That in response thereof, the 3rd and 4th Garnishees is not in possession of the Judgment Debtor’s fund.
e. That the funds set aside by the 1st garnishee in the affidavit of compliance filed on 10/6/2008 attached in the Judgment Creditor’s Counter

Affidavit as Exhibit C belongs to the 4th Garnishee (as the then Judgment Creditor) and not the Judgment Debtor herein or any other party.
f. That the 4th Garnishee is not a Judgment Debtor in this proceeding.
g. That it will not serve the interest of justice and will occasion serious hardship on the 3rd and 4th Garnishees if this Honourable Court makes order absolute against the fund of the 4th garnishee which is not a Judgment Debtor in this proceeding.
5. That I depose to this affidavit in good faith believing the contents to be true and correct in accordance with the Oaths Act.”

A composite reading of the three Affidavits reproduced above clearly establish that the 2nd Appellant the parent Ministry of the Judgment Debtor makes yearly budgetary allocation to the Judgment Debtor. This is amply supported by Exhibit “A” and ‘B” attached to the Counter Affidavit of the 1st Respondent. The 2017 Appropriation Act allocated or appropriated monies to the Judgment/Debtor while the Federal Government of Nigeria 2018 (Appropriation BILL FGN BUDGET PROPOSAL) also shows that allocations were made to the Judgment Debtor. The Appellant did not deny

the assertions of the 1st Respondent in paragraphs 4(a) and (b) of her Counter Affidavit and have not dislodged the existence of Exhibits A and B attached to the said Counter Affidavit of 1st Respondent. The facts deposed to in the Counter Affidavit are deemed admitted.

The argument of Appellant’s learned Counsel in 4.11 (a) to the effect that issue of Appellants being parent Ministry or Minister has been dealt with in the decision of this Court and is now res judicata is unfounded. What this Court decided was that 1st Respondent could not proceed against the Appellant as if they were adjudged Debtors in Suit FHC/L/CS/223/99 when the judgment of the Federal High Court did not make any monetary judgment against the Appellant. It was after this Court had remitted the Garnishee proceedings back to lower Court for continuation and conclusion that the 1st Respondent now joined them (Appellants) in the Garnishee proceeding as Garnishees instead of Debtors. The Appellants are not sued in this case as Debtors but as Garnishees.

The Appellants’ learned Counsel also argued that it was the sole responsibility of National Assembly to make yearly budgetary

allocation for 2nd Respondent as an independent entity to personally defend its Budget before the National Assembly.

In another breath he argued that the funds allocated for 3rd Respondent in the Appropriation Act and Bill of 2017 and 2018 were not ‘actual’ credit balance of Respondent in possession or custody of Appellants and that they were not due or accruing to the 2nd Respondent but rather contingent funds which may not materialize depending on the release of fund by Federal Government.

The submissions of Appellants’ learned Counsel are admissions that in Exhibits A and B, the 2nd Appellant made allocation to the Judgment Debtor in 2017 and 2018 Budget.

There is nothing in Appellants Affidavit denying or stating that the Federal Government who had assumed responsibility to settle 2nd Respondent’s debt did not release funds or monies budgeted or allocated to Judgment/Debtor to the Appellants for disbursement to Judgment/Debtor, a parastatal or Company under Appellant’s control and supervision. The monies/funds of the Judgment Debtor the 2nd Respondent’s herein as could be seen in Exhibits A & B are to be paid to 2nd Respondent through

the 2nd Appellant who made Budget on behalf of the 2nd Respondent.

The strong inference is thus present that monies or funds due to the 2nd Respondent/Judgment Debtor or accruing to it under its yearly budgetary allocation are with the Appellants and in their possession. The budgetary allocations to 2nd Respondent are not paid by the Federal Government of Nigeria directly to the 2nd Respondent but through Appellants as can be seen in Exhibits A and B to the Counter Affidavit of the 1st Respondent.

The learned Counsel to the Appellants also claimed that it is impossible for them to be in possession of Respondent’s fund because of operation of Treasury Single Account. This is a misplaced argument or submissions. It is when the funds of an organization or Company is released to it that the funds or monies will go into an account opened in that behalf by the beneficiary of the fund and not otherwise.

On issue two, concerning the 2nd Appellant’s Fund set aside by the 3rd Respondent as to whether it could be used to offset or settle debt owed by the Judgment Debtor/2nd Respondent in favour of 1st Respondent the Appellants again relied on the finding of

this Court to the effect that the Appellants were/are not Judgment Debtors.

Again, it has to be stated quite clear that even in this appeal no one has said or stated on any process before the Court that Appellants are Judgment Debtors to the 1st Respondent. NO. They are joined in this Garnishee proceedings as Garnishees which simply means that 2nd Appellant is in possession of monies or funds due or accruing to the Judgment Debtor 2nd Respondent in this appeal. In other words, the 2nd Appellant was/is a debtor not to the 1st Respondent but a debtor to the Judgment Debtor/2nd Respondent by virtue of allocation of monies or fund standing to the credit of 2nd Respondent in possession of the Appellants. It thus means the Appellants particularly the 2nd Appellant are owing the 2nd Respondent and it is the monetary entitlements of the 2nd Respondent that the 1st Respondent asked the lower Court to make Garnishee Orders against the monies and Appellant with the 3rd Respondent to settle the balance or outstanding debt yet to be paid by 2nd Respondent to the 1st Respondent. This is one of the key elements in Garnishee proceedings. The 1st Respondent steps into the

shoes of the 2nd Respondent to collect the monies due to the Judgment/Debtor from the Appellants. This is permissible in law and principles relating to enforcement of monetary debt vide Garnishee proceedings. SeeBABEDOS VENTURES LTD V FIRST BANK OF NIGERIA PLC (2018) 4 NWLR (PART 1609) 241 AT 271 B – H per AUGIE, JSC who said:-
“To start with, garnishee proceedings are governed by the Sheriffs and Civil Process Act, and Section 83(1) thereof provides as follows-
“The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of 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 to 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.”
A garnishee is therefore a debtor to the judgment debtor, see Skye Bank v Colombara & Anor (2014) 2 BFLR 177; (2015) 5 NWLR (Pt. 1453) 538, wherein it was held:
“A garnishee is essentially a third part who being indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the creditor of the judgment debtor in the account thereof with the third party.”
The third party envisaged as a prospective garnishee under Section 83 of the said Sheriff and Civil Procedure Act must be a person who holds sums amounting to “debts due or accruing to the judgment debtor” C.B.N v. Auto Import Export & Anor (2012) 4 BFLR 1, 34: (2013) 2 NWLR (Pt. 1337) 80. ” (Underlined mine).

Having become the debtor to the Judgment

Debtor the 2nd Respondent, in this appeal the Garnishee Order Absolute made by the lower Court against the Appellants is in order and cannot be faulted. The fact that the Order mentioned or stated in some ambiguous term that “the fund of the Judgment Debtor and the 3rd and 4th Garnishees are kept with the 1st Garnishee had set aside part of the money by her affidavit of Compliance filed on 10th June 2008, but Exhibit “E” of the Garnishor” will not diminish the soundness of the conclusion reached by the Court below, which in effect is that the Appellants are debtors to the 2nd Respondent and the outstanding balance of the debt owing to the 1st Respondent together with the accrued interest and by virtue of judgment in Suit FHC/L/CS/1223/99; the judgment of this Court in CA/A/716/2016 and the modified Order NISI made by KOLAWOLE, J. (pages 474 – 476 of the record, shall be paid by Appellants to the 1st Respondent.

Where the conclusion reached in a judgment or Ruling of a Court is supported by the oral and documentary evidence in the printed record of the Court below this Court will uphold and affirm the decision. The complaint of the Appellants under issues

1 and 2 nominated for determination cannot be sustained.
An appellate Court is always conscious and interested in whether the judgment appealed against is right or wrong and not much about the route taken by lower Court in arriving at the judgment. The findings of lower Court in this case cannot be faulted. See ALHAJI NDAYAKO & ORS VS ALHAJI HALIRU DANTORO & ORS (2004) 13 NWLR (PART 889) 187 AT 220 F – G per ECOZIE, JSC who said:-
“An Appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the Judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere: see Abaye v Ofili (1986) 1 NWLR (Pt. 15) 134 at 179; Ukejianya v Uchendo 19 WACA 46. Since in the instant case, there was evidence on record to support the finding of service of exhibit NB/1 on the appellants the giving of a wrong reason by the Court below in arriving at the same conclusion is of no moment. ”

Issues 1 and 2 are resolved against the

Appellants. The Appellants’ appeal is unmeritorious and it is hereby dismissed. The Ruling of the Federal High Court contained in the decision delivered on 10th July, 2019 in suit No. FHC/ABJ/M/03/2007 (Coram EKWO J) is hereby affirmed.

The Appellants shall pay costs of N500,000 (Five Hundred Thousand Naira) to the 1st Respondent.

ABDU ABOKI, J.C.A.: I agree.

STEPHEN JONAH ADAH, J.C.A.: I was opportuned to read in draft the judgment just delivered by my learned brother, Peter Olabisi lge, JCA.

I am entirely in agreement with the reasoning and the conclusion that the appeal is lacking in merit. I too, do dismiss the appeal and I abide by the consequential orders inclusive of the order as to costs made thereat.

Appearances:

A.B. MUSTAPHA (SSC) For Appellant(s)

I. OLORUNDARE, SAN with him, A. OGBONTOLU, I. YUNANA, M. BOLA MATANNI for the 1st Respondent

SALE SULE for the 2nd Respondent

BABAJIDE BABATUNDE for the 3rd Respondent For Respondent(s)