CENTRAL BANK OF NIGERIA v. HYDRO AIR PTY LIMITED
(2014) LCN/7031(CA)
RATIO
GARNISHEE PROCEEDING: WHETHER IT IS COMPULSORY TO OBTAIN PRIOR CONSENT OF THE ATTORNEY-GENERAL BEFORE ISSUANCE OF GARNISHEE ORDER NISI UNDER SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT
The issue of constitutionality of requiring prior consent of the Attorney-General before issuance of garnishee order nisi under section 84 of the Sheriffs and Civil Process Act is not new and has been raised and decided in some previous decisions of this court. These include:
1. Onjewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 827) 40;
2. Government of Akwa Ibom State v. Powercom Nig Ltd (2004) 6 NWLR (Pt. 868) 202.
These two cases were not considered by the trial Judge. In the two cases, this Court held that obtaining prior consent of the Attorney-General under section 84 of the Sheriffs and Civil Process Act is mandatory. In the case of Onjewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 827) 40 @ 79 A-D, Muntaka-Coomassie, JCA (as he then was) after considering section 287(3) of the 1999 Constitution and all the points canvassed as to the unconstitutionality of the provisions of section 84 of the Sheriffs and Civil Process Act and tracing its origin to the common law principle that the king can do no wrong, said:
“I hold that since the demand for the consent of the Attorney-General of the State is sort of procedural and administrative in nature and it has not made any violence to the Constitution it can be tolerated and accepted. I hold that the requirement of the consent or authorisation/permission of the Attorney-General of a State is necessary before judgment of a High Court can be properly enforced. The provisions of section 8(3) of the State Proceedings Edict, 1988 of Kogi State and section 8(4) of the Sheriffs and Civil Process Law could not be said to be inconsistent with the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria. That being the case this court will have no reason to disturb the position taken by the trial court that failure of the judgment creditor to comply with the condition precedent, obtaining the consent of the Hon. Attorney-General, deprived that court of the jurisdiction to hear the application. The two legislations supra are not contrary to any of the provisions of the 1999 Constitution and I so hold.”
In Government of Akwa Ibom State case, Opene, JCA said at page 224 G-H:
“Obtaining such a fiat from the Attorney-General is a condition precedent which must be complied with before the respondent commenced his proceedings and the failure of the respondent to obtain the necessary fiat from the Attorney-General robs the court of the jurisdiction to entertain the action and renders the whole proceedings a nullity.”
In these decisions, this Court has accepted the provision of section 84 of the Sheriffs and Civil Process Act as necessary procedural safeguards needed by Government to avoid embarrassment and specifically held that it does not do violence to the provisions of section 287(3) of the 1999 Constitution. These decisions of the Court of Appeal are binding on the trial High Court and lower court has no discretion about it. See Ogunsola v. NICON (2010) 13 NWLR (Pt.1211) 225 @ 236 G-H. I am of the firm view that in the light of the above decisions, the learned trial Judge ought not to have held that the provisions of section 84 of the Sheriffs and Civil Process Act is in conflict with section 287(3) of the 1999 Constitution and therefore null and void. He may express his reservations about the correctness of these decisions but he must follow them in consonance with the doctrine of stare decisis. Also, he should have availed himself of the benefit of counsel’s argument on the issue before deciding it in order not to fall into the avoidable error he has made in this case in the process of raising and deciding the issue suo motu. Even this Court is bound by its previous decisions. It can only depart from same in the following circumstances:
(a) Where two decisions of the Court are in conflict and the court must choose between them;
(b) Where the Court of Appeal comes to a conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
(c) Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam i.e. in ignorance of a statute or other binding authority, the court is not bound by it and
(d) Where the previous decision was decided without jurisdiction. See Ibaku v. Ebini (2010) 17 NWLR (Pt.1222) 286 @ 319 E – H.
In the light of the above I hold that the decision of the trial High Court that section 84 of the Sheriffs and Civil Process Act is unconstitutional was reached per incuriam and must therefore be reversed. Per Chinwe Eugenia Iyizoba, J.C.A.
