CBN v. BAKO & ANOR (2021)

CBN v. BAKO & ANOR

(2021)LCN/15032(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/A/180/2017

RATIO

FAIR HEARING: RIGHT OF FAIR HEARING

Let me begin here by saying that of all the fundamental rights disposed in the Constitution, the most pungent in its effect is the right to fair hearing. Fair hearing has been aptly defined to mean giving equal opportunity to the parties to be heard in the litigation before the Court. it must therefore, mean a trial that is conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It means a fair trial. See the cases of INEC v. Musa (2003) 3 NWLR (Pt. 806) 72, Ariori & Ors. v. Elemo & Ors. (1983) LPELR-552 (SC), Asakitikpi v. State (1993), Ntukidem & Ors. v. Oko & Ors. (1986) LPELR-7075. Ejiwunmi, J.S.C., in the case of Alsthom S.A. & Anor. v. Saraki (2005) 3 NWLR (Pt. 911) 208, held that:
“Fair hearing according to our law, envisage that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties. See Elike v. Nwakwoala & Ors. (1984) 12 SC 301, Isiaka Mohammed v. Kano N.A. (1968) 1 All NLR 424”.
In the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025), the Supreme Court held that:
“Section 36 of the 1999 Constitution provides for the fair hearing in the determination of the civil rights and obligations of a person. The constitutional provision mainly stems or germinates from two common law principles of natural justice. They are audi alteram partem and nemo judex in causa sua. It is the first two that is relevant to this appeal. The meaning of the Latinism is “hear the other side; hear both sides. No man should be condemned unheard”. See Black’s Law Dictionary, 6th Edition, page 131. What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the Court and that no party should be given more opportunity or advantage in the presentation of his case. See generally LPDC v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Onwumechili v. Akintemi (1985) 3 NWLR (Pt. 13) 504, Garba v. The University of Maiduguri 1 NWLR (Pt. 18) 550″. PER STEPHEN JONAH ADAH, J.C.A.

FAIR HEARING: EFFECT OF PROCEEDINGS CONDUCTED IN BREACH OF RIGHT TO FAIR HEARING

On the effect of proceedings conducted in breach of right to fair hearing, the Supreme Court in the case of Eye v. FRN (2018) 7 NWLR (Pt. 1619) 49 held:
“The circumstances that arose showed that the Court of first instance having jumbled all the applications and treating them as one utilised facts or evidence that had no relationship or relevant to specific application of the appellant. The fall out therefore is that the right of fair hearing of the appellant had been clearly breached and the correctness of the decision was neither here nor there. This is because the proceedings having been fundamentally flawed on account of this failure to adhere to the rule of natural justice of the appellant’s right to fair hearing jeopardized the proceedings and nothing could come out of it. The dictum of my learned brother, Kekere-Ekun J.S.C. Inogha Mfa & Ors v. Mfa Inongha (2014) LPELR- 22010 (SC) is apt for my use and I follow it. He stated thus: “It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See Tsokwa Motors (Nig) Ltd v. U.B.A Plc (2008) ALL FWLR (Pt.403) 1240 @ 1255 A-B; Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor v. A.G. Anambra State (1991) 3 NWLR (Pt. 200) 59; Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in recent decision of this Court in Abubakar Audu v. FRN (2013) 53 NSCOR 456 @ 4691; “The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22. The effect of a denial of fair hearing is trite in law. In other words, once there is breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court becomes a nullity.”
The effect of proceedings conducted in breach of right to fair hearing is clearly to render the whole proceeding a nullity. PER STEPHEN JONAH ADAH, J.C.A.

COURT: ATTITUDE OF THE APPELLATE COURT TO COURTS RAISING SUO MOTU ISSUES

The law is very well settled that this is not the practice allowed in our law. It is not the function of any Court to raise suo motu issues not canvassed in the written brief or oral arguments before it which does not touch on the jurisdiction of the Court and to which counsel were not asked to address it on. This Court has always regarded with disfavour the practice of so doing.
In the case of Onifade & Ors. v. Olayiwola & Ors. (1990) LPELR — 2680 (SC), the Supreme Court held on this issue that it ought to be observed that it is an elementary principle of the determination of disputes between parties that judgment must be confined to the issues raised by the parties and it is not competent for the Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See Commissioner for Works Benue State & Anor. v. Devcon Development Consultants Ltd & Anor. (1988) 3 NWLR (Pt. 407; Ochonma v. Ashirim Unosi (1965) NMLR 321; Nigeria Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC. 57; Adeniji & Ors. v. Adeniji & Ors. (1972) 1 All NLR (Pt. 1) 278.
Onnoghen, J.S.C. (as he then was) held in the case of Lamulatu Shasi & Anor v. Madam Shadia Smith & Ors. (2009) LPELR — 3039 (SC) that it is settled law that though a Court of law may raise an issue suo motu, it cannot base its determination of the appeal or case on the issue so raised except it calls on the parties or their counsel to address it on that issue. In other words, a Court of law has the vires to raise an issue necessary for the determination of the matter before it subject to its being addressed on that point/issue by counsel for both parties if the decision of the Court is to be rooted or grounded on the issue so raised suo motu. To raise an issue suo motu and proceed to decide the matter on the same without hearing counsel for the parties thereon is to deny the parties their right to fair hearing and an appellate Court is duty bound, in the circumstance, to set aside the determination so made.
The position of the law is swift and glaring that a Court must not indulge in any act such as raising issues suo motu and addressing them or using the issue in its judgment without calling the parties for their input. Once this happens, it is a breach of the right of the parties to fair hearing. It is the position in this case. PER STEPHEN JONAH ADAH, J.C.A.

JUDGMENT DEBT: WHETHER THE CONSENT OF THE ATTORNEY GENERAL IS NECESSARY WHERE ANY MONEY BELONGING TO THE JUDGMENT DEBTOR IS IN THE CUSTODIA LEGIS

One more time, the issue of the consent of the Attorney General before the enforcement of a judgment debt against a public officer has arisen. The law is certain and well settled that consent of the Attorney General is a precondition where any money belonging to the judgment debtor is in the “custodia legis”. Section 84 of the Sherriff and Civil Process Act provides:
84 (1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodial egis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodial egis, as the case may be. (L.N. 47 of 1955).
(2) In such cases the order of notice must be served on such public officer or on the register of the Court, as the case may be.
(3) In this section, “appropriate officer” means —
(a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation;
(b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.
The issue of consent is a statutory matter, the law is firm on it and it can only be waived if there is any amendment to the law suggesting such. PER STEPHEN JONAH ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

CENTRAL BANK OF NIGERIA APPELANT(S)

And

1. JAMES BAKO 2. NATIONAL INSTITUTE FOR PHARMACEUTICAL RESEARCH & DEVELOPMENT RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal by the appellant, against the Ruling of the Federal High Court, sitting in Abuja, in Suit No: FHC/ABJ/CS/397/2002, delivered on the 14th day of December, 2016; coram: G.O. Kolawole, J. (as he then was). Wherein the lower Court dismissed the Preliminary Objection of the Garnishee/Appellant challenging the jurisdiction of the lower Court on the ground that the Judgment Creditor/1st Respondent commenced the Garnishee proceedings against the Garnishee/Appellant without first obtaining the consent of the Attorney General of the Federation as required by Section 84 of the Sheriffs and Civil Process Act, CAP S6, LFN, 2004.

The appellant also consequently prayed the trial Court for:
“1. An Order setting aside the Garnishee Order Nisi issued by this Honourable Court on the 26th day of October, 2016.
2. An Order discharging the Garnishee Order Nisi made against the Garnishee (Central Bank of Nigeria)
3. An Order striking out the name of the Garnishee (Central Bank of Nigeria) from the proceeds”.

The said prayers were predicated on two (2) grounds. On the

30th of November, 2016, the trial Court heard the oral submissions of the Garnishee’s Counsel, Mr. Sunday Adebayo, Esq., on the Garnishee’s Notice of Preliminary Objection and in a considered Ruling delivered on the 14th December, 2016, the trial Court dismissed the Garnishee’s Notice of Preliminary Objection and made the Order Nisi Absolute.

Dissatisfied with the said Ruling, the appellant appealed to this Court vide two Notices of Appeal. The first one was filed on the 30th September, 2016, while the second one was filed on the 13th January, 2017. The record of appeal was transmitted to this Court on 08/02/2017.

In line with the rules of this Court, parties filed and exchanged their respective briefs of arguments. Appellant’s Brief was filed on 16/03/2017, while the 1st Respondent’s Brief was filed on 29/03/2017.

The appellant in his brief distilled two (2) issues for determination of this appeal, thus:
1. Whether given the fact that consent of the Honourable Attorney General of the Federation was not obtained by the Judgment Creditor/1st Respondent before commencing the garnishee proceedings against the Garnishee/Appellant which is a

Public Service Body manned by Public Officers, robbed the Honourable Lower Court jurisdiction to entertain the garnishee proceedings.
2. Whether the right of fair hearing of the Garnishee/Appellant was not breached when the Honourable Lower Court suo motu raised the issue of Treasury Single Account (TSA) as the basis for refusing the Preliminary Objection filed by the Garnishee/Appellant against the Garnishee proceedings without giving counsel to the Garnishee/Appellant opportunity to be heard in respect of the issue so raised by the Honourable Court.

In response, counsel for the 1st respondent adopted the two issues submitted by the appellant in the 1st respondent’s brief of argument filed on the 29th March, 2017.

I shall therefore, determine this appeal on the two issues submitted by the appellant and adopted by the 1st respondent. I would like to start with issue two.

Issue Two:
This issue is – whether the right of fair hearing of the Garnishee/Appellant was not breached when the Honourable Lower Court suo motu raised the issue of Treasury Single Account (TSA) as the basis for refusing the Preliminary Objection filed by the

Garnishee/Appellant against the Garnishee proceedings without giving counsel to the Garnishee/Appellant opportunity to be heard in respect of the issue so raised by the Honourable Court.

Counsel for the appellant while arguing this issue contended that right to fair hearing is a fundamental constitutional right guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Counsel posited that fair hearing is a hearing which is fair to all parties to the suit, giving each one an opportunity to be heard, whether the party be the plaintiff, the defendant, the garnishee, the prosecution of the defense. He cited Ogbeshe v. Idam (2013) LPELR 20330 (CA) and Bellview Airlines Ltd v. Carter Harriss (Proprietary) Ltd (2016) LPELR-40989 (CA). Counsel argued that the right to fair hearing of the Garnishee/Appellant was breached when the lower Court suo motu raised the issue of Government Monetary Policy called Treasury Single Account (TSA) as the basis for refusing to grant the notice of preliminary objection filed by the Garnishee/Appellant to the hearing of the garnishee proceedings which was commenced by the Judgment

Creditor/1st respondent against the Garnishee/Appellant without affording counsel to the appellant the opportunity to be heard in respect of the issue so raised by the Court. He relied on Prince Abubakar v. Federal Republic of Nigeria (2013) LPELR 19897 (SC). That the issue of mandatory policy of the Federal Government of Nigeria called Treasury Single Account (TSA) suo motu raised by the lower Court in the Ruling delivered on the 14th December, 2016 without affording counsel to the Garnishee/Appellant opportunity to respond to same amounted to breach of the right of the Garnishee/Appellant to fair hearing and also occasioned miscarriage of justice. He urged the Court to so hold and uphold this appeal.

In response to this issue, counsel for the 1st respondent contrary to the submission of the appellant argued that it is untrue that the lower Court raised and decided an issue without giving the appellant opportunity to reply on the same. That the trial Court never raised and decided it suo motu without giving the other party the opportunity of replying on it. Counsel defined the term ‘issue’ according to Black’s Law Dictionary 6th Edition 831. He

contended that an issue must constitute a matter argued for and against on both sides by the parties in which they seek the Court to decide one way or the other. That the question of the Single Treasury Account did not arise as an issue between the parties in which any of the parties sought the decision of the Court. That the respondent as Judgment Creditor never raised the issue of the Single Treasury Account and never argued in favour or against it at any point during the garnishee proceedings. Counsel posited that the question of one side being heard and the other not heard does not arise at all.

Counsel for the 1st respondent stated that the trial Court did not set up an issue to be debated when the learned trial Court said that ‘by adopting the Treasury Single Account Policy, the current Federal Government administration has directed all Federal, State and Local Government and statutory body to pay all their revenue into a single account as the Central Bank of Nigeria’. Counsel canvassed that this issue raised and argued by the appellant in Issue 2 of its Appellant’s Brief means nothing, signifies nothing, proves nothing and should affect nothing. He

urged the Court to discountenance same, dismiss this appeal and affirm the ruling of the lower Court.

without showing any degree of bias against any of the parties. See Elike v. Nwakwoala & Ors. (1984) 12 SC 301, Isiaka Mohammed v. Kano N.A. (1968) 1 All NLR 424”.
In the case of Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025), the Supreme Court held that:
“Section 36 of the 1999 Constitution provides for the fair hearing in the determination of the civil rights and obligations of a person. The constitutional provision mainly stems or germinates from two common law principles of natural justice. They are audi alteram partem and nemo judex in causa sua. It is the first two that is relevant to this appeal. The meaning of the Latinism is “hear the other side; hear both sides. No man should be condemned unheard”. See Black’s Law Dictionary, 6th Edition, page 131. What the rule or doctrine means is that the parties must be given equal opportunity to present their cases to the Court and that no party should be given more opportunity or advantage in the presentation of his case. See generally LPDC v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Onwumechili v. Akintemi (1985) 3 NWLR (Pt. 13) 504, Garba v. The University of Maiduguri 1 NWLR (Pt. 18) 550″.

(Pt.403) 1240 @ 1255 A-B; Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor v. A.G. Anambra State (1991) 3 NWLR (Pt. 200) 59; Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in recent decision of this Court in Abubakar Audu v. FRN (2013) 53 NSCOR 456 @ 4691; “The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22. The effect of a denial of fair hearing is trite in law. In other words, once there is breach of the right of fair hearing, the whole proceeding in the course of

which the breach occurred and the decision arrived at by the Court becomes a nullity.”
The effect of proceedings conducted in breach of right to fair hearing is clearly to render the whole proceeding a nullity.

In the instant case, the lower Court recounted the operational principles governing this case but went beyond those principles to introduce an issue not brought into focus by any of the parties.
The lower Court at pages 84 to 86 of the Record of Appeal raised the issue of “Treasury Single Account” Policy of the government. The learned trial judge said the following:
The Court in my view, needs to have a second and deeper look at the provision of Section 84 of the Sheriffs and Civil Process Act, supra, which is the extant provision at a period when public bodies and government institutions such as the Defendant/Judgment Debtor in this case, were compelled, not by law to the best of knowledge, but by government policy on the “Treasury Single Account”, to refrain from keeping funds in commercial banks which ordinarily would have been available for garnishee order because, commercial banks being incorporated companies, in contract

with the Central Bank of Nigeria as a “statutory body”, are not “public officers” that are concerned by the provision of Section 84 of the Sheriffs and Civil Process Act, supra.
…
In the final analysis, in order that the Plaintiff’s right, who has obtained Judgment against the Defendant/Judgment Debtor, to realize the “fruit of his Judgment” is not rendered illusory, it is my decision to choose and apply the Court of Appeal’s decision in PURIFICATION TEC. (NIG.) LTD V. A.G. OF LAGOS STATE & 31 ORS. (2004) 9 NWLR (PT. 879) 462 – 681 cited by the Plaintiff’s Counsel to hold that the Garnishee, although a “public officer”, who having failed to file any “Affidavit To Show Cause” as to why the “order nisi” should not be pronounced absolute, cannot rely on the provision of Section 84 of the Sheriffs and Civil Process Act, supra, to shield the Defendant — being a “statutory body” and its

“customer”, from meeting its obligations on adjudged Judgment debt by hiding under the “canopy” of the Central Bank of Nigeria who by the Federal Government’s policy under the “Treasury Single Account has been authorized to play the dual role of the Bankers, not only to the Federal, State and Local Governments, but to public institutions and statutory bodies such as the Defendant/Judgment Debtor in this proceeding, who are to keep and maintain their accounts with the Central Bank of Nigeria. The Central Bank of Nigeria has not ceased to be a “public officer” being a statutory creation, but it has by mandatory policy of the Federal Government of Nigeria, assumed the role and function of “commercial banks” in relation to government’s ministries, Departments and Agencies of government including public and statutory bodies such as the Defendant/Judgment Debtor. Its new role has made it rather unjust and unconscionable to still want to continue to claim the protection hitherto afforded by the provision of Section 84 of the Sheriffs and Civil Process Act, supra. To accede to its request in the circumstance, will needlessly make enforcements of money Judgments

obtained against the government or any of its bodies nearly impossible and will in my view, needlessly burden the Office of the Attorney General of the Federation on issues of applications for leave or consent to seek the enforcement of money Judgments by garnishee proceedings where it relate to the government or public institutions such as the Defendant/Judgment Debtor in this case.
The issue of “Treasury Single Account” was raised and dealt suo motu by the learned trial judge. The law is very well settled that this is not the practice allowed in our law. It is not the function of any Court to raise suo motu issues not canvassed in the written brief or oral arguments before it which does not touch on the jurisdiction of the Court and to which counsel were not asked to address it on. This Court has always regarded with disfavour the practice of so doing.
In the case of Onifade & Ors. v. Olayiwola & Ors. (1990) LPELR — 2680 (SC), the Supreme Court held on this issue that it ought to be observed that it is an elementary principle of the determination of disputes between parties that judgment must be confined to the issues raised by the

parties and it is not competent for the Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See Commissioner for Works Benue State & Anor. v. Devcon Development Consultants Ltd & Anor. (1988) 3 NWLR (Pt. 407; Ochonma v. Ashirim Unosi (1965) NMLR 321; Nigeria Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC. 57; Adeniji & Ors. v. Adeniji & Ors. (1972) 1 All NLR (Pt. 1) 278.
Onnoghen, J.S.C. (as he then was) held in the case of Lamulatu Shasi & Anor v. Madam Shadia Smith & Ors. (2009) LPELR — 3039 (SC) that it is settled law that though a Court of law may raise an issue suo motu, it cannot base its determination of the appeal or case on the issue so raised except it calls on the parties or their counsel to address it on that issue. In other words, a Court of law has the vires to raise an issue necessary for the determination of the matter before it subject to its being addressed on that point/issue by counsel for both parties if the decision of the Court is to be rooted or grounded on the issue so

raised suo motu. To raise an issue suo motu and proceed to decide the matter on the same without hearing counsel for the parties thereon is to deny the parties their right to fair hearing and an appellate Court is duty bound, in the circumstance, to set aside the determination so made.
The position of the law is swift and glaring that a Court must not indulge in any act such as raising issues suo motu and addressing them or using the issue in its judgment without calling the parties for their input. Once this happens, it is a breach of the right of the parties to fair hearing. It is the position in this case. Since the issue of Treasury Single Account was raised suo motu, the learned trial judge ought to have invited the parties to address it on it. This was not done by the learned trial judge, so the right of the parties to fair hearing in that regard has been breached. The repercussion is that the judgment given in breach of the right of the parties to fair hearing is a nullity. It is in this respect that I hold that this issue two is resolved in favour of the appellant.

Issue One:
This issue is – whether given the fact that consent of

the Honourable Attorney General of the Federation was not obtained by the Judgment Creditor/1st Respondent before commencing the garnishee proceedings against the Garnishee/Appellant which is a Public Service Body manned by Public Officers, robbed the Honourable Lower Court of jurisdiction to entertain the garnishee proceedings.

Counsel for the appellant on this issue, argued that the issue of jurisdiction is very fundamental. That it is threshold issue and a life line for continuing any proceedings. He cited Utih & Ors. v. Onoyivwe & Ors. (1991) 1 NWLR (Pt. 166) or 1991, 1 SCNJ 25, Cotecna Int’l Ltd v. I.M.B. Ltd (2006) 9 NWLR (Pt. 985) pg. 275 at 297 Paras C – E, S.P.D.C.N. Ltd v. Goodluck (2008) 14 NWLR (Pt. 1107) Pg. 294 at 309 Paras. F – G and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) Pg. 423 at 588 E — H. He listed the ingredients that must be present before a Court can competently exercise jurisdiction as laid down in the case of Madukolu v. Nkemdilim (1962) 2 All NLR, Pg. 581 at 589. He contended that the Judgment Creditor/1st Respondent having failed to obtain the consent of the Attorney-General of the Federation before

commencing the garnishee proceedings to attach money in custody of the Garnishee/Appellant which is a Public Service Body manned by Public Officers, that the lower Court lacked the jurisdiction to entertain the garnishee proceedings against the Garnishee/Appellant.

Counsel further reproduced Section 84 of the Sheriffs and Civil Process Act, Cap S6, LFN, 2004 and posited that it is clear that a judgment creditor who chooses to recover a judgment sum by means of garnishee proceedings, if the funds sought to be attached by garnishee order is in custody or control of a public officer like the appellant in his official capacity, must first obtain the consent of the relevant Attorney-General to attach such funds by garnishee before the commencement of the proceedings. He relied on the authority of Central Bank of Nigeria v. J.I. Nwanyanwu & Sons Enterprises Nigeria Ltd (2014) LPELR — 227 (CA). That there is nothing to show that the judgment Creditor/1st respondent did obtain leave or consent of the Attorney-General of the Federation before the Garnishee Order ‘Nisi’ directing the Garnishee/Appellant to show cause was made by the lower Court. That the

Court does not and ought not to give judgment to an incompetent action if the condition precedent to assuming jurisdiction has not been complied with. Counsel placed reliance on Central Bank of Nigeria v. James Ojembi Okefe (2015) LPELR – 24825 (CA), Christopher Onjewu v. Kogi State Ministry of Commerce & Industry & Ors. (2002) LPELR – 5507 (CA), Central Bank of Nigeria v. Amao (2010) 16 NWLR (Pt. 1219) 271 and Central Bank of Nigeria v. Hydo Air Pyt Ltd (2014) 16 NWLR (Pt. 1434) Pg. 482. He maintained that the Judgment Creditor/1st Respondent having failed to obtain leave or consent of the Attorney General of the Federation before commencing the garnishee proceedings against the Garnishee/Appellant, that the entire proceedings is incurably contaminated. That one cannot put something on nothing. That non-compliance with the mandatory requirement of obtaining the consent of the Attorney General of the Federation by the Judgment Creditor/1st Respondent before the garnishee orders were made by the lower Court rendered the garnishee proceedings a nullity same having been conducted without jurisdiction. He urged the Court to so hold.

Counsel for the appellant further canvassed that lower Court is not clothed with legal authority to import, add to, subtract from the clear provision of Section 84 of the Sheriffs and Civil Process Act, 2004. He cited Federal Republic of Nigeria v. Vijay Lalwani (2013) LPELR – 20376 CA, Atiku v. Bodinga (1988) 2 NWLR (Pt. 76) 369 and Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508. Counsel pointed out that the words used in Section 84 of the Sheriffs and Civil Process Act, 2004 which requires that consent of the Attorney General shall be obtained to attach funds in custody of a public officer like the appellant before commencement of garnishee proceedings is clear and unambiguous. That the Judgment Creditor/1st Respondent having failed to fulfill the condition precedent before commencing the garnishee proceedings against the appellant robbed the lower Court the jurisdiction to entertain the garnishee proceedings against the appellant. He urged the Court to so hold.

In response, counsel for the 1st respondent contrary to the contention of the counsel to the appellant, submitted that the garnishee in this proceeding has been brought before the Court because it is a banker to

the Judgment Debtor and that it is here in that capacity only. He cited Purification Techniques (Nig.) Ltd v. Attorney General of Lagos State (2004) 9 NWLR (Pt. 879) 665 particularly at pages 679 – 681 Paras G – H. That the money in the hands of banker are not monies in the hands of a Public Officer and therefore, can be attached to pay a judgment debt through the garnishee proceedings. Counsel placed reliance on the case of Central Bank of Nigeria v. Bob Kay Njemanze & Ors. (2015) 4 NWLR (Pt. 1449) 276, where this Court dismissed the CBN’s appeal. That this is dishonest and disingenuous of the appellant. He maintained that the monies in the hand of the appellant are not monies under the control of the Judgment Debtors and there is no way the Garnishee can dress itself in the garb of a public officer. He urged the Court to so hold and dismiss this appeal.

“custodia legis”. Section 84 of the Sherriff and Civil Process Act provides:
84 (1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodial egis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodial egis, as the case may be. (L.N. 47 of 1955).
(2) In such cases the order of notice must be served on such public officer or on the register of the Court, as the case may be.
(3) In this section, “appropriate officer” means —
(a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation;
(b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.
The issue of consent is a statutory

matter, the law is firm on it and it can only be waived if there is any amendment to the law suggesting such.
However, since I have come to the conclusion in issue two earlier that the judgment of the lower Court is a nullity, this issue has become academic and is hereby struck out.
Even if the issue is not academic, consent of the Hon. Attorney General in respect of money in custody of a public officer is a statutory requirement and failure to secure it will render any enforcement or steps taken to enforce a nullity.

In this case, the matter if considered on merit will still lead to the nullification of the enforcement but because the issue is a nullity for breach of fair hearing, the matter must be remitted back to the lower Court for a retrial.

I hold from the foregoing therefore, that the appeal has merit. The appeal is allowed and the judgment of the lower Court delivered on 14th day of December, 2016, in Suit No: FHC/ABJ/CS/397/2002, is set aside.
The case as earlier ordered is remitted back to the trial Court for it to be heard afresh.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment

just delivered by my learned brother, STEPHEN JONAH ADAH, J.C.A. and I am in agreement with his reasoning and conclusion arrived at therein.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH, J.C.A. I agree with the reasoning, conclusion and orders therein.

Appearances:

A.M.A. Adejunmobi, Esq. with him, A.A. Afunso, Esq. For Appellant(s)

Samuel Ameh, Esq. with him, Angela Peter, Esq. – for 1st Respondent.
The 2nd Respondent served but represented in Court. For Respondent(s)