NIGERIAN NAVY v. BARRISTER OROK OROK IRONBAR & ANOR
(2019)LCN/12515(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/C/129/2014
RATIO
COURT AND PROCEDURE: WHETHER ISSUE FOR DETERMINATION MUST BE BASED ON GROUNDS OF APPEAL
“He can only either adopt the issues as formulated by the appellant based on the grounds of appeal before the Court or recast the appellant’s issues by giving them a slant favourable to his defence of the appeal without departing from the complaint in the grounds of appeal. See OSAZUWA V ISIBOR [2004] 3 NWLR [Pt. 859] 16. MOMODU V MOMOH [1991] 1 NWLR [Pt. 169] 608 SC; OSSAI V WAKWAH [2006] 4 NWLR [Pt.969] 208 SC; UTB (NIG.) LTD. V AJAGBULE [2006] 2 NWLR [Pt. 965] 447. Relatedly, issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See IBATOR V BARAKURO [2007] 9 NWLR [Pt. 1040] 475 SC; DALORI V SADIKWU [1998] 12 NWLR [Pt. 576] 112 @ 116; SHITTA-BEY V A-G, FEDERATION [1998] 10 NWLR [Pt. 570] 392 SC; J.C. LTD. V EZENWA [1996] 4 NWLR [Pt. 443] 391 @ 399 SC; ADELAJA V FANOIKI [1990] 2 NWLR [Pt. 131] 137 SC.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
NIGERIAN NAVY Appellant(s)
AND
1. BARRISTER OROK OROK IRONBAR
2. CENTRAL BANK OF NIGERIA Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Federal High Court, Calabar Division dated 13/1/2014 presided over by Hon. Justice Phoebe Ayua which judgment made a Garnishe Order Nisi for N10 million to be absolute against the Appellant. 1st Respondent as judgment creditor initiated a Garnishee proceeding to enforce a judgment sum of N10 million arising from breach of fundamental right against the Appellant and obtained a garnishee order nisi while the 2nd Respondent was the garnishee.
The Garnishee Order Nisi was made absolute, on 13/01/2014. The learned trial judge having been satisfied by an Affidavit of Compliance from the Garnishee, Central Bank of Nigeria, stating that it had set aside the sum of N10,000,000.00 only standing in the Account of the Judgment Debtor [Nigerian Navy] maintained by them. The money made absolute, according to the Appellant was in the custody of the 2nd Respondent a Public Officer without any prior consent of the Attorney-General of the Federation.
The Appellant aggrieved with the Garnishee Order absolute at First filed a Notice of Appeal on 15/01/2014 but has now appealed by Amended Notice of Appeal containing two (2) grounds of Appeal filed on 13/5/2015 but deemed filed on 11/11/2015. The relevant briefs of argument for the Appeal are as follows:
1. Appellant’s Amended Brief of Argument dated 9/5/2017 and filed on the same date was deemed filed on 29/11/17. It is settled by Ekpedeme Iyoho, Esq.
2. 1st Respondent’s consequential Amended brief of Argument [incorporating preliminary objection] is dated 16/5/2017 and filed on 26/5/17 but was deemed filed on 29/11/17. It is settled by Albert Ben, Esq.
3. Appellant’s Reply brief of Argument dated 23/12/2015 was filed on the same day. It is settled by Ekpedeme Iyoho, Esq.
Both parties filed list of additional authorities. The Appellant?s additional authority was filed on 19/2/2016 while the 1st Respondent filed on 15/3/2017.
THE PRELIMINARY OBJECTION
Learned counsel for the 1st Respondent contends that the Appellant has no locus standi to appeal against the Garnishee proceedings after the Garnishee had filed Affidavit of Compliance in respect of the order nisi which the lower Court in turn made absolute. This according to the Respondent is because a judgment debtor is neither a party to a Garnishee Proceeding nor an aggrieved party that can appeal on a Garnishee Order Nisi. Garnishee proceedings said counsel are separate proceedings between the judgment creditor and the person or body in custody of the assets of the judgment debtor, even though it flows from the judgment that pronounced him a debtor. That in effect, in a Garnishee proceeding, it is the Garnishee or judgment creditor that can be aggrieved and can completely appeal against the order.
On this, Respondent’s counsel referred to the cases of NIGERIA AGIP OIL CO. LTD. V OGINI & 4 ORS. [2010] 7 NMLR 521; HON. JUSTICE SOTONYE DENTON-WEST V CHIEF [ICHIE] CHUKS MUOMA,(SAN) [2008] 6 NWLR [Pt. 1083] 418 @ 442; PURIFICATION TECHNIQUES (NIG.) LTD. V. A-G, LAGOS STATE [2004] 9 NWLR [Pt. 879]; In re: DIAMOND BANK LTD. [2002] 17 NWLR [Pt. 795] 120 @ 133.
He submitted that the right of appeal does not exist in a vacuum. It must be invoked only when there is in existence, against the person wishing to exercise the right of appeal decision of the Court.
He referred to the provision of Section 243 (1)(a) of the 1999 Constitution and the case of AG, FEDERATION V ANPP [2003] 15 NWLR [Pt. 844] 600 @ 644 and submitted that it is trite that any right of appeal from the decision of a High Court in Civil Proceedings can be exercised by any party thereto or with leave of the High Court or the Court of Appeal by person interested in the proceedings. That the Appellant having failed to comply with the above provision, the appeal is incompetent and unsustainable.
He submitted that assuming but not conceding that the Appellant herein has the right of appeal, by law it needed leave of Court under Section 243 (1)(a) of the 1999 Constitution [as amended] to show that it was a person having interest in the matter which was essentially between the Judgment Creditor [1st Respondent herein] and the Garnishee [2nd Respondent herein].
He further submitted that the Appellant has no right of appeal on ex parte order as the order nisi in this case is buttressed by the provision of Section 14 (1) of the Court of Appeal Act C. 36 LFN, 2004, which states that: ‘where, in the exercise by the High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made ex parte or by consent of the parties, or relating to costs.’
He submitted that the Garnishee [2nd Respondent] who was the party in the garnishee proceedings filed Affidavit of Compliance on 13/01/2004 consequent upon the receipt of the order nisi, and the lower Court thereby made the order nisi absolute. The judgment debtor [Appellant] has no locus standi to bring this appeal against the 1st and 2nd Respondents through the back door without following the prescribed procedure if at all it has the capacity to so do. He referred to the case of AYOOLA V AJIBARE [2013] ALL FWLR [Pt. 698] 1011 @ 1022 that a Court of law can indulge a party only within the confines of its rules. He reiterated that there is nothing before this Court to show the fact that the Appellant was an interested party in the garnishee proceedings in the lower Court. He emphasized that in garnishee proceedings, it is the garnishee that could be aggrieved and competent to appeal against the order. He referred to the case of P.P.M.C. V DELPHI PET. INCORP. [2005] 8 NWLR [Pt.928] 458 @ 486 and urged us to uphold the preliminary objection.
In his response to the 1st Respondent’s Preliminary Objection, learned counsel for the Appellant noted in his Reply brief that 1st Respondent has raised two pronged objection to the Appellant’s appeal, to wit: Appellant needed leave to raise issue of jurisdiction as same was not pronounced upon by the lower Court and that Appellant has no locus standi to appeal against garnishee orders.
On the requirement for leave to appeal, learned counsel for the Appellant submitted that issue of jurisdiction is not restricted by requirement of leave as same can be raised either with or without leave. He referred on this to the cases of GAJI V PAYE [2003] 5 SCNJ 20 @ 30; ALI V ALBISHIR [2008] ALL FWLR [Pt. 415] 1681 @ 1713; AGBITI V NIGERIA NAVY [2011] ALL FWLR [Pt. 570] 1223 @ 1246; C.G.G. V OGU [2005] ALL FWLR [Pt. 261] 202 @ 212.
On the second aspect of the Respondent’s objection that Appellant has no locus as Judgment Debtor to appeal against garnishee orders, Appellant’s counsel submitted that Respondent’s position is no more the law, particularly when the judgment debtor’s complaint borders on jurisdictional matters. He referred to the case of AWOYOMI V CHIEF OF ARMY STAFF [2015] ALL FWLR [Pt. 771] 1506, @ 1526 – 1527 which held inter alia that:
‘In the case of PURIFICATION TECH (NIG.) LTD. V ATTORNEY-GENERAL, LAGOS STATE [2004] ALL FWLR [Pt. 211] 1479 [2004] 9 NWLR [Pt. 879] 665, the Court of Appeal held that the application of a Judgment Debtor to set aside the garnishee order nisi could be possible on the ground that there had been some procedural irregularity in the proceedings of such serious nature that order ought to be treated as a nullity.’
Appellant’s counsel submitted further that in the case of CROSS RIVER STATE FORESTRY COMMISSION V ANWAN [2014] ALL FWLR [Pt. 712] 1823 @ 1829, the minority decision of this Court per Garba, JCA, was that the judgment debtor is not a proper party and he has not right of appeal except by leave of Court. But, that the majority decision upheld the appeal of the Judgment Debtor and set aside the order nisi absolute.
Accordingly, said Appellant’s counsel, the Respondent’s position that Appellant as Judgment Debtor has no locus is not tenable. Appellant’s counsel submitted that the current position taken by the Courts in the cases of AWOYOMI V CHIEF OF ARMY STAFF [supra] and CROSS RIVER STATE FORESTRY COMMISSION V ANWAN [supra] are consistent with the intendment of S. 243 (1)(a) of the 1999 Constitution as to who is a party thereto to appeal as of right and Order 8 Rule 8(i) of Judgment Enforcement Rules which makes the Judgment Debtor a party to be heard at the garnishee proceedings.
He referred to the provision of Section 243 (1)(a) of the 1999 Constitution and Order 8 Rule 8(i) of the Judgment Enforcement Rules. He submitted that from the Constitutional provision in particular 2 major groups of persons are conferred with right of appeal in an action- ‘a party thereto’ and ‘person interested’. He referred to the case of AKANDE V GENERAL ELECTRIC CO. [1979] 12 NSCC 51 @ 55 that ‘a party thereto’ contemplates one who has been named on the record of proceeding while ‘a person interested’ is associated with unnamed parties on record.
On this, he referred to the case of EDE V NWIDENYI [1988] 3 NSCC 406 @ 418. He explained that in the instant case, Appellant is duly named in all the processes on record for the garnishee proceeding as ‘Judgment Debtor’ and therefore a party to the action. That the said Appellant was mandatorily served with the Court process not just to appear but also to be heard in line with Order 8 Rule 8 (1) Judgment Enforcement rules. Such hearing, said counsel may include an issue of jurisdiction or that the judgment sum sought to be attached was not validly computed before the damage is done as reasoned in CROSS RIVER STATE FORESTRY COMM. V ANWAN [supra] and AWOYOMI V CHIEF OF ARMY STAFF [supra].
He submitted that Appellant’s right of appeal under S. 243 (1)(a) of the 1999 Constitution ought to be as of right as a party thereto since the said provision in granting right of appeal to a party thereto makes no discrimination as to whether such party is necessary or nominal. He added that S. 243 (1)(a) of the 1999 Constitution being a constitutional provision ought to carry its usual broad interpretation and natural meaning.
He referred on this to the cases of PDP V CPC [2011] 17 NWLR [Pt. 1277] 485 506; NAFIU RABIU V STATE [1980] 12 NSCC 291 @ 306. He concluded that the Appellant herein is a party and has locus as rightly held by the current decisions of this Court in AWOYOMI V CHIEF OF ARMY STAFF [supra] and CROSS RIVER STATE FORESTRY COMM. V ANWAN [supra]. He urged us to dismiss the preliminary objection.
The related submission by the learned counsel for the Respondent may be put into proper perspective as follows:
i. The Appellant being a judgment debtor was not a party to the garnishee proceeding and has no right of Appeal in the proceeding.
ii. Not being a party to the Appeal, he requires leave of Court perhaps as an interested party for its appeal to be competent.
The relationship between the two points made by the Respondent is obvious, for if the answer to (i) is that the Appellant has a right of appeal on the proceedings, the question whether he required leave to appeal or not may in fact not need a specific answer.
Learned counsel for the Respondent stated the general rule to the effect that in a Garnishee Proceeding, it is the Garnishee or Judgment Creditor that can be aggrieved and can completely appeal against the order. He placed reliance on the cases of PURIFICATION TECHNIQUES (NIG.) LTD. V AG, LAGOS STATE [supra]; HON. JUSTICE SOTONYE DENTON-WEST V CHIEF [ICHIE] CHUKS MUOMA, SAN [supra] and NIG. AGIP OIL CO. LTD V OGINI & 4 ORS [supra].
The learned counsel for the Appellant on the other hand made us to understand that the rule that garnishee proceeding is essentially a proceeding between the garnishee and the judgment debtor now permits of some exceptions. That one of such exceptions as recognized in the case of AWOYOMI V CHIEF OF ARMY STAFF [supra] is where the judgment debtor was allowed to challenge the amount the appellant computed on his own without any input from his employers who alone know the modalities for computation of entitlements of their employees.
In those circumstances, the Court in the case of AWOYOMI V CHIEF OF ARMY STAFF [supra] held that … the cases of Denton-West V Muoma [2008] ALL FWLR [Pt. 433] 1423; [2008] 6 NWLR [Pt. 1083] 418 @ 442; P.P.M.C. V DELPHI PET. INC. [2005] 8 NWLR [Pt. 928] 458 @ 486 and UBA PLC V EKANEM [2009] 40 WRN 150 referred to by learned counsel for the Appellant in support of his contention that the judgment debtor is only a nominal party in garnishee proceedings and not competent to react to the order nisi are not apposite.
Furthermore, in the same case of AWOYOMI V CHIEF OF ARMY STAFF [supra] at p. 1527, it was pointed out that:
In the case of PURIFICATION TECH (NIG) LTD. V ATTORNEY-GENERAL, LAGOS STATE [2004] ALL FWLR [Pt. 211] 1479 [2004] 9 NWLR [Pt. 879] 665, the Court of Appeal held that the application of a Judgment Debtor to set aside the garnishee order nisi could be possible on the ground that there had been some procedural irregularity in the proceedings of such serious nature that order sought to be treated as a nullity.
See also CROSS RIVER STATE FORESTRY COMM. V ANWAN [2014] ALL FWLR [Pt. 712] 1823 @ 1829.
The implication of the above decisions is that the rule that a Judgment debtor has no business with garnishee proceeding otherwise than being a nominal party not to talk of being an appellant is not absolute and that in certain situations he would have a right to set aside the garnishee proceeding and could therefore be endowed with a right of appeal.
In this respect, I am the more fortified by the references to the provisions of S.243 (1) (a) of the 1999 Constitution and Order 8 Rule 8 (1) of the Judgment Enforcement Rules as provisions that are consistent with a broad interpretation of right of Appeal to a judgment debtor as was the case in AWOYOMI V CHIEF OF ARMY STAFF [supra] and CROSS RIVER STATE FORESTRY COMM. V. ANWAN [supra].
Section 243 (1) (a) provides inter alia as follows:
Any right of appeal to the Court of Appeal from the decision of the Federal High Court conferred by the Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter…
Order 8 Rule 8(1) Judgment Enforcement rules provides:
If no amount is paid into Court, the Court, instead of making an order that execution shall issue, may, after hearing the Judgment Creditor, the garnishee and the Judgment debtor or such of them as appear, determine the question of the liability of the garnishee.
I have carefully perused the record of Appeal in this case and observed that except for the enrolment order in the garnishee proceedings made by the learned trial judge, the Appellant indeed featured throughout the proceeding as a Respondent judgment debtor. I think therefore that it is easier to accept the argument that the Appellant was indeed a ‘Party thereto’ with a right of Appeal under Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria 1999 [as amended]. And, would require no other leave of Court having appealed on a jurisdictional issue. The Respondent’s preliminary objection is over-ruled.
THE MAIN APPEAL
Learned counsel for the Appellant nominated a sole issue based on Ground 2 of his grounds of Appeal for determination in this appeal. It is:
Whether the Garnishee Order absolute was competent considering the failure to obtain prior consent of the Attorney-General of the Federation.
He opened up his submission on the sole issue by reminding us that jurisdiction is threshold. And after referring to the cases of MADUKOLU V NKEMDILIM [1962] 2 NSCC 374 @ 379 ? 380 and MOMAH V VAB PETROLEUM INC. [2000] 2 SC 142 @ 152, he submitted that in the instant case, the condition precedent Respondent did not meet in order to vest the Court below with jurisdiction was failure to obtain the prior consent of the Attorney-General in the garnishee action.
He referred to the provision of Section 84 of the Sheriffs and Civil Process Act and submitted that the operative words in the said Section 84 are: “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 …”
He submitted that the 2 (two) conditions are disjunctive, to wit: money must be in the hand of a public officer or under the control of a public officer, either way, he said, the consent of the Attorney-General is necessary. He submitted that in the case of the 2nd Respondent [Central Bank] the money is without doubt under the control of the Governor of Central Bank and his officials which makes the prior consent of the Attorney-General mandatory.
He referred to the cases of CENTRAL BANK OF NIG. V HYDRO AIR PTY LTD. [2015] ALL FWLR [Pt. 765] 227 @ 265 and the recent decision of this Court, Lagos Division in Appeal No. CA/L/710/15: SANNI V UNITY BANK PLC [unreported dated 10th March, 2017] per the leading judgment of Tukur, JCA where it was held that ‘Public Officer’ includes artificial entities such as Central Bank of Nigeria.
He added that the 2nd Respondent is a public officer through the line of cases and that even if it were not so which is not conceded, the money in its coffers is controlled by a Public Officer. Either way, consent is inescapable. He urged us to uphold the law and find the entire garnishee proceeding of the lower Court as incompetent and bound to be set aside.
Learned counsel for the Respondent also formulated a sole issue for the determination of this appeal, to wit:
Whether in view of the Affidavit of Compliance filed by the 2nd Respondent in respect of Garnishee Proceedings, the lower Court had the jurisdiction to make the Order Nisi Order Absolute.
In his Reply brief, learned counsel for the Appellant pointed out that the above issue formulated by the Respondent does not arise from any of the grounds of appeal filed by the Appellant. That ground 2 of Appellant’s amended ground of appeal filed on 13/5/2015 without its particulars read thus: ‘The learned trial Judge erred in law when he made the Garnishee Order Nisi to be absolute without jurisdiction’ neither has Respondent filed any cross appeal to formulate his issue. In the circumstance, Respondent’s issue not having arisen from any ground of appeal before this Court is incompetent along with its accompanying arguments and bound to be struck out.
On this, Appellant’s counsel referred us to the case of AMIKA V IRONBAR [2012] ALL FWLR [Pt. 640] 1376 @ 1390. He urged us to hold that Respondent indeed has no answer to Appellant’s main argument on jurisdiction.
I do agree with the learned counsel for the Appellant that the Respondent’s sole issue is not accommodated in any of the grounds of appeal filed by the Appellant. A respondent who did not file a cross-appeal or respondent’s notice cannot raise issues for determination which are outside the grounds of appeal filed by the appellant. He can only either adopt the issues as formulated by the appellant based on the grounds of appeal before the Court or recast the appellant’s issues by giving them a slant favourable to his defence of the appeal without departing from the complaint in the grounds of appeal. See OSAZUWA V ISIBOR [2004] 3 NWLR [Pt. 859] 16. MOMODU V MOMOH [1991] 1 NWLR [Pt. 169] 608 SC; OSSAI V WAKWAH [2006] 4 NWLR [Pt.969] 208 SC; UTB (NIG.) LTD. V AJAGBULE [2006] 2 NWLR [Pt. 965] 447.
Relatedly, issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue.
Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See IBATOR V BARAKURO [2007] 9 NWLR [Pt. 1040] 475 SC; DALORI V SADIKWU [1998] 12 NWLR [Pt. 576] 112 @ 116; SHITTA-BEY V A-G, FEDERATION [1998] 10 NWLR [Pt. 570] 392 SC; J.C. LTD. V EZENWA [1996] 4 NWLR [Pt. 443] 391 @ 399 SC; ADELAJA V FANOIKI [1990] 2 NWLR [Pt. 131] 137 SC.
In the circumstance here, the Respondent’s issue and the arguments thereon are incompetent and are accordingly struck out.
A starting point for the determination of the Appellant’s sole issue is the provision of Section 84 of the Sheriffs and Civil Process Act. It reads:
(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 proceeding 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.
(2) In this section ‘appropriate officer’ mean- (a) in relation to money which is in the custody of a public officer who holds a public officer in the Public Service of the Federation, the Attorney-General of the Federation.
In the case of CENTRAL BANK OF NIG. V HYDRO AIR PTY LTD. [2015] ALL FWLR [Pt. 765] 227 @ 265, the Court held:
When this provision is examined critically vis-a-vis the provision of Section 84 of the Sheriffs and Civil Process Act, it will be seen that funds in the coffers of the CBN are actually funds in the custody or under the control of a Public Officer in his official capacity. This is because the Central Bank of Nigeria is an entity and it is the officials of the body that controls the money or funds in the coffers of the entity. Based on this fact, I am unable to accept the contention of the cross-appellant that the provisions of Sections 84 of the Sheriffs and Civil Process Act are not applicable to the facts of the case.
Relatedly, in the case of CENTRAL BANK OF NIGERIA V ALHAJI MOHAMMED KAKURI [2016] LPELR 41468 [CA] the Abuja Division of this Court held that the Central Bank of Nigeria is a ‘Public Officer’ within the meaning of Section 84 of the Sheriffs and Civil Process Act.
More recently in the unreported Court of Appeal (Lagos Division) case of SANNI V UNITY BANK PLC dated 10th March, 2017, Tukur JCA, who delivered the leading judgment preferred and followed the decision of the Supreme Court in IBRAHIM V J.S.C. KADUNA [1998] 14 NWLR [Pt. 558] 1 and the decision of Agim, JCA in the case of CENTRAL BANK OF NIGERIA V ALHAJI MOHAMMED KAKURI [supra] as against the cases of CBN V NJEMANZE [2015] 4 NWLR [Pt. 1449] 276 and CBN V INTERSTELLA COMM. LTD. [2015] 8 NWLR [Pt. 1462] 456 and held that the Central Bank of Nigeria is a Public Officer, as envisaged by Section 84 of the Sheriffs and Civil Process Act. See also, CENTRAL BANK OF NIG. & ORS. V AITE OKOJIE [2015] LPELR 24740 SC; FIDELIS OKIRIKA AGBOROH V THE WEST AFRICAN EXAMINATIONS COUNCIL [WAEC] [2016] LPELR 40974 [CA].
In the circumstance, the learned counsel for the Appellant was right that failure to secure the prior consent of the Attorney-General of the Federation pursuant to Section 84 of the Sheriffs and Civil Process Act rendered the Garnishee proceeding incompetent.
The Garnishee proceeding of the Court below failed short of the requisite conditions precedent to vest that Court with jurisdiction. The sole issue in this appeal is resolved in favour of the Appellant.
The appeal is meritorious and it is allowed.
The Judgment and Order of Phoebe Msufan Ayua, J., delivered on 13/1/2014 in Suit No. FHC/CA/M164/2014 whereby the Garnishee Order Nisi of 28/11/2013 was made absolute is hereby set aside.
The parties to the appeal are to bear their respective costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in draft the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA and he dealt with all the issues raised in the appeal succinctly, I therefore agree with him and allow the appeal. I also abide orders made therein.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered.
I agree entirely with the reasoning and conclusion reached. The rationale for the consent of the Attorney-General of the Federation or of the state as the case may be is to avoid embarrassment to him of not having the prior knowledge that funds appropriated are diverted in satisfaction of a judgment debt. Thus, Section 84 (1) of the Sheriffs and Civil Process Act is a safeguard against such embarrassment and to ensure that an Order Nisi shall not be made in respect of money in custody or under the control of public officer in his official capacity or in custodia legis, unless the consent to such attachment is first obtained. See ONJEWU V. K. S. M. C. J. (2003) 10 NWLR (pt 827) 40 and C. B. N. V INTERSTELLA COMMUNICATIONS LTD (2018)7 NWLR (pt. 1618) 294 at 333 – 334.
The appeal is meritorious and it is hereby allowed. I endorse all the consequential orders in the lead judgment.
Appearances:
Ekpedeme Iyoho, Esq.For Appellant(s)
Albert Ben, Esq. for 1st RespondentFor Respondent(s)
