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CBN v. ABUBAKAR & ORS (2022)

CBN v. ABUBAKAR & ORS

(2022)LCN/16100(CA) 

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, January 31, 2022

CA/KN/40/2021

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

CENTRAL BANK OF NIGERIA APPELANT(S)

And

1. ABDULLAHI ABUBAKAR 2. POLICE SERVICE COMMISSION 3. INSPECTOR GENERAL OF POLICE RESPONDENT(S)

 

RATIO:

THE SETTLED LAW ON THE PRINCIPLE AND PROCEDURE OF GARNISHEE PROCEEDING

The law, as settled by a long list of authorities, is that a Garnishee proceeding is one by which a judgment creditor originates a third-party proceeding against a person indebted to the judgment debtor to pay over directly to the judgment creditor such money as are due to the judgment debtor. A Garnishee proceeding is thus a procedure legally approved by law for enforcing a money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor which forms part of his money in the hands of a third party for attachment. Therefore, in law, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if it exists, it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer. See: UBN PLC v. BONEY MARCUS INDUSTRIES LTD. (2005) ALL FWLR (Pt. 278) 1037 at PP. 1046-1047. FIDELITY BANK PLC. v. OKWUOWULU (2012) LPELR-8497(CA); CITIZENS INTERNATIONAL BANK v. SCOA (NIG) LTD (2006) 18 NWLR (Pt. 1011) 334.” USMAN ALHAJI MUSALE, J.C.A. 

THE PRINCIPLE OF LAW ON THE ROLE OF A GARNISHEE

The law is settled that it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. In GTB V. INNOSON NIGERIA LIMITED (2017) LPELR-42368(SC) the Supreme Court, Per EJEMBI EKO, JSC (Pp. 19-20, paras. F-D) held, thus:
“It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor. It is for this reason that I consider or view this aspect of the instant application an abuse of Court process.” USMAN ALHAJI MUSALE, J.C.A. 

THE ONLY DUTY OF A GARNISHHE TO THE COURT IN A GARNISHEE PROCEEDINGS

In that case (GTB Vs Innoson), My Lord Kekere-Ekun JSC had added:
“The only duty of a garnishee, in a garnishee proceedings, is to satisfy the Court why the funds in its possession belonging to the judgment debtor, should not be ganished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor nor to protect the debtor’s money in its possession. See Oceanic Bank Plc Vs Michael Olusegun Oladepo & Anor (2012) LPELR-19670 CAITA GEORGE MBABA, J.C.A.:

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the National Industrial Court, Kano Judicial delivered in Suit No. NICN/KN/18/2019 by Hon. Justice E. D. E. Isele on 5th December, 2019.

The ruling that led to this appeal was made pursuant to the Garnishee proceeding filed by the 1st Respondent against the monies of the 2nd and 3rd Respondent domiciled with the Appellant. The Appellant was the Garnishee, the 1st Respondent was the judgment creditor and the 2nd and 3rd Respondents were the judgment debtors.

The order absolute of the said Garnishee proceedings was made on the 7th October, 2019. The Appellant started to comply with the order absolute, wherein, it transferred the sum of N1, 279, 673.75k (One Million Two Hundred and Seventy-Nine Thousand and Seventy-Five Kobo) to the account of the judgment creditor/1st Respondent being the balance in the account of the 1st judgment debtor.

​It was contended by the Appellant that while it was complying with the said absolute order, the 3rd Respondent (1st judgment debtor) filed and served his Notice of Appeal, in Appeal No. CA/K/596/2019 challenging the order absolute granted by the lower Court. Consequent upon the said appeal, the appellant stopped complying with the order absolute of the lower Court. In view of the foregoing, the 1st Respondent/judgment creditor initiated a contempt proceeding at the lower Court vide Form 48 (Notice of consequence of Disobedience to order of Court) and Form 49 (Notice to show cause why order of committal to prison should not be made) against the Director of Legal Services of the Appellant, Kano Branch.

In defence to the contempt proceedings, the Appellant filed on the 21/11/2019 an affidavit showing cause why the order of committal to prison should not be made.

On 5th December, 2019, the case came up before the lower Court, the contempt proceedings was not moved and the Court made the following findings:
“The order absolute of this Court was made on 7th October, 2019 that the sum of N32,574,150;9K (Thirty-Two Million, Five Hundred and Seventy-Four Thousand One Hundred and Fifty Naira Nine Kobo) be paid to the judgment creditor. Now it is trite law that a notice of appeal does not act as a stay. And there is no order for stay or such an application.
The Garnishees are hereby ordered to pay the above-mentioned sum immediately within the next 3 working days failing which the judgment creditor my (sic) freely pursue the contempt proceedings against them which is filed before the Court.”
See page 33 of the record.

Dissatisfied with the said decision, Appellant filed its notice of appeal premised on lone ground of appeal. The ground and its particulars are contained on pages 29 – 30 of the record of appeal. Record of appeal and the supplementary record of appeal was compiled and transmitted to the Court in accordance with the rules of Court. Consequent upon that, parties filed and exchanged their respective briefs of argument. The Appellant’s brief filed on 17/2/20121 and the Appellant’s Reply brief filed on 27/9/20121 was settled by Abdulqadir Mustapha Esq. On the part of the Respondents, it was only the 1st Respondent that filed his brief of argument on the 27/8/21 settled by Victor O. Odjemu Esq.

From his lone ground of appeal, learned counsel for the Appellant distilled a lone issue for determination to wit:
Having regard to nature of the contempt proceedings and circumstances of this case, whether or not the learned trial judge was right to order that the Appellant paid the Garnishee sum without first determining the Appellant’s affidavit to show cause.

For his part, learned counsel for the 1st Respondent also formulated  a lone issue for determination, thus:
Whether the trial Court was right when it ordered the Appellant to pay the garnishee sum to the 1st Respondent.

In determining this appeal, I will adopt the Appellant’s issue for determination, for the Respondent’s issue is similar to the Appellant’s issue.

In arguing this appeal, counsel for the Appellant submitted that the failure of the learned trial judge to hear and determine contempt proceedings after the Appellant had filed an Affidavit to show cause was against the settled law that Courts are bound to hear and determine all applications pending before it in line with the decisions in the cases of RIRUWAI V. SHEKARAU (2008) 12 NWLR (Pt. 1100) 142, AFRO – CONT. LTD V. CO-OPERATIVE ASSOCIATION OF PROF. INC. (2003) 5 NWLR (Pt. 813) 303 AND ABUBAKAR V. YAR’ADUA (2008) 4 NWLR (Pt. 1078) 465 at 513 para E – F.

It was further submitted that the order issued by the learned trial judge on the 5th December, 2019 directing the Appellant to pay the judgment sum to the 1st Respondent deprived the Appellant’s constitutional right of fair hearing. He referred to the cases of PAM V. MOHAMMED (2008) 16 NWLR (Pt. 1112) 1, OJO V. FRN (2008) 11 NWLR (pt. 1099) 467.

Learned counsel reiterated that the failure of the Appellant to comply with order of the trial Court issued on the 5th December, 2019 directing it to comply with order absolute, that resulted the 1st Respondent filing contempt proceeding before the lower Court was because of the pendency of Appeal No. CA/KN/596/2019 before the Court filed by the 3rd Respondent against the order absolute dated 7th October, 2019.

In concluding, counsel urged the Court to resolve this issue in favour of the Appellant and to set aside the ruling of the lower.

​Responding on this issue, learned counsel for the Respondent submitted that a Garnishee proceeding arises in a suit when the suit has been prosecuted to judgment with an Order for payment of money to the successful party. He referred to the case of Governor of Oyo State V. Akinyemi (2002) FWLR (pt.120) 1761 at 1775 paragraph C-D, Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795)120 at 133 paras C-D, Denton-West V Muoma (2008) All FWLR (pt. 433) 1423 at 1445. Learned counsel contended that the instant garnishee proceedings objected to was filed to execute the judgment of the National Industrial Court of Nigeria which was delivered on the 21st day of May, 2014 in compliance with the provisions of Section 84 of the Sheriffs and Civil Process Act Cap S6 LFN 2004. Learned counsel stated that on the day the trial Court slated the matter for the garnishee to show cause, the Appellant/garnishee appeared with an affidavit stating that the account attached belong to the Respondents and they had already earmarked the sum as contained in the Order Nisi whereupon the trial Court made the order Absolute on the 7th day of October, 2019 as the 2nd and 3rd Respondent refused and neglected to appear and object to making the said Order Absolute. It was submitted that the filing of Forms 48 and 49 against the Appellant by the 1st respondent was pursuant to the Appellant’s refusal to comply with the Order Absolute made on the 7th day of October 2019. Learned counsel stated that the reason why the order absolute was not complied as canvassed by the Appellant that it was the filing of notice of appeal by the 3rd Respondent that made the Appellant to stop the process of payment of the judgment sum to the 1st Respondent. He contended further that the order made by the lower Court directing the Appellant to comply with the Order Absolute within 3 working days was based on the fact that the Appellant’s notice of appeal is not accompanied with an application for stay. Relying on the case of Guaranty Trust Bank Plc. v. Innoson Nigeria Limited (2017) LPELR 42368 (SC) learned counsel contended that it is not for a garnishee to fight the cause of the judgment debtor who either accepts the judgment against him and does nothing about it or who may be indolent to fight his cause. He submits a judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. That the cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one and does not include his usurping the cause of action of the Judgment Debtor. He referred to Oceanic Bank Plc. v, Michael Olusegun Oladepo & Anor (2012) LPELR 19670. He urged the Court to resolve this issue in favour of the 1st Respondent. In his reply brief, learned counsel for the Appellant submitted that the 1st Respondent misconceived the sole issue for determination in this appeal. He submits that the sole issue the Appellant is contending is the Order made by the trial Court directing the Appellant to pay the judgment sum to the 1st respondent without first hearing and determining the Appellant’s Affidavit to show cause.

He contended that since the Trial Court has issued an Order Absolute dated 7th October, 2019, the same Court cannot reopen the Garnishee proceeding and issue another Order on the 5th December, 2019, as there was nothing before it. He referred to the case of UNION BANK OF NIGERIA v. BONEY MARCUS IND. LTD (2005) 13 NWLR (PT.943) 654, Per Akintan, JSC, the Court held, thus;
“Once an Order absolute is made there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined the matter between parties as per as the proceedings are concerned. The Court would be functus officio. There would then be nothing left to be determined by the Court”.

He reiterated that once an Order absolute is issued, the rights of the parties has been disposed of. He referred the case of ODUTOLA v. ODERINDE (2004) 12 NWLR (PT. 888) 574. He urged the Court to allow this Appeal and set aside the decision and Order of the trial Court dated the 5th day of December, 2019.

​The main contention in this appeal is the order made by the trial Court on the 5th day of December, 2019 directing the Appellant to comply with the order absolute made on the 7th October, 2019 while the Appellant’s affidavit to show cause was pending. It was the contention of the Appellant’s counsel that an appeal was filed by the 3rd Respondent in Appeal No. CA/KN/596/2019 before the Court against the order absolute dated 7th October, 2019. He contended that since the affidavit to show cause filed before the lower Court has revealed those facts, the learned trial judge ought to have considered its affidavit before making his order of 5th December, 2019.

The law, as settled by a long list of authorities, is that a Garnishee proceeding is one by which a judgment creditor originates a third-party proceeding against a person indebted to the judgment debtor to pay over directly to the judgment creditor such money as are due to the judgment debtor. A Garnishee proceeding is thus a procedure legally approved by law for enforcing a money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor which forms part of his money in the hands of a third party for attachment. Therefore, in law, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if it exists, it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer. See: UBN PLC v. BONEY MARCUS INDUSTRIES LTD. (2005) ALL FWLR (Pt. 278) 1037 @ PP. 1046-1047. FIDELITY BANK PLC. v. OKWUOWULU (2012) LPELR-8497(CA); CITIZENS INTERNATIONAL BANK v. SCOA (NIG) LTD (2006) 18 NWLR (Pt. 1011) 334.”

In the instant case, an order absolute was made by the trial Court and the garnishee even started to comply with the order absolute. The grievances arose when it was alleged by the Appellant that an appeal was filed by the 3rd Respondent against the order absolute of the trial Court and as such it could not continue to comply with the said order. Though a contempt proceeding was filed against the appellant for its failure to comply with the order absolute and the Appellant filed an affidavit to show cause against the contempt proceeding but was not heard by the trial Court. However, the learned trial judge reiterated his earlier order absolute of 7th October, 2019 when he directed the Appellant to comply with it, inspite of the Appellant affidavit to show cause. The relevant provisions that govern Garnishee proceedings that contain the onus placed on a Garnishee when a garnishee proceeding is filed is Section 83 OF THE SHERIFFS AND CIVILS PROCESS ACT which succinctly provides thus:
“The Court may, upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant of his legal practitioners that judgment has been recovered and that it is still unsatisfied 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 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 to from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with the costs aforesaid.”
​The import of the above provision placed a duty on a Garnishee in garnishee proceedings to appear in Court upon receipt of the order Nisi, and show cause why the funds in the judgment debtor’s account should not be paid over to the Judgment creditor in satisfaction of the judgment debt. This is done by filing an affidavit to show cause with all the relevant documents, disclosing the true picture, status or standing of the judgment debtor’s accounts at the time of the service of the Garnishee Order Nisi on it. See also: SKYE BANK PLC v. DAVID & ORS (2014) LPELR-23731 CA; OCEANIC BANK PLC v. OLADEPO (2012) LPELR-19670 CA.

In the instant case, what the Appellant’s affidavit to show cause sought to forestall was the stay of execution of order absolute pending the hearing and determination of the appeal filed by the 3rd Respondent against the order absolute of 7th October, 2019. It is trite that until the judgment sum is paid to the judgment creditor, the process of execution can be stayed for legally recognized reasons. One of such reasons is that there is a pending appeal against the said judgment or order accompanied with the motion for stay of execution that if the money is paid to the judgment creditor while the appeal is pending, it will render nugatory, the process and result of the appeal. See S.P.D.C (Nig) Ltd & Anor v. Amadi & Ors (2011) LPELR 3204 SC. In the instant case, there was no pending motion for stay of execution of the order absolute of the trial Court. In fact, the law did not foresee the garnishee to file stay of execution against the order absolute. The option open to file motion for stay of execution is for the judgment debtor. See S.P.D.C (Nig) Ltd & Anor v. Amadi & Ors supra). The law is settled that it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. In GTB V. INNOSON NIGERIA LIMITED (2017) LPELR-42368(SC) the Supreme Court, Per EJEMBI EKO, JSC (Pp. 19-20, paras. F-D) held, thus:
“It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor. It is for this reason that I consider or view this aspect of the instant application an abuse of Court process.”
In view of the foregoing, the appellant having not exercised any of the option available to it in the circumstance of this case, the action taken by it can best be described as a meddlesome interloper. I resolve the lone issue for determination in this appeal against the appellant and in favour of the Respondent. In conclusion, having resolved the issue for determination in this appeal against the Appellant, the appeal lacks merit. The ruling of the trial Court of 5th December, 2019 is hereby affirmed. There shall be no order as to costs.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, U. A. Musale JCA and I am in complete agreement with his reasoning and conclusion that the Appeal is devoid of merit.

​Appellant’s Counsel should advise his client to respect every valid order of the Court in respect of a garnishee order absolute and stop posing as defence attorney for the judgment debtor, in defiance of the Court. We have stated, several times, that a Garnishee is not placed to fight the cause of a Judgment Debtor, as its sole duty is to disclose whether or not there is the judgment debtor’s funds in its (garnishee’s) custody to satisfy the judgment debt, and to comply with the order absolute made by the Court. See the case of Guarantee Trust Bank Plc Vs Innoson Nig. Ltd (2017) LPELR-42368 (SC) ably cited and reproduced in the lead judgment.
In that case (GTB Vs Innoson), My Lord Kekere-Ekun JSC had added:
“The only duty of a garnishee, in a garnishee proceedings, is to satisfy the Court why the funds in its possession belonging to the judgment debtor, should not be ganished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor nor to protect the debtor’s money in its possession. See Oceanic Bank Plc Vs Michael Olusegun Oladepo & Anor (2012) LPELR-19670 CA.

​I too dismiss the Appeal and abide by the consequential orders in the lead judgment.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother USMAN ALHAJI MUSALE, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

Appearances:

A. Mustapha, Esq. For Appellant(s)

M. Musa, Esq. – for 1st Respondent
S. O. Ekwe, Esq. – for 3rd Respondent For Respondent(s)