CBN v. NEUTRAL RESOURCES LTD & ANOR
(2021)LCN/14966(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, January 28, 2021
CA/A/1051/2018
RATIO
PROCEEDING: GARNISHEE PROCEEDING
The proceeding of garnishee is a process leading to the attachment of debt owed to judgment debtor by a 3rd party who is indebted to the judgment debtor. It is sui generis and is unlike other proceedings for enforcement of judgment. See the cases of FIDELITY BANK V. ONWUKA 2017 LPELR-42839 CA, CITIZENS BANK V. SCOA NIG. LTD 2006 18 NWLR PT. 1011 and UBN PLC. V. BONEY MARCUS INDS LTD. & ORS 2005 ALL FWLR PT. 278 1037.
In the case of Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120 it was described as follows:
“Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although, it follows from the judgment that pronounced the debt owing. Thus, a successful party in his quest to move fast against the assets of the judgment debtor usually makes an application exparte for a “garnishee order nisi” … the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee.” PER WILLIAMS-DAWODU, J.C.A.
GARNISHEE PROCEEDING: NEED FOR THE CONSENT OF THE ATTORNEY GENERAL IN SECTION 84 OF THE SHERIFF AND CIVIL PROCESS ACT
Section 84 (1) of the Sheriff and Civil Process Act is hereby reproduced as follows:
“Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodio legis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodia legis, as the case may be.”
One will readily import and apply the findings and position of the apex Court, which in my view and humbly, are answers to the issue herein. As held in the case of CBN V. INTERSTELLA supra, that, the peculiar facts of that case removed it from the purview of the general interpretation of Section 84 of the Sheriffs and Civil Process Act in that the consent of the Attorney-General by virtue of Exhibits ‘I’ and ‘L’ had already been obtained and the Appellant (CBN) was acting as a Banker only, to the Federal Government. PER WILLIAMS-DAWODU, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
CENTRAL BANK OF NIGERIA APPELANT(S)
And
- NEUTRAL RESOURCES LIMITED 2. INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL GOVERNMENT OF NIGERIA (ALSO KNOWN AS ASSOCIATION OF LOCAL GOVERNMENT OF NIGERIA) RESPONDENT(S)
HON. JUSTICE ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja delivered by the Honourable Justice Valentine Ashi on October 25th, 2018, where upon Motion No. FCT/HC/M/1002/2016 the Court granted garnishee order absolute against the Appellant. The Appellant has approached this Court with its Notice of Appeal filed October 30th, 2018, on Six (6) Grounds of appeal.
A brief gist as garnered from the printed Record herein is that judgment was entered in favour of the 1st Respondent against the 2nd Respondent on July 23rd, 2015, upon admission of the claim by the 2nd Respondent. Pursuant to the judgment, the 1st Respondent sought by motion exparte a garnishee order nisi against the Appellant, attaching the sum of $318,807,950.596 in satisfaction of the said judgment, which was granted. Upon service of the enrolled order on the Appellant, it filed against the grant of order absolute. The 1st Respondent responded with counter affidavits predicated upon the judgment delivered on June 29th, 2016, in Suit No. FHC/ABJ/CS/130/13 between LINAS
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INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS. The Appellant argued that the order in the foregoing suit should not have been made since the rights of the parties therein were not finally determined, there was a pending appeal against the said order as well as a motion for stay of execution of the order. Further that, the sum to be deposited with the Appellant did not accrue to the 1st Respondent as the contested sum was ordered to be paid to the Local Governments in Nigeria which is different from the 1st Respondent. After adopting their processes in respect of the 1st Respondent’s application, the Court in its wisdom granted garnishee order absolute against the Appellant. Dissatisfied, the Appellant has approached this Court.
Parties exchanged and served their briefs. The Appellant’s Notice of Appeal dated and filed October 30th, 2018 with Six (6) grounds of appeal and its brief of argument dated December 17th, 2018, filed December 18th, 2018 was settled by D. D. Dodo SAN. The 1st Respondent’s brief settled by Prince Orji Nwafor-Orizu, was dated February 12th, 2020 and filed February 13th, 2020. The 2nd Respondent’s
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brief settled by Emeka Obegolu Esq. was dated February 6th, 2019 and filed same date. In response to both the 1st and 2nd Respondents’ briefs, the Appellant’s Reply brief dated and filed September 4th, 2020 to the 1st Respondent and the other, dated February 18th, 2019 and filed February 19th, 2019 to the 2nd Respondent.
ISSUES FOR DERTERMINATION BY THE PARTIES
APPELLANT’S ISSUES
1. Whether the failure by the 1st respondent to obtain prior consent of the Attorney- General of the Federation before commencing the garnishee proceedings against the appellant did not render the garnishee proceedings incompetent. (Grounds 1, 2 and 6).
2. Whether the trial Court was right when it assumed jurisdiction over the Appellant and proceeded to make a garnishee order absolute against it despite the Appellant being an agency of the Federal Government of Nigeria (Grounds 3).
3. Whether in the light of uncontroverted evidence before the Court that the moneys ordered to be warehoused in the Appellant by Ademola J. in Suit No. FHC/ABJ/CS/130/13 LINAS INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS. were never warehoused
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in the Appellant as a result of the pending appeal and motion for stay of execution against the said order, the lower Court was not wrong to have made the garnishee order absolute against the Defendant attaching non-existent funds. (Grounds 4 and 5).
The 1st Respondent adopted the Appellant’s Issues.
THE 2ND RESPONDENT’S ISSUES
1. Whether from the facts and circumstances of this case, the learned trial judge was right to dispense with the consent of the Attorney General of the Federation as a prerequisite for the 1st Respondent to commence a Garnishee proceeding against the Federal government’s banker.
2. Whether the trial Court was right where it assumed jurisdiction over the Appellant and proceeded to make a Garnishee order absolute against it despite the Appellant being an agency of the Federal Government of Nigeria.
3. Whether the Appellant can canvass on appeal, an issue not raised at the trial Court.
Upon calm reading of the Issues submitted for the determination of this appeal, one will as empowered, reformulate the issues by the Appellant into one as follows for the just and fair resolution of this appeal:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Whether the Court below was right to have granted the garnishee order absolute without prior consent of the Attorney-General Federation before commencement of the proceeding, the Appellant being an agency of the Federal Government of Nigeria and the non-existence of the moneys with the Appellant, given the pending appeal and the motion for stay against the order in Suit No. FHC/ABJ/CS/130/13 LINAS INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS…”
APPELLANT’S SUBMISSION
The learned Silk, Mr. D. D. Dodo submitted that there was non-compliance with the stipulated precondition for the commencement of the proceedings and therefore, the proceedings were incompetent and the Court lacked jurisdiction to have entertained the suit when the Appellant is a Public officer under Section 318 (1) of the Constitution of the Federal Republic of Nigeria as amended and Section 18 (1) of the Interpretation Act. He cited in support the case of MADUKOLU V. NKEMDILIM 1962 LPELR 2 SCNLR 341, CBN V. SCBV (NO. 1) 2015 11 NWLR PT. 1469 130, CBN V. NWANYANWU & SONS ENTERPRISES NIGERIA LTD. 2014 LPELR- 22745 CA, CBN V. OKEFE 2015
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LPELR-24825 CA and CBN V. KAKURI 2016 LPELR-41468 P.20 and Section 84 (1) and (3) of the Sheriffs and Civil Process Act (SCPA). That, the position of the Court on the case of CBN V. INTERSTELLA COMMUNICATIONS LTD 2017 LPELR- 43940 was wrong to the effect that the consent of the Attorney-General was not required and that Exhibit B is not in the instant suit. He submitted that by the case of CBN V. INTERSTELLA’S supra, where the Attorney-General did not participate but just a nominal or neutral party, his consent must be first had and obtained for the proceedings to be valid.
He submitted that the Court erred when it assumed jurisdiction in the matter as the Appellant is an agency of the Federal Government as Section 251 (1) (p) (q) and (r) of the 1999 Constitution vests exclusive jurisdiction over the Appellant in the Federal High Court and the provision of Order VIII Rule 2 of the Judgment Enforcement Rules, that the proceeding can be only where the Garnishee can sue for the debt. He cited in support the cases of CBN V. OKEB NIGERIA LTD. & ORS 2014 LPELR-23162 CA, CBN V. OKEFE supra. He submitted that the 1st Respondent could not commence an action
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against the Appellant at the High Court of the Federal Capital Territory and therefore with Order VIII Rule 2 of the Enforcement Rules and the subject matter of the dispute, not a being a simple contract did not fall within the jurisdiction of the High Court of the Federal Capital Territory.
The learned Silk submitted further that the Court erred to have made the order absolute, given the pending motion for stay and the 2nd Respondent not being a beneficiary of the order as the money was for the Local Governments. He cited in support cited the case of CBN V. AUTO IMPORT-EXPORT & ANOR. 2013 2 NWLR PT. 1337 80. And that garnishee orders are not made at large. Thereby, a miscarriage of justice was occasioned on the Appellant he added and cited the cases of NATIONAL INSURANCE COMMISSION V. OYEFESOBI & ORS 2013 LPELR-20660 CA and UNITED BANK FOR AFRICA PLC V. EKANEM (MD PARAGON ENG. LTD) & ANOR. 2009 LPELR-8428 CA. In conclusion he urged that the appeal be allowed.
1ST RESPONDENT’S SUBMISSION
The learned Counsel for the 1st Respondent, Prince Nwafor-Orizu Esq. submitted that the consent of the Federal Attorney-General was not required
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before commencing the garnishee proceedings against the Appellant and that the Appellant is a Public Officer and cited the cases of CBN V. ZENITH BANK 2019 LPELR-48383 CA and CBN V ABUBAKAR 2019 LPELR 4826 CA.
He contended that Section 84 of the SCPA is unconstitutional and inconstant with the 1999 Constitution of the Federal Republic of Nigeria and referred to Section 6 (6) (b) of the 1999 Constitution, that by virtue of Section 1 (3) thereof, it is void and of no effect and in support cited AFE BABALOLA on ENFORCEMENT OF JUDGMENTS 1st Ed. He argued that it is incongruous/anachronistic that the Attorney-General has to consent before a judgment by a judicial officer can be executed such as a garnishee proceeding. He submitted that there are similarities herein with the INTERSTELLA LTD case. That, there was part payment as therein since LINAS NIGERIA LIMITED and JOE AGI SAN, who were parties have been paid. The learned Counsel argued that, what the Appellant seeks to do by this appeal is unknown to law and cited the case of GTB V. INNOSON NIG. LTD. 2017 LPELR 42368 SC.
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He submitted that the Federal Capital Territory High Court had jurisdiction when it entertained the matter, that on the facts of the case that brought about this appeal, the Federal High Court had no jurisdiction as it was a case of simple contract and cited the case of ONUORAH V. KR & PC LTD 2005 2 SC PT. 2. Further that, it is not every case that involves the Federal Government that recourse must be had to the Federal High Court. He submitted that the garnishee proceedings that gave rise to this appeal was an enforcement procedure and not a substantive suit within the purview of Section 251 (1) of the 1999 Constitution.
The learned Counsel argued that from the garnishee order absolute, the money was already with the Appellant as all monies received by the Government of the Federation is received by the Appellant and the latter did not controvert it or argue that it is perverse. He submitted that, since there were some processes for payments by the judgment debtors, the said pending appeal by the Appellant is of no moment, especially as, there is no appeal by the judgment debtor, ALGON, in the case. In conclusion, he urged that the appeal be dismissed in its entirety.
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2ND RESPONDENT’S SUBMISSION
Mr. Obegolu Esq. learned Counsel for the 2nd Respondent submitted that, the consent of the Federal Attorney-General can be dispensed with because the CBN is a banker to the Federal Government and as such, not a Public officer within the provision of Section 84 of the SCPA and cited the cases of PURIFICATION TECH. NIG. LTD. V. A-G, LAGOS STATE 2004 ALL FWLR PT. 211 1493, CBN V. SNECOU GROUP OF COMPANIES & ANOR. APPEAL NO. CA/A/283/2015 unreported and CBN V. INTERSTELLA COMMUNICATIONS LTD. 2017 12 SC PT. IV 97.
He submitted that the law is that garnishee matters can only be initiated in a Court where the judgment debtor can sue for the debt and cited in support the case of CBN V. AUTO IMPORT EXPORT 2013 2 NWLR PT. 1337 80. In the light of the subject matter of the claim which is simple contract and the interpretation of Section 251 of the 1999 Constitution, garnishee proceedings against the Appellant could not have been validly initiated at the Federal High Court. Consequently, initiation at the Federal Capital Territory High Court and enforcement there at is in order and consistent with available authorities and Order VII Rule 2 of the Judgment Enforcement Rules. In support, he cited the cases of ONUORAH V. KR & PC LTD supra and ADELEKAN V. ECULINE LTD. 2006 12 NWLR PT. 993 33.
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He submitted that, an issue not raised in the pleadings and therefore not tried at the Court of trial cannot be raised at the appellate Court through the ingenuity of Counsel and cited in support the cases ofCHIEF GIBSN PENYL ORUNENGIMO & ANOR. V. MADAM MARGARET EGBEBE & ORS 2007 LPELR-2279 SC and BALOGUN V. ADEJOBI 1995 1 SCNJ 242 1995 2 NWLR PT. 376 131. That, the issue distinguishing the Local Governments in Nigeria from the Association of Local Governments of Nigeria (ALGON) was never raised at the Court below and against the doctrine of fairness for the Appellant to raise such before this Court and cited in support, the case of ARAKA V. EJEAGWU 2001 5 WRN 1, JOY V. DOM 2004 25 WRN 33, AJIDE V. KELANI 1985 3 NWLR PT. 12 248. In conclusion, he urged that the appeal be dismissed and to affirm the judgment of the Court below.
THE POSITION OF THE COURT
I have very carefully read through the Record before this Court together with all the briefs filed and exchanged by the parties. Having done so very carefully, I now
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proceed to resolve the sole issue already adopted herein. In doing so, it becomes needful to consider along therewith the findings of the Court below. The issue is hereunder reproduced for ease of reference:
“Whether the Court below was right to have granted the garnishee order absolute without prior consent of the Attorney-General Federation before commencement of the proceeding, the Appellant being an agency of the Federal Government of Nigeria and the non-existence of the moneys with the Appellant, as well as the pending appeal and the motion for stay against the order in Suit No. FHC/ABJ/CS/130/13 LINAS INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS”.
This appeal is as a result, in the main, of the garnishee order absolute made by the Court below in favour of the 1st Respondent and the opposition by the Appellant that, the consent of the Federal Attorney- General was not sought and obtained before the commencement of the proceedings, the Appellant being an agency of the Federal Government, a Public Officer. That, the Court below was wrong to have assumed jurisdiction as the matter ought to have been before
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the Federal High Court and not the High Court of the Federal Capital Territory. Further that, the money was not in its custody, there was a pending appeal as well as an application for stay. Therefore, the Appellant submitted that the order absolute as well as the order nisi were wrongly made and sought the setting aside of the said orders.
The proceeding of garnishee is a process leading to the attachment of debt owed to judgment debtor by a 3rd party who is indebted to the judgment debtor. It is sui generis and is unlike other proceedings for enforcement of judgment. See the cases of FIDELITY BANK V. ONWUKA 2017 LPELR-42839 CA, CITIZENS BANK V. SCOA NIG. LTD 2006 18 NWLR PT. 1011 and UBN PLC. V. BONEY MARCUS INDS LTD. & ORS 2005 ALL FWLR PT. 278 1037.
In the case of Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120 it was described as follows:
“Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although, it follows from the judgment that pronounced the debt owing. Thus, a successful party in his quest to move fast against the assets
13
of the judgment debtor usually makes an application exparte for a “garnishee order nisi” … the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee.”
On whether the consent of the Federal Attorney-General should be obtained before the commencement of the action, the 1st Respondent argued that the appellant herein is not a public officer and hence the Federal Attorney-General’s consent as required under Section 84(1) of SCPA does not apply herein. On the other hand, the Appellant’s Counsel submitted that by Section 84(1) it is mandatory that the consent of the Federal Attorney-General be sought and obtained first before the Garnishee proceedings herein can be competent.
Section 84 (1) of the Sheriff and Civil Process Act is hereby reproduced as follows:
“Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodio legis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from
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the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodia legis, as the case may be.”
One will readily import and apply the findings and position of the apex Court, which in my view and humbly, are answers to the issue herein. As held in the case of CBN V. INTERSTELLA supra, that, the peculiar facts of that case removed it from the purview of the general interpretation of Section 84 of the Sheriffs and Civil Process Act in that the consent of the Attorney-General by virtue of Exhibits ‘I’ and ‘L’ had already been obtained and the Appellant (CBN) was acting as a Banker only, to the Federal Government.
The Court below held the view based on the case of CBN V. INTERSTELLA supra that, the part payment to the Creditors in Suit No. FHC/ABJ/CS/130/13 LINAS INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS, before Ademola J. as directed by the Minister for Finance, Exhibits B and C, should be noted as evidence of part payment of the judgment debt at the Court below. Therefore, dispensing with the need for the consent of the Federal
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Attorney-General. One agrees with that position. It will be helpful in the appreciation of the issue in the instant appeal to state the names of the parties in the afore mentioned suit as the transaction therein was the basis, for the 1st Respondent’s application for the order of garnishee. It was also the main transaction for the source of funds in which the Federal Attorney-General was not just a mere or nominal party, but a key role player who admitted the judgment debt to the 2nd Respondent. The parties were as follows: SUIT NO. FHC/ABJ/CS/130/2013, CENTRAL BANK OF NIGERIA V. 1. LINAS INTERNATIONAL LIMITED & 235 ORS. 2. INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL GOVERNMENTS OF NIGERIA, 3. THE FEDERAL GOVERNMENT OF NIGERIA 4. THE ATTORNEY GENERAL OF THE FEDERATION 5. THE HONOURABLE MINISTER OF FINANCE 6. THE ACCOUNTANT-GENERAL OF THE FEDERATION.
As stated by the apex Court, that the principle underlying securing the Federal Attorney General’s consent as prescribed in Section 84 SCPA is to avoid embarrassment on him of not having the prior knowledge that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt, which the government may not know anything about. See also the case of Onjewu V. KSMCI (2003) 10 NWLR (part 827) 40 at 89
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From the foregoing, the question whether the Appellant is a public officer, who cannot release funds except the consent of the Federal Attorney General is obtained, does not apply to the facts and circumstances of this case, it is the clear relationship of banker and customer. Very peculiar and the circumstance cannot be fitted within the general interpretation of Section 84 of SCPA. Again the case of ONJEWU V. KSMCI (supra) is well under reference. Furthermore and as rightly submitted on behalf of the 1st and 2nd Respondents, certain qualifying conditions must be met for a case to come under the purview of Section 84 of SCPA. In other words, justice would demand that the Federal Attorney General must be a neutral/nominal party in the transactions and not being the judgment debtor.
On the issue of jurisdiction, the Appellant’s contention that it is the Federal High Court by virtue of Section 251 of the Constitution that should hear the matter; The Court, on pages 346- 347 of the Record and rightly in my view humbly, firstly
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noted the need to consider the peculiar facts and the issue in the 1st Respondent’s case in order to do justice and substantial one at that. It then went on and held correctly too that, what was at stake was not sourced from the Government revenue in any budgetary allocation as in the case relied upon by the Appellant. That, the judgment in suit No. FHC/ABJ/CS/130/13 between LINAS INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS was only for enforcement. Furthermore, as instructively held in the CBN V. INTERSTELLA case supra, which in my considered view and humbly ought to be the pursuit for substantial justice and the true intendment of the provision in focus as follows, that, the purport of Section 83 of the SCPA simply revolves around the essence of commencing a Garnishee Proceedings in the High Court of the State where the Garnishee resides.
As held in CBN V. INTERSTELLA, the philosophy behind the said foregoing provision with regard to a debtor residing within the State is basically for convenience and effective enforcement by the Court. In other words, where the action is not commenced in the jurisdiction of High
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Court wherein the Garnishee is resident, it will be difficult to enforce the judgment of the Court obtained from another jurisdiction on him.
The Court correctly found against the contention of the Appellant’s that, the monies ordered in Suit No. FHC/ABJ/CS/130/13 between LINAS INTERNATIONAL LTD. & 235 ORS. V. THE FEDERAL GOVERNMENT OF NIGERIA & 3 ORS, to be warehoused in the Appellant did not accrue to the 2nd Respondent, the judgment debtor herein, therefore, could not be garnished in favour of the 1st Respondent, judgment creditor herein. It held and one agrees that, the 2nd Respondent herein, Incorporated Trustees of Association of Local Government of Nigeria, the judgment debtor, is the same as the judgment creditor, in the case of LINAS INTERNATIONAL LTD supra described as “The Local Governments in Nigeria”. The Court recalled that at the hearing, the learned Counsel to the 2nd Respondent who was in Court was asked his position on whether or not the garnishee order nisi should be made absolute and he stated that he had nothing to urge and would abide by the Court’s discretion for justice in the matter. It therefore held that, the 2nd
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Respondent’s Counsel was not misled neither was the Court. It stated thus:
“…In my view, if truly judgment debtor as constituted in this proceeding is not one and the same thing as the Local Governments in Nigeria” Mr. Olanipekun would have said so, he therefore was not misled and this Court is not misled either.”
See pages 347 -348 of the Record. The point the Court tried to make was that, the 2nd Respondent’s Counsel would have raised an objection or made the point that his client was not the same person as the judgment creditor in the case of LINAS INTERNATIONAL LTD supra. Suit and I agree.
The Appellant asserted that the monies were never warehoused in the Appellant as a result of the pending appeal and motion for stay of execution against the said order. The Court refused the submission and referred to the relevant portion of the order of Ademola J. which constituted the basis of the judgment sought to be enforced thus:
“That Garnishee (CBN) shall pay over the judgment debt of USD3,188,078,505.96 to the Local Governments in Nigeria to be warehoused in the Central Bank of Nigeria for disbursement to them less 20% Consultancy fee”
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The Court therefore held that from the foregoing, the order assumes that the money was with the Garnishee, Central Bank of Nigeria, it was set apart ready for disbursement and it was a matter of public knowledge given the peculiar facts and circumstance of the case. The Court further expressed thus: “As such when the same Central Bank of Nigeria turns volte face to deny that the money is not in its custody one begins to perceive a red herring.”
It correctly found on Exhibits B and C on pages 260 and 262 of the Record, attached to the further counter-affidavit of 26/05/17 of the 1st Respondent, judgment creditor, which showed that the Hon. Minister of Finance directed the Governor of the Appellant to pay out to some beneficiaries funds in its custody identified as part of the funds relating to the order, the Paris Club Refund.
In my considered view and humbly, the observation of the Court is quite correct, one agrees that the Appellant is “not the judgment debtor as such the appeals that it is pushing cannot be said to have any bearing with … or otherwise of the judgment debtors in those cases to satisfy the judgment
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debts”. Particularly so when monies were already being paid to creditors as evidenced by Exhibits B and C. The Court therefore posited that the pendency of the appeals was of no moment to the making of the Order nisi, absolute. It is pertinent to echo the cautionary words so to speak of the apex Court in the case of CBN V. INTERSTELLA supra that:
“It is also inequitable for a Garnishee to continue to latch on to the money that does not belong to it when the judgment Debtor has conceded the judgment.”
In the light of the foregoing, the singular issue herein is resolved against the Appellant. In consequence, the appeal cannot be allowed, it is therefore hereby dismissed.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.
I am in agreement with the reasoning and the conclusion that the appeal be dismissed. I too, do dismiss the appeal.
PETER OLABISI IGE, J.C.A.: I agree.
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Appearances:
Mr. D. D. Dodo, SAN, with him, Mr. Patrick Okoh and Kigai Zontong For Appellant(s)
Mrs. Ogechi Igwe led by Orji Nwafor-Orizi – for 1st Respondent
Ms Oniyeye P. James – for 2nd Respondent For Respondent(s)
