CBN v. AKPAN & ORS (2020)

CBN v. AKPAN & ORS

(2020)LCN/14489(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 22, 2020

CA/C/115/2019

Before Our Lordships:

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

CENTRAL BANK OF NIGERIA APPELANT(S)

And

1.SUNDAY UDO AKPAN 2.SUNDUBROS INVESTMENT LIMITED 3.UNITED BANK FOR AFRICA PLCA (UBA) RESPONDENT(S)

RATIO

WHETHER OR NOT THE OBJECTIVE OF AN APPEAL AGAINST A JUDGEMENT AND OF AN APPLICATION TO SET ASIDE THE JUDGEMENT IS ESSENTIALLY THE SAME

The objective of an appeal against a judgment and of an application to set aside the judgment is essentially the same because the first seeks to obliterate the judgment while the second seeks to abrogate it. InNIGERIA BREWERIES PLC V. DUMUJE (2016)8 NWLR (prt 1515) 536, this Court per Ogakwu, JCA at page 528 has held that an application to set aside a judgment on the ground that the party seeking the order was not heard is not an application extraneous to the suit, because the decision to set aside the judgment or not qualifies as a decision within the context of Section 241(1) of the 1999 Constitution. He went further to state at pages 626 – 627, paras G – D that:-
“Howbeit, it is my deferential opinion that even though garnishee proceedings are directed at garnishee to make over the funds of the judgment debtor in his possession, the brass talks remain that the funds still belong to the judgment debtor and he is to be affected by whatever decision reached in the garnishee proceedings in relation to his funds which are in possession of the garnishee. The litigation process is not a spectator stop, it does not accommodate of having persons as cheerleaders, whose presence will only be to observe and applaud the core actors in the litigation.”
And by the same token, the garnishee who is a custodian of the money, the subject matter of the garnishee proceedings, and a critical party to the garnishee proceedings cannot in my view be a robot and so long as she is not playing a game of hide and seek with a view to shield and protect the money of the judgment debtor in her custody; the garnishee may have certain role to play in the proceedings. PER SHUAIBU, J.C.A.

DISTINCTION BETWEEN A QUESTION OF FAIRNESS OF PROCEEDINGS AND QUESTION OF THE MERIT OF THE TRIAL COURT’S DECISION

I have stated right from the onset that the appellant’s complaint relate to the failure on the part of the lower Court to consider and determine the jurisdictional issues raised and canvassed in its ruling that gave rise to this appeal.
The question of fairness of proceedings is quite distinct from the question of the merit of the trial Court’s decision. When a question of fairness of hearing arises in a case, the appellate Court has a duty to scrutinize the proceedings to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. Thus, it is immaterial if the same decision would have been arrived at had a hearing not been tainted by unfairness. That is so because by its application, a breach of fair hearing leads to the inevitable conclusion that an unfair method cannot produce a fair result. The proper thing to do is to send the case back for retrial or re-hearing. See IDAKWO V. EJIGA (2002)13 NWLR (prt 783) 156 and AHMED V. REGD TRUSTEES, AKRCC (2019) 5 NWLR (prt 1665) 300 at 314. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE TRIAL JUDGE IS TO EXAMINE THE SUBMISSION OF A COUNSEL

No matter how trivial or irrelevant a submission of counsel may appear, the trial judge has a duty to examine it and rule on it. See ODUNUKWE V. OFOMATA (2010)18 NWLR (prt 1225) 404, ABAH V. MONDAY (2015)14 NWLR (prt 1480) 569 and the unreported judgment of this Court in Appeal No. CA/K/377/2017 between CENTRAL BANK OF NIGERIA V. NUHU WAYO delivered on the 4th day of July, 2018. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Chief Judge of Akwa Ibom State, Honourable Justice Godwin J. Abraham delivered on 28th day of February, 2019 wherein he refused to set aside the Garnishee Order Nisi against the appellant herein.

The 1st and 2nd respondents filed a Garnishee proceedings before the lower Court against the appellant to enforce judgment in their favour against the 3rd respondent, United Bank for Africa Plc. The lower Court granted the Garnishee Order Nisi and further ordered the Garnishee/appellant to deposit the judgment sum with the Chief Registrar of Akwa Ibom State Judiciary who would in turn pay same into an interest yielding account pending the determination of the appeal of the judgment debtor to the Court of Appeal.

By a motion on notice filed on the 8th day of October, 2018, the appellant herein prayed the lower Court to set aside the Garnishee Order Nisi as well as the order that the Garnishee pays the judgment sum into an interest yielding account by the Registrar of the lower Court on the ground that the consent of the Attorney General of the Federation

was not sought and obtained and that the lower Court lacks the requisite jurisdiction to entertain matters connected with or pertaining to banking, banks, other financial institution including an action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures.

In reserved and considered ruling delivered on 28th of February, 2019, learned trial chief judge refused the application at pages 55 – 56 of the record of appeal as follows:-
“If there is any issue with the Garnishee proceedings, it is for the judgment debtor to raise. This was the decision in NIGERIAN BREWERIES PLC V. CHIEF WORKI DUMUJE & ANOR (2016)8 NWLR (prt 1515) 538 at pp.622 – 623. Having regard to the current decision of the Supreme Court in CENTRAL BANK OF NIGERIA V. INTERSTELLA COMMUNICATIONS LTD (supra) the applicant lacks the jurisdiction or power to question whether or not the consent of the Attorney General was obtained before the Garnishee proceedings was brought. It is for this reason that I hold that this motion lacks merit. I

hereby order that the same be and is hereby struck out.”

Dissatisfied, appellant appealed to this Court through a notice of appeal filed on 1st day of March, 2019. The said notice of appeal at pages 57 – 60 of the record of appeal contains only one ground of appeal.

Distilled from the said one ground of appeal, Godwin Udondia, Esq. formulated a lone issue for the determination of this appeal as follows:-
Whether the learned trial judge denied the appellant fair hearing by failing to consider the issue of jurisdiction raised by the appellant. (Distilled from ground 1).

Learned counsel for the 1st and 2nd respondents, Gabriel Otor, Esq. also formulated a lone issue for the determination of this appeal thus:-
Whether the learned trial judge denied the appellant fair hearing having heard the application on the merit before dismissing same in a considered ruling.

At the hearing of this appeal on 23rd June, 2020, Nnamonso Ekanem, SAN (leading Ibaha Ubi, Esq.) learned counsel for the appellant adopted and relied on the appellant’s brief of argument filed on 28th March, 2019 and the appellant’s reply brief filed on

17th September, 2019 in urging this Court to allow the appeal.

Gabriel Otor Esq. adopted and relied on the 1st and 2nd respondents’ brief of argument filed on 7th May, 2019 in urging this Court to dismiss the appeal. Harrison C. Okoro Esq., learned counsel for the 3rd respondent did not file any brief and shall therefore not be heard on this appeal.

Arguing the lone issue, learned counsel to the appellant submits that the issue of jurisdiction is very fundamental to adjudication and if not there, the Court labours in vain and all it does amount to nothing. He referred to KATTO V. CBN (1991) 9 NWLR (pt 214) 126 at 149 and ADAMA V. MAIGARI (2019) 3 NWLR (prt 1658)26 at 46.

Still in argument, learned counsel submits that jurisdiction is so fundamental to adjudication, that it could be raised for the first time in the Supreme Court in the course of proceedings. He referred to MARAIRE V. STATE (2017)3 NWLR (prt 1552) 283 at 305. He also relied on the authority in the case of OVUNWO & ANOR V. WOKO & ORS (2011)17 NWLR (prt 1277) 522 at 546 in submitting that it is the duty of the Court to pronounce on every issue properly placed before it

for consideration and determination before arriving at a decision and where it fails to do so, it leads to a miscarriage of justice. The failure of the Court below to consider the issue of jurisdiction raised by the appellant according to the learned senior counsel has denied the appellant fair hearing as contained in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
On the part of the 1st and 2nd respondent, learned counsel submits that whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant factor according to him is the necessity to afford the parties every opportunity to put their case to the Court before the Court gives its judgment. He contend that the appellant having participated fully in the proceedings by moving its motion on notice, argued and adopted its processes before the lower Court gave its considered ruling the appellant cannot claim any denial of fair hearing. He referred to TRANSAMERICA CORP. V. AKANDE (2014)15 NWLR (prt 1431) 502 at 517 to the effect that a party who has been given

adequate time and opportunity to present his case at the trial Court but fail to adduce proper evidence in support of his case cannot complain of denial of fair hearing.

He submits further that the Court below had considered all the issues properly placed before it for consideration and determination before arriving at the decision that the appellant shall pay the judgment sum into an interest yielding account in the name of the Chief Registrar pending the determination of the appeal and thus creating an enabling environment for the parties to ventilate their grievances before delivering the ruling now on appeal.

Let me first deal with the appellant’s reply brief which is meant to respond to new issues raised by the respondent in his brief. Ironically, the reply brief in this case is aimed at rearguing the appellant’s case and therefore goes outside the parameters set for it. Hence, this Court is duty bound to ignore it. I accordingly discountenance the appellant’s reply brief for being an improvement of the appellant’s case.

A careful perusal of the two sets of issues formulated by the respective counsel shows that they

are similar, even though couched differently. The lone issue formulated by the appellant is preferred for being concise and apposite. I shall therefore determine the appeal in the light of the lone issue formulated by the appellant.

The crux of the appellant’s complaint is not that she was not given the opportunity of been heard by the lower Court but that the lower Court did not consider and determine the issue of its jurisdiction raised and that the failure to so consider and determine the said issue amounts to denial of fair hearing.
Jurisdiction is the live-wire of any case and is a threshold which is so fundamental that any decision reached by any Court of law no matter how superb, beautiful, or sound, it is a nullity once such trial Court or tribunal lacks jurisdiction to determine or adjudicate on the matter. The issue of jurisdiction needs not always be attacked on the aspect covered explicitly in the judgment. See OKOROCHA V. U.B.A PLC (2018)17 NWLR (prt 1649) 441 at 453.
In the motion on notice filed on the 8th day of October 2019, the appellant prayed for an order setting aside the Garnishee order Nisi made by the lower Court on

12th of May, 2018 in suit No. HU/MISC/133/2018 Sunday Udo Akpan & Sundubros Investment Ltd. V. United Bank for Africa (UBA) PLC & Central Bank of Nigeria as the order was made without jurisdiction. The appellant as applicant also prayed for setting aside the order of the lower Court made on 23rd July, 2018 mandating the appellant being Garnishee to pay the judgment sum in respect of the said suit into an interest yielding account in the name of the Chief Registrar of the lower Court on the ground that the order was also made without jurisdiction.
The question here is did the lower Court consider and determine the jurisdictional issues raised and canvassed by the appellant as applicant in the ruling now on appeal? At pages 54 – 55 of the record of appeal, learned trial Chief Judge stated as follows:-
“After carefully reviewing this case, my view is that Garnishee i.e the Central Bank of Nigeria is seeking by this action to overreach its limits. In a Garnishee proceedings, the duty of the Garnishee is to appear in Court and inform the Court whether or not it has in his custody monies belonging to the judgment debtor, sufficient to

liquidate the indebtedness. It is not the duty of the Garnishee to engage the judgment debtor in another legal battle.”
In arriving at the above decision, learned trial Chief Judge relied on the Supreme Court decision in CENTRAL BANK OF NIGERIA V. INTERSTELLA COMMUNICATIONS LTD (2018)7 NWLR (prt 1618) 294 wherein the apex Court held the view that the role of a garnishee in any garnishee proceeding is delimited. Thus the restrictive role and legal duty of a garnishee in a judgment proceeding is to conscientiously and faithfully appear before the Court in order to disclose the judgment debtor’s state of account in its custody. The apex Court has also held in GWEDE V. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) 8 NWLR (prt 1673)30 at 53 – 54 that Garnishee proceedings are in the nature of enforcement of a judgment of a Court of law and they do not permit the re-opening of hearing in a matter which has been settled in the judgment sought to be enforced. See also G.T.B. V. INNOSON NIGERIA LTD (2017)16 NWLR (prt 1597) 181 and UNION BANK OF NIGERIA PLC V. BONEY MARCUS INDUSTRIES LTD (2005)13 NWLR (prt 943) 654.
The appellant in this

case was neither playing the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor nor re-opening of hearing in the matter which has been settled in the judgment sought to be enforced. The appellant as Garnishee/applicant at the lower Court merely filed an application seeking to set aside the order Nisi on grounds of lack of jurisdiction to grant the said order in the first place. Perhaps, it is necessary to state at this juncture that a party who is dissatisfied with a decision of a Court and desires to challenge same has two choices. One, is to initiate an appeal against the decision or two, to initiate an application to set aside the decision. The choice taken is usually dependent on the circumstances of each case.
The objective of an appeal against a judgment and of an application to set aside the judgment is essentially the same because the first seeks to obliterate the judgment while the second seeks to abrogate it. InNIGERIA BREWERIES PLC V. DUMUJE (2016)8 NWLR (prt 1515) 536, this Court per Ogakwu, JCA at page 528 has held that an application to set aside a judgment on the ground that the

party seeking the order was not heard is not an application extraneous to the suit, because the decision to set aside the judgment or not qualifies as a decision within the context of Section 241(1) of the 1999 Constitution. He went further to state at pages 626 – 627, paras G – D that:-
“Howbeit, it is my deferential opinion that even though garnishee proceedings are directed at garnishee to make over the funds of the judgment debtor in his possession, the brass talks remain that the funds still belong to the judgment debtor and he is to be affected by whatever decision reached in the garnishee proceedings in relation to his funds which are in possession of the garnishee. The litigation process is not a spectator stop, it does not accommodate of having persons as cheerleaders, whose presence will only be to observe and applaud the core actors in the litigation.”
And by the same token, the garnishee who is a custodian of the money, the subject matter of the garnishee proceedings, and a critical party to the garnishee proceedings cannot in my view be a robot and so long as she is not playing a game of hide and seek with a view

to shield and protect the money of the judgment debtor in her custody; the garnishee may have certain role to play in the proceedings.
I have stated right from the onset that the appellant’s complaint relate to the failure on the part of the lower Court to consider and determine the jurisdictional issues raised and canvassed in its ruling that gave rise to this appeal.
The question of fairness of proceedings is quite distinct from the question of the merit of the trial Court’s decision. When a question of fairness of hearing arises in a case, the appellate Court has a duty to scrutinize the proceedings to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. Thus, it is immaterial if the same decision would have been arrived at had a hearing not been tainted by unfairness. That is so because by its application, a breach of fair hearing leads to the inevitable conclusion that an unfair method cannot produce a fair result. The proper thing to do is to send the case back for retrial or re-hearing. See IDAKWO V. EJIGA (2002)13 NWLR (prt 783) 156 and AHMED V. REGD TRUSTEES, AKRCC

(2019) 5 NWLR (prt 1665) 300 at 314.
I have carefully and meticulously examined the ruling of the lower Court at pages 53 – 56 of the record of appeal, the two issues bordering on the trial Court’s jurisdiction was the bedrock of the appellant’s application of 8th day of October 2019. The issue of jurisdiction though raised and canvassed but same was nowhere considered and pronounced upon. Where the Court as in the instant case, hears the parties without any inhibition but fails to consider the issues canvassed by the parties for the determination of the Court, there is denial of fair hearing. No matter how trivial or irrelevant a submission of counsel may appear, the trial judge has a duty to examine it and rule on it. See ODUNUKWE V. OFOMATA (2010)18 NWLR (prt 1225) 404, ABAH V. MONDAY (2015)14 NWLR (prt 1480) 569 and the unreported judgment of this Court in Appeal No. CA/K/377/2017 between CENTRAL BANK OF NIGERIA V. NUHU WAYO delivered on the 4th day of July, 2018.
In the result, having resolved the lone issue in favour of the appellant, the destiny of the meritorious appeal is indeed plain and clear. I

unhesitantly allow the appeal and set aside the ruling of the lower Court delivered on the 28th day of February, 2019. I remit the appellant’s application in suit No. HU/MISC 479/2018 to the Chief Judge of Akwa Ibom State for re-hearing by another judge. Parties shall bear their respective costs.

PHILOMENA MBUA EKPE, J.C.A.: I was given the privilege of reading in advance the draft copy of the judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA. I agree that the appeal is meritorious and it is hereby allowed.
I also abide by the orders made in the lead judgment.

HAMMA AKAWU BARKA, J.C.A.: It was my privilege to have read in draft the judgment of my learned brother Muhammed L. Shuaibu, JCA.
I agree with the reasoning and the inevitable conclusion reached allowing the appeal. I endorse all orders made in the lead judgment including orders on costs.

Appearances:

Nnamonso Ekanem, SAN with him, Ibaha Ubi, Esq. For Appellant(s)

Gabriel Otor – for the 1st and 2nd Respondents

Harrison C. Okoro – for the 3rd Respondent For Respondent(s)