CENTRAL BANK OF NIGERIA v. AUTO IMPORT EXPORT & ANOR
(2012)LCN/5268(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2012
CA/L/677/2008
RATIO
APPEAL: WHAT SHOULD CONSTITUTE ISSUES FOR DETERMINATION
It is indeed a trite principle, that all issues for determination raised in briefs of argument of the respective parties must be precise, devoid of verbosity, irrelevant complexity and ambiguity. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
APPEAL: PRIME OBJECTIVE OF A BRIEF OF ARGUMENT
That’s absolutely so, because the prime objective of a brief of argument is to ease comprehension of the complex matters to be adjudicated upon and determined by the court. See GUDA VS. KITTA (1991) 12 NWLR (pt. 629) 21, EGBUTA VS. ONUNA (2007) 10 NWLR (pt. 1042) 298 at 308 paragraphs F-G. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
WORDS AND PHRASES: MEANING OF GARNISH
Instructively, the word ‘garnish’, as a noun, historically connotes money exacted from a new prisoner by other prisoners, or as a jailer’s fee. However, this primitive, and rather predatory practice, was banned in England in 1815.
The term ‘garnish’, as a verb, means (i) to subject a [property] to garnishment; (ii) to attach a property, held by a third party, in order to satisfy a debt; (iii) to notify a person, a bank, etc, of a pendency of a garnishment proceeding has been undertaken and that he (it) may be liable as stakeholder or custodian of the defendants’ property. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
WORDS AND PHRASES: MEANING OF GARNISHEE AND GARNISHMENT
Hence, the term ‘garnishee’ denotes a person or an institution (e.g. a bank) that is either indebted to, or is bailed for another, whose property has been subjected to garnishment. Also termed ‘garnishee -defendant’. See BLACK’S LAW DICTIONARY 8th edition 2004, at 703 thus:
Garnishment is a[n] … inquisitorial proceeding, affording a harsh and extraordinary remedy. It is an anomaly, a statutory invention sui generis, with no affinity to any action known to the common law . . . . It is a method of seizure; but it is not a ‘levy’ in the usual acceptation of that term. It is a proceeding by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hands of his debtor. 38 C.J.S. Garnishment & 3, at 248 -50 (2003).
See also FEDERAL CIVIL PROCEDURE, (2003) 601; Garnishment, 64, 118. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
PROCEEDING: NATURE OF GARNISHEE PROCEEDINGS
Afortiori, it’s rather instructive, that garnishee proceedings are special specie of process by which a judgment creditor may attach [or garnishee] debts due in satisfaction of the judgment debt. The debt owed by the third party to the judgment debtor, or being attached, shall ultimately be paid by him to the judgment creditor on the order of court. Thus, garnishee proceedings involve the attachment of debt due from a third party to the judgment debtor, and the use of the amount of that debt in liquidating the judgment debt. In garnishee proceedings, the third party indebted to the judgment debtor is called the garnishee. The judgment creditor, on the other hand, is referred to as the garnishor. Undoubtedly, both the garnishor and the garnishee as well as the judgment debtor constitute the parties to the proceedings. See FIDELIS NWADIALO: CIVL PROCEDURE IN NIGERIA, 2nd edition 2000, at 1011.
It is a trite principle, that it’s not every debt that is attachable by the due process of garnishee proceedings. Thus, for a debt to be attachable, it must be due, or accruing to the judgment debtor. See section 85 of the SHERIFFS AND CIVIL PROCESS ACT CAP.56 LAWS OF THE FEDERAL REPUBLIC OF NIGERIA, 2004, as amended.
Indeed, the crucial test, however, is whether any sum certain is due and payable by the garnishee to the judgment debtor. As such, the debt must be certain in amount, and the judgment debtor must have a vested immediate legal right thereto. see OSIBAMOWO vs. SHADEKO (1967) LLR 7.
The rule has also been settled, that the amount at the judgment debtor’s credit in his Bank account is property of the judgment consisting of a debt; the Bank being the person indebted. Thus, the amount could be attached by garnishee proceedings. This is so, because a credit balance invariably constitutes a debt payable by the bank to the customer on demand by him. As such, service of an attachment order on the bank is a validly sufficient demand to garnish the balance in question. FLIONE v. OLADIPO (1934) 11 NLR 168; JOACHINSON V. SWINSS CORPORATION (1921) 3 KB 110. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
CENTRAL BANK OF NIGERIA – Appellant(s)
AND
1. AUTO IMPORT EXPORT
2. WEMA BANK PLC – Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Lagos State, Lagos Judicial Division, which was delivered by the Hon. Justice A.A. Oyebanji on May 30, 2008. By the said ruling, the court below made the garnishee order absolute, to the effect that the Appellant (Garnishee) shall pay forthwith to the 1st Respondent (judgment Creditor/Garnishor) the total of the judgment sum entered by the Supreme Court in the judgment thereof on 16/12/05, together with interests accruing thereupon. Being dissatisfied with the said ruling, the Appellant filed the notice of appeal thereof on 09/6/08.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL:
As gleaned from the records of appeal, the genesis of the appeal is traceable to 16/12/05. That was the day on which the judgment in question was entered by the Supreme Court in favour of the 1st Respondent, against the 2nd Respondent and two others, namely: (i) J.A.A. Adebayo (Receiver/Manager, Continental Motors & Engineering co. Ltd and (ii) A.O. Obikoya & sons Ltd. The lead judgment, delivered by the Hon. Justice G.A Oguntade, JSC, was conclusively to the following effect:
In the final conclusion, the judgments of the two courts below are set aside. In its (sic) place, judgment is given against the 1st, 2nd and 3rd defendants and severally for the sum of US $1.7 million. The judgment sum shall attract interest at the rate of 12% per annum from 2/12/77 until 16th July 1986 when the judgment of the trial court was given and thereafter interest at 6% per annum until the judgment debt and interest are fully paid. The appellant is entitled to costs against the 3rd respondent which I fix at N10,000.00.
Consequent upon the above Supreme Court’s judgment, the 1st Respondent filed in the court below, on 03/01/06, a garnishee application exparte. On 09/01/06, the lower court delivered a ruling thereby refusing to grant the application exparte seeking to attach the monies of 2nd and 3rd Respondents in possession of the (i.e. garnishee) Appellant. Instead, the lower court merely made an order directing the Appellant to show cause why the monies standing to the credit of the 2nd Respondent with the Appellant should not be paid over to the 1st Respondent.
On 30/10/06, the 3rd Respondent filed in the court below a motion on notice seeking to strike out or dismiss the garnishee proceedings and discharge the order made on 18/01/06. The application was predicated upon the ground that the 1st Respondent was not a juristic person, as it had been allegedly struck off the list of registered companies in Romania, where it was registered before the commencement of the Garnishee proceedings. The Appellant equally filed a similar application, on 25/7/07, seeking to dismiss the garnishee proceedings, on the grounds that (i) the 1st Respondent was no longer a juristic person at the time the garnishee processes were filed on 03/01/06, and (ii) the Appellant being an agency of the Federal Government of Nigeria, within the meaning of Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999, the lower court lacks jurisdiction to hear the garnishee proceedings.
On 30/5/08, the lower court delivered the vexed ruling in question.
Dissatisfied with the said ruling, the Appellant filed the instant appeal upon a total of grounds of appeal. The record of appeal was transmitted from the lower court to this court on 07/8/08. The Appellant’s brief was filed on 11/9/08 by Olumiyiwa Aduroja Esq. Four issues have so far been formulated in the Appellant’s brief, to wit:
i. Whether the lower court was right in its consideration and determination of the 1st Respondents Motion to dismiss the Appellant’s Motion challenging the jurisdiction of the Court before considering and/or resolving the issue of jurisdiction raised by the Appellant –
GROUND 4.
ii. Whether the lower Court was right in saying that the Appellant is not competent to raise the issue of juristic personality of the 1st Respondent considering the fact that the existence of parties known to law (Garnishee/Garnishee) confer jurisdiction on the lower Court in a Garnishee proceedings GROUNDS TWO & THREE.
iii. Whether the lower Court has jurisdiction in a matter involving an Agency of the Federal Government of Nigeria – GROUND ONE.
iv. Whether the lower Court is competent to make the Garnishee order absolute without firstly attaching the funds of the 2nd and 3rd Respondents in possession of the Appellant and if the Court can make an order not asked for by the 1st Respondent without also moving the Exparte Garnishee application GROUND 5.
On issue No. 1, the Appellant’s learned counsel alluded to the two motions separately filed by the Appellant and 1st Respondent on 26/7/07 and 27/02/08, respectively. The Appellant’s motion challenged the jurisdiction of the lower court on the grounds that (i) the 1st Respondent was not in existence at the time of filling the garnishee proceedings; (ii) the 1st Respondent, not being in existence, is incapable of initiating the garnishee proceedings or giving instruction to counsel; and (iii) under section 251(1) (q) (r) of the constitution of the Federal Republic of Nigeria,1999, the lower court as a state court, has no jurisdiction in a matter involving the Appellant, as an agency of the Federal Government.
Contrariwise, the 1st Respondent’s application sought to dismiss the Appellant’s motion in question. The motions were heard together by the lower court. However, the lower court first resolved the 1st Respondent’s motion before considering the Appellant’s motion, to the effect that the issue of jurisdiction raised by the Appellant ought to have been dealt with before considering any other issue raised by the 1st Respondent.
It was contended, that by first deciding the 1st Respondent’s motion before considering the issue of jurisdiction raised by the Appellant, the lower court has denied the Appellant the constitutional right to fair, hearing as enshrined in section 35 of the 1999 constitution (supra). see TAMBCO LTD LEATHERN ORKs BABATOPE (1990) 4 NWLR (pt.440) 75 at 89: UDO VS. OKUPA (1991) 365 at 382.
The court has been urged to resolve issue No. 1 in favour of the Appellant, and accordingly dismiss the 1st Respondent’s case.
On issue No. 2, it was submitted that the main parties in a garnishee proceedings are the garnishor and the Garnishee; the 1st Respondent and Appellant in the instant case. See BLACK’S LAW DICTIONARY, 8th edition, at 702, UBN PLC VS BONEY MARCUS IND. LTD (2005)13,(Pt.943) 654-666 paragraphs D-F, DELPHI PET INC (2005)8 NWLR(Pt.928)548 at 84, UNION BANK OF NIG PLC. VS BONEY MARCUS (supra) at 666-667 paragraphs F-A.
Reference was made to pages 100 – 122 of the record, regarding the certified true copies of public documents from the National office of the Registrar of commerce at Bucharest, Romania, challenging the Juristic personality of the 1st Respondent.
It was contended that the exhibits, at the said page 119 – 120 of the record, show that the 1st Respondent was liquidated on 25/4/05. While the garnishee application was filed on 03/01,/06. It was thus argued, that only the existence of both garnishor and garnishee can confer jurisdiction on the lower court. As such, the Appellant as the Garnishee is a necessary party and, therefore, competent to raise the issue of juristic personality of the 1st respondent. See IRONBAR VS. CRBBRDA (2004) 2 NWLR (pt. 857) 411 at 426 paragraphs E – F, IYANDA VS. LANIBA II (2003) 1 NWLR (pt. 801) 267 at 288 paragraphs C – D, 308 paragraphs F-H; AROWOLO V. AKAPO (2003) 8 NWLR (PT.823) 451 AT 520 paragraphs A-B; 502 – 503 G – A: TAMBO LEATHER WORKS LTD VS. ABBEY (supra) at 555 E, NZOM VS. JINADU (1987)1 NWLR (pt. 51) 533, CCB (NIG) PLC VS. SILVAWAX INT. LTD (1999) 7 NWLR (pt. 609)97.
It was further contended, that the said exhibits, on pages 101, 119 – 120 of the Record, were uncontradicted by the 1st Respondent, thus the court is bound to accept the facts therein as established. See UBN PLC VS. LUBAI NIG LTD
The court has been urged upon to resolve issue No. 2 in favour of the Appellant.
On issue No. 3, it’s submitted, inter alia, that the 1st Respondent’s prayers at page 1 of the Record are declaratory in nature, thus fall within the provisions of section 25t (1) (r) of the 1999 constitution. See CBN VS. VAP (NIG) LTD (2005) 3 NWLR (pt. 911) 152 at 179 A -B & D, MIN. OF INT. AFFAIRS VS. ALIYU (2005) 3 NWLR (pt. 911) 30 at 42 G -H, OLORUNTOBA OJU VS. DOPEMU (2008) 7 NWLR (pt. 1085) 1Â Â SC at 31-32 H C. The court has been urged to equally resolve issue 3 in favour of the Appellant.
On issue No. 4, it was submitted that the procedure for the garnishee actions is spelt out in sections 83(1) and 85 of the Sheriffs & Civil Process Law of Lagos State of Nigeria, 2008. See PPMC PTD VS. DELPHIBET INC (supra). UNION BANK OF NIG. PLC VS. BONEY MARCUS IND. LTD (supra) at 666-667 F-A. It was contended, that in the absence of a garnishee order nisi the lower court’s order absolute, made on 30/5/08, is irregular, null and void. See SALUBI VS. NWERIAKU (2003) 7 NWLR (pt. 819) 426 at 455 – 456 D-D, AKUNSURO VS. ALAYA SC 312 at 331 -333 G – H.
It was argued, that without taking argument on the garnishee application, the lower court denied the Appellant the right to be heard before the order absolute was made. See AG ANAMBRA STATE VS. OKEKE (2002) 12 NWLR (pt.782) 575; INAKOJU VS. ADELEKE (2007) 4 NWLR (pt. 1025) 423 at 746 F – H; section 36(1) of the 1999 constitution, respectively.
In conclusion, the Appellant’s learned counsel has urged the court to allow the appeal, set aside the decision of the lower court, and dismiss the 1st Respondent’s garnishee proceedings.
On the other hand, the 1st Respondent’s brief was filed on 12/10/10, but deemed properly filed and served on 30/11/10. It spans a total of 96 pages. Most strangely, pages 4 -55 of the 1st Respondent’91E2’9180’99s brief were exclusively dedicated to notice of preliminary objection and argument thereon. While the remaining pages 56 96 were in respect of the four issues raised and the argument proffered there upon.
DETERMINATION OF THE 1ST RESPONDENTS PRELIMINARY OBJECTION.
It is a well settled principle, that an appellate court has a duty to first determine a preliminary objection raised in the appeal, one way or the other. The reason being that where a preliminary objection is upheld, it may have the effect of disposing or terminating the appeal in limine. And the fact that a preliminary objection is apparently frivolous, notwithstanding. See NWANNATA VS. ESUMEI (1998) 8 NWLR (pt. 563) 550: TAMBO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548; PBN PLC VS. T.S.A. IND. LTD (2010) 15 NWLR (pt. 1216) SC 247 per Adekeye. JSC at 274 paragraphs D – F.
At the said page 4 of the 1st Respondent’s brief, a notice of preliminary objection was given praying the court for the following reliefs:
(1) AN ORDER dismissing the Appellant/ Respondents Notice of Appeal dated the 9th day of June, 2008.
(2) AN ORDER dismissing all other process filed by the said Appellant for bereftment of merit and lack of jurisdiction.
The notice of preliminary objection is predicated upon a total of six grounds. Two issues have been formulated for the determination of the said preliminary objection, thus:
1. WHETHER THE NOTICE OF APPEAL OF THE APPELLANT DATED THE 9TH DAY OF JUNE, 2008 IS NOT
INCOMPETENT AND LIABLE TO BE DISMISSED CONSIDERING THE FACT THAT THE GROUND ARE OF PURE FACT OR MIXED LAW AND FACT THEREFORE REQUIRING LEAVE UNDER SECTION 242 CFRN
2. WHETHER THE SUPREME COURT JUDGEMENT OF 16TH DECEMBER 2005 WHICH THE LOWER COURT ORDERED THE APPELLANT TO OBEY BY ITS RULING OF 30TH MAY 2008 CAN BE RESERVED BY THIS HONOURABLE COURT AS BEING SOUGHT BY THE APPELLANT IN THIS APPEAL.
I have considered it very unwieldy, to outline the extensive submissions of the learned counsel in the respective briefs regarding the preliminary objection.
Thus, having accorded a critical consideration upon the submissions of the learned counsel, contained in the respective briefs thereof, I am of the paramount view, without any much ado, that the preliminary objection raised by the Respondents’ learned counsel is highly misconceived, and rather preposterous, to say the least.
Most regrettably, the entire brief of the Respondents has spanned a total of ninety six (96) pages. Of this number, a total of 41 pages (pages 4-56) have been outrageously dedicated to the preliminary objection alone. Undoubtedly, the Respondents’ brief was typically verbose (verbiage). Quite a number of the cited authorities and quotations therein contained were replete with unforgivable ‘printer’s devil’. For instance, the sum of N1,700,000.00, at page 45 paragraph 5.2 of the Respondents’ brief, was erroneously typed, instead of $1,700,000.00. Also the case of COMPTROLLER OF NIGERIA PRISON VS. ADEKANYA was erroneously cited at page 48 of the Respondents’ brief as ‘(1000) 10 NWLR (pt. 623) 400’. It is trite, that such unforgivable erroneous citations are not worthy of being accorded any meaningful consideration by the court, at all.
It is indeed a trite principle, that all issues for determination raised in briefs of argument of the respective parties must be precise, devoid of verbosity, irrelevant complexity and ambiguity. That’s absolutely so, because the prime objective of a brief of argument is to ease comprehension of the complex matters to be adjudicated upon and determined by the court. See GUDA VS. KITTA (1991) 12 NWLR (pt. 629) 21, EGBUTA VS. ONUNA (2007) 10 NWLR (pt. 1042) 298 at 308 paragraphs F-G.
ISSUE NO. 1 OF THE PRELIMINARY OBJECTION:
As alluded to above, the said issue No. 1 of the preliminary objection raises the question of whether the notice of appeal, dated 09/6/08, is not incompetent, thus liable to be dismissed (struck out), considering the fact that the grounds thereof are of mixed law and fact, requiring the leave of court by virtue of section 242 of the 1999 constitution.
Indeed, It’s a trite fundamental principle, that an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of o receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an Admiralty action determining liability, and
(v) in such other cases as may be prescribed by an Act of the Notional Assembly.
See section 241(1) of the 1999 constitution, as amended.
It is also the law, that by virtue of the provision of section 241(2) of the 1999 constitution, nothing in the said subsection (1) of section 241 (supra) shall confer any right of appeal –
(a) from a decision of the Federal High Court of any High Court granting unconditional leave to defend on action;
(b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
(c) without leave to the Federal High Court High court made with the consent of the parties or as to costs only.
Contrariwise, by virtue of the provision of subsection ((1) of section 242 of the 1999 constitution –
(1) Subject to the provisions of section 247 of this constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
Instructively, in considering whether a decision or order of a court is final or interlocutory, it behoves upon the court to take into account the following three fundamental factors:
(i) Whether the judgment, decision or order in question has finally disposed of the rights of the parties. If the answer to that pertinent question is in the positive, then the judgment, decision or order is unquestionably a final one. If, however, the answer is in the negative, then it’s an interlocutory one.
(ii) Judgment, decision or order of court can only be regarded as final when the determination of the court disposes of the rights of the parties (and not merely on issue) in the case at hand.
(iii) A judgment, decision, or order is said to be final when it finally disposes of the right of the parties. That is to say, it is such that the matter would not be further brought back to the court for adjudication. See – UBN PLC VS. BONEY MARCUS IND LTD (2005) 13 NWLR (pt. 943) 554 at 665 Paragraphs A-E
Per Katsina-Alu, JSC (as he then was).
Taking the three factors, alluded to above, into account, the Supreme Court came to the inevitable conclusion in UBN PLC VS. BONEY MARCUS IND LTD (supra) thus:
‘In this case, the Garnishee order absolute made by the High court (just like in the instant case) was a final decision of the court. Therefore the Appellant need not obtain leave to appeal against it’.
Per Katsina-Alu, JSC (as he then was).
There is no gainsaying the fact, that the instant case is on all fours with that of UBN PLC VS. BONEY MARCUS IND LTD (supra).
The facts of UBN PLC VS. BONEY MARCUS IND LTD’s case are not at all farfetched. On 19/5/97, the 1st Respondent in suit No. HOS/229/95, obtained judgment at Osisioma Judicial Division of the High Court of Abia State against the 2nd Respondent. The 1st Respondent then initiated garnishee proceedings when it prayed to be paid the judgment debt in the hands of the 3rd Respondent and the Appellant as garnishees. On 17/02/98, the High court gave a ruling wherein it ordered the money belonging to the 2nd Respondent in possession of 3rd Respondent to be attached to satisfy the judgment debt, together with the cost of the garnishee proceedings. The Appellant promptly complied with that order by sending to the court’s Registrar a cheque for an amount representing the balance in the 3rd Respondent’s account therewith. However, on 27/3/98, the Appellant filed a notice of appeal against the ruling of 17/02/98 which made the garnishee order absolute against the Appellant.
In reaction thereto, the 1st Respondent filed a notice of preliminary objection challenging the competence of the appeal, on the grounds that (i) the ruling appealed against was an interlocutory decision; (ii) that the appeal was filed outside the 14 days period allowed by law; and that (iii) the requisite leave to appeal was not obtained, thus rendering the appeal void.
On 07/12/2000, the Court of Appeal in a unanimous decision upheld the preliminary objection, and held that the garnishee order absolute, made on 17/02/98, was an interlocutory decision on, and that the appeal filed on 27/3/98 was out of time, and therefore incompetent. As alluded to above, the Supreme Court’s decision was to the effect, inter alia, that-
”In this case, the garnishee order absolute made by the High court was a final decision of the court. Therefore, the appellant need not obtain leave to appeal against it.
Per Katsina-Alu, JSC (as he then was) at 663 A – G; 664 – 665 G – A, respectively.
See also OMONUWA VS. OSHODIN (1955) 2 NLWR (pt. 10) 924: AWOSANYA VS. UBA LTD (1986) 4 NWLR (pt. 35) 273, WESTERN STEEL WORKS LTD VS. IRON & STEEL WORKERS UNION (1986) 3 NWLR (pt. 30) 617, ODUTOLA VS. ODERINDE (2004) 12 NWLR (pt. 888) 574.
Invariably, by virtue of the provisions of section 240 of the 1999 constitution vis-a-vis the well cherished doctrine of stare decisis (judicial precedent), this court, nay any court of law or tribunal for that matter, has the obligation to be bound by all the decisions of the Supreme Court. And I so hold. Contrary to the preposterous allegations of the Respondents, there is no doubt each and every ground of appeal flows directly from the ruling of the lower court being appealed against. I am equally satisfied, that the said grounds are not vague.
ISSUES NO. 2 OF THE PRELIMINARY OBJECTION
Regarding the second issue, there is every cogent reason for me to uphold the Respondents’ contention, to the effect that the appeal does not tantamount to an abuse of court process. The reason simply being that the instant appeal is stricto sensu, against the lower court’s garnishee order, and not at all a challenge of the Supreme Court’s judgment in question. Just exactly as in the case of UBN PLC VS. BONEY MARCUS IND LTD (supra), the present Appellant merely chose to exercise the fundamental right of appeal thereof, cherishingly enshrined in section 241(1) (a) of the 1999 constitution, as amended. See AJIBI VS. OLAEWE (2003) 8 NWLR (pt. 822) 237 at 265-266 paragraphs E-C.
Hence, in the light of the above postulations, I have come to the inevitable conclusion that the preliminary objection, raised at pages 4-56 of the Respondents’ brief, is grossly misconceived, and lacking in merits. Thus, the said preliminary objection is hereby overruled, for being unmeritorious.
Having overruled the preliminary objection, I now proceed to consider the submissions of the Respondents regarding the issues raised in the brief thereof. I have already outlined the submissions of the Appellant regarding the four issues thereof.
It is instructive, that the Respondents have formulated four issues at page 56 of the brief thereof, viz:
(1) WHETHER THE LOWER COURT WAS RIGHT IN LAW TO HAVE TAKEN ALL THE APPLICATIONS TOGETHER INCLUDING THE JUDGMENT CREDITOR’S MOTION TO MAKE THE GARNISHEE ORDER ABSOLUTE AND RESOLVED SAME IN FAVOUR OF THE JUDGMENT CREDITOR.
(2) WHETHER THE APPELLANT HAVING SHOWN CAUSE AS STATUTORILY REQUIRED OF A GARNISHEE UNDER SECTION 83 OF SHERIFF AND CIVIL PROCESS ACT AND AS ORDERED BY THE COURT BY FILING AN AFFIDAVIT DISCLOSING THE AMOUNT IN ITS POSSESSION IS COMPETENT TO FILE AN OBJECTION CHALLENGING THE JURISDICTION OF THE COURT.
(3) WHETHER THE LOWER COURT DOES NOT HAVE JURISDICTION IN A GARNISHEE PROCEEDING I.E. TO ENFORCE THE JUDGMENT OF THE SUPREME COURT.
(3)(4) WHETHER THE LOWER COURT WAS RIGHT IN LAW IN THE CIRCUMSTANCES OF THIS CASE TO HAVE MADE THE GARNISHEE ORDER ABSOLUTE.
The argument on the four issues is contained at pages 56 to 89 of the Respondents’ brief. Whereas, pages 90 -96 of the brief relate to the list of authorities cited therein. Regrettably, none of the four issues raised in the Respondents’ brief has been tied down to, or distilled from, any ground of appeal of the Appellants.
In a nutshell, the submission of the Respondents on issue No 1 is to the effect that the lower court was right in law to have taken the Appellants’ motion, challenging the jurisdiction of the lower court’ the 1st Respondent’s motion, seeking an order dismissing (or striking out) the Appellant’s motion’, and the 1st Respondent’s preliminary objection and the motion to make absolute the garnishee order in question.
It was further submitted, that the pitch and substance of the four application taken together by the trial court is that all the preliminary points raised therein were completely dealt with conclusively and proceeded to make the garnishee order absolute. The learned counsel aligned himself with the findings of the lower court. See ANPP VS. ROSA SSD (2005) 6 NWLR (pt. 920) 170 – 171 F – E: INKOJU VS. ADELEKE (2007) 4 NWLR (pt. 1025) 423; NZERIBE VS. THE SENATE (2004) 9 NWLR (pt. 878) 521: ADEBAYO VS. AG OGUN STATE (2008) 7 NWLR (pt. 1085) 201 at 221 – 222 G – C.
It was argued that the issue of fair hearing is misconceived and misplaced.
That, the Appellant did not apply any sufficient evidence in support of its application and contention that the 1st Respondent is dead. The Applicant merely relief on an incompetent process of the judgment Debtor (Wema Bank) hold by the lower court not to be a necessary party to the garnishee proceedings. See DENTON WEST v. MUOMA (2008) 6 NWLR (Pt.1083) 418. And that, there’s no appeal on the finding and order of the lower court (at page 523 of the record) striking out the process filed by the judgment debtor. All the grounds of the Appellant do not challenge that finding and order of the court. The argument at paragraph 4.4 of the Appellant’s brief goes to no issue. The court has been urged to thus strike out the appeal with substantial costs for bereftment of merit.
On the second issue, it was submitted, inter alia, that the garnishee having discharged its statutory duty of showing cause is precluded from taking any other steps in the proceedings to challenge the jurisdiction of the court. See section 83 of the Sheriff & Civil Process Act (requiring the garnishee to appear and show cause); CITIZENS INT. BANK VS. SCOA (NIG) LTD (2006) 18 NWLR (pt. 1011) 348 E-G: BAKARE V. APENA (1986) 4 NWLR (pt. 33) 2, UNIPETROL NIG PLC VS. ADIJERE (WA) LTD (2005) 14 NWLR (pt. 946) 629 E, AG FED. VS. AIC LTD (2000) 10 NWLR (Pt. 675) 293, KWARA INV. COMPANY LTD VS. GARUBA (2000) 10 NWLR (pt. 674) 25, et al.
Furthermore, the provision of section 525 of the Company And Allied Matters Act was referred to regarding the procedure for the striking out of the name of a company from the register of companies. That, the burden of proving a particular assertion, i.e. the death of a company, his on the man who makes that assertion. See EBOHON VS. AG EDO STATE (1994) 6 NWLR (APT. 349) 190, DAWODU. VS. DANMOLE (1992) 2 SCNLR 15, KODILINYE VS. ANATOGU (1953), WLR 231, SARAKI VS. KOTOYE (1992) 9 NWLR (pt. 264) 156. et al.
Regarding the provision of section 25 of the 1999 constitution vis-vis the exclusive jurisdiction of the Federal High Court, the Respondents adopted the argument thereof at pages 189 – 233 of the record and urged the court to dismiss the appeal. The Respondents totally agree with the trial court’s position that the fact that a party is an agency of the Federal Government does not conclusively confer the Federal High Court with jurisdiction in the matter, rather it’s the cause of action, the subject matter of the claim that is conclusive of jurisdiction. See ONUORAH VS. KRPC (2005) 6 NWLR (pt. 121) 393, NIMR VS. AKINOLUGBADE & ORS (2008) 5 NWLR (pt. 1079) 68. et al.
That the issues raised in the appeal reveal malafide, impropriety and irregularity, hence it constitutes an abuse of court process. See CBN VS. AHMED (2001) 15 NWLR (pt. 724) 369 at 409 B – C: HARRIMAN VS. HARRIMAN (1989) 5 NWLR (pt. 119) 6, et al.
The court has been urged to dismiss the appeal with excruciating costs.
On the third issue, it was submitted, inter alia, that by the tenor and nomenclature of section 287(1) (3) of the 1999 constitution there is nothing that makes the powers of the court to be restricted and ousted in matters involving the Federal Government or any of it agencies. That, the Appellant’s role, duty and, function as garnishee has nothing to do with the Federal Government. That, the Appellant is only an agent or banker to the 3rd Respondent and the Moribund National Bank (Judgment debtor) in a contract of guarantee, such that the issue of agency of Federal Government does not arise. See section 36 of the Central Bank of Nigeria [Act]; Sections 19, 95(1) Sheriffs And Civil Process Act.
The court has been urged to hold that all the grounds of appeal are misconceived vexations and frivolous, thus ought to be struck out. That, there is no feature in the case or proceedings that robs the court of jurisdiction. See MADUKOLU VS. NKEMDILIM (supra). The court has jurisdiction. Thus, issue No. 3 should be resolved in favour of the Respondents.
On issue No.4, it was submitted that the lower court was right in law, in the circumstances of this case, to have made the garnishee order absolute. See section S3(1) of the Sheriffs And Civil Process Act; UBN PLC. VS. BONEY MARCUS IND. & 2 ORS. (supra); CITIZENS INT. BANK VS. SCOA (NIG) LTD (2005) 18 NWLR (pt. 1011) at 346 B – D, PPMC LTD VS. DELPH PET. INC. (2005) 13 NWLR (pt. 9288)484, et al.
The court has been urged to so hold that the lower court was right to have made the garnishee order nisi [and] absolute. Conclusively, the court has been urged upon to accordingly dismiss the appeal with excruciating costs.
The Appellant’s reply on points of law to the Respondents’ argument could be found at pages 12 to 18 of the Reply brief thereof in question On issue No.1, the Appellant submitted that the Respondents’ argument is not supported by case law. According to the Appellant, an objection to jurisdiction is a threshold matter. It’s very foundational, thus once raised it must be resolved first on this point. See ACCESS BANK PLC VS. ULO CONSULT LTD (2009) 12 NWLR (pt. 1156) 534; ANPP VS. ROLASSD (2005)6 NWLR (pt. 920) 171, OME VS. OKORO (1999) 8 NWLR (pt. 615) 356 at 367 G- H.
That, regarding the provision of section 251 of 1999 constitution similar to section 130 of 1979 constitution, the matter has been put to rest that the Appellant (CBN) is an agency of the Federal Government of Nigeria. See CBN VS. SAP (NIG) LTD (supra); NEPA VS. EDEGBERO (2002) 18 NWLR (pt. 798) 97 E – G; MIN. OF INT. AFFAIRS VS. ALIYU (2005) 3 NWLR (pt. 911) 30 at 42 G – H.
The court has been urged to dismiss the 1st Respondents’ brief, and reverse the decision of the lower court.
On issue No. 2, it’s argued that contrary to the Respondents’ contention, the issue of jurisdiction can be raised at any time even on appeal. See PPMC LTD V5. DELPHI PET. INC. (supra) 458; NITEL PLC VS. OCHILI (supra) at 209 A -B.
That, the Appellant is competent to file an objection challenging the jurisdiction of the lower court, because in a garnishee proceeding, the Garnishee is a property. See GREEN VS. GREEN (1987) 3 NWLR (pt. 481), (1987)2 NSCCC 1119.
On issue No. 3, the Appellant adopted the submission in paras. 5.6 – 5.9 of the brief thereof and urge the court to resolve same in favour of the Appellant.
On issue No. 4, it was contended that the lower court was wrong to have made the garnishee order absolute being that it was not sought by the 1st Respondent. See AKINDURO VS. ALAYA (2007) 15 NWLR (pt. 1057) SC 312 at 331 – 332. The court has been urged to equally resolve the fourth issue in favour of the Appellant.
DETERMINATION OF THE APPEAL ON THE MERITS:
I have accorded a very dispassionate, albeit, critical consideration upon the nature and circumstances surrounding the appeal, the argument of the learned counsel contained in their respective briefs of argument vis-a-vis the record of appeal, as a whole. Thus, I have deemed it most appropriate to adopt the four issues formulated in the Appellant’s brief. I appreciate the very fact that the Appellant’s four issues are more concise and articulate than those of the Respondents. What’s even more appreciative, is the fact that each of the Appellant’s four issues has been evidently distilled from a specific ground of appeal. Contrariwise, none of the four issues formulated in the Respondents’ brief has been distilled from any ground of appeal.
ISSUE NO. 1:
The first issue raises the very vexed question of whether the lower court was right in its consideration and determination of the 1st Respondent’s motion, seeking to dismiss the Appellant’s motion, challenging the jurisdiction of the court before considering and/or resolving the issue off jurisdiction raised by the Appellant. This first issue has been predicated on ground 4 of the notice of appeal. I have painstakingly, hereinabove, outlined the extensive submissions of the learned counsel in the respective briefs thereof. There’s no need for me to recount them at this point in time.
The controversial ruling of the lower court, delivered on 30/5/08, is contained at pages 513 -524 of the Record. The judgment Creditor/Garnishor’s motion on notice, filed on 27/02/08, could be found at pages 408- 410 of the Record. The Garnishee’s counter affidavit, filed on 04/3/08, and notice of preliminary objection to the motion in question, filed on 04/04/08, are contained at pages 463-464 and 482 – 483 of the Record, respectively.
As alluded to above, the ruling was indeed delivered on 30/5/08. Contrary to the Appellant’s allegation, pages 513 to 516 of the Record relate to the summary of motions of preliminary objection, and the submissions of learned counsel thereon. The lower court has not determined the motions of the Respondents at any of pages 513-516 of the Record in question. Infact, the summary of the submissions of the respective counsel extended up to page 519, fourth to the last paragraph of the said Record.
At the said page 519 of the Record, the third to the last paragraph, the lower court was recorded to have stated thus:
”The court has given a careful consideration of the applications filed, the objection raised and, the respective written addresses of learned counsel on both sides.’
The lower court then proceeded to give the brief facts of the case, at the second to the last paragraph, of the said page 519 of the Record. This was followed by the exposition of the relevant authorities regarding necessary parties vis-a-vis garnishee proceedings, the jurisdiction et al.
It instructively, a preliminary objection connotes an objection, which if upheld by the court, would render further proceedings in the case or appeal rather unnecessary or even impossible. Thus, where a preliminary objection raised by a party challenging the jurisdiction of a court, or the competence of a party or suit, is upheld by the court, the entire suit (or appeal as the case may be), is liable to be struck out, in limine.
See MARG VS. YUSUF (2009) 17 NWLR (pt. 1169) 162 at 180 – 181 paragraphs H – B, JP VS. INEC (2004) 12 NWLR (pt. 886) 140, PRP VS. INEC (2004) 9 NWLR (pt.877) 24, GOLI VS. BELIEF (2009) 4 NWLR (pt. 1132) 585.
It is trite, that owing to the fact that a preliminary objection essentially seeks to terminate the proceedings, in limine, the court is enjoined to first and foremost determine the objection, one way or the other, before proceeding to consider the substantial issues in the matter on the merits. See KAMBA VS. BAWA (2005) 4 NWLR (pt. 914) 59 paragraphs D – E, OKOI & ORS VS. IBIANG & ORS (2002) 10 NWLR (pt. 776) 455 at 468, AHANEKU & ORS VS. EKERUO & ORS (2002) 1 NWLR (PT. 748) 301 at 308.
However, the above general principle notwithstanding, where circumstances demand that the preliminary objection shall be taken up along with the substantive matter, it behoves the court to determine the preliminary objection, first and foremost, before delving into the substantive matter. See ANPP VS. ROASSD (2005) 5 NWLR (pt. 920) 170 – 171 F – E: DAGGASH VS. BUCAMA (2004) 14 NWLR (pt. 892) 252 A – C.
There’s every cogent reason for me to hold, as rightly postulated by the Respondents’ learned counsel, that the pitch and substance of the four applications taken together by the lower court is that all the preliminary points raised were completely dealt with before making the order absolute. In the circumstance, issue No. 1 ought to be, and same is hereby, resolved against the Appellant.
ISSUE NO. 2:
The second issue raises the question of whether the lower court was right in holding that the Appellant is not competent to raise the issue of juristic personality of the 1st Respondent, considering the fact that the existence of the parties known to law (Garnishee) confer jurisdiction on the lower court in a Garnishee proceedings. The second issue was said to have been predicated upon grounds 2 & 3 of the notice of appeal.
Instructively, the word ‘garnish’, as a noun, historically connotes money exacted from a new prisoner by other prisoners, or as a jailer’s fee. However, this primitive, and rather predatory practice, was banned in England in 1815.
The term ‘garnish’, as a verb, means (i) to subject a [property] to garnishment; (ii) to attach a property, held by a third party, in order to satisfy a debt; (iii) to notify a person, a bank, etc, of a pendency of a garnishment proceeding has been undertaken and that he (it) may be liable as stakeholder or custodian of the defendants’ property.
Hence, the term ‘garnishee’ denotes a person or an institution (e.g. a bank) that is either indebted to, or is bailed for another, whose property has been subjected to garnishment. Also termed ‘garnishee -defendant’. See BLACK’S LAW DICTIONARY 8th edition 2004, at 703 thus:
Garnishment is a[n] … inquisitorial proceeding, affording a harsh and extraordinary remedy. It is an anomaly, a statutory invention sui generis, with no affinity to any action known to the common law . . . . It is a method of seizure; but it is not a ‘levy’ in the usual acceptation of that term. It is a proceeding by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hands of his debtor. 38 C.J.S. Garnishment & 3, at 248 -50 (2003).
See also FEDERAL CIVIL PROCEDURE, (2003) 601; Garnishment, 64, 118.
Afortiori, it’s rather instructive, that garnishee proceedings are special specie of process by which a judgment creditor may attach [or garnishee] debts due in satisfaction of the judgment debt. The debt owed by the third party to the judgment debtor, or being attached, shall ultimately be paid by him to the judgment creditor on the order of court. Thus, garnishee proceedings involve the attachment of debt due from a third party to the judgment debtor, and the use of the amount of that debt in liquidating the judgment debt. In garnishee proceedings, the third party indebted to the judgment debtor is called the garnishee. The judgment creditor, on the other hand, is referred to as the garnishor. Undoubtedly, both the garnishor and the garnishee as well as the judgment debtor constitute the parties to the proceedings. See FIDELIS NWADIALO: CIVL PROCEDURE IN NIGERIA, 2nd edition 2000, at 1011.
It is a trite principle, that it’s not every debt that is attachable by the due process of garnishee proceedings. Thus, for a debt to be attachable, it must be due, or accruing to the judgment debtor. See section 85 of the SHERIFFS AND CIVIL PROCESS ACT CAP.56 LAWS OF THE FEDERAL REPUBLIC OF NIGERIA, 2004, as amended.
Indeed, the crucial test, however, is whether any sum certain is due and payable by the garnishee to the judgment debtor. As such, the debt must be certain in amount, and the judgment debtor must have a vested immediate legal right thereto. see OSIBAMOWO vs. SHADEKO (1967) LLR 7.
The rule has also been settled, that the amount at the judgment debtor’s credit in his Bank account is property of the judgment consisting of a debt; the Bank being the person indebted. Thus, the amount could be attached by garnishee proceedings. This is so, because a credit balance invariably constitutes a debt payable by the bank to the customer on demand by him. As such, service of an attachment order on the bank is a validly sufficient demand to garnish the balance in question. FLIONE v. OLADIPO (1934) 11 NLR 168; JOACHINSON V. SWINSS CORPORATION (1921) 3 KB 110.
Invariably, the procedure for the attachment of debts by garnishee proceedings has been provided for under sections 83 – 92 of the Sheriffs and Civil Process Act (supra), and in a plethora of authorities. Most particularly, section 83 of the Sheriffs And Civil Process Act (supra) is to the following effect:
(1)The court may, upon the ex parte application of any person who 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.
Hence, for a garnishee proceeding to be valid, it’s incumbent upon the court to ensure that the following conditions have been duly satisfied. (i) That, the garnishee must be indebted to the judgment creditor within the state and be resident in the state in which the proceedings are to be brought. As such, if the debt is owed by someone outside the state, the proceedings are inapplicable. See section 83(1) of the Sheriffs & Civil Process Act (supra); (ii) The proceedings should be filed in any court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in magistrate’s courts, as the case may be, sue the garnishee in respect of the debt. Thus, the court may not necessarily have to be the one that gave the judgment. It could be a magistrate’; and the fact that the debt exceeds the jurisdiction thereof notwithstanding. See order 8 rule 2 (a) (b) of the Sheriffs And Civil Process Act (supra); (iii) the application for the garnishee order shall be made ex parte. The court, if satisfied that the judgment creditor is entitled to attach the debt, shall make a garnishee order Nisi. See order 8 Rule 3(2). (iv) The service of the order nisi thereon binds or attaches the debt in hands of the garnishee. Section 85 of the Sheriffs And Civil Process Act (supra).
However, it must emphatically be made clear, that the mere service of the garnishee order nisi on the garnishee does not necessarily operate as a transfer of the ownership of the debt to the judgment creditor. Conversely, it merely creates an equitable charge on the debt in his favour, and the garnishee cannot pay the debt to anyone but the judgment creditor without the risk of having to pay it over again. By the order, the judgment creditor is placed in the position of the assignee of the judgment to any equities which exist against the judgment debtor.
See section 85 of the Sheriffs And Civil Process Act (supra); CALBRAITH VS. GRIMSHAN AND BAXITER (1910) 1 KB 339 at 343; LEVENE VS. MATON. In the instant case, the pitch of the Appellant’s grouse under issue 2 is that the lower court has erred in law, when it held at page 532 lines 15 – 17 & 34 – 35 to the effect thus –
The Garnishee has also contended that the judgment creditor is no longer in existence, a contention which in my view, is not within the competence of the Garnishee to raise …
… To my mind it is not within the competence of the Garnishee to raise it before this court.
I have critically considered the argument of both sides of the divide on the said issue. Undoubtedly, the judgment creditor (1st Respondent) is a creation of a Nigerian statute. And that statute happens to be no other than the COMPANIES AND ALLIED MATTERS ACT CAP. C20 LAWS OF THE FEDERAL REPUBLIC OF NIGERIA, 2004, as amended.
The procedure for the formation (registration), winding up, dissolution of, and striking out a company in Nigeria has been well set out under the provisions of the companies And Allied Matters Act (supra). See sections 18 – 60, and 404 – 454 of the Act. By virtue of section 18 of the said Act-
”Any two or more persons may form and incorporate a company by complying with the requirements of this Act in respect of registration of such company.’
However, with particular regard to foreign companies (such as the 1st Respondent) intending to carry on business in Nigeria, section 54 of the Act has provided the following conditionalities:
54. (1) Subject to sections 56 to 59 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act.
(2) Any act of the company in contravention of subsection (1) of this section shall be void.
(3) Nothing in this section shall affect the status of –
(a) any foreign company which before the commencement of this Act was granted exemption from compliance with Part X of the Companies Act 7968;
(b) any foreign companies exempted under any treaty to which Nigeria is a party.
Regarding the issues of winding up, dissolution and striking out of a company, the provisions of sections 407 – 454, and 530 – 536 of the Act are very much pertinent. By the provisions of sections 407(1) and 454(1) of CAMA, the Federal High Court has the exclusive jurisdiction to wind up a company situated within the territorial jurisdiction thereof.
Afortiori, the Corporate Affairs Commission has been accorded far-reaching powers in the course of the dissolution of a company under the said Act thus: ‘525.(1) Where the commission has reasonable cause to believe that a company is not carrying on business or in operation, if may send to the company by post a letter inquiring whether the company is carrying on business or in operation.
(2) If the Commission does not within one month of sending the letter receive any answer thereto, it shall within 74 days after the expiration of the month send to the company by post a registered letter referring to the first letter, and stating that no answer thereto has been received, and that if an answer is not received to the second letter within one month from the date thereof, notice shall be published in the Gazette with a view to striking the name of the company off the register….
(5) At the expiration of the time mentioned in the notice the Commission may, unless cause to the contrary is previously shown by the company, strike its name off the register, and shall publish notice thereof in the Gazette and on the publication in the Gazette of notice as aforesaid, the company shall be dissolved.
Provided that –
(d) the liability, if any, of every director, managing officer and member of the company shall continue and may be enforced as if the company had not been dissolved; and
(b) nothing in this subsection shall affect the power of the court to wind up a company the name of which has been struck off the register. See also sections 454,526 of CAMA (supra).
Unfortunately for the Appellant, no convincing sufficient materials were placed before the lower court in support of the assertion thereof that the 1st Respondent was moribund. It is a trite fundamental principle, that he who asserts, must prove the assertion thereof by some credible and cogent evidence. See sections 132 & 137 of the Evidence Act. See also KWARA INVESTMENT COMPANY LTD VS. GARUBA (2000) 14 NWLR (pt. 674) 25: CCB NIG LTD VS. ONWUCHEKWA (2000) 3 NWLR (pt. 647) 65; EBOHON VS. AG. EDO STATE (1994) 5 NWLR (pt. 349) 190.
Thus, I agree with the contention of the Respondents’ learned counsel, that the Appellant’s argument on this point goes to no issue, as there is no appeal against the finding of the trial court striking out the incompetent process of the judgment debtor in question.
As alluded to above, the Companies And Allied Matters Act (supra) has clearly and in unequivocal terms provided the conditions under which the Corporate Affairs Commission et al, may strike out the name of any incorporated company, whether indigenous or foreign, from the register of companies. See most especially section 525(1) & (2) of CAMA.
What’s more, section 454(1) of CAMA is also to the effect that if the affairs of a company have been fully wound up, and the liquidator makes an application in that belief, the court shall order the dissolution of the company, and the said company shall be dissolved accordingly from the date of the order. See also CCB NIG LTD VS. ONWUCHEKWA (2000) 3 NWLR (pt. 647) 65.
Therefore, in the absence of any credible evidence to prove that the judgment creditor (1st Respondent) was dissolved or moribund, it would be rather preposterous for the Appellant to have urged upon the court that the said judgment creditor is a non juristic person. And I so hold. The said issue No.2 is accordingly resolved against the Appellant.
                                     ISSUE NO. 3:
The 3rd issue raises the vexed fundamental question of whether, or not, the lower court has the jurisdiction to entertain the instant matter involving an agency of the Federal Republic of Nigeria. The 3rd issue was said to have been distilled from ground one of the notice of appeal. The argument of the Appellant was essentially premised on the provisions of section 251 of the 1999 constitution, as amended, which operates to automatically oust the lower court’s jurisdiction. Reliance was placed on various authorities, including CBN VS. AP NIG LTD (2005) 3 NWLR (pt. 911) 152, MIN OF INT. AFFAIRS VS. ALIYU (2005) 3 NWLR (pt. 911) 30, OLORUNTOBA OJU VS. DOPEMU (2008) 7 NWLR (pt. 1085) 1.
It has been stated, time without number, in a plethora of authorities, that jurisdiction is the threshold and livewire that determines the authority of a court of law or tribunal to entertain a case before it. This is absolutely so, because it is only when a court is imbued or conferred with the necessary jurisdiction by the constitution and law that it will have the judicial power and authority to entertain, hear and adjucate upon any cause or matter brought before it by parties. Conversely, the absence of such requisite jurisdiction would render any proceedings purportedly conducted by court an exercise in futility, thus null, void and of no effect whatsoever, no matter how well conducted. See OLOBA VS. AKEREJA (1988) 3 NWLR (pt. 84) 508: OGUNLEYE VS. JEGEDE (1996) 6 NWLR (pt.199) 501: OKIKE VS. LPDC (2005) 15 NWLR (pt.949) 471: ENEMUO VS. DURU (2004) 9 NWLR (pt. 877) 75: OKOYE VS. OKONKWO (2005) ALL FWLR (pt. 332) 1526; UZOUKWU VS. EZEONU II (1991) 6 NWLR (pt. 200) 708; EHIRIM VS. I.S.I.F.C (2008)15 NWLR (pt. 1111) 443 at 482 D – E wherein it was aptly held by this court that
The issue for determination raises the fundamental question of jurisdiction. And its axiomatic, that jurisdiction is never conferred in obscurity. This is so, because the language of the law conferring same upon a court must be clear and positive. Microscopic eyes are not at all needed in order to discern it. See MANDARA v. AG FEDERATION (1984) 1 SCNLR 377: NWOBODO VS. RSPED (2008) 1 NWLR (Pt.1069) 537 at 560 paragraphs A- B Per Saulawa, JCA.
It is equally a well settled principle, that where a court lacks jurisdiction to try a matter or case, it fundamentally lacks the vires to hear, and adjudicate upon any issue therein. Thus, due to the complex and fundamental nature thereof, the issue of jurisdiction can be raised at any stage and point in time of the proceedings, at the trial court, the Court of Appeal, or even the apex court itself.
This trite principle has been settled in a plethora of authorities, including the locus classicus thereof, MADUKOLU VS. NKEMDILM (1952) NSCC 374; (1952) 2 SCNLR 341. See also OEADA VS. MIL. GOV. OF KWARA STATE (1990) 6 NWLR (pt. 157) 482: LABIYI VS. ANRETIOIA (1992) 8 NWLR (pt. 258) 139: KOTOYE VS. SARAKI (1994) 7 NWLR (pt. 357) 414; MADU VS. MBKWE (2008) 10 NWLR (pt.1095) 293. at A – B. respectively.
The provision of section 251(1) of the 1999 constitution is to the effect that notwithstanding anything to the contrary contained therein, and in addition to such other jurisdiction as may be conferred there upon by an Act of the National Assembly, the Federal High Court shall exercise exclusive jurisdiction in civil causes and matters, inter alia, –
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between once bonk and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures.
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the companies and Allied Matters Act or any other enactments replacing the Act or regulating the operation of companies in corporate under the companies and Allied Matters Act;
(j) bankruptcy and cusovency;
((p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the provisions of this constitution, the operation and interpretation of this constitution in so for as it affects the Federal Government or any of its agencies.
By virtue of the provisions of section 251(1) (d) (e) (f) (j) (p) & (r) of the 1999 constitution (supra), there’s every valid reason for me to hold that the intention of the legislature therein was to confer jurisdiction upon the Federal High Court to the exclusion of all other courts, including state High courts actions, matters and causes in which the Federal Government or any of the agencies thereof is a party. Thus, the State High Courts shall no longer have jurisdiction in such matters, notwithstanding the nature of the claim in the action, matter or cause. See CBN VS. VAP (NIG) LTD (2005) 3 NWLR (pt. 911) 152 at 170 paragraphs A -B & D: NEPA VS. EDEGBERO (2002) 18 NWIR (pt. 798) SC 79: MIN. OF INT. AFFAIRS VS. ALIYU (2005) 3 NWLR (pt. 911) 30 at 42 paragraphs G -H: OLORUNLOBA-OJU VS. DOPAMU (2008) 7 NWLR (pt. 1082) 1 SC at 31 – 32 paragraphs H – C. 35 paragraphs C – D
It is not at all in dispute, that the Appellant (CBN) is one of the foremost agencies of the Federal Government of Nigeria! have no doubt in my mind, that the clear and most unequivocal purport of the provisions of Section 251(1) (a) to (s) of the 1999 constitution, as amended, was to deliberately confer upon the Federal High Court exclusive jurisdiction regarding all matters specified under those subparagraphs. Undoubtedly, the provisos to the section do not in any way whittle down the exclusive jurisdiction accorded the Federal High Court. See NEPA VS. EDEGBERO (supra) at 97 paragraphs F – G per Ogundare, JSC, thus:
A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.
… There is nothing in the proviso to those paragraphs that could be said to have whittled down the objective of the law.
In the light of the above postulations, the answer to issue No. 3 is in the negative, and same is hereby resolved against the Respondent.
ISSUE NO.4:
The fourth issue raises the question of whether the lower court was competent to make the garnishee order absolute without first attaching the funds of the 2nd and 3rd Respondents in possession of the Appellant without the 1st Respondent moving the exparte garnishee application. The 4th issue was allegedly predicated on ground 5 of the notice of appeal.
It is a trite fundamental principle, that where the court is satisfied that the judgment creditor/garnishor is entitled to attach the debt, it proceeds to make an order nisi. See Section 83(1) of the Sheriffs And Civil Process Act (supra); Order 8 Rules 3 & 4 of the Judgment (Enforcement) Rules, 2004.
Indeed, it’s equally a trite principle, that the garnishee order nisi must clearly show that the judgment debtor is the garnishee’s creditor, otherwise it will not bind the garnishee. See KOCH VS. MINERAL ORE SYNDICATE (1910) 54 SJ 600. And the service of the order nisi thereupon binds or attaches the debt in the hands of the garnishee. See section 85 of the Sheriffs And Civil Process Act (supra) thus:
”85. Service of an order that debt due or accruing to the judgment debtor shall be attached, or notice
thereof to the garnishee, in such manner as the court may direct, shall bind such in his hands”.
From the well set out provisions of sections 83 & 85 of the Sheriffs And Civil Process Act (supra) and the judgment (Enforcement) Rules (supra), it’s become rather obvious, that the issuance of an order nisi is a condition precedent to the making of an order absolute in garnishee proceedings. See UBN PLC VS. BONEY MARCUS IND LTD (supra), wherein the Supreme Court aptly stressed that-
”Applications for garnishee proceedings are made to the court by the judgment creditor and the orders of the court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means ‘Unless’. It is therefore an order made, at that stage, that the sum covered by the application be paid into court or to the judgment creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appear, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to
pay the amount specified in the order to the judgment creditor. The court therefore becomes functus officio as far as that matter is concerned in that the judge who decided the matter is precluded from again considering the matter even if no evidence or argument are presented to him. See CHOICE INVESTMENT LTD VS. JEROMNIMON CMD LAND BANK LTD VS. GARRINSHEE (1981) 1 ALL ER 225 at 328: and WORDS & PHRASES LEGALLY DEFINED VOL. 2 page 301.
Per Akintan, JSC at 666 paragraphs G – H; 667 paragraph A.
In the instant case, it’s evident from the Record, that the lower court did not make any garnishee order nisi, at all. The enrolled order, at pages 67 & 68 of the Record, was merely to the effect that the garnishee ”shall appear in court to show cause why monies standing to the credit of the judgment Debtor herein in its account with the Garnishee should not be paid over to the judgment creditor/Applicant in satisfaction of the judgment Debt and the costs of these proceedings as contended in the judgment of the Supreme Court Annexed to the affidavit in support of the application as Exhibit ‘A’.
Prayers 1 and 3 are hereby refused of this stage.
Return date shall be the 24th day of January, 2006.”
Thus, from the above enrolled order, it’s evident that at the material time the Appellant was served with the purported order ”to appear and show cause’, the debt therewith had not been attached by the lower court by way of an order nisi in compliance with section 83(1) of the Sheriffs And Civil Process Act (supra).
The wordings of the provisions of section 83(1) (supra) are clear and rather unequivocal, to the effect that –
”83. (1) The court may, upon the exparte application of any person who is entitled to the benefit of a
judgment for the recovery or payment of money … 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 …
In my considered view, the phrase ”shall be attached to satisfy the judgment or order”, as couched in section 83(1) (supra), clearly and in most unambiguous terms denotes that the debt in question should first be attached by way of garnishee order nisi before proceeding to make an order absolute, if necessary.
Unfortunately, this was not done in the instant case. Ironically, as postulated above, at the time the order absolute was made by the lower court, there was no garnishee order nisi in subsistence, at all. Yet, it’s a trite principle, that a garnishee order absolute must be predicated upon a subsisting garnishee order nisi. In the instant case, in the obvious absence of a garnishee order nisi, the garnishee order absolute was merely predicated upon the previous order ”directing the … Garnishee to appear in court to show cause…, ”which in itself has amounted to a misnomer, to say the least.
In the circumstances, there is every cogent reason for me to resolve the fourth issue in favour of the Appellant.
Hence, in the light of the above postulations, I have come to the most inevitable conclusion that the instant appeal succeeds in part, and it’s accordingly hereby allowed by me. Consequently, the ruling of the lower court, delivered on 30/5/08, is hereby set. I make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I was obliged a copy of the Judgment of my learned brother, Saulawa, JCA just delivered and I agree with him that this appeal has merit and ought to be allowed, though in part. My learned brother has very meticulously and quite efficiently dealt with the salient issues submitted for the determination of this appeal and I do not have much to add unless I wish to repeat the exercise. I shall in the circumstance adopt both his reasoning and conclusion as mine, even as I add a few words in support of the Judgment only.
It has been held in a plethora of authorities that issue of jurisdiction is a threshold issue for where a court lacks jurisdiction to hear a case, all the proceedings, no matter how well conducted, and the Judgment derived from such a process are a nullity ab initio. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Enemuo v. Duru (2004) 9 N.W.L.R. (pt.877) 75.
It behoves every court to satisfy itself that it has the requisite jurisdiction to entertain a matter before venturing into it, else, the whole exercise would amount to a sheer waste of precious judicial time. That appears to be the fate of the instant appeal. There is now no doubt a bout the import of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which confers exclusive jurisdiction to the Federal High Court in civil causes and matters where the administration or the management and control of the Federal Government or any of its agencies are concerned, amongst others. The Supreme Court in NEPA v. Adegbero (2002) 18 N.W.L.R (pt.798) 79 has put the matter beyond doubt when it held that a State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.
There is no doubt that the Central Bank of Nigeria, the Appellant herein, is an agency of the Federal Government of Nigeria. This matter which was heard and determined at a Lagos State High Court, was done without any scintilla of jurisdiction. It does not matter how well the proceedings were conducted.
Based on the above and the more detailed reasons in the lead judgment of my learned brother, Saulawa, JCA, I agree that this appeal, even on this issue alone, ought to be allowed. I also allow this appeal on this issue. I also make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the benefit of reading in draft the comprehensive and painstakingly erudite leading Judgment of my Lord Mohammed Musa Saulawa JCA, and I agree and adopt in toto the conclusion and orders contained therein that this appeal has substantial merit and should succeed, though partially, and that the Ruling of the trial High Court be set aside.
The learned trial Judge, not having made an order for a decree nisi cannot proceed to make an order or decree absolute as done; as that was not only in violation of the sheriffs and Civil process law (s. 83 – 85 sheriff and Civil Process Act, LFN 2004), but constituted a breach of the right of fair hearing of the Appellant. It is an order made without jurisdiction and in breach of section 36 of the 1999 constitution which enjoins that in the determination of his civil rights and obligations by or against any person, authority or government, the right or entitlement to be heard in presentation before an order affecting him could be made should be observed. This was violently breached in this precipitate grant of Decree or order absolute.
In my contribution in the case of Dr. Tunji Braithwaite V. standard chartered Bank Nigeria Ltd. Appeal No. CA/L/427/2011 delivered a short while age this morning, I had held thus:
”While the trial court would not be acting in the strict compliance with the regulations it to strike out the motion, just as it cannot dismiss same the exercise of dismissal of the said motion is wrongful and the appeal against same has merit, as a the dismissal of the application was made without hearing the Applicant on the merit”
By this postulation, I mean to reason that any act in violation of a statute or regulation and which invariably also culminates into a breach of the right of fair hearing cannot be saved. Even upon this issue alone, this appeal deserves the success or triumph accorded it by my Lord Saulawa, JCA.
The enrolled order of the trial court as contained at pages 67 and 68 of Record and reproduced in the leading Judgment speaks volumes of this incurable breach of the law and the Constitution, as it were, when the super structure of an absolute order was sought to be made by the court upon the garnishee being called upon to show cause without the intermediate legal requirement of Decree nisi first being in place. A house without the prescribed and approved Architectural foundation would either collapse or be made by the regulatory force of law to give way. This is the fate of this decision on appeal. Issue No. 4 of the Appellant is well framed and serves the Justice of this appeal.
This appeal underscores the relevance of the trite principle in our jurisprudence that a party may, inspite of having certain issues argued by him decided in his favour still lose his appeal on its merit. Conversely, an Appellant may inspite of his non success on some grounds or issues raised, still succeed in the ultimate appeal.
The Appellant herein had failed woefully in his issues No. 1, 2 and 3 as the jurisdiction of the court being challenged on the various fronts and the alleged cessation or death of one of the Respondents could not prevent this court to decide the appeal upon the Justice of the case and circumstances – in favour of the Appellant.
Accordingly, I adopt and abide by the leading Judgment in allowing this appeal and abiding by the consequential orders relating to costs.
Appearances
P. Omije Esq and O.A. Onafadeji For Appellant
AND
Dr. Oladapo Olanipekun Esq. for 1st Respondent and Wole
Jimi-Bada Esq. for 2nd Respondent. For Respondent
