BUREAU FOR LOCAL GOVT & CHIEFTAINCY AFFAIRS, BENUE STATE & ANOR v. ONU & ANOR
(2022)LCN/16089(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 08, 2022
CA/ABJ/CV/995/2021
Before Our Lordships:
Biobele Abraham Georgewill Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. BUREAU FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, BENUE STATE 2. HON. ATTORNEY-GENERAL BENUE STATE APPELANT(S)
And
1. BARR. GABRIEL ALLAHNANA ONU (For Himself And On Behalf Of The Family Of Onu Onoja, Ai-Oko, Adum, Otukpa, Ogbadibo LGA, Benue State) 2. FIDELITY BANK, PLC RESPONDENT(S)
RATIO:
A GARNISHEE ORDER NISI MUST BE THERE BEFORE A GARNISHEE ORDER ABSOLUTE
These grounds are neither vague nor lacking in specifics. They attacked some of the crucial findings and decisions of the lower Court in the ruling appealed against by them. In my finding, and I do hold, they suffer no want of competence at all contrary to the misconceived contentions of the 1st Respondent to the contrary. See Association of Senior Civil Servants of Nigeria & Ors V. JUSUN & Ors (2014) LPELR – 24185(CA) per Sir Biobele Abraham Georgewill JCA. See also Atlas Petroleum International V. P. M. Communications (2017) LPELR – 41957 (CA) per Sir Biobele Abraham Georgewill JCA, Akpan V. Bob (2010) All FWLR (Pt. 501) 896 at p. 902, Sheidu V. State (2014) All FWLR (Pt. 750) 1381 at p. 1391, Eromosele vs. Wermev {2014} All FWLR (PT. 751) 1531 at P. 1555.
I therefore, cannot but agree with the apt and unassailable submission of the learned Director of Civil Litigation, Ministry of Justice Benue State that Grounds 1 and 3 in the Notice of Appeal specifically attacked the decision of the lower Court in refusing to set aside the Garnishee Order Nisi and proceeding to making the Garnishee Order Absolute on the face of the reliefs sought by the Appellants to set aside the very basis and condition precedent to the making of a Garnishee Order Absolute, namely setting aside the Garnishee Order Nisi. In law, without a Garnishee Order Nisi there can never be a Garnishee Order Absolute. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
THE NECESSARY PARTIES TO A GARNISHEE PROCEEDING
In law, Garnishee proceeding is sui generis. The parties are not left to the choice or whims and caprices or indeed the fancy of any party to a Suit but are as specifically prescribed by Statute. It is these parties as prescribed by Statute that are regarded as necessary parties to a Garnishee proceeding. They are namely: the Garnishor, that is the Judgment Creditor; and the Garnishee, that is the person alleged to be in custody of the funds of the Judgment Debtor and who is to show cause. These are the only necessary parties to a Garnishee proceeding. However, nominally the Judgment Debtor, who by law is required to be served but may be regarded as a Nominal but never a necessary party. He thus would have no right to file any process in the Garnishee proceeding unless there are some manifest irregularities in the proceeding. See Section 83(1) of the Sherriff and Civil Process Act. See also Order VIII Rules 7, 8 and 9 of the Judgment Enforcement Procedure Rules. See further Gwede V. Delta State House of Assembly (2019) LPELR – 47441 (SC) at Pp. 38 – 39, Fidelity Bank Plc V. Okwuowulu & Anor (2012) LPELR – 8497 (CA) at P. 17, CBN V. Interstella Communications Ltd & Ors (2017) LPELR – 43940 (SC) at p. 60, UBA Plc V. Ekanem (2010) 6 NWLR (Pt 1190) 207 at P. 226. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
THE PRINCIPLE OF LAW ON GARNISHEE PROCEEDDINGS
It is settled law that Garnishee proceedings are distinct from the proceedings leading to the judgment debt. It is not the same as the proceedings between the 1st Respondent and the Judgment, Debtor, Ogbadibo Local Government Council of Benue State, that lead to the judgment sought to be enforced by the 1st Respondent against the 2nd Respondent, who itself was not a party to that Suit but by a procedure made possible by the provisions of the Sheriff and Civil Process Act, he could be made to pay over to the Judgment Creditor funds in his custody belonging to the Judgment Debtor. This is why even the Judgment Debtor is not a necessary party to the Garnishee proceeding and ordinary really has no role to play therein, though as required by law he is entitled to be served with the Garnishee Order Nisi. See Star Deepwater Petroleum Ltd & Ors V. AIC Ltd & Ors (2010) LPELR – 9165 (CA). See also PPMC V. Delphi Petroleum Incorporated (2005) 1 NWLR (Pt. 928) 458; Re: Diamond Bank Ltd (2002) 17 NWLR (PT. 795) 120. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
THE ESSENTIAL ELEMENTS OF LOCUS STANDI
In law, the term ‘locus standi’, though expressed in Latin, simply refers to the legal capacity of a party to institute proceedings in a Court of law. Thus, all that a Claimant or Applicant as the case may be, need to do to establish his locus standi is to succinctly plead in his pleadings or affidavit the entire or sufficient facts establishing his rights and obligations, including or showing all the key elements of locus standi, namely: violation of civil rights and obligations, sufficient interest in the matter and how the interest arose; justiciable enforceable action, all culminating into showing the existence of dispute between the parties. Once, these facts are evident or apparent in the pleadings of a Claimant or affidavit of an Applicant as the case may be, the issue of locus standi is settled in favor of such a Claimant or an Applicant. See Dr. Amu & Anor V. Okeaya-Inneh San & Anor (2021) LPELR – 55660 (CA) at Pp. 26 – 28, per Sir Biobele Abraham Georgewill JCA. See also B.B. Apugo & Sons Ltd V. Orthopaedic Hospitals Management Board (2016) 13 NWLR (Pt. 1529) 206 at p. 269, Orogan V. Soremekun (1986) 5 NWLR (Pt. 44) 688, Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669, Shuaibu & Anor V. Koleosho (2021) LPELR-53435(CA) at Pp. 46 – 47, per Sir Biobele Abraham Georgewill JCA. BIOBELE ABRAHAM GEORGEWILL, J.C.A.
THERE IS NEED FOR RE-EVALUATION OF EVIDENCE BY THE APPELLATE COURT IF THE TRIAL COURT HAD NOT PROPERLY EVALUATED THE EVIDENCE
Now, it is only where a trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed Record in order to make appropriate findings of facts in line with the evidence led and in the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re-evaluation of evidence does not even arise since an appellate Court has no business interfering with correct findings of a trial Court. The lower Court was correct, and so we cannot interfere, and we can only but affirm the correct findings of the lower Court. See African Songs Limited & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA) per Sir Biobele Abraham Georgewill JCA. See also Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at P. 198, Williams V. Tinubu (2014) All FWLR (Pt. 755) 200.
BIOBELE ABRAHAM GEORGEWILL, J.C.A
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Federal Capital Territory, Abuja, Coram: S. B. Belgore J, in Suit No. FCT/HC/M/8405/2020: Barr. Gabriel Allahnana Onu (For himself and on behalf of the family of Onu Onoja, Ai-Oko, Adum, Otukpa, Ogbadibo LGA, Benue State) V. Ogbadibo Local Government Council and Access Bank Plc & Ors delivered on 15/9/2021. The Application by the Appellant seeking to set aside and discharge the Garnishee Order Nisi was dismissed and the Order Nisi was made Absolute.
The Notice of Appeal was filed on 17/9/2021 on three grounds of appeal. See pages 263 – 266 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 13/12/2021. The parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 30/5/2022. The Appellants were represented by S. C. Egede Esq., Solicitor General of Benue State. The 1st Respondent was represented by S. O. Okpala Esq., appearing with O. M. Ajonye Esq. Registrar: The 2nd Respondent was served on the 25/5/2022.
BRIEF STATEMENT OF FACTS
The 1st Respondent as Judgment Creditor had applied to the lower Court and registered the judgment of the Benue State High Court delivered by E. O. Ejembi J., on 8/3/2018 against the Ogbadibo Local Government Council of Benue State awarding the sum of N200,000,000.00 in favor of the 1st Respondent, and to garnishee the Benue State Joint Allocation Account Committee. On 23/7/2020, the lower Court issued an Order Nisi against the 2nd Respondent in respect of the Benue State Joint Allocation Account with the 2nd Respondent.
Subsequently, by a Motion on Notice filed on 11/8/2020, the Appellants as 3rd Party/Applicants applied before the lower Court for an order setting aside and discharging the Garnishee Order Nisi attaching the Benue State joint Local Government Account No: 5030058730 the 2nd Respondent on the ground that the attached Fidelity Bank, PLC Account No: 5030058730 is a special account maintained by the Appellants and called “State Joint Local Government Account” into which is paid all allocations to all the Local Government Councils in Benue State from the Federation Account and from the Government of Benue State pursuant to Section 162(6) of the Constitution of the Federal Republic of Nigeria, and that the said account is under the custody and control of the 1st Applicant on behalf of the Local Government Councils in Benue State, and therefore, does not belong to the judgment debtor.
The parties filed and exchanged written addresses and at the hearing of the Appellants’ Motion on Notice on 9/9/2020, the parties duly adopted their written addresses and after several other intervening applications, the lower Court delivered its ruling on the Appellants’ Motion on Notice filed on 11/8/2020 on 15/9/2021, in which it dismissed the application for both being incompetent and lacking in merit, hence this appeal. See pages 1 – 2, 14 – 17, 25 – 28, 75 – 80, 113 – 118, 232 – 235 and 247 – 262 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, three issues were distilled as arising for determination from the three Grounds of appeal, namely:
1. Whether upon their application and arguments presented thereon the Appellants made out a case for the setting aside of the Order Nisi? (Distilled from Ground 1)
2. Whether the Appellants as aggrieved 3rd Party whose Bank account has been attached pursuant to an Order Nisi in execution of judgment to which they were not a party can apply to set aside the order? (Distilled from Ground 2)
3. Whether the lower Court was right in making the Order Nisi absolute upon the facts disclosed that the said account is a Joint Account into which is paid financial allocation for all Local Government Councils in Benue State, and when only one of them was the judgment debtor? (Distilled from Ground 3)
In the 1st Respondent’s brief, a sole issue was distilled as arising for determination in this appeal, namely:
“Whether the lower Court was right when it held that the Application of the Appellants was incompetent in that they are not parties to the garnishee proceeding and thereby validly striking out the Application.”
My Lords, I have taken time to consider the reliefs, parties and affidavit evidence of as in the Record of Appeal. I have also taken note of the proceedings leading to the judgment of the High Court of Benue State registered and sought to be executed before the lower Court by the 1st Respondent as Judgment Creditor. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the decisions reached in the ruling of the lower Court, and I am of the view that the apt issues arising for determination in this appeal are the three issues as distilled in the Appellants’ brief, a consideration of which, in my view, would invariably involve a consideration of the sole issue as distilled in the 1st Respondent’s brief. However, I shall consider all the three issues together and resolve them in one fell swoop.
But first there is a Notice of Preliminary Objection challenging the competence of both the appeal as well as Ground 1 and 3 of the Notice of Appeal, which shall be considered first and resolved one way or the other.
NOTICE OF PRELIMINARY OBJECTION
By a notice of preliminary objection incorporated into the 1st Respondent’s brief, the 1st Respondent is challenging the competence of the appeal as well as Grounds 1 and 3 in that the appeal is incompetent having not been properly constituted as to proper parties, while Grounds 1 and 3 do not arise from any of the findings and or decisions in the ruling of the lower Court appealed against by the Appellants.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on the preliminary objection, which I have taken time to review in its entirety, learned counsel for the 1st Respondent had submitted inter alia that the appeal of the Appellants is incompetent and liable to be struck out by reason of the failure to join a necessary to the appeal, the judgment debtor, who was a party to the proceedings at the lower Court below and contended that in law an appeal is a continuation of the matter before the lower Court below and urged the Court to hold that all parties to the matter before the lower Court must be made parties to the appeal, otherwise the appeal is incompetent and liable to be struck out and to strike out the appeal and affirm the ruling of the lower Court. Counsel relied on Bessoy Ltd V. Oleka & Anor (2018) LPELR – 44202 (CA) 1 at pp. 9 – 16, In Re: Apeh & Ors (2017) LPELR – 42035 (SC) 70 at pp. 75 – 76.
It was also submitted that going by the decision of the lower Court to the effect that the Appellants, being not parties, are not permitted by law to file any process in a Garnishee proceedings, the Grounds 1 and 3 on the Notice of Appeal neither relate to nor arise from the decision of the lower Court and are therefore incompetent and thus liable to be struck out and urged the Court to so hold and uphold the preliminary objection and strike out Ground 1 and 3 of the Notice and Ground of Appeal for being incompetent. Counsel relied on Anyanwu V. Ogunewe (2012) LPELR – 20816(CA) 20 at pp. 28 – 29.
APPELLANTS’ COUNSEL SUBMISSIONS
In his reply submissions on the preliminary objection, which I have taken time to review in its entirety, learned counsel for the Appellants had submitted inter alia that the objection is misconceived in that by the Motion on Notice filed by the Appellants before the lower Court, leading to the ruling and subsequent appeal to this Court, the judgment debtor was never made a party, as the parties named therein as Respondents were the 1st and 2nd Respondents herein and urged the Court to so hold and to dismiss the preliminary objection for being misconceived as well as lacking merit Counsel relied on Olanoye V. Jimoh (2014) All FWLR (Pt. 718) 901 at pp. 914 – 915, Lajibam Auto V. UBA Plc (2014) All FWLR (Pt. 739) 1080 at p. 1093, Mbanefo V. Molokwu (2014) All FWLR (Pt. 742) 1665 at p. 1686.
It was also submitted that the lower Court had not only struck out the Appellants’ application to discharge and set aside the Garnishee Order Nisi but had also proceeded to make the Garnishee Order Absolute and by which decision the lower Court had foreclosed the reliefs sought by the Appellants that the 1st Respondent was not entitled in law to Garnishee the Joint Account of all the Local Government Councils in Benue in satisfaction of the judgment debt of just one out of all the said Local Governments Councils and contended that the Appellants, who are aggrieved by the decision of the lower Court are by their Notice of Appeal filed 17/9/202 appealing against the whole of the said decision and urged the Court to hold that Grounds 1 and 3 flow directly from the decisions of the lower Court and to dismiss the preliminary objection for being mere technicality, misconceived as well as lacking in merit and to determine the appeal on the merit. Counsel relied on Akpan V. Bob (2010) All FWLR (Pt. 501) 896 at p. 902, Sheidu V. State (2014) All FWLR (Pt. 750) 1381 at p. 1391, Eromosele vs. Wermev {2014} All FWLR (PT. 751) 1531 at p. 1555.
RESOLUTION OF PRELIMINARY OBJECTION
My Lords, the starting point in the consideration of the preliminary objection are the Grounds 1 and 3 of the Notice of Appeal filed by the Appellants against the ruling of the lower Court. I shall therefore, take the liberty to reproduce hereunder these Grounds of appeal, without their particulars.
In Ground One, it is alleged thus:
“The learned trial judge erred in law in refusing to set aside the garnishee order nisi attaching the Benue State Joint Local Government Account No. 5030058730.”
In Ground Three, it is alleged thus:
“The learned trial judge erred in law in making the garnishee Order Nisi Absolute when the account attached did not belong to the Judgment debtor and this error occasioned a miscarriage of Justice.”
See pages 264 – 265 of the Record of Appeal.
My Lords, the first ground of objection was that the appeal is incompetent by reason of failure to join the judgment debtor, who it was alleged was a party to the Appellants’ application before the lower Court.
I have taken time to look at the processes filed by the Appellants by way of Motion on Notice on 11/8/2020 seeking to discharge and set aside the Garnishee Order Nisi. The parties in that application are not just the persons whose names are endorsed but those who were made either Applicants or Respondents. The Applicants in the said Motion on Notice as clearly indicated on the face of the Appellants’ Motion on Notice are the 1st and 2nd Appellants herein as Applicants and the 1st and 2nd Respondents herein as Respondents. Thus, neither the Judgment debtors nor the other Garnishees were made parties to the Appellants’ Motion on Notice filed on 11/8/2020, notwithstanding that the names of the other persons, who were parties to the 1st Respondent’s Garnishee proceedings were listed out on the face of the Motion papers.
In the light of the above, and based on the face of the Appellants’ Motion papers, the contention by the 1st Respondent under the first arm of the preliminary was, as aptly contended by the Appellants, clearly misconceived. At any rate, it is no longer in any serious dispute that in law the judgment debtor is not a necessary party in a Garnishee proceeding, even if he may be a nominal party having been mandated by law to be served with the Garnishee Order Nisi by the Garnishor, the Judgment Creditor. See Olanoye V. Jimoh {2014} All FWLR (Pt. 718) 901 at Pp. 914 – 915. See also Lajibam Auto V. UBA Plc (2014) All FWLR (Pt. 739) 1080 at P. 1093, Mbanefo V. Molokwu (2014) All FWLR (Pt. 742) 1665 at p. 1686.
Let me consider the second arm of the objection, namely that Grounds 1 and 3 do not arise from any of the decisions in the ruling of the lower Court appealed against by the Appellant. I have already set out Grounds 1 and 3 of the Notice of Appeal. I have also considered the entirety of the Ruling of the lower in the light of the reliefs and grounds relied upon by the Appellant for their application before the lower Court.
Honestly, I am at a loss how the 1st Respondent came about the idea of his second arm of the objection. It seems he either did not consider the decisions in the ruling of the lower Court appealed against in relation to the reliefs and grounds of the Appellant and the ultimate decision of the lower Court not only to strike out the application for being incompetent and for lacking merit and proceeding thereafter to making the Garnishee Order Nisi, the very Order that the Appellants had sought to discharge and set aside by their application, Absolute. The lower Court had stated inter alia thus:
“This Motion on Notice M/9068/2020 filed by Bureau for Local Government and Chieftaincy Affairs, Benue State and Hon Attorney General of Benue State is hereby struck out for want of competence and merit.” See page 256 of the Record of Appeal.
I can see on the Notice of Appeal where it was stated very clearly the scope and extent of the appeal thus: “The entire Decision of the Court.” See page 264 of the Record of Appeal.
The lower Court clearly went beyond mere consideration of the competence or otherwise of the Appellants’ application, as was erroneously thought by the 1st Respondent as the basis of the second arm of the preliminary objection, and proceeded to make a determination of the Appellants’ application as lacking in merit.
The Appellants were aggrieved with the entire decision of the lower Court. They were not just some of the parties before the lower Court but those who had approached the lower Court for reliefs that were refused by the lower Court. In law the right of appeal is a constitutional one and thus sacrosanct, inviolable and must not be lightly fettered with or encumbered in its exercise by the citizen who feels aggrieved with the decision of a Court. It is a right exercisable by a person aggrieved within the purview or confines of the constitutional or statutory provision creating the right of appeal. A person aggrieved by a decision of a Court is one against whom a decision has been pronounced which has wrongfully deprived him of something, and who is adversely affected by the decision of the Court in that the decision wrongfully refused him something, or wrongfully affected his title to something. See Sections 241, 242 and 243 of the Constitution of Nigeria 1999 (as amended). See also Ogunkunle & Ors V. Eternal Sacred Order of the Cherubim and Seraphim & Ors (2001) 12 NWLR (Pt. 727) 359, Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA) per Sir Biobele Abraham Georgewill JCA, Ziklagsis Networks Ltd. V. Adebiyi & Ors (2017) LPELR – 42899 (CA) per Sir Biobele Abraham Georgewill JCA.
Now, looking at Grounds 1 and 3 of the Appellants’ Notice of Appeal, they perfectly fit the bill of grounds which arose from and relate directly to the decisions contained in the ruling of the lower Court appealed against by the Appellants. These grounds are neither vague nor lacking in specifics. They attacked some of the crucial findings and decisions of the lower Court in the ruling appealed against by them. In my finding, and I do hold, they suffer no want of competence at all contrary to the misconceived contentions of the 1st Respondent to the contrary. See Association of Senior Civil Servants of Nigeria & Ors V. JUSUN & Ors (2014) LPELR – 24185(CA) per Sir Biobele Abraham Georgewill JCA. See also Atlas Petroleum International V. P. M. Communications (2017) LPELR – 41957 (CA) per Sir Biobele Abraham Georgewill JCA, Akpan V. Bob (2010) All FWLR (Pt. 501) 896 at p. 902, Sheidu V. State (2014) All FWLR (Pt. 750) 1381 at p. 1391, Eromosele vs. Wermev {2014} All FWLR (PT. 751) 1531 at P. 1555.
I therefore, cannot but agree with the apt and unassailable submission of the learned Director of Civil Litigation, Ministry of Justice Benue State that Grounds 1 and 3 in the Notice of Appeal specifically attacked the decision of the lower Court in refusing to set aside the Garnishee Order Nisi and proceeding to making the Garnishee Order Absolute on the face of the reliefs sought by the Appellants to set aside the very basis and condition precedent to the making of a Garnishee Order Absolute, namely setting aside the Garnishee Order Nisi. In law, without a Garnishee Order Nisi there can never be a Garnishee Order Absolute.
In the light of all what I have found and stated above, it has become so apparent to me, and I so firmly hold, that the preliminary objection, on both the first and second grounds of objection, lack merit and are thus, liable to be dismissed. Consequently, the 1st Respondent’s Notice of Preliminary Objection is hereby dismissed for lacking in merit.
ISSUES ONE, TWO AND THREE
(TAKEN TOGETHER)
Whether upon their application and arguments presented thereon the Appellants made out a case for the setting aside of the Order Nisi AND whether the Appellants as aggrieved 3rd Party whose Bank account has been attached pursuant to an Order Nisi in execution of Judgment to which they were not a Party can apply to set aside the Order AND whether the lower Court was right in making the Order Nisi absolute upon the facts disclosed that the said account is a Joint Account into which is paid financial allocation for all Local Government Councils in Benue State, and when only one of them was the judgment debtor? (Distilled from Ground 3)
APPELLANTS’ COUNSEL SUBMISSIONS
In his submissions on issue one, which I have taken time to review in its entirety, learned counsel for the Appellants had submitted inter alia that unless and until a judgment of a Court of competent jurisdiction is set aside, it remains valid and enforceable and contended that there are always to parties to a judgment, as in this case, the 1st Respondent as the Judgment Creditor and the judgment debtor, which in this case is Ogbadibo Local Government Council, as the Judgment Debtor, and urged the Court to hold that in enforcement of a judgment by Garnishee the Garnishee order Nisi can only be granted to attach funds belonging to the Judgment debtor only, contrary to the Garnishee Order Nisi made by the lower Court against funds in an Account not belonging to the judgment and which Garnishee Order Nisi is unlawful and ought to be set aside and to allow the appeal, set aside the Ruling of the lower Court and set aside the Garnishee Orders Nisi and Absolute. Counsel relied on Kubor V. Dickson (2013) All FWLR (Pt. 676) 392 at P. 433, Akinsanya V. Attorney-General of the Federation & Ors (2013) All FWLR (Pt. 688) 941 at pp. 951 – 952.
It was also submitted that the attached Account No. 5030058730 is a special account maintained by the 1st Appellant and called “State Joint Local Government Account” into which is paid financial allocations from the Federation Account and the Government of Benue State for the benefit of all the Local Government councils in Benue State and contended that in law it was irregular, invalid and unlawful to execute the judgment on the said Joint Account belonging to the 1st Appellant which was not a party to both the 1st Respondent’s Suit as well as the Garnishee proceedings and urged the Court to hold that in the absence of any evidence of the share of the judgment Debtor in the Joint Account, the Garnishee Orders Nisi and Absolute were made in error, and therefore, perverse and to allow the appeal, set aside the perverse ruling of the lower Court and grant the Appellants’ application and set aside the Garnishee Orders Nisi and Absolute. Counsel relied on Inspector General of Police V. Andrew (2014) All FWLR (Pt. 729) 1194 at p. 1205, Lajibam Autos V. UBA Plc (2014) All FWLR (Pt. 739) 1080 at P. 1094.
In his submissions on issue two, which I have taken time to review in its entirety, learned counsel for the Appellants had submitted inter alia that the lower Court was wrong in striking out the Appellants’ application rather than considering and resolving the issues submitted before it on the merit on the uncontradicted evidence before it that the attached Account No. 503005873 with the 2nd Respondent belongs to the 1st Appellant and not to the judgment debtor and contended that in the circumstances the Appellants whose legal rights interest were affected by the Garnishee Order Nisi had in law the locus standi, contrary to the perverse decision of the lower Court to the contrary that the Appellants does not have the locus standi and urged the Court to hold that the Appellants’ Motion on Notice was competent and they were wrongly shut out by the lower Court resulting into a grave miscarriage of justice, and to allow the appeal, set aside the perverse ruling of the lower Court and grant the reliefs sought by the Appellants in their application before the lower Court. Counsel relied on National Universities Commission V. Alli (2014) All FWLR (Pt. 715) 233 at Pp. 276 – 277, Adesanya V. President of the Federal Republic of Nigeria and Anor (1981) 5 SC 112 at P. 162.
In his submissions on issue three, which I have taken time to review in its entirety, learned counsel for the Appellants had submitted inter alia that the attached Account No. 5030058730 with the 2nd Respondent is by law maintained by the 1st Appellant and contended that the amount standing to the credit of the Local Government Councils of the State shall be distributed on such term and in such manner as may be prescribed by the House of Assembly of the State and urged the Court to hold that in law since the attached Account No. 5030058730 is a joint account for all Local Government Councils of Benue State from which each Council is given its’ share of the allocation, such a Joint Account is in law not subject to be attached by Garnishee Order Nisi and to allow the appeal, set aside the perverse ruling of the lower Court and grant the Appellant’s application before the lower Court in terms of the reliefs sought therein. Counsel referred to Section 162 (6) and (8) of the Constitution of the Federal Republic of Nigeria, Principles of Garnishee Proceedings in Nigeria by Ekemini Udim, Edition, at p. 605 para. 2. 80, and relied on Plunket V. Barclays Bank (1936) 2 KB 107.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on his sole issue, which I have taken time to review in its entirety, learned counsel for the 1st Respondent had submitted inter alia that in law Garnishee proceeding is sue generis and the parties to such proceeding are as specifically prescribed by Statute and contended that the necessary parties to a Garnishee proceeding are the Garnishor, that is the judgment Creditor and the Garnishee, that is the person alleged to be in custody of the funds of the Judgment Debtor and who is to show cause, and nominally the Judgment Debtor, who by law is required to be served but not a necessary party to file any process in the Garnishee proceeding and urged the Court to hold that the Appellants, who did not fall into any of these persons prescribed as parties to a Garnishee proceeding lack the locus and capacity in law to interfere and seek any reliefs in respect of a Garnishee proceeding as righty held by the lower Court and to dismiss the appeal and affirm the ruling of the lower Court. Counsel referred to Section 83(1) of the Sherriff and Civil Process Act, Order VIII Rules 7, 8 and 9 of the Judgment Enforcement Procedure Rules, and relied on Gwede V. Delta State House of Assembly (2019) LPELR – 47441 (SC) at Pp. 38 – 39, Fidelity Bank Plc V. Okwuowulu & Anor (2012) LPELR – 8497 (CA) at P. 17, CBN V. Interstella Communications Ltd & Ors (2017) LPELR – 43940 (SC) at p. 60, UBA Plc V. Ekanem (2010) 6 NWLR (Pt. 1190) 207 at P. 226.
It was also submitted that the Appellants are neither the Judgment Debtor, whose money is being attached nor are they the Garnishees to whom the Garnishee Order Nisi to show cause was directed and contended that in law the Appellants not been parties to the Garnishee proceedings and not being the persons to whom the Garnishee Order Nisi was directed to appear in Court to show cause, they do not have the locus standi to file an application to set aside Garnishee Order Nisi and urged the Court to hold that the Appellants’ Motion on Notice filed before the lower Court on 11/8/2020 was grossly incompetent and was righty struck out by the lower Court and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme V. S. A. Role & Ors (2012) LPELR – 7884 (CA) at P. 36; FBN V. Okon & Ors (2017) LPELR – 43530 (CA).
RESOLUTION OF ISSUES ONE, TWO AND THREE
My Lords, the real crux of this appeal is whether or not the Appellants have the requisite locus standi to institute and maintain their Motion on Notice filed on 11/8/2020 seeking the order of the lower Court discharging and setting aside the Garnishee Order Nisi made by the lower Court against the 2nd Respondent to show cause why the funds standing in Account No. should not be attached in satisfaction of the judgment debt due payable to the 1st Respondent/Judgment Creditor by the Judgment Debtor? In other words, or simply put, whether the Appellants’ Motion of Notice filed on 11/8/2020 before the lower Court was competent contrary to the finding of the lower Court that it was incompetent.
I have earlier in this judgment set out in sufficient details the facts of this case, much of which were not in dispute. Suffice to reiterate that the 1st Respondent as Claimant before the High Court of Benue State had sued and obtained judgment on 8/3/2018 in the sum of N200,000,000.00 against the Ogbadibo Local Government Council of Benue State. Subsequently, he applied and got the said judgment registered by the lower Court for the purposes of its execution against the judgment and on 23/7/2020, he obtained a Garnishee Order Nisi against several Banks, including the 2nd Respondent in respect of Account No. Account No: 5030058730. Upon service, the 2nd Respondent in his affidavit to show expressed its willingness to abide by whatever the decision of the lower Court.
It was at that stage, the Appellants entered into the picture. On 11/8/2020, they applied to the lower Court to discharge and set aside the Garnishee Order Nisi made against the 2nd Respondent. They claimed that the funds in the Account sought to be attached does not belong to the Judgment Debtor but rather belonged to all the Local Government Councils in Benue State as a Benue State Joint Allocation Account. The lower Court gave them a hearing and on 15/9/2021, it delivered its’ Ruling, in which it struck out the Appellants’ application for being incompetent, stating and holding inter alia thus:
“The question that has agitated my mind now is whether this Application is competent or not?…In garnishee proceeding, the law requires that the Judgment Debtor be served and even at that he has no part in the proceedings… The Judgment Debtor is only served with the Order Nisi being a requirement of law and commonsensical… It is for the above reasons therefore, that the applicants are not permitted in this garnishee proceeding to file any process and whatever process filed by them are incompetent and liable to be struck out. This Motion on Notice M/9068/2020 filed by Bureau for Local Government and Chieftaincy Affairs, Benue State and Hon. Attorney-General of Benue State is hereby struck out for want of competence and merit.” See pages 247 – 262 of the Record of Appeal.
In law, Garnishee proceeding is sui generis. The parties are not left to the choice or whims and caprices or indeed the fancy of any party to a Suit but are as specifically prescribed by Statute. It is these parties as prescribed by Statute that are regarded as necessary parties to a Garnishee proceeding. They are namely: the Garnishor, that is the Judgment Creditor; and the Garnishee, that is the person alleged to be in custody of the funds of the Judgment Debtor and who is to show cause. These are the only necessary parties to a Garnishee proceeding. However, nominally the Judgment Debtor, who by law is required to be served but may be regarded as a Nominal but never a necessary party. He thus would have no right to file any process in the Garnishee proceeding unless there are some manifest irregularities in the proceeding. See Section 83(1) of the Sherriff and Civil Process Act. See also Order VIII Rules 7, 8 and 9 of the Judgment Enforcement Procedure Rules. See further Gwede V. Delta State House of Assembly (2019) LPELR – 47441 (SC) at Pp. 38 – 39, Fidelity Bank Plc V. Okwuowulu & Anor (2012) LPELR – 8497 (CA) at P. 17, CBN V. Interstella Communications Ltd & Ors (2017) LPELR – 43940 (SC) at p. 60, UBA Plc V. Ekanem (2010) 6 NWLR (Pt 1190) 207 at P. 226.
It is true that the Appellants are neither the Judgment Debtor, whose money is being attached nor are they the Garnishee, the 2nd Respondent, to whom the Garnishee Order Nisi to show cause was directed. It follows therefore, in law that the Appellants are neither parties to the Garnishee proceedings nor persons to whom the Garnishee Order Nisi was directed to appear in Court to show cause. Worse still, the Appellants are not even the Judgment Debtor that could pass for even a mere nominal party to the Garnishee proceeding before the lower Court.
It is settled law that Garnishee proceedings are distinct from the proceedings leading to the judgment debt. It is not the same as the proceedings between the 1st Respondent and the Judgment, Debtor, Ogbadibo Local Government Council of Benue State, that lead to the judgment sought to be enforced by the 1st Respondent against the 2nd Respondent, who itself was not a party to that Suit but by a procedure made possible by the provisions of the Sheriff and Civil Process Act, he could be made to pay over to the Judgment Creditor funds in his custody belonging to the Judgment Debtor. This is why even the Judgment Debtor is not a necessary party to the Garnishee proceeding and ordinary really has no role to play therein, though as required by law he is entitled to be served with the Garnishee Order Nisi. See Star Deepwater Petroleum Ltd & Ors V. AIC Ltd & Ors (2010) LPELR – 9165 (CA). See also PPMC V. Delphi Petroleum Incorporated (2005) 1 NWLR (Pt. 928) 458; Re: Diamond Bank Ltd (2002) 17 NWLR (PT. 795) 120.
My Lords, having come to the conclusion and firmly so held that the Appellants were not party to the Garnishee proceeding, was the lower Court right when it held that the Appellants, as Applicants before it, lacked the locus standi to institute and maintain their application to discharge and set aside the Garnishee Order Nisi issued on the 2nd Respondent to show cause why the funds in the Account No. 5030058730 in its custody and said to belong to the Judgment Debtor, should not be attached in satisfaction of the judgment debt due payable to the 1st Respondent, who was the Judgment Creditor and the Garnishor?
In law, the term ‘locus standi’, though expressed in Latin, simply refers to the legal capacity of a party to institute proceedings in a Court of law. Thus, all that a Claimant or Applicant as the case may be, need to do to establish his locus standi is to succinctly plead in his pleadings or affidavit the entire or sufficient facts establishing his rights and obligations, including or showing all the key elements of locus standi, namely: violation of civil rights and obligations, sufficient interest in the matter and how the interest arose; justiciable enforceable action, all culminating into showing the existence of dispute between the parties. Once, these facts are evident or apparent in the pleadings of a Claimant or affidavit of an Applicant as the case may be, the issue of locus standi is settled in favor of such a Claimant or an Applicant. See Dr. Amu & Anor V. Okeaya-Inneh San & Anor (2021) LPELR – 55660 (CA) at Pp. 26 – 28, per Sir Biobele Abraham Georgewill JCA. See also B.B. Apugo & Sons Ltd V. Orthopaedic Hospitals Management Board (2016) 13 NWLR (Pt. 1529) 206 at p. 269, Orogan V. Soremekun (1986) 5 NWLR (Pt. 44) 688, Thomas V. Olufosoye (1986) 1 NWLR (Pt. 18) 669, Shuaibu & Anor V. Koleosho (2021) LPELR-53435(CA) at Pp. 46 – 47, per Sir Biobele Abraham Georgewill JCA.
Now, from all the facts as duly established and the circumstances of this case, as revealed in the Record of Appeal, and the legal significance of locus standi in the exercise of both a right of action and access to Court, I hold firmly that the Appellants, being neither necessary nor desirable nor even nominal parties to the Garnishee proceedings between the 1st and 2nd Respondent, and whose presence was therefore, not necessary in any manner for the effectual determination of all the issues as arising between these parties on Record to the Garnishee proceedings, and furthermore, having not been required to show any cause by the lower Court, the Appellants, indeed, indeed lacked he requisite locus standi to institute and maintain the Motion on Notice filed by them on 11/8/2020 seeking reliefs that do not in any way in law ennure to them. They were mere meddlesome interlopers! The lower Court was therefore, right when it held, and quite rightly and impeccably too, that the Appellants, as Applicants before it, lacked the locus standi and that their application was grossly incompetent and struck out the same. It was the right decision and the right order to make by the lower Court on the proved facts and circumstances of this case. See Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme V. S. A. Role & Ors (2012) LPELR – 7884 (CA) at p. 36. See also FBN V. Okon & Ors (2017) LPELR – 43530 (CA), National Universities Commission Vs. Alli (2014) ALL FWLR (pt.715) 233 at 276-277, Adesanya vs. President of the Federal Republic of Nigeria and Anor (1981) 5 SC 112 at 162.
Now, it is only where a trial Court had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed Record in order to make appropriate findings of facts in line with the evidence led and in the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re-evaluation of evidence does not even arise since an appellate Court has no business interfering with correct findings of a trial Court. The lower Court was correct, and so we cannot interfere, and we can only but affirm the correct findings of the lower Court. See African Songs Limited & Anor V. King Sunny Ade (2018) LPELR – 46184 (CA) per Sir Biobele Abraham Georgewill JCA. See also Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at P. 198, Williams V. Tinubu (2014) All FWLR (Pt. 755) 200.
Now, two quick thoughts as an aside. Firstly, if the Appellants had the locus standi and their application was competent had they been the Garnishee in the Garnishee proceedings commenced by the 1st Respondent, then the question would have arisen whether in law can a Joint Account, in which the share of the Judgment Debtor is not ascertained or cannot be ascertained, be garnished? The answer in law would have been a resounding no! See Plunkett V. Barcalys Bank Ltd (1936) 2 KB 107. See also CBN V. Chief Obla Ubana & Ors (2016) LPELR – 40366 (CA); Hencork V. Smith 41 CHS 456.
Secondly, and more importantly, but still as an aside though, from the provision of Section 88 of the Sheriffs and Civil Process Act, should a fund in an Account sought to be attached belong to a Third Party and not to the Judgment Debtor or that the Third Party has a lien or charge on the fund, the third party in the circumstance can file an Interpleader Summons to establish his claim to the attached funds. Thus, if any holder of such an Account in a Bank attached in a Garnishee proceeding is aggrieved by the Garnishee Order or he has a complaint about the Garnishee Order attaching his fund, he can take out an Interpleader Summons against the Judgment Creditor to rescue his fund that may have been attached in error. The duty to plead and prove the error is his and his alone! See Section 34 of the Sherriff and Civil Process Act. See also Order VI of the Judgment Enforcement Procedure Rules. See further Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme V. S. A. Role & Ors (2012) LPELR – 7884 (CA) @ p. 36, FBN V. Okon & Ors (2017) LPELR – 43530 (CA).
The last word, though still as an aside, on Interpleader Summons as I bring this judgment to a close! Generally, in law an Interpleader Summons Procedure is applicable when the goods and chattels of a person not named in the Writ of Fifa is attached. See Holman Bros V. The Compass Trading Co Ltd (1992) 1 NWLR Pt. 217) 368 at P. 378. See Also Ijewere V. Eribo (2014) LPELR – 23263 (CA).
In the light of all I have found and stated above, issues one, two and three for determination are hereby resolved against the Appellants in favor of the 1st Respondent only.
On the whole, therefore, having resolved all the three issues for determination against the Appellants in favor of the 1st Respondent, I hold firmly that the Appeal lacks merit and is thus liable to be dismissed. Accordingly, this appeal is hereby dismissed.
In the result, the ruling of the High Court of Federal Capital Territory, Abuja, Coram: S. B. Belgore J, in Suit No. FCT/HC/M/8405/2020: Barr. Gabriel Allahnana Onu (For himself and on behalf of the family of Onu Onoja, Ai-Oko, Adum, Otukpa, Ogbadibo LGA, Benue State) V. Ogbadibo Local Government Council and Access Bank Plc & Ors delivered on 15/9/2021, in which the Appellants’ Application seeking to set aside and discharge the Garnishee Order Nisi was dismissed and the Order Nisi was made Absolute, is hereby affirmed.
There shall be no order as to cost.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA.
I equally agree with the reasoning and the conclusion that the appeal lacks merit and it is accordingly dismissed.
I affirm the ruling of the High Court of the Federal Capital Territory, Abuja, delivered by Hon. Justice S. B. Belgore J, on 15th September, 2021 in suit No. FCT/HC/M/8405/2020.
I abide by all the consequential orders.
BATURE ISAH GAFAI, J.C.A.: I had a preview of the judgment delivered by Sir Biobele Abraham Georgewiil, JCA. I am in agreement with the reasonings expressed therein and conclusion thereby reached. I adopt those reasonings as mine, by which I too find this appeal unmeritorious and in consequence hereby dismiss same accordingly.
Appearances:
S. C. Egede, Esq, Solicitor General of Benue State For Appellant(s)
S. O. Okpala, Esq, with him, O. M. Ajonye, Esq. – for 1st Respondent
The 2nd Respondent, though duly served with hearing notice on 25/5/2022, did not participate at the hearing of this appeal For Respondent(s)