CBN v. CERAMIC MANUFACTURING (NIG) LTD & ANOR
(2022)LCN/16103(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/K/184/06
Before Our Lordships:
Boloukuromo Moses Ugo 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. CERAMIC MANUFACTURING NIG. LTD 2. HERITAGE BANKING COMPANY LTD RESPONDENT(S)
RATIO:
WHAT CONSTITUTES THE RATIO DECIDENDI OF A JUDGMENT AND WHO IS A PUBLIC OFFICER?
“It is well settled that where two reasons are given for a judgment they may both constitute the ratio decidendi for such judgment. Jacobs v. L.C.C. (1950) 1 ALL E.R. 737, London Jewellers Ltd v. Stentorough (1934) 2 K.B. 206. A reason given by a judge is not to be regarded as obiter dictum merely because another reason equally valid was also given.”
“On the basis of all the foregoing, I hereby resolve this issue against Central Bank.”
The argument of Central Bank of Nigeria this time is that it is its Governor that is the public officer and it is he who is in custody of the account of 2nd respondent with it so consent of the Attorney General still ought to be first obtained to attach that account. I can only say, in answer to that argument, that it kind of ignores the fact that its Governor is not the one that 1st respondent proceeded against, so that argument does not arise. At any rate, customers of banks do not bank with the Bank’s Chief Executive Officer but with the Bank itself which is a corporate entity and different from its staff. The banker/customer relationship that also arises upon the customer’s deposit of his funds with the bank, which makes the bank indebted to the customer (see Abacha Foundation For Peace & Unity v. United Bank for Africa Plc (2010) ALL FWLR (PT 522) 1668 at 1680-1681, Hirat Balogun v. National Bank of Nigeria Ltd (1978) LPELR-723 (SC) p. 12) is with the bank itself. This argument is therefore of no avail.
GARNISHEE PROCEEDINGS IS A SEPARATE AND DINSTINCT ACTION BETWEEN THE JUDGMENT CREDITOR AND THE GARNISHEE
In Unreported Appeal No: CA/187/2017 – Central Bank of Nigeria v. Igbadoo & 2 CWS delivered on 9th of November, 2017, this Court (Ekanem, JCA) at p. 36 – 39 had this to say on this issue:
…the fact that garnishee proceedings are a separate and distinct action or proceedings between the judgment creditor and the garnishee though it flows from the judgment that pronounced the debt owing. See Diamond Bank Ltd v. Ndubusi (2002) FWLR (PT. 105) 727 and Denton-West v. Muoma (2008) 6 NWLR (PT. 1083) 418, 442. Being a separate and distinct action or proceedings between the judgment creditor and the garnishee, the issue of jurisdiction in this instance Section 251(1) (d) of the Constitution, comes into play. This is because the judgment creditor steps into the shoes of the judgment debtor to sue for the money due and owing to the judgment debtor from the garnishee.
THE JURISDICTION OF THE COURT OVER A SUBJECT MATTER OF A SUIT AND ITS IMPLICATION
In other words, a Court must first and foremost have jurisdiction over the subject matter of the suit before it can exercise any judicial powers over the suit or matter. See Shaban v. Sambo (2010) 9 NWLR (PART 1226) PAGE 353. The implication is that the lower Court must first have jurisdiction over the Garnishee in banking or fiscal matters as is in the instance before it can exercise its inherent or statutory powers to enforce its judgment by garnishee proceedings against the appellant. It does not possess such jurisdiction and so the idea of its exercising power in regard to the garnishee proceedings does not arise. No Court has inherent powers to do a thing which it is not constitutionally or statutory empowered to do. No Court can act or extend its jurisdiction when none has been conferred….” BOLOUKUROMO MOSES UGO, J.C.A.
THE COURT WHERE GARNISHEE PROCEEDINGS CAN BE HEARD
In Central Bank of Nigeria v. Kakuri LPELR – 41468 (CA), again this Court (Agim, JCA, as he then was) held thus:
” … Garnishee proceedings can be brought in only a Court where the judgment debtor can sue the garnishee for the debt. I agree with the learned Counsel for the appellant that the Court where the (2nd judgment debtor) can sue the Central Bank of Nigeria (garnishee) for the funds in the custody of the appellant attached by garnishee is the Federal High Court of Nigeria and not Federal Capital Territory High Court…. And Section 251 (1) (d) of the 1999 Constitution vests exclusive jurisdiction over such suits in the Federal High Court of Nigeria…..” BOLOUKUROMO MOSES UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Kano State of 02/12/2005 in Suit No. K/475/96 making absolute its garnishee order nisi against the appellant in the sum of N49,951,543.33. The said sum represents a money judgment earlier obtained on 06/12/2004 by 1st respondent against 2nd respondent in the same suit and Court. Second respondent, having failed to liquidate the said judgment debt, first respondent commenced in the High Court of Kano State its garnishee proceeding against appellant.
The gravamen of her application is contained in paragraphs 3(f) and (g) of her 5-paragraphed affidavit in support of her application for garnishee order nisi (contained at pages 16-19 of the records) where her lawyer’s Litigation Secretary, one Collins Ukachukwu, swore that:
3(f) That he knows as a fact that the law requires that all banks including the judgment debtor bank to maintain a statutory account with the garnishee bank.
(g) That he knows as a fact that the judgment debtor bank in line with the averment above maintains a statutory account with the Central Bank of Nigeria (Garnishee).
Even though, upon receipt of the garnishee order nisi calling on her to show cause why the order should not be made, appellant served on 1st respondent an affidavit (see p. 29-33), deposing therein (at paragraph 5) that ‘the judgment debtor’s account with the Garnishee is in debit to the tune of N17.41 billion,’ and annexed to the said affidavit a certified true copy of the said account of 2nd respondent/judgment debtor with her, the trial judge, after discountenancing the said statement of account on grounds of improper certification, proceeded to grant the application and made his earlier garnishee order nisi, absolute as earlier explained. His Lordship (Umar Wada Rano, J.) simply reasoned that since it was appellant that asserted that the account of 2nd respondent/judgment debtor with it was in debit balance of N17.41 billion as at close of business on September 27, 2005, the burden of proof was on it to prove that assertion and since 2nd respondent’s statement of account with appellant annexed to appellant’s affidavit had been rejected for non-compliance with Section 111 of the Evidence Act, appellant had nothing to support its assertion. On that basis, His Lordship invoked Section 149(d) of the Evidence Act relating to withholding evidence and its presumption and granted the application to make the garnishee order absolute.
Dissatisfied, appellant immediately lodged this appeal against it to this Court on three grounds but later amended them with the leave of this Court to four grounds.
In its brief of argument settled by A.S. Aikawa, Esq., appellant formulated two issues for determination as follows:
1. Whether the High Court of Kano State had jurisdiction to entertain the garnishee proceedings against it.
2. Whether there was money of 2nd respondent/judgment debtor with it liable to be attached.
Neither respondent responded to the appeal, despite service of processes on them, so the appeal shall be determined on the arguments of appellant alone.
Issue 1: Appellant argued its issue one regarding the jurisdiction of the High Court of Kano State to entertain the garnishee application of 1st respondent on three fronts. It anchored the first limb of its argument on Section 251(1) (d) of the 1999 Constitution (as amended) of this country which reads thus:
“S.251 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
(d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures.
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.”
It contended that 1st respondent’s garnishee proceeding before the High Court of Kano State is all about the statutory account which every bank must have with it before commencing operation; that the issue whether the said account exists or not, whether it is in debit or credit and whether it is in custody of it are all issues relating to banking as well as action against the Central Bank as contemplated by Section 251(1)(d) above of the 1999 Constitution and so comes within the exclusive jurisdiction of the Federal High Court. It went on to cite NEPA v. Edegbero (2002) 18 NWLR (PT. 789) 79 to further argue that it was performing its administrative and statutory functions so the High Court of Kano State lacked jurisdiction to entertain the garnishee proceeding against it.
On a second front, it argued that by Section 84(1) of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990, when money liable to be attached is in the custody of or under the control of a public officer garnishee order nisi shall not be made unless consent to such attachment is first obtained from the Attorney General of the Federation, but that consent was not obtained. It cited Section 7 of the Banks and Financial Institutions (Amendment) Act 1999 and Section 9(1) and (2) of the Central Bank of Nigeria Act (Cap 47) Laws of the Federation of Nigeria 1990 to submit that the Governor of the Central Bank is a public officer and in the public service of the Federation; that its Governor is in charge of its day to day management and controls its operations, including the statutory account of 2nd respondent, so 1st respondent’s omission to first obtain the consent of the Attorney General of the Federation before commencing its proceeding rendered it incompetent and denied the lower Court of jurisdiction.
On still a third front, appellant argued that 1st respondent did not show that it was indebted to 2nd respondent or that it was within Kano State where the garnishee proceeding was taken out, both of which, according to it, are preconditions for commencement of a garnishee proceedings under Section 83(1) of the same Sheriffs and Civil Process Act, so the lower Court again lacked jurisdiction. It specifically drew our attention to the fact that it was served the garnishee proceedings in Abuja and not Kano State.
It ended by urging us to set aside the garnishee proceeding and declare it a nullity.
Resolution of issue
I shall consider the various limbs of this argument of appellant in reverse order by starting from its second and third limbs before taking on its first limb.
A. That consent of the Attorney General of the Federation was required to have been first obtained by 1st respondent pursuant to Section 84(1) of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990, the Governor of the Central Bank being a ‘public officer’ and so in charge of the custody and management of the account of 2nd respondent that was attached by the garnishee proceeding. The usual argument on this point which has been made repeatedly to this Court by the Central Bank of Nigeria and has also succeeded in polarizing it as demonstrated by my brother Afen, JCA, in his leading judgment in his Ecobank Nigeria Plc v. Admiral Environmental Care Limited & Ors (2021) LPELR-56130(CA), has always been that the Central Bank of Nigeria itself is a public officer and so consent of the Attorney General of the Federation to commence a garnishee proceeding against it. I tried to puncture that argument when I said in my leading judgment in Central Bank of Nigeria v. Aminu Umar & Ors, Appeal No CA/J/158/2020 of 19/7/2021 (also cited with approval by my learned brother Afen, JCA, in Eco Bank v. Environmental Care Limited & Ors (2021) LPELR-56130) that:
“Yes, I am not unaware of the argument in some quarters that the decision of the apex Court in C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C) was rather based on the fact that the Attorney General was in that case held to have given his consent by implication to the garnishee proceedings, he, having earlier instructed some payment of the judgment debt in issue before the commencement of the garnishee proceedings. It is thus argued that that fact is the real basis or ratio decidendi of C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT 1618) 294 (S.C) and not its pronouncement distinguishing Ibrahim v. JSC (supra) and affirming emphatically that “The appellant [same Central Bank of Nigeria) does not stand as a public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise.’’ I am not by any means persuaded by that argument given the very clear pronouncement of Ogunbiyi, JSC, in her lead judgment as shown above directly distinguishing its earlier Limitation statute/Public Officers Protection Law case of Ibrahim v. JSC (supra) where public officer was defined as including an artificial public persons or office as shown in the passage of her judgment earlier reproduced. It has to be noted too that her Lordship even went further to say that this Court’s decision in Purification Tech (Nig.) Ltd v. A.G. Lagos State & Ors (2004) 9 NWLR (PT. 879) 665 is ‘on all fours’ with C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT. 1618) 294 (S.C). Incidentally, Purification Tech (Nig.) Ltd v. A.G. Lagos State & Ors (supra) did not involve any issue of the Attorney General giving a prior instruction for payment of judgment debt. It was rather simply about the instant issue of whether prior consent of Attorney-General is a condition precedent under Section 84 of the Sheriffs and Civil Process Act to commence garnishee proceedings to attach debts of a judgment debtor customer of the Central Bank of Nigeria which funds it holds as a banker to the judgment debtor. It is thus my humble opinion, still, that the decision of the apex Court in C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT. 1618) 294 was simply to the effect that prior consent of Attorney General is not a condition precedent under Section 84 of the Sheriffs and Civil Process Act for commencement of garnishee proceedings to attach debts of a judgment debtor/customer of the Central Bank of Nigeria. In any case, even if the finding of the apex Court in C.B.N. v. Inter Stella Communications Ltd, to the effect that the Attorney General by his actions in that case by directing payment of the debt prior to the commencement of the garnishee proceeding had given his consent to the attachment, that would only be one of two rationes decidendi for the decision, and not that it in any way reduces to a mere obiter dictum its clear decision that Attorney General’s consent is not needed to commence garnishee proceedings against the Central Bank of Nigeria to attach debts due to its judgment debtor/customer, for as it was said by Karibi-Whyte, JSC, in lead judgment in Aeroflot Soviet Airlines v. United Bank For Africa Ltd (1986) 3 NWLR (PT. 27) 188 at 199 Para. D- E:
“It is well settled that where two reasons are given for a judgment they may both constitute the ratio decidendi for such judgment. Jacobs v. L.C.C. (1950) 1 ALL E.R. 737, London Jewellers Ltd v. Stentorough (1934) 2 K.B. 206. A reason given by a judge is not to be regarded as obiter dictum merely because another reason equally valid was also given.”
“On the basis of all the foregoing, I hereby resolve this issue against Central Bank.”
The argument of Central Bank of Nigeria this time is that it is its Governor that is the public officer and it is he who is in custody of the account of 2nd respondent with it so consent of the Attorney General still ought to be first obtained to attach that account. I can only say, in answer to that argument, that it kind of ignores the fact that its Governor is not the one that 1st respondent proceeded against, so that argument does not arise. At any rate, customers of banks do not bank with the Bank’s Chief Executive Officer but with the Bank itself which is a corporate entity and different from its staff. The banker/customer relationship that also arises upon the customer’s deposit of his funds with the bank, which makes the bank indebted to the customer (see Abacha Foundation For Peace & Unity v. United Bank for Africa Plc (2010) ALL FWLR (PT 522) 1668 at 1680-1681, Hirat Balogun v. National Bank of Nigeria Ltd (1978) LPELR-723 (SC) p. 12) is with the bank itself. This argument is therefore of no avail.
B. That 1st respondent did not show that it (Central Bank of Nigeria) was indebted to 2nd respondent or that it was within Kano State where garnishee proceeding was taken out so the lower Court again lacked jurisdiction. The first part of this argument is also appellant’s entire issue 2, so I shall consider it when I get there.
As for the other argument that it was not shown that Central Bank is within Kano State, where the garnishee proceeding was commenced, and even more so as it was served processes in Abuja, I note that the lower Court rejected this same argument when it held in its ruling thus:
However, I think the garnishee which has a Branch in Kano could be deemed to be within Kano State. Since it has not been denied that the garnishee has a Branch in Kano, the judgment creditor could not be said to be in breach of Section 83(1) of the Sheriffs and Civil Process Act.
That decision cannot be faulted given the fact, which is common knowledge and so this Court is obliged to take note of it by Section 124 of the Evidence Act, that the Central Bank of Nigeria has a Branch in Kano State and so is within Kano State as per section 83(1) Sheriffs and Civil Process Act.
C. That Section 251(1)(d) of the 1999 Constitution (as amended) of this country makes the jurisdiction to entertain garnishee proceedings against the Central Bank of Nigeria exclusive to the Federal High Court so the jurisdiction of the High Court of Kano State was ousted.
As shown earlier, Central Bank of Nigeria rests this argument on the provisions of Section 251(1)(d) of the 1999 Constitution of this country stating that:
“S.251 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
(d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking….”
Resolution of issue
In Unreported Appeal No: CA/187/2017 – Central Bank of Nigeria v. Igbadoo & 2 CWS delivered on 9th of November, 2017, this Court (Ekanem, JCA) at p. 36 – 39 had this to say on this issue:
…the fact that garnishee proceedings are a separate and distinct action or proceedings between the judgment creditor and the garnishee though it flows from the judgment that pronounced the debt owing. See Diamond Bank Ltd v. Ndubusi (2002) FWLR (PT. 105) 727 and Denton-West v. Muoma (2008) 6 NWLR (PT. 1083) 418, 442. Being a separate and distinct action or proceedings between the judgment creditor and the garnishee, the issue of jurisdiction in this instance Section 251(1) (d) of the Constitution, comes into play. This is because the judgment creditor steps into the shoes of the judgment debtor to sue for the money due and owing to the judgment debtor from the garnishee. In Nwadialo’s Civil Procedure in Nigeria, 2nd Ed. p 2013, it is stated that the Garnishor vis-a-vis the garnishee, stands in the shoes of the original judgment debtor”. It follows inexorably that such proceedings can only be brought in a Court in which the judgment debtor could sue the garnishee….
The implication is that the lower Court must first have jurisdiction over the garnishee in banking or fiscal matters as in this instance before it can exercise its inherent or statutory powers to enforce its judgment by garnishee proceedings against the appellant. No Court has inherent power to do a thing which it is not constitutionally or statutorily empowered to do. …
In other words, a Court must first and foremost have jurisdiction over the subject matter of the suit before it can exercise any judicial powers over the suit or matter. See Shaban v. Sambo (2010) 9 NWLR (PART 1226) PAGE 353. The implication is that the lower Court must first have jurisdiction over the Garnishee in banking or fiscal matters as is in the instance before it can exercise its inherent or statutory powers to enforce its judgment by garnishee proceedings against the appellant. It does not possess such jurisdiction and so the idea of its exercising power in regard to the garnishee proceedings does not arise. No Court has inherent powers to do a thing which it is not constitutionally or statutory empowered to do. No Court can act or extend its jurisdiction when none has been conferred….”
In Central Bank of Nigeria v. Kakuri LPELR – 41468 (CA), again this Court (Agim, JCA, as he then was) held thus:
” … Garnishee proceedings can be brought in only a Court where the judgment debtor can sue the garnishee for the debt. I agree with the learned Counsel for the appellant that the Court where the (2nd judgment debtor) can sue the Central Bank of Nigeria (garnishee) for the funds in the custody of the appellant attached by garnishee is the Federal High Court of Nigeria and not Federal Capital Territory High Court…. And Section 251 (1) (d) of the 1999 Constitution vests exclusive jurisdiction over such suits in the Federal High Court of Nigeria…..”
The Court of Appeal is bound by its previous decisions. See Usman v. Umaru (1992) NWLR (PT 254) 377, Young v. Bristol Aeroplane Co Ltd (1994) ALL E.R. 293, 300, Igbani v. Bayelsa State Independent Electoral Commission & Ors (2013) LPELR- CA/PH/304/2011). I therefore resolve this issue in favour of appellant and hold that the High Court of Kano State lacked jurisdiction to entertain the Garnishee proceedings in Suit No. K/184/06.
Issue 1 therefore succeeds and is resolved in favour of appellant on the crucial issue of lack of jurisdiction in the lower Court over the garnishee application of first respondent/judgment creditor.
Issue 2: Whether there was money of 2nd respondent/judgment debtor with appellant liable to be attached. Appellant here submitted that from the evidence adduced before the lower Court, there was no conclusive proof that there was money of 2nd respondent in its account with it liable to be attached; that rather, what was before the Court was a dispute as to whether 2nd respondent’s account with it was in credit or debit. That position, it submitted, was reflected in the trial judge’s final ruling at page 55 of the records. It pointed out that 1st respondent, in a bid to prove that there was money in the account of 2nd respondent with it, only averred that the said account existed and the license of the 2nd respondent/judgment debtor was not withdrawn by appellant/garnishee. It submitted that 1st respondent should have gone further to state the amount in the said account as it is, according to it, trite that he who asserts must prove. On its part, it submitted, it exhibited the most current statement of account of 2nd respondent showing that it was in debit but the trial Judge rejected that document, thus leaving it with nothing to ascertain the actual position of that account. Given that state of affairs, it submitted, the trial judge, in order to resolve the dispute on the state of the account, ought to have adverted to Section 87 of the Sheriffs and Civil Process Act which provides that “If the garnishee appears and disputes the liability the Court instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceeding may be tried or determined, or may refer the matter to a referee.” The failure to apply this section to the dispute by calling oral evidence has left the issue inconclusive as not to warrant the grant of the Garnishee order, it submitted.
Resolution of issue
I think two key issues call for determination here. First is: as between a judgment creditor and a garnishee denying indebtedness in a garnishee proceeding, who bears the burden of proof of indebtedness of the garnishee to the judgment debtor. Secondly, where a garnishee in a garnishee denies indebtedness to a judgment debtor, what is the Court expected to do by the Sheriffs and Civil Process Act and the Judgment Enforcement Rules. To answer those questions, we must go back to Section 83(1) of the Sheriff and Civil Process Act Cap 407 Laws of the Federation of Nigeria which reads 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 the or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what extent and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the Garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the Garnishee proceedings and by the same or any subsequent order it may be ordered that the Garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with the costs aforesaid. (Italics mine)
It is clear from this provision, especially from italicized portion, that the burden is on the Judgment Creditor alleging the garnishee’s indebtedness to his judgment debtor to prove that indebtedness. That burden, I completely agree with the appellant, cannot be discharged nor shifted to the garnishee by the judgment creditor simply deposing in the affidavit in support of his ex parte application that his judgment debtor maintains an account with a particular bank as 1st respondent did in her paragraphs 5(g) and (f) as earlier shown, for its is common knowledge that an account could be in debit as it could also be in credit. Besides, it is common knowledge that even accounts showing credit are sometimes only so because of loans or credits facilities granted it the bank, which they must pay back. So, what is required of the judgment creditor by Section 83(1) of the Sheriff and Civil Process Act is a direct assertion that the garnishee is indebted to the judgment debtor and the amount of money the garnishee is so indebted. That is clear not only from Section 83(1) of the Sheriff and Civil Process Act but also from the power vested on the Court by the provisions of Order VIII Rule 11 of the Judgment (Enforcement) Rules made pursuant to the Act for the Court to refuse the application from the smallness of the amount to be recovered or of the sought to be attached. Order VIII Rule 11 of the Judgment (Enforcement) reads thus:
“A judge or magistrate may, in his discretion, refuse to make or issue a garnishee order where from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious.” (Italics mine)
The words the ‘smallness of the amount to be recovered, or of the debt sought to be attached’ can only be meaningful when related to a disclosed amount.
That, that is the proper procedure is also deducible from the example of garnishee proceeding given Lord Denning, MR., in Choice Investments Ltd v. Jerommmon (1981) QB 149 @ 154-155, (1981) 1 ALL E.R. 225 @ 226- 227, when His Lordship said that:
“The word ‘garnishee” is derived from the Norman French. It denotes one who is required to ‘garnish’, that is, to furnish a creditor with the money to pay off a debt. A simple instance will suffice. A creditor is owed £100 by a debtor. The debtor does not pay. The creditor then gets judgment against him for the £100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and has £150 at his bank. The creditor can get a ‘garnishee’ order against the bank by which the bank is required to pay into the Court or direct to the customer out of the customer’s £150 – the £100 which he owes to the creditor.” (Emphasis all mine)
So, as against the lower Court’s reasoning, the initial burden of proof of a garnishee’s indebtedness to a judgment debtor, I repeat, is always on the 1st judgment creditor and not on the garnishee.
First respondent/judgment creditor in this case never even crossed that first hurdle of showing that 2nd respondent/judgment debtor’s account with appellant was in credit so the inquiry should have stopped there and its garnishee application terminated by the Court even at the level of ex parte application.
In any case, appellant having denied indebtedness to 2nd respondent/judgment and deposed that its account with it was rather in debit, it was incumbent on the lower Court to apply the provisions of Section 87 of the Sheriffs and Civil Process Act and Order VIII rule 8(1) and (2) of the judgment (Enforcement) Rules to order a trial of that fact. That is assuming it was minded to proceed with the application despite the lacunae identified here in it. Section 87 of the Sheriffs and Civil Process Act states that:
“If the garnishee appears and dispute his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.” Order VIII Rule 8(1) and (2) of the Judgment (Enforcement) Rules further states thus:
8. Where garnishee disputes liability
1. If no amount is paid into the 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 may appear, determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor as to costs as may be just, or may make an order under Section 87 of the Act.
2. If an order is made under Section 87 of the Act for the trial or determination of any issue or question, it shall direct which of the persons interested, including such their person as is referred to in Section 88 of the Act, shall be plaintiff and which shall be defendant.
To ignore these provisions and simply order appellant liable to 1st respondent for that unproved debt amounts to compelling it to pay 2nd Respondent’s said judgment debt even if it was not indebted at all to 2nd respondent. Such is not the intendment of the provisions of the Sheriffs and Civil Process Act and the Judgments Enforcement Rules pursuant to which 2nd respondent commenced its garnishee application. In fact, such a kangaroo-style procedure has no place in our laws. In the event, I unhesitatingly resolve this issue, too, in favour of appellant.
Both issues having been resolved in favour of appellant, I hereby allow this appeal and (1) strike out the garnishee proceedings of 1st Respondent against appellant in Suit No K/475/96 before the High Court of Kano State for lack of jurisdiction in that Court to entertain it and (2) set aside the Garnishee Orders nisi and absolute made by the High Court of Kano State, per Umar Wada Rano, J., in favour of Ceramic Manufacturers Limited against appellant herein, Central Bank of Nigeria, in the same Suit No K/475/96.
Parties shall bear their costs.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the ruling delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA and I am in complete agreement with the reasoning and conclusion reached that the appeal is meritorious. I too allow the appeal and set aside the decision of the trial Court and abide by all other consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft the judgment by my learned brother, BOLOUKUROMO MOSES UGO, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine and found that the appeal is meritorious. The appeal is equally allowed by me and I abide by the consequential orders made therein.
Appearances:
B.M. Ibrahim, Esq. For Appellant(s)
…For Respondent(s)