CENTRAL BANK OF NIGERIA v. JAMES EJEMBI OKEFE (2015)

CENTRAL BANK OF NIGERIA v. JAMES EJEMBI OKEFE

(2015)LCN/7903(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of June, 2015

CA/MK/81/2011

RATIO

GARNISHEE PROCEEDING: WHAT IS A GARNISHEE PROCEEDING

DEFINITION OF WORDS: CONDITION; THE DEFINITION OF THE TERM “CONDITION”

The term “condition” has been defined as: “a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right”. A “condition precedent” is, one which delays the vesting of a right until the happening of an event. See the cases of: (1) Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) p. 536; (2) Shugaba v. U.B.N. Plc (1999) 11 NWLR (Pt. 627) p.459 and (3) D.E.N.R. Ltd. v. Trans Int’t Bank Ltd. (2008) 18 NWLR (Pt. 1119) p. 388. per. OYEBISI FOLAYEMI OMOLEYE, J.C.A.

COURT: JURISDICTION; MATTERS IN WHICH A COURT OF LAW IS COMPETENT TO EXERCISE JURISDICTION

The law is settled beyond per adventure of any doubt that the issue of jurisdiction is threshold, in that, a court must have jurisdiction before it can enter into any cause or matter at all or before it can make a binding order in such a cause or matter. Equally, it is an age-long legal principle that a court of law is only competent to exercise jurisdiction in respect of any matter only where –
1. It is properly constituted as regards the number of its members and no member is disqualified for one reason or the other.
2. The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.
3. The case comes by the due process of law and upon the fulfillment of any condition precedent to the exercise of the jurisdiction.
See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 S.C.N.L.R. p.341; (2) Anyah v. Iyayi (1993) 7 NWLR (Pt. 305) p. 290; (3) Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) p. 414; (4) Nasir v. Civil Service Commission, Kano State & Ors. (2007) 5 NWLR (Pt. 1190) p. 253 and (5) Nwankwo v. Yar’dua (2010) 12 NWLR (Pt. 1209) p.518. per. OYEBISI FOLAYEMI OMOLEYE, J.C.A.

COURT: CONSENT JUDGEMENT; WHEN IS A JUDGEMENT A CONSENT JUDGEMENT

A consent judgment is a judgment, decision or order which parties in litigation voluntarily agreed to be entered for or against or between them. In the case of: Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) p. 133, the Apex Court restated the connotation of a consent judgment as a judgment wherein the parties unequivocally agree to terms of settlement which they mutually refer to the court as basis for the court’s judgment. Therefore by the mutual agreement of parties to settle the matter between them, they have given their consent to end the litigation. See also the cases of: (1) S.P.D.C.N. Ltd. v. Azukaeme (2011) 9 NWLR (Pt. 1252) p. 360;
(2) Vulcan Gases Ltd. v. G.F. Ind. A.G. (2001) 9 NWLR (Pt. 719) p.610 and (3) Federal Mortgage Finance Ltd. v. Okedo Enterprises Ltd. (2009) LPELR-8259. Hence, in order to have a consent judgment, it must be clearly shown that the judgment has been predicated on and reflecting the express terms of agreement between the feuding parties. There must be “ad idem” regarding the terms of their compromise, thereby reaching a complete and final agreement on the vital issues of the action between them. The consent of the parties must be free and voluntary. The court cannot compel a party to agree to a consent judgment as the element of compulsion would vitiate the volition of the defendant. See the cases of: (1) Odulaja v. Williams (1960) 6 WACA P. 198; (2) Afolabi v. Adekunle (1983) 8 SC p.98 and (3) Federal Mortgage Finance Ltd. v. Okedo Enterprises Ltd. (supra). It is equally trite that a judgment is not consent judgment for the mere fact that the defendant submits to it, as in the instant matter. See the cases of: (1) R. Lauwers Import-Export v. Jozebson Industries Co. Ltd (1988) 3 NWLR (Pt. 83) p. 429 and (2) Federal Mortgage Finance Ltd. v. Okedo Enterprises Ltd. (supra). per. OYEBISI FOLAYEMI OMOLEYE, J.C.A.

APPEAL: AMENDMENT OF A PROCESS; WHETHER THE AMENDMENT OF A PROCESS INCLUDING A NOTICE OF APPEAL RELATES BACK TO THE DATE THE INITIAL PROCESS WAS FILED

I am in complete agreement with the submissions of the learned senior counsel for the Appellant that the law is quite settled that, the amendment of a process including a notice of appeal relates back to the date the initial process was filed. See the cases of: (1) Adetona v. Geo Resources Ltd. (2012) LPELR-7860; (2) F.R.N. v. Adewunmi (2007) 4 S.C. (Pt. III) p. 30; (3) A-G, Ekiti State v. Adewumi (2002) 1 S.C. p. 47; (4) Vulcan Gases Ltd. v. Gesellschaft Fur Ind. Gasverwertung A.G. (2001) 5 S.C. (Pt. 1) p.1 and (5) Oguna v. I.B.W.A. (1988) NWLR (Pt. 73) p. 658. In the case of: Vulcan Gases Ltd. v. Gesellschaft Fur Ltd. Gasverwertung A.G. (supra), the Apex Court restated the time-hallowed legal principle in the following words:
It is beyond dispute that an amendment relates back to the commencement of a suit. An order of amendment takes effect, not from the date when the amendment is made or granted but from the date of commencement of the action. In other words, once ordered, what stood before amendment is no longer material before the court and no longer defines the issues to be tried. See Grace Amanamhu v. Alexander Okafor & Another (1966) 1 All NLR 205; Warner v. Sampson (1952) 2 WLR 109; Col. Rotimi v. McGregor (1974) 11 S.C. 133 at 152; Osita Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688. (The underlining is supplied by me for emphasis). per. OYEBISI FOLAYEMI OMOLEYE, J.C.A.

COURT: JURISDICTION: THE IMPORTANCE OF JURISDICTION TO A SUIT AND WHEN THE ISSUE OF JURISPRUDENCE CAN BE RAISED

As I reiterated earlier on in this judgment, jurisdiction is the combination of the status of the parties and that of the subject-matter of a suit. Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the court to hear and determine a suit. For where a court does not have jurisdiction to hear a matter, the entire proceedings, no matter how well conducted and decided, would amount to a nullity. It is thus mandatory that courts decide the issue of jurisdiction before proceeding to consider any other matter. See the cases of: Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
Therefore although it is highly desirable and in the interest of justice to raise the issue of jurisdiction at the earliest opportunity, usually before trial commences so as to save time and costs and avoid a trial in nullity, the importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at trial, on appeal to this Court or the Apex Court by any of the parties, “a fortiori”, the court can “suo motu” raise it. However, once it is apparent to any party that the court may not have jurisdiction, it can be raised even “viva voce” as in the instant matter. See the cases of: (1) Owoniboys Tech. Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt. 199) p. 550; (2) Katto v. C.B.N. (1991) 9 NWLR (Pt. 216) p. 126 and (3) P.E. Ltd. v. Leventis Trad. Co. Ltd. (1992) 5 NWLR (Pt. 244) p.675. In the case of: Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) p.28, the Supreme Court held that:
It is an elementary but cardinal principle of the exercise of jurisdiction that where the court lacks jurisdiction the parties cannot confer and vest jurisdiction on it. Accordingly, the fact that the parties fought a case erroneously on the basis that the court had jurisdiction when there was none cannot estop a party from subsequently taking the contrary position – see Shitta-Bey v. Attorney-Gen. for the Federation (1998) 10 NWLR (Pt. 570) 392 S.C. It follows from this principle that jurisdiction cannot be acquired by consent of the parties, nor can it be enlarged by estoppels. – see Jadesmi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264. This principle is fortified by the well settled principle that the issue of jurisdiction which determines the competence to exercise jurisdiction can be raised at any stage of a trial and indeed even for the first time on appeal – see Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 SCNLR 296; (1983) 6 SC. 158; Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259. (The underlining is supplied by me for emphasis)
See also the cases of: (1) Utomudo v. Mil. Governor of Bendel State (2015) EJSC (Vol. 3) p. 1 and (2) Agbiti v. Nigerian Navy (2011) 4 NWLR p. 175. In the latter case, the Apex Court further restated that:
Where an appellant in his issues for determination raised questions of jurisdiction, they are undisputedly questions of law. An appellant can raise such issues afresh in an appellate court. Such questions are not only competent but are also expedient in the interest of Justice for an appellate court to entertain the question. Adeyemi v. Opeyomi (1970) 9-10 SC 31; Fadiora v. Gbedebo (1978) 3 SC 219. An appellant is allowed to raise the question of jurisdiction on appeal without the leave of court whereas ordinarily a fresh issue can only be raised on appeal with the leave of court sought and obtained hence the issue becomes incompetent and liable to be struck out. I shall repeat with emphasis that an appellant does not require leave to raise the issue of jurisdiction, as it can be raised at any stage of the proceedings and in any manner. (The underlining is supplied by me for emphasis). per. OYEBISI FOLAYEMI OMOLEYE, J.C.A.

COURT: JURISPRUDENCE AND CAUSE OF ACTION; THE DISTINCTION BETWEEN CAUSE OF ACTION AND ISSUE OF JURISPRUDENCE

Although cause of action and issue of jurisdiction are interwoven, they are separate, distinct issues and are not interchangeable. The law in force or existing at the time the cause of action arose is the law applicable for the determination of the suit. That law does not necessarily determine the jurisdiction of the court at the time the jurisdiction of the court is invoked. To put in other words, the law in force at the time the cause of action arose governs the determination of the suit, while the law in force at the time of trial based on the cause of action determines the court that is vested with the jurisdiction to try the suit. See the cases of: (1) Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt. 1247) p.465; (2) Osakue v. F.C.E. (Tech.) Asaba (2010) 10 NWLR (Pt. 1201) p.1; (3) Ada v. N.Y.S.C. (2004) 13 NWLR (Pt. 891) p. 639; (4) S.P.D.C. (Nig.) Ltd. v. Isaiah (2001) 11 NWLR (Pt. 723) p. 168 and (5) N.N.P.C. v. Orhiowasele (2013) LPELR-20341. per. OYEBISI FOLAYEMI OMOLEYE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; THE PRINCIPLE OF FAIR HEARING

The law is well settled that the principle of fair hearing demands that parties be afforded the opportunity to present their respective cases before the court and no more. The principle does not portend that the court should be forced to pander to the whims of parties or their counsel. The Apex court and this court have, on numerous occasions in the past, stated that the issue of fair hearing should be invoked by counsel only in appropriate cases. It is on this note before I end this Judgment and for the umpteenth time reiterate the position of the appellate courts on this issue as notably pronounced by the Apex Court recently in the case of: Ekunola v. C.B.N. (2013) 15 NWLR (Pt. 1377) p.224, per Chukwuma-Eneh, JSC, in paras. A-C at p.265 as follows: There can be no doubt from the foregoing resume that “fair hearing” has become the whipping principle for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. This approach of counsel in general is deprecated. Fair hearing should, for what it is and represents in our adjudicative process before the courts be invoked with every sense of seriousness and in appropriate settings. It is not the case in the instant appeal. per. OYEBISI FOLAYEMI OMOLEYE, J.C.A.

JUSTICES:

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

CENTRAL BANK OF NIGERIA – Appellant(s)

AND

JAMES EJEMBI OKEFE – Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court sitting in Makurdi (the trial Court) delivered on 26th May, 2011.

The background facts of this matter are that, the Respondent herein got the judgment of the Benue State High Court sitting in Makurdi delivered on 15th December, 2010 in his favour and against Bank PHB Plc. for the total sum of Thirty-Six Million, Five Hundred and Twenty-Five Thousand, Nine Hundred and Eleven Naira (N36,525,911.00). In a bid to enforce the said judgment, the Respondent as Judgment Creditor commenced garnishee proceedings before the trial Court “vide” an ex-parte motion dated and filed on 1st April, 2011, to attach the funds of the Judgment Debtor, Bank PHB Plc., in its account No. 0230252822017 with the Garnishee, the Appellant herein, in satisfaction of the total judgment sum – see pages 5 to 7 of the Record of Appeal. The ex-parte motion was heard and granted by the trial Court on 7th April, 2011, for the proceedings of that day, see pages 21 to 23 of the Record of Appeal. The enrolled Order Nisi issued in respect thereof is at pages 24 to 26 of the Record of Appeal. In compliance with the said Order Nisi issued by the trial Court, an affidavit to show cause dated 4th May, 2011 was filed on the same date by the Garnishee/Appellant, stating “inter-alia” that it has set aside the said total judgment sum in the account of Bank PHB Plc, the Judgment Debtor – see page 74 of the Record of Appeal.

Before proceeding further, it is pertinent to note that, prior to the garnishee proceedings lodged at the trial Court, the Respondent had commenced similar proceedings before the High Court of Benue State. “Inter-alia”, the Order Nisi issued in the said earlier proceedings was however “struck out” by that Court vide its ruling delivered on 31st March, 2011, on the ground of want of jurisdiction to adjudicate thereupon, the Garnishee/Appellant being a Federal Government Agency – see pages 29 to 37 of the Record of Appeal/pages 133 to 149 of the Supplementary Record of Appeal. The Judgment Debtor, Bank PHB Plc. lodged an appeal against that ruling before this Court on 4h April, 2011 – see pages 150 to 156 of the Record of Appeal.

Now subsequent to the issuance of the Order Nisi but before 4th May, 2011 the return date set by the trial Court the Judgment Debtor, Bank PHB, filed a motion on notice on 24th April, 2011 against the Judgment Creditor, applying for the orders of the trial Court to set aside the Garnishee Order Nisi and suspend further proceedings or execution of the judgment of the Benue State High Court delivered on 15th December, 2010, which was being enforced at the trial Court – see pages 53 to 74 of the Record of Appeal. The said application was predicated on the ground that the Judgment Debtor had on 1st April, 2011 filed a Notice of Appeal and motion for stay of execution of the said main judgment of the High Court of Benue State, at this Court. According to the Judgment Debtor’s learned senior counsel, the two processes were duly served on the Respondent/Judgment Creditor before the latter commenced the garnishee proceedings at the trial Court. On 4th May, 2011, the return date, the said motion of the Judgment Debtor which was opposed by the Respondent/Judgment Creditor was duly heard by the trial Court, and the ruling in respect thereof reserved to 23rd May, 2011. The proceedings of that day are contained in pages 75 to 82 of the Record of Appeal. On the 23rd of May, 2011, the ruling was further adjourned to 25h May, 2011 for the report of the outcome of the alleged motion for stay of execution of the main judgment of the High Court of Benue State said to be pending before this Court – see pages 83 to 84 of the Record of Appeal.

On the 25th May, 2011, the learned trial Judge upon being informed that this Court had struck out the alleged motion for stay of execution, further adjourned the ruling to the following day, the 26th of May, 2011 – see page 87 of the Record of Appeal for the proceedings of the 25th May, 2011. There appears to be some irregularities in the entries of the proceedings of the 26th May, 2011, perhaps an error committed during the compilation of the Record of Appeal – see pages 88 to 89 of the Record of Appeal. However, “ex-facie” the ruling of the trial Court, the subject of this appeal, contained in pages 90 to 100 of the Record of Appeal, took into consideration and indeed touched on both the application of the Judgment Debtor against the Respondent/Judgment Creditor on one part and the Garnishee Proceedings on the other part.

In the said ruling, the trial Court found that, although both the notice of appeal against the main judgment of the High Court of Benue State and the motion for stay of execution of the said judgment were served on the Respondent/Judgment Creditor on 31st March, 2011 prior to the commencement of the Garnishee Proceedings by the Respondent/Judgment Creditor, but that the motion for stay of execution was subsequently withdrawn by the Judgment Debtor and struck out by this Court on the 25th May, 2011. Furthermore, the trial Court duly held that, the said notice of appeal against the main judgment of the High Court of Benue State with its adjunct ruling had not yet been entered in this Court and what is more, even if it had been, there being no pending application for stay of execution of that judgment, the pending Garnishee Proceedings initiated by the Respondent/Judgment Creditor could be concluded. The trial Court also noted that there being no appeal against the Order Nisi issued by it, the issuance of the Order Absolute became imperative. Therefore regarding the garnishee proceedings the learned trial Judge held thus:

Therefore in the light of no (sic) irregularity in proceedings(sic) of such serious nature that the order of garnishee nisi can be treated and no appeal against same(sic).

Order 37 of the Rules of Federal High Court spells out the request for Garnishee order nisi to be made absolute and I find that – all the requirements have been complied with –

– Served personally on garnishee
– Binds debt in hands of garnishee

In this case the garnishee has filed an order (sic) to show cause and set aside the funds.

In the light of the above I am satisfied that the garnishee nisi is ripe to be made absolute.

I order therefore an Order Absolute in Account No. 2030252822017 of garnishee(sic) in Central Bank of Nigeria attaching funds of judgment debtor maintained by the judgment debtor with garnishee for the satisfaction of the total sum of the judgment dated 15th December, 2010, N36,525,911.00 being N35,347,656.00 judgment sum and plus(sic) interest of N1,178,255.20.

I hereby order that the said sum of N36,525,911.00 (sic)set aside by the garnishee be paid forthwith into the Federal High Court, Zenith Bank Account No. 6015211521 in the name of Registrar of Court for onwards(sic) payment to the judgment creditor.

I also award the costs of N100,000.00 against the judgment debtor.

The Appellant dissatisfied with the said ruling of the trial Court delivered on 26th May, 2011 filed the appeal against it to this court vide an Amended Notice and Grounds of Appeal dated 20th September, 2012 and filed on 21st September, 2012 pursuant to the order of this Court made on 21st January, 2013. The said Amended Notice of Appeal containing five (5) grounds of appeal was deemed properly filed and served on 21st January, 2013. For easy reference and quick understanding, the five grounds of appeal with their particulars are hereunder reproduced thus:

GROUND ONE

The learned trial judge of the Federal High Court Hon. Justice Abimbola Osarugue Obaseki, acted without jurisdiction when he enforced the judgment of the Benue State High Court vide a garnishee order nisi made absolute on 26th May, 2011.

PARTICULARS OF ERROR

(i) The Federal High Court is not a court of subordinate jurisdiction to the State High Court.

(ii) By the provisions of S.287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) only courts of subordinate jurisdiction can enforce the judgments of other courts.

(iii) The Federal High Court lacked the jurisdiction to enforce the judgment of the Benue State High Court by garnishee proceedings.

(iv) The judgment enforced by the learned trial Judge of the Federal High Court is a judgment delivered without jurisdiction having regard to S.254C of the 1999 Amended Constitution and S.7 of the National Industrial Court Act, 2006.

GROUND TWO

The learned trial Judge erred in law and acted without jurisdiction when he issued garnishee orders against the appellant when the consent of the Hon. Attorney-General of the Federation was not sought and obtained in accordance with S.84 of the Sheriffs and Civil Process Act before the orders were issued.

PARTICULARS OF ERROR

(i) The consent of the Hon. Attorney-General of the Federation is required where money held by a public officer or the court is sought to be attached.

(ii) There was non-compliance with S.84 of the Sheriffs and Civil Process Act.

(iii) That the proceedings conducted without complying with the Sheriffs and Civil Process Act is a nullity.

GROUND THREE

The learned trial judge of the Federal High Court Hon. Justice Abimbola Osarugue Obaseki erred in law and acted without jurisdiction when he ordered that the garnishee decree Nisi of 7th day of April, 2011 be made absolute on the 26/5/2011.

PARTICULARS OF ERROR:

(i) The order absolute of 26/5/11 was made without jurisdiction as Bank PHB (Platinum Habib Bank) Plc; sued in this case as the judgment debtor is not capable of suing and being sued.

(ii) The court was without jurisdiction when it made the order nisi absolute, as necessary parties/juristic persons were not before it.

GROUND FOUR

The learned trial Judge of the Federal High Court Hon. Justice Abimbola Osarugue Obaseki erred in law and acted without jurisdiction when having held that there is an extant motion for stay of execution before the Court of Appeal Makurdi Division, made the order nisi of 7/4/2011 absolute on the 26/5/11.

PARTICULARS OF ERROR

(i) The order absolute of 26/5/11 was made without jurisdiction as there is a pending motion for stay of execution filed 25/5/11 before the Court of Appeal, Makurdi Division.

(ii) The motion for stay of execution filed on the 25/5/11 was slated for hearing on the 26/6/11.

(iii) The learned trial Judge Hon. Justice Abimbola Osarugue Obaseki erred in law when having declared that there was a pending motion for stay of execution pending before the Court of Appeal Makurdi, proceeded in grave error to make orders with respect to the res which is a subject of appeal in Court of Appeal, Makurdi Judicial Division.

GROUND FIVE

The learned trial Judge of the Federal High Court Hon. Justice Abimbola Osarugue Obaseki erred in law and acted without jurisdiction when the Garnishee having briefed a counsel to defend its interest in this proceeding was foreclosed from defending the garnishee (Central Bank of Nigeria).

PARTICULARS OF ERROR

(i) The learned trial Judge did not give audience to the counsel who was briefed by the garnishee to defend its interest.

(ii) The learned trial Judge was not at liberty to foreclose the garnishee from being represented by the counsel.

(iii) The learned trial Judge did not give the garnishee fair hearing.

However, the learned counsel for the Respondent Mr. S. O. Okpale by a Notice of Preliminary Objection dated 28th January, 2013 and filed on 5th March, 2013, prayed this Court to strike out and or dismiss the appeal for being incompetent and or an abuse of court process. The objection is predicated on the following grounds:

1. The judgment/ruling upon which the notice of appeal in this matter was predicated was a consent judgment for which appeal against same can only lie with the leave of the Court below or this Court.

2. The Judgment Debtor Bank PHB (Platinum Habib Bank Plc) not being a party to the garnishee proceedings requires leave to appeal against same as an interested party which leave was not sought for and not obtained before the notice of appeal was filed on her behalf on the 27th day of May, 2011.

3. The requisite leave was not sought for nor obtained before the appeal was filed.

4. The requisite filing fees for the appeal initially filed on behalf of the Appellant herein and Bank PHB (Platinum Habib Bank Plc), was not paid.

5. The Appellant and Bank PHB (Platinum Habib Bank) Plc have an application pending at the Court below praying that the Court below set aside the judgment/ruling appealed against in this appeal which has similar prayers.

5. The ground of appeal do not arise from and or attack and or complain against the judgment/ruling appealed from.

7. Grounds 1, 2, 3, 4 and 5 do not relate to issues raised before the Court below as same were neither argued in the garnishee proceedings nor same decided/ruled upon by the Court below when delivering her judgment/ruling.

8. The issue of jurisdiction raised in the grounds of appeal is a fresh issue neither raised before the Court below and it did not decide on same. Leave of either the Court below or this Court is required before same can be validly raised, which leave was neither sought for nor obtained before the grounds of jurisdiction are raised.

The arguments proffered in support of the objection are contained in paragraph 7.01 at page 11 through to paragraph 10.01 at page 26 of the Respondent’s brief of argument dated 28th January, 2013, filed on 1st March, 2013 and deemed properly filed and served on 2nd March, 2015.

In response to the preliminary objection of the Respondent, the learned senior counsel for the Appellant, Mr. J. S. Okutepa, SAN filed the Appellant’s reply brief, it is dated 19th February, 2015, filed on 27th February, 2015 and deemed properly filed and served on 2nd March, 2015.

On 2nd March, 2015 when the appeal was heard in this Court the Respondent’s learned counsel Mr. S. O. Okpale identified, adopted and relied on the arguments proffered in support of the Respondent’s objection to the competence of the appeal in urging on this Court to strike out the appeal for being incompetent. While the learned counsel for the Appellant Mr. M. O. Ozueh adopted the Appellant’s reply brief, urged this Court to dismiss the Respondent’s objection for being lacking in merit and hear the appeal on its merit.

In respect of the appeal in the main, the learned counsel for the Appellant identified, adopted the Appellant’s brief of argument in urging upon this Court to allow the appeal and set aside the garnishee orders Nisi and Absolute issued by the trial Court. Learned counsel drew the attention of this Court to appeal No. CA/MK/61A/2011 which he described as a sister matter to the instant one. He said that the sister appeal upheld the judgment of the Benue State High Court delivered on 11th February, 2014, and that the Respondent has challenged the judgment “vide” a motion No. CA/MK/27/M/2014 seeking the order of this Court to set aside the said judgment. He submitted further that the ruling in the motion has been reserved by this Court on 24th February, 2015. He therefore urged this Court to allow the decision in the instant appeal to abide the outcome of the said reserved ruling.

In opposition to the appeal, the learned counsel for the Respondent identified, adopted the arguments proffered in the Respondent’s brief of argument, urged upon this Court to dismiss the appeal and affirm the ruling of the trial Court being appealed against herein. The learned counsel for the Respondent further opposed the application of the Appellant’s learned counsel to allow the decision in this appeal abide the reserved ruling of this Court in motion No. CA/MK/27/M/14. He submitted that appeal No. CA/MK/61A/2011, which culminated in the said motion, and the instant appeal are different and distinct from each other as the parties and the subject-matter of each appeal are not the same.

In further reply, the Appellant’s learned counsel argued that, appeal No. CA/MK/61/2011 is the common denominator of appeal No. CA/MK/61A/2011 and the instant appeal, as both appeals arose from a common decision of this Court, having the same parties and subject-matter.

Without much ado, the position of the law is that, Garnishee Proceeding is a separate and distinct action between the Judgment Creditor and the person or body known as the Garnishee, holding in custody the assets of the Judgment Debtor. Garnishee proceeding is “sui generis”, although it flows from the judgment that pronounced the debt.
The appeal herein is an off-shoot of the Garnishee proceedings commenced by the Respondent/Judgment Creditor at the trial Federal High Court, it is different from appeal No. CA/MK/61A/2011 and the latter’s adjunct motion No. CA/MK/27/M/14, although both appeals flow from the judgment of the High Court of Benue State in suit No. MHC/370/2010 delivered on 15th December, 2010 pronouncing the debt, the subject-matter of the said two appeals. In view of this legal position, the decision of the instant appeal cannot abide the decision in motion No. CA/MK/27/M/14. Hence, the application of the Appellant’s learned counsel in this respect is hereby refused. In accordance to law, I shall now proceed to consider and determine the objection on points of law raised by the Respondent’s learned counsel regarding the competence of the instant appeal.

PRELIMINARY OBJECTION

For the determination of the preliminary objection, the learned counsel for the Respondent formulated three issues. The three issues are as follows:

i. Whether the notice of appeal filed on the 27th day of May, 2011 that is, the precursor to this appeal is not incompetent and liable be struck out for want of requisite leave and non-payment of requisite filing fees?

ii. Whether the appeal is not an abuse of Court process and therefore liable to be dismissed?

iii. Whether the grounds of appeal contained in the notice of appeal are not incompetent having not arisen from and or for not constituting an attack on or complaint on the decision of the Court and for want of the requisite leave to argue the fresh issues raised therein and therefore liable to be struck out?

I shall adopt the issues formulated by the Respondent’s learned counsel, considering them along with the replies thereto in the Appellant’s reply brief, although there is no compartmentalization of the three issues in the latter brief of argument.

ISSUE ONE

Whether the notice of appeal filed on the 27th day of May, 2011 that is, the precursor to this appeal is not incompetent and liable to be struck out for want of requisite leave and non-payment of requisite filing fees?

This issue stands on two limbs. On the first limb, the learned counsel for the Respondent referred to Section 241(2)(c) of the 1999 Constitution which makes it mandatory for the leave of the court below or this court to be first sought and obtained before an appeal can be validly filed in a consent judgment. Learned counsel for the Respondent argued that the decision of the trial court in which the order Absolute was issued on 26th May, 2011 is a consent judgment. It is the opinion of the Respondent’s learned counsel that, the affidavit to show cause filed by the Appellant/Garnishee, wherein the Appellant stated that the total judgment sum in the account of the Judgment Debtor with the Appellant/Garnishee has been set aside in compliance with the Order Nisi amounted to submission without contest by the Appellant/Garnishee to the decision of the trial Court issuing the Order Absolute. Hence, the decision being a consent judgment leave of the trial Court or this Court is required pursuant to the provisions of Section 241 (2)(c) of the 1999 Constitution, to appeal against it. On this position, the learned counsel relied on the cases of: Abdulkarim v. Incar (Nig.) Ltd. (1992) 7 NWLR (Pt. 251) p.1 at p.15 paras. F-G and (2) Josiah Cornelius Ltd. & Ors. v. Chief C. O. Ezenwa (1996) 4 NWLR (Pt. 443) p. 391 at p. 407, paras. B-F. He submitted that, failure of the Appellant to obtain the leave of either the trial court or this court before filing the appeal is a violation of the provisions of Section 241(2)(c) of the 1999 Constitution. That the appeal is therefore rendered incompetent and liable to be struck out. He urged this Court to strike out the appeal for that reason.

In response to the above submissions, the learned senior counsel for the Appellant submitted that it is strange to argue that the admission by the Appellant that the funds of the Judgment Debtor was in its custody is tantamount to consenting to the Order Absolute. He further submitted that the case of: Abdulkarim v. Incar (Nig.) Ltd. (supra) and the provisions of Section 241(2)(c) of the 1999 Constitution cannot be overstretched to cover Garnishee Order Absolute emanating from garnishee proceedings. For the said Order Absolute made on 26th May, 2011 was a final decision in which the rights of the parties were determined thereon by the trial Court.
That it is not stated anywhere in the Appellant’s affidavit to show cause, that the Appellant was consenting to the Order Absolute subsequently issued by the trial Court. Hence, the mere filing of the said affidavit did not amount to consenting to the making of the Order Absolute.

Before I proceed to determine whether or not the decision of the trial Court, the subject-matter of this appeal is a consent judgment, I consider it apposite to reproduce the provisions of Sections 241(1)(a), (2)(a)-(c) and 242 of the 1999 Constitution thus:
241. (1) – An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(2) Nothing in this Section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
242 – (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal. (The underlining is supplied by me for emphasis).
The true nature of the right of appeal to this Court pursuant to the above stated Sections 241(1) and 242(2) of the organic law, the 1999 Constitution as amended, is the creation of two different rights of appeal namely:
(i) Right of appeal as of right, Section 241 (1) and
(ii) Right of appeal with the leave of court, Section 242(1).
Therefore an intending appellant can validly exercise his/her right of appeal as of right at will, but within the time fixed by statute, however, leave of either the lower court or this court is a condition precedent to the exercise of his/her right of appeal with leave. This means that leave is a condition precedent to the filing of an appeal which is not of right. Hence, where the condition precedent is necessary as in the instant matter but has not been fulfilled, there will be no proper and valid appeal and the court will be robbed of jurisdiction to adjudicate upon the appeal.

The term “condition” has been defined as: “a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right”. A “condition precedent” is, one which delays the vesting of a right until the happening of an event. See the cases of: (1) Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) p. 536; (2) Shugaba v. U.B.N. Plc (1999) 11 NWLR (Pt. 627) p.459 and (3) D.E.N.R. Ltd. v. Trans Int’t Bank Ltd. (2008) 18 NWLR (Pt. 1119) p. 388.

The next pertinent question is: whether the decision of the trial Court being appealed against herein is a consent judgment? A consent judgment is a judgment, decision or order which parties in litigation voluntarily agreed to be entered for or against or between them. In the case of: Adedeji v. Oloso (2007) 5 NWLR (Pt. 1026) p. 133, the Apex Court restated the connotation of a consent judgment as a judgment wherein the parties unequivocally agree to terms of settlement which they mutually refer to the court as basis for the court’s judgment. Therefore by the mutual agreement of parties to settle the matter between them, they have given their consent to end the litigation. See also the cases of: (1) S.P.D.C.N. Ltd. v. Azukaeme (2011) 9 NWLR (Pt. 1252) p. 360;
(2) Vulcan Gases Ltd. v. G.F. Ind. A.G. (2001) 9 NWLR (Pt. 719) p.610 and (3) Federal Mortgage Finance Ltd. v. Okedo Enterprises Ltd. (2009) LPELR-8259. Hence, in order to have a consent judgment, it must be clearly shown that the judgment has been predicated on and reflecting the express terms of agreement between the feuding parties. There must be “ad idem” regarding the terms of their compromise, thereby reaching a complete and final agreement on the vital issues of the action between them. The consent of the parties must be free and voluntary. The court cannot compel a party to agree to a consent judgment as the element of compulsion would vitiate the volition of the defendant. See the cases of: (1) Odulaja v. Williams (1960) 6 WACA P. 198; (2) Afolabi v. Adekunle (1983) 8 SC p.98 and (3) Federal Mortgage Finance Ltd. v. Okedo Enterprises Ltd. (supra). It is equally trite that a judgment is not consent judgment for the mere fact that the defendant submits to it, as in the instant matter. See the cases of: (1) R. Lauwers Import-Export v. Jozebson Industries Co. Ltd (1988) 3 NWLR (Pt. 83) p. 429 and (2) Federal Mortgage Finance Ltd. v. Okedo Enterprises Ltd. (supra).
In the instant matter, the affidavit to show cause was filed in compliance with the provisions of the law flowing from the Order Nisi issued by the trial Court in the garnishee proceedings. The parties by force of law must necessarily submit to the said proceedings as they did. The submission to the proceedings is not the same as, and does not mean consenting to the decision of the trial Court as reflected in the Order Absolute. There was no mutual agreement or consensus “ad idem” or consent by the parties herein to end the litigation. The parties did not file terms of settlement which they mutually referred to the trial Court as the basis for the trial Court’s decision issuing the Order Absolute. Therefore, I am of the firm view and hold that the decision of the trial Court, the subject-matter of the appeal cannot be classified as a consent judgment or order for which leave is required to appeal against.

Under the second limb of this issue, the learned counsel for the Respondent submitted that the initial notice of appeal, dated 26th May, 2011 and filed on 27th May, 2011, against the garnishee proceedings was fundamentally defective because the Judgment Debtor who was the 2nd Appellant therein, not being a party to the proceedings, ought to have obtained the leave of either the trial Court or this Court, as required by Section 242(1) of the 1999 Constitution to be joined as an interested party, before filing the said notice of appeal. And that the leave to amend the said defective notice of appeal granted by this Court on 21st January, 2013 whereby the name of the Judgment Debtor was struck out, was incapable of curing the fundamental defect inherent in the said initial notice of appeal. Impliedly, the learned counsel for the Respondent is of the opinion that, the Amended Notice of Appeal dated 20th September, 2011, filed on 21st September, 2012 which was deemed properly filed and served on 21st January, 2013 is invalid and liable to and must be struck out. The learned counsel for the Respondent argued further that, consequent upon his last submission, it would mean that the assessment of the filing fees ought to have taken into consideration the Judgment Debtor. That by the provisions of Order 6 Rule 7, Order 12 Rule 1 and the 3rd Schedule to the Court of Appeal Rules, 2011 as amended, the mandatory requisite filing fees for a notice of appeal is Five Thousand Naira (N5,000). That the exact sum paid must be endorsed on the process. That there being no such endorsement on the initial notice of appeal, it means that the requisite filing fees were not paid by the Appellant. Hence, the said notice of appeal is incompetent thereby robbing this Court of the requisite jurisdiction to adjudicate upon the appeal.

I have also considered the response of the learned senior counsel for the Appellant under this limb. I am in complete agreement with the submissions of the learned senior counsel for the Appellant that the law is quite settled that, the amendment of a process including a notice of appeal relates back to the date the initial process was filed. See the cases of: (1) Adetona v. Geo Resources Ltd. (2012) LPELR-7860; (2) F.R.N. v. Adewunmi (2007) 4 S.C. (Pt. III) p. 30; (3) A-G, Ekiti State v. Adewumi (2002) 1 S.C. p. 47; (4) Vulcan Gases Ltd. v. Gesellschaft Fur Ind. Gasverwertung A.G. (2001) 5 S.C. (Pt. 1) p.1 and (5) Oguna v. I.B.W.A. (1988) NWLR (Pt. 73) p. 658. In the case of: Vulcan Gases Ltd. v. Gesellschaft Fur Ltd. Gasverwertung A.G. (supra), the Apex Court restated the time-hallowed legal principle in the following words:
It is beyond dispute that an amendment relates back to the commencement of a suit. An order of amendment takes effect, not from the date when the amendment is made or granted but from the date of commencement of the action. In other words, once ordered, what stood before amendment is no longer material before the court and no longer defines the issues to be tried. See Grace Amanamhu v. Alexander Okafor & Another (1966) 1 All NLR 205; Warner v. Sampson (1952) 2 WLR 109; Col. Rotimi v. McGregor (1974) 11 S.C. 133 at 152; Osita Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688. (The underlining is supplied by me for emphasis).

Therefore in the instant matter, in the eye of the law, the initial notice of appeal under attack by the learned counsel for the Respondent was not in existent even at the time it was purportedly filed. What this means is that, it was never really filed. Hence, the Judgment Debtor was never in view in this appeal as commenced “vide” the Amended Notice of Appeal, which is against a final decision in the garnishee proceedings and therefore requires no leave to be appealed against pursuant to Section 241 (1)(a) of the 1999 Constitution. What is more, as rightly submitted by the learned senior counsel for the Appellant, when the original notice of appeal was sought to be amended vide the relevant motion, the learned counsel for the Respondent opposed same and this Court overruled the objection, granted the application and ordered the filing of the Amended Notice of Appeal. I have perused the Record of Appeal and I am unable to see any appeal filed against the said Order by the Respondent. Therefore, the Order which was made by this Court on 13th June, 2012 and the Amended Notice of Appeal filed consequent upon same remain valid. By extension, the issue of non-payment of the correct filing fees for the original notice of appeal is of no moment. What is more, the Appellant as can be gleaned from the Amended Notice of Appeal, being an Agency of the Federal Government is understandably exempted from payment of filing fees, so as not to be caught up by the proverbial axiomatic expression: “robbing Peter to pay Paul”.

For the aforesaid reasons, issue one fails on both limbs, is resolved against the Respondent and in favour of the Appellant.

ISSUE TWO

Whether the appeal is not an abuse of Court process and therefore liable to be dismissed?

It is the submission of the learned counsel for the Respondent that, the Appellant in conjunction with the Judgment Debtor, prior to the filing of this appeal, had filed an application before the trial Court, seeking reliefs that are virtually identical to those being sought herein.
The learned counsel has stated the correct position of the law that where two processes are pending in the same court or two-different courts between the same parties, on the same subject-matter and seeking the same relief(s), the one that is later in time constitutes an abuse of court process and liable to be dismissed.

I have beamed my searchlight on the Record of Appeal and found that the instant appeal was filed on the 27th May, 2011 – See pages 103 to 107 of the Record of Appeal. While the said application dated 28th May, 2011 was filed on 31st May, 2011 at the trial Court – See pages 120 to 122 of the Supplementary Record of Appeal. Hence, if the above stated principle of abuse of court process were to be applied, it will be the said motion and not the appeal that is in abuse of court process. What is more, the learned trial Court has wisely ruled on the said application foreclosing any further contest between the parties before it in this matter. In his own words, the learned trial Judge state thus:

There is also an appeal on the garnishee proceedings. In view of the appeal, been(sic) entered at the Court of Appeal, this court is functus officio, any further orders would be at the Court of Appeal level.

See paragraph 2 at page 172 of the Supplementary Record of Appeal for the above set out pronouncement of the trial Court. Furthermore, in view of the doing away with or non-existence of the initial/original notice of appeal as held by me under issue one above, the parties in the appeal can no longer be the same as in the said application, that is, assuming that the application were still to be alive before the trial Court and it is not. Therefore, from all angles, issue two is also doomed to fail. It is resolved against the Respondent and in favour of the Appellant.

ISSUE THREE

Whether the grounds of appeal contained in the notice of appeal are not incompetent having not arisen from and or for not constituting an attack on or complaint on the decision of the Court and for want of the requisite leave to argue the fresh issues raised therein and therefore liable to be struck out?

It is the view of the learned counsel for the Respondent that all the five grounds of appeal herein have raised fresh issues in that they do not touch on the subject of the dispute between the parties and did not emanate from the decision of the trial Court being appealed against. Hence, in law the leave of the trial Court or this Court is a precondition before the notice of appeal containing the said grounds of appeal can be validly filed. And that such leave having not been first sought and obtained, the appeal is plagued with incompetence and this Court is robbed of the requisite jurisdiction to adjudicate upon the appeal. The learned counsel for the Respondent therefore urged upon this Court to strike out the appeal for incompetence. He agreed that although all the five grounds of appeal are issues of jurisdiction, prior leave of court is still required to raise them anew in this Court.

I have set out hereinbefore in this judgment all the five grounds of appeal. It is my very firm view and I hold that all the five grounds of appeal revolve around the subject of the dispute between the parties herein. The subject of dispute is the debt declared owed to the Judgment Creditor/Respondent by the Judgment Debtor, Bank PHB PLC, as contained in the judgment of the High Court of Benue State delivered on 15th December, 2010 in suit No. MHC/370/2010. It is the said judgment that the Respondent himself as Judgment Creditor actually got enforced “vide” the Garnishee Proceedings in the trial Court by attaching the account of the Judgment Debtor that is in the custody of the Appellant/Garnishee. And it is the decision of the trial Court in the Garnishee proceedings that the Garnishee/Appellant has appealed against to this Court, that is, the instant appeal. Therefore, it is crystal clear that all the five grounds of appeal revolve around the subject of dispute between the parties, which eventually culminated in the Garnishee proceedings. What is more, the learned counsel for the Respondent has rightly submitted that all the five grounds of appeal border on the issue of jurisdiction. I am in total agreement with the Appellant’s learned senior counsel’s submission that the leave of either the trial Court or this Court is not required to file the said grounds of appeal which are all issues of jurisdiction. An issue of jurisdiction is that of law which does not require the leave of court before it can be raised – see Section 241(1)(b) of the 1999 Constitution.

For the above enunciations, issue three is equally bound to fail and it is hereby declared a failure. It is resolved in favour of the Appellant and once again against the Respondent.

Consequently, all the three issues formulated for the determination of the preliminary objection having suffered the fate of failure, the preliminary objection is hereby overruled and accordingly dismissed.

I shall now proceed to the consideration and resolution of the appeal in the main, on its merits.

In the main Appellant’s brief of argument dated 22nd January, 2013, filed on 23rd January, 2013 and deemed properly filed and served on 2nd March, 2015, the sole issue formulated for the determination of the appeal from the five grounds of appeal reads thus:

Whether the learned trial Judge Hon. Justice Abimbola Usarugue Obaseki of the Federal High Court acted without jurisdiction when he enforced the judgment of the Benue State High Court by Garnishee Orders having regards to the provisions of the Constitution of the Federal Republic of Nigeria and other laws connected thereto?

While arguments in respect of the Respondent’s opposition to the appeal are contained in paragraph 11.00 at page 26 to paragraph 12.01 at page 30 of the Respondent’s brief of argument.

The sole issue formulated by the learned senior counsel for the Appellant reproduced above is quite unwieldy. However, I have found that the issue is six-pronged. Therefore, I shall tackle the posed questions in the appeal as set out under the said six prongs, considering them numerically seriatim with the responses of the learned counsel for the Respondent thereto.

Under the first prong, the learned senior counsel for the Appellant referred to Section 287 (3) of the 1999 Constitution which provides that:

The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.

He submitted that the High Court of Benue State and Federal High Court are courts of coordinate jurisdiction, that is, the High Court of Benue State is not a subordinate court to the Federal High Court, hence a judgment of the former Court cannot be enforced in the latter Court. Therefore, in his view, the judgment of the High Court of Benue State in suit No. MHC/370/2010 delivered on 15th December, 2010, was wrongly enforced by the Respondent/Judgment Creditor, in the trial Court “vide” the Garnishee Proceedings, the subject-matter of the appeal. In other words, according to learned senior counsel, the trial Court is devoid of jurisdiction to enforce the said judgment and issue the Garnishee Orders of 7th April, 2011 and 26th May, 2011 in the Garnishee Proceedings. He relied on the case of: Madukolu v. Nkemdilim (1952) 2 SCNLR p.341 and urged this Court to hold that the Garnishee Proceedings amount to a nullity having been adjudicated upon by a court devoid of jurisdiction.

The response of the learned counsel for the Respondent under this head is that the Appellant cannot approbate and reprobate in the same breath. He noted that the initial Garnishee Order Nisi issued consequent upon the Garnishee Proceedings first commenced at the High Court of Benue State was set aside by that Court having been moved by the same Appellant’s learned senior counsel so to do, on the ground that the High Court of Benue State lacks the jurisdiction to adjudicate upon the matter which involved the Appellant, a Federal Government Agency. Hence, the Respondent rightly commenced another Garnishee Proceedings at trial Court, a court with the requisite jurisdiction.
I am at one with the above stated position of the learned counsel for the Respondent. Both learned counsel for the respective parties are “ad idem” that the Appellant is one of the Agencies of the Federal Government of Nigeria. By the provisions Section 251 of the Constitution, the Federal High Court has been conferred with exclusive jurisdiction, that is, to the exclusion of any other court, in civil causes and matters pertaining to the administration or the management and control of the Federal Government or any of its agencies, like the instant matter.
The Apex Court’s interpretation of the entirety of Section 251 is as stated in the case of: Abia State Independent Electoral Commission v. Chief Okechi Kanu & Ors. (2013) 5 S.C.N.J. (Pt. II) p. 565 at p. 573, thus:
The well founded principle of the law is that in the determination of whether a court has jurisdiction or not to try a matter placed before it, such a court must examine the nature of the claims. See Adeyemi & Ors. v. Opeyori (1976) 9-10 SC 31; W.S.W. Ltd. v. Iron & Steel Workers Union of Nigeria & Ors. (1987) 1 NSCC 133 at p. 140; Oduku v. Govt. of Ebonyi State (2009) 9 NWLR (Pt. 1147) 439 at 452 F-G; Obi v. INEC (2007) 45 WRN 1 at 66. …with the coming into effect of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)… the court will also have to examine the persons that make up the parties before it. See: NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79. — Thus, irrespective of the nature of the claim, once any of the parties before a State High Court is the Federal Government or any of its Agencies, the State High Court loses jurisdiction. It is the Federal High Court, by virtue of Section 251 of the Constitution and the interpretation given by this Court to that Section and or other related Sections or statutes, that can lawfully exercise jurisdiction thereon. (The underlining is supplied by me for emphasis).
Consequent upon the above-referred decision of the Apex Court, it is crystal clear that in all civil causes/matters, [Section 251(1)] or treason/treasonable felony/allied matters, [Section 251(2)] or criminal causes/matters Section 251 (3), in which the Federal Government or any of its Agencies is a party, the State High Court (which includes the High Court of FCT) is devoid of jurisdiction and it is the Federal High Court that has exclusive jurisdiction to adjudicate upon all such causes/matters. The instant matter is an off-shoot of a Garnishee Proceeding. Although “sui generis” distinct and a separate originating process, it is a specie of a civil cause/matter. One of the parties herein, the Appellant, the Central Bank of Nigeria, is a Federal Government Agency, both parties herein are “ad idem” on this point. It follows therefore that, it is the trial Court, the Federal High Court that is seized of exclusive jurisdiction to deal with the subject-matter pertaining to Garnishee Proceedings commenced before it by the Respondent/Judgment Creditor. Hence, the trial Court properly assumed jurisdiction in the said proceedings for the reasons advanced above.

Consequently, the first prong of the sole issue fails. It is accordingly resolved against the Appellant and in favour of the Respondent.

Under the second prong of the sole issue, the learned senior counsel for the Appellant is contending the exercise of jurisdiction, over the action of the Respondent/Judgment Creditor against Bank PHB PLC/Judgment Debtor, by the High Court of Benue State. It is the view of the learned senior counsel that, the action was in the main for the payment of unpaid salaries and allowances, a purely labour/employment matter. He therefore submitted that by the provisions of Section 254 C (1) of the 1999 Constitution, as amended and Section 7 of the National Industrial Court Act, 2006, the claim of the Respondent falls within the exclusive jurisdiction of the National Industrial Court. The learned senior counsel argued that, consequent upon the above-referred provisions of the two statutes, the said judgment of the High Court of Benue State was delivered without jurisdiction, hence, it is null, void and incapable of enforcement as purportedly done by the trial Court. Consequently, the Garnishee Orders Nisi and Absolute issued are invalid. He therefore urged upon this court to set aside the said Garnishee Orders.

In the response of the learned counsel for the Respondent, he submitted that the High Court of Benue State at the time it delivered the judgment in contention, possessed the requisite jurisdiction to adjudicate upon the Respondent’s claims. He submitted that the said judgment not having been appealed against is subsisting, must be obeyed and therefore enforceable. The learned counsel for the Respondent also posited that since the matter of want of jurisdiction was not adverted to at and did not arise from the judgment of the trial Court, it is improper to raise same in the appeal.

With due respect to the learned counsel for the Respondent, the issue of jurisdiction can be raised at any stage and in any manner even on appeal for the first time. I have adequately thrashed this point hereinbefore under issue three of the preliminary objection of the Respondent. I do not intend to repeat same here.

Now the poser craving for resolution under this prong two is: Whether at the time the High Court of Benue State delivered the decision in contention, it was seized of jurisdiction to deal with the subject-matter of the action of the Respondent against Bank PHB PLC, that is, the payment of the Respondent’s unpaid salaries/allowances from May, 2007 to October, 2010 and ex-grantia salaries/allowances for six months.

The law is settled, I have elaborately reiterated this position of the law hereinbefore, that a court will have the necessary competence to hear and determine a matter before it, if the subject-matter is within its jurisdiction, there is no feature in the case which prevents the court from exercising its jurisdiction and the case comes before the court having been initiated by due process of law and upon fulfillment of any condition precedent to the exercise of the court’s jurisdiction.

It is pertinent at this juncture to consider Section 254 C (1) (a) of the 1999 Constitution, as amended, that is, the Constitution (Third Alteration) Act, 2010, which provides thus:
254C – (1) Notwithstanding the provisions of Section 251, 257, 272 and anything 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 National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith. (The underlining is supplied by me for emphasis).
The above stated Constitutional provisions and Section 7 (1) (a) (i) of the National Industrial Court Act, 2006 the statute which established the National Industrial Court, vest exclusive jurisdiction in the National Industrial Court in civil causes/matters relating to or connected with employer and employee relationships. That is to say, notwithstanding the provisions of Sections 251 and 257 of the 1999 Constitution, to use the phrase of the Apex Court in Abia State Independent Electoral Commission v. Chief Okechi Kanu & Ors. (Supra), not only the State/FCT High Courts but now, also the Federal High Court, “loose jurisdiction” in labour/employment causes/matters even if the Federal Government or any of its Agencies were parties to the causes/matters.
There is no doubt that the subject-matter of the action between the Respondent and the Judgment Debtor has to do with the parties’ relationship of employee and employer, a labour matter. The next pertinent question is: whether at the time of the trial of this matter, it was the High Court of Benue State or National Industrial court that was seized of the requisite jurisdiction to adjudicate thereupon? The Respondent’s action was filed on 9th November, 2010, trial was on 14th December, 2010 and judgment was delivered on 15th December, 2010. The Law, that is, the 1999 Constitution as amended by the Constitution (Third Alteration) Act, 2010, has its commencement date as 4th March, 2011. What this means is that, a litigant who had his/her/its labour/employment cause of action wherein trial commenced before an appropriate court hitherto in 2010, in the instant matter on 14th December, 2010 at the High Court of Benue State, it is that court that had jurisdiction to try the case but if after 4th March, 2011, the case would be tried by the National Industrial Court.
Consequent upon the reasons stated above, I hold that, the High Court of Benue state was seized of jurisdiction when it tried the claim of the Respondent and delivered the judgment thereon on 14th December and 15th December, 2010 respectively. Hence, the said judgment is valid and enforceable. Therefore, the second prong of the sole issue fails, I resolve it against the Appellant and in favour of the Respondent.

On the third prong of the issue, the learned senior counsel for the Appellant argued that, failure of the Respondent to seek and obtain the consent of the Attorney-General of the Federation before commencing the Garnishee proceedings against the Appellant, a public officer, violates the provisions of Section 84 of the Sheriffs and Civil Process Act, Vol. 14, Cap 523, Laws of the Federation of Nigeria, 2010 (the Act), thereby robbing the trial Court of jurisdiction to issue the Garnishee Orders.

The reply of the learned counsel for the Respondent again is that, this point not having been raised at the trial court is incompetent. My response is also the same, this point is an issue of jurisdiction which can be raised at any stage, in any manner and on appeal in this court and the Apex Court. I have duly considered this point in details earlier on in this judgment and it is pointless to repeat same.

The learned senior counsel for the Appellant in his attempt to establish the relationship between the Appellant and the Judgment Debtor, Bank PHB PLC has referred to the provisions of Sections 1, 2 and 36 of the Central Bank of Nigeria Act, Cap. C4, and Section 18(1) of the Interpretation Act, Cap. 123, both of the Laws of the Federation of Nigeria.
However I do not consider it necessary to reiterate those provisions because the issue is not in contention.

At this juncture and before I proceed to the resolution of this prong, it is pertinent to catalogue the provisions of the Laws that are relevant to the point under consideration. They are, Section 84 (1), (2) and (3) of the Sheriffs and Civil Process Act (supra), Section 318 (1) of the 1999 Constitution, as amended, and Section 18 (1) of the Interpretation Act (supra). For easy reference and quick understanding, they are hereunder reproduced respectively thus:
84. Consent of appropriate officer or court is necessary if money is held by public officer or the court:
(1) 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 custodia 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.
(2) In such cases the order of notice must be served on such public officer or on the registrar of the court, as the case may be.
(3) In this section, “appropriate officer” means –
(a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation;
(b) In relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.
318 – (1) In this Constitution, unless it is otherwise expressly provided or the context otherwise requires-
“Public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as-
(e) Staff of any statutory corporation established by an Act of the National Assembly.”
18 (1) – In an enactment the following expressions have the meanings hereby assigned to them respectively, that is to say –
“Public officer” means a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or of the Public Service of a State.”
From the community reading and effect of the provisions of the Laws set out above, it is crystal clear that, the Appellant, the Central Bank of Nigeria, a statutory corporation established by an Act of the National Assembly, is a public officer being a part of the Public Service of the Federation of Nigeria. Therefore, 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 custodia legis” of a court, as the case may be, the Order Nisi shall not be made under the provisions of Section 83 of the Sheriffs and Civil Process Act (supra), unless consent to such attachment is first sought and obtained from the appropriate officer, that is, the Federal/State Attorney-General in the case of money in the custody or control of a public officer or of the court in the case of money “in custodial legis”, as the case may be. It will not matter that the Federal/State Attorney-General were a party to the action, his consent must still be obtained. It follows therefore that in the instant matter the Judgment sum enforced by the Respondent/Judgment Creditor, being in the custody of the Appellant, a public officer, the prior consent of the Federal Attorney-General, the appropriate authority, is required. The prior consent of the appropriate authority is therefore a precondition or condition precedent to instituting garnishee proceedings to attach money in the custody of a public officer or “in custodia legis” of a court. See the cases of: (1) C.B.N. v. Amao (2010) 16 NWLR (Pt. 1219) p.271; (2) C.B.N. v. Hydro Air PTY Ltd. (2014) 16 NWLR (Pt. 1434) p.482; (3) C.B.N. v. J.I. Nwanyanwu & Sons Enterprises Nig. Ltd. (2014) LPELR-22745 and (4) Utomudo v. Mil. Governor of Bendel State (2015) EJSC (Vol. 3) p.1. In the case of: C.B.N. v. Hydro Air PTY Ltd. (supra), this Court per Iyizoba, JCA, in paras. D-G at p. 506 and paras. F-G. p. 507, held thus:
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 these decisions, this Court has accepted the provision of Section 84 of the Sheriffs and Civil Process Act as necessary procedural safeguard 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. (The underlining is supplied by me for emphasis).
In the instant matter, failure to fulfill the precondition/condition precedent of seeking and obtaining the consent of the Federal Attorney-General by the Respondent/Judgment Creditor before the commencement of the Garnishee Proceedings robbed the trial Court of the requisite jurisdiction to adjudicate upon the said judgment enforcement proceedings and then renders the proceedings already conducted, the subject-matter of the appeal, nugatory. The garnishee proceedings therefore contaminated incurably the Garnishee Orders Nisi and Absolute issued therein. The two Orders are consequently hereby declared null, void and of no effect. For the above advanced reasons, the third prong is declared a success. It is hereby resolved in favour of the Appellant and against the Respondent accordingly.

The argument canvassed for the Appellant by its learned senior counsel under the fourth prong is that the judgment of the High Court of Benue State delivered on 15th December, 2010, the subject-matter of the Garnishee Proceedings was against Bank PHB (Platinum Habib Bank) plc, a bank, which was/is not in existence. He also contended the validity of the amendment made “suo motu” by the learned Judge of the High Court of Benue State in his ruling delivered on 31st March, 2011 striking out the Court’s earlier order Nisi on grounds of want of jurisdiction over the initial Garnishee Proceedings commenced before that court – see pages 29 to 45 of the Record of Appeal/pages 133 to 149 of the supplementary Record of Appeal. The learned senior counsel submitted that, both the High Court of Benue state and consequently the trial court were devoid of jurisdiction both in conducting the action in the main and the judgment enforcement proceedings instituted thereat respectively. He urged upon this court to so hold and declare the Garnishee orders of the trial Court null and void. The contentions were hinged on the cases of: (1) Administrator/Executors of the Estate of General Sani Abacha (Deceased) v. Eke Spiff (2009) ALL FWLR (Pt. 467) p. 1, (2) Oladele v. Akintaro (2011) ALL FWLR (Pt. 590) p. 1346 and (3) Kaliel v. Aliero (1999) 4 NWLR (Pt. 591) p. 139.
Straight away, it is my very firm view and I hold that the contention in favour of the Appellant under this prong is a matter of semantics and fancy. It is obvious that “PHB” is an acronym for “Platinum Habib Bank”. Hence, the use of “PHB” in the said ruling of the High Court of Benue State delivered on 31st March, 2011 cannot be termed to be an amendment aimed at obviating one of the parties in the action. What is more, the use of “Bank PHB (Platinum Habib Bank) PLC” in both the initial action at the High Court of Benue State and the Garnishee Proceedings at the trial Court can only be viewed as an error or irregularity in superfluity. For none of the parties in both proceedings was misled as to the nomenclature of the Respondent/Judgment Debtor in the main suit. It has not occasioned any miscarriage of justice to the Appellant. Most importantly, the Appellant, who is here now complaining, has not been misled in any way, lest it would not have filed the Affidavit to Show Cause in compliance with the order of the trial Court – see page 74 of the Record of Appeal. In paragraph 5 of the said Affidavit, the Appellant deposed in acknowledgement of the fact that Bank PHB is the Judgment Debtor and that the judgment debt has been set aside by it for the purposes of the judgment enforcement proceedings. I am fortified in my opinion by the prevailing attitude of the courts in this regard. In the case of: Kalu v. Odili (1992) 23 N.S.C.C. (Pt. 2) p. 38 at p.68 lines 33-49, the Supreme Court per the erudite jurist, Karibi-Whyte, JSC, (Rtd.) had the following to say:
This Court has declared emphatically in several of its decisions that where the error relied upon by a party to set aside a proceeding is clearly excusable, and is shown not to have misled the party complaining about the error, and it is clear that no injustice has been occasioned thereby, the Court will in the interest of justice not act to the prejudice of the party in error. This Court is wholly concerned and interested in the doing of justice between the parties before it.
Also in the case of: HDP v. INEC (2009) 8 NWLR (Pt. 1143) p.297, the Supreme Court held that the omissions of, the alphabet “(S)” from the name of the 3rd Respondent and the word “National” from the name of the 1st Respondent were not fatal to the issue of proper parties in the action, as none of the parties suffered any injustice thereby. In the case, the learned Ogbuagu, J.S.C. (Rtd.) in paras. E and G-H at p.326 observed on this point thus:
Can it be seriously contended or submitted as the said respondents have done in their respective Brief, that any of their clients or themselves, was/were misled in the nomenclatures of the said respondents? Does it not look or sound very amusing if not, with respect, ridiculous in the extreme, that for instance, the alphabet S, was not added to or omitted from the name of the Peoples Democratic Party (PDP) – the 3rd respondent, rendered it to be a non-juristic personality? I or one may ask. The whole thing, to say the least, to me, is very or most laughable. I say no more on this issue.
See also the cases of: (1) Goyang Kayili v. Esly Yilbuk & 2 Ors (2015) 7 NWLR (Pt. 1457) p.26 and (2) Agbana v. Owa (2004) 18 NSCQR p.774. In the case of: Goyang Kayili v. Esly Yilbuk & 2 Ors (Supra) at p.73, paras. C-E and p.8, paras. E-F, the Apex Court very recently restated this position in the following words:
It is open to the court in all causes and matters to make any order which it considers necessary for doing justice, whether or not such order has been expressly asked for by the person entitled to the benefit therefrom. The making of such an order is to do justice in the circumstance of a case, which is the foundation and cornerstone of Nigerian Judicial System and the Constitution… A court can make an order which appears incidental and necessary for a proper and final determination of a cause before it. It can be made, though not claimed, so as to obviate further or later dispute between the parties.
In view of my above stated reasons, it is my humble but firm opinion and I hold that, the so called irregularity is not fatal to the suit of the Respondent at the High Court of Benue State and consequently, the judgment enforcement proceedings commenced by the Respondent at the trial Court and incapable of preventing the said Courts from the valid exercise of their jurisdictions in the respective actions. For the facts and circumstances of this matter demonstrate in no uncertain terms that the Respondent intended to sue Bank PHB Plc. What is more, the acronym “Bank PHB PLC” refers to no other body in Nigeria, which the courts can, under the provisions of Section 74 of the Evidence Act, take judicial notice of.

In the given circumstances of my above line of reasoning and conclusion, the fourth prong of the sole issue must necessarily fail. I hold that it is a failure and resolve it accordingly against the Appellant and in favour of the Respondent.

In support of the fifth prong, the learned senior counsel for the Appellant submitted that, two applications for stay of execution of the decision of the High Court of Benue State delivered on 15th December, 2010, were pending before this Court, to the knowledge of the Respondent but despite this, the Respondent still went ahead to initiate the enforcement proceedings of the said decision at the trial Court. The learned senior counsel indicted his learned friend for the Respondent in this regard. And equally submitted that, where a party is aware of a pending appeal and notice of motion for stay of execution, such a party must exercise restraint in taking any step to undermine such pending processes or foist a situation of “fait accompli” on the appellate court. He rested his position on a plethora of authorities, such as the cases of: (1) Pere Roberto (Nig.) Ltd. v. Ani (2009) 13 NWLR (Pt. 1159) p.522 at p.535; (2) Aje Printing (Nig.) Ltd. v. Ekiti Local Govt. (2009) 7 NWLR (Pt. 1141) p. 512 at p.530, para. F; (3) Bawa v. Balarabe (1999) 6 NWLR (Pt. 605) p.61; (4) S.T.B. Ltd. v. Contract Resources Ltd. (No. 1) (2001) FWLR (Pt. 72) p.1922 at p. 1933, paras. D-G; (5) Denton-West v. Muoma (2008) ALL FWLR (Pt. 433) p. 1423 at p.1449, para. B; (6) Mahammed v. Olawunmi (1993) 5 SCNJ p.96 at pgs. 112-114; (7) Vaswani Trading Co. v. Savalakh & Co. (2000) F.W.L.R (Pt. 28) p.2174 at p.2181 and (8) Ivory Merchant Bank v. Partnership Inv. Ltd. (1996) 5 NWLR (Pt. 448) p.362.

However, I agree with the learned counsel for the Respondent that, the subject of this prong has been adequately dealt with and disposed off under issue three of the preliminary objection. However, it is pertinent to state here that, one of the two motions for stay of execution allegedly filed at this Court that is, motion no. CA/MK/15M/2011, was held by the learned trial Judge to have been withdrawn and struck out before the Garnishee Order Absolute was issued. Although in the same breath down the line in the decision of the trial Court, the learned trial Judge noted that a copy of the said motion was not exhibited and not before the Court.

On my own part, I have carefully perused both the Record of Appeal and the Supplementary Record of Appeal, the said motion is nowhere to be found therein. Indeed, the purported enrolled Order striking out the alleged motion contained in page 86 of the Record of Appeal, is fraught with a lot of irregularities and inconsistencies. The purported Enrolled Order does not bear the number of the alleged motion. Again, curiously, the learned senior counsel has failed to give the particulars of the second motion for stay of execution which was allegedly filed and pending at this Court. Equally, there is no evidence of the service of same on the learned counsel for the Respondent prior to the commencement of the Garnishee Proceedings at the trial Court. Although the learned senior counsel stated, in lines 7 to 12 of paragraph 4.36 at page 25 of the Appellant’s brief of argument that, a motion similar to the one struck out had been filed on 25th May, 2011 at this Court and fixed for hearing, he failed to supply the motion details, he did not refer to the portion(s) of the two sets of the printed Record where the motion is situated. I must also add that, I cannot locate the alleged motion(s) in any of the two sets of the printed Record by which I am only bound in the determination of the appeal.
Â Â Consequent upon my observations under this prong, I must state that all the authorities upon which the submissions of the learned senior counsel have been predicated, including the case of: U.B.N. Ltd. v. Fajebe Foods and Poultry Farms & Ors. (1994) 5 NWLR (Pt. 344) p.325, do not advance the course of the Appellant because the facts and circumstances of the said catalogued cases, which I have read, are not the same as those of the instant matter. There is no evidence that the alleged motions for stay of execution were actually filed at this Court.

The fifth prong for the above-given reasons is equally failure-fated. It fails and is resolved against the Appellant and in favour of the Respondent.

The learned senior counsel for the Appellant submitted on the sixth prong of the sole issue for determination, that, the Appellant was denied fair hearing by the learned trial Judge, having been foreclosed to have a legal practitioner of its choice defend its interest in the Garnishee Proceedings. That the fundamental right of the Appellant, a juristic person, to fair hearing as guaranteed by Section 36 of the 1999 Constitution as amended, has been infracted, He referred in particular to page 88 of the Record of Appeal, wherein on 26th May, 2011, it was brought to the attention of the trial Court by the Appellant/Garnishee’s learned counsel that another motion had been filed the day before at this Court on 25th May, 2011. The learned senior counsel contended the validity of the ruling in which the Order Absolute was issued on the ground that, since the “invisible motion for stay of execution” was pending before this Court, the ruling of the trial Court ought not to have been delivered.

The position of the learned counsel for the Respondent once more that the matter of fair hearing be jettisoned by this Court on the ground that it is a fresh issue in the appeal, is a non-starter.

Again, it should be noted that I have put paid to this point exhaustively under the preceding fifth prong of the sole issue and I do not consider it profitable hereunder to engage in a repetitive task. I however refer to the proceedings of the day in question as contained in the same page 88 of the Record of Appeal. The learned trial Judge after being informed that the alleged motion for stay of execution was pending at this Court, noted that, there was no such motion before him. It is quite intriguing that the said motion and indeed the previous similar motion which the learned senior counsel also claimed to have been filed but later withdrawn and struck out, as I noted earlier on in this judgment are nowhere to be located by me in the two sets of the Printed Record herein. I do not wish to say anything more on the motion matter.

Now, talking generally on fair hearing, I have overhauled the two sets of the Printed Record and find that, right from the on-set of the Garnishee Proceedings, the Appellant was duly carried along as permitted and required by law. The Order Nisi was issued and appropriately served on the Appellant by the trial Court, it was sequel to this that, the Affidavit To Show Cause, dated 4th May, 2011 was filed on the same date by the Appellant, see page 74 of the Record of Appeal. For the specifics, the Affidavit was deposed to by one Mr. Donatus Ogah, principal Legal Officer in the Legal Services Department of the Appellant. In all the subsequent proceedings after the originating “ex-parte” motion of the Respondent as required by law, I find that the Appellant was duly represented by a legal practitioner of its choice. As a matter of fact, on the 4th May, 2011, the case was stood down till 11.00am to accommodate the learned senior counsel for the Appellant. On the said day, the learned trial Judge was informed that the learned senior counsel had telephoned that he would be late to Court because he was travelling to Makurdi from Lagos that morning – See page 75 of the Record of Appeal. The learned senior counsel has equally admitted that twice the learned trial Judge delayed the delivery of the ruling wherein the Order Absolute was issued, in order to be sure that there were no pending processes in respect of the matter before this Court. The learned trial Judge was careful to not, foist a “fait accompli” on this Court. With due respect to the learned senior counsel for the Appellant, I cannot but note euphemistically that his contention herein is out of the question. For I know not how the opportunities afforded the Appellant’s learned senior counsel and his team could have been bettered.

The law is well settled that the principle of fair hearing demands that parties be afforded the opportunity to present their respective cases before the court and no more. The principle does not portend that the court should be forced to pander to the whims of parties or their counsel. The Apex court and this court have, on numerous occasions in the past, stated that the issue of fair hearing should be invoked by counsel only in appropriate cases. It is on this note before I end this Judgment and for the umpteenth time reiterate the position of the appellate courts on this issue as notably pronounced by the Apex Court recently in the case of: Ekunola v. C.B.N. (2013) 15 NWLR (Pt. 1377) p.224, per Chukwuma-Eneh, JSC, in paras. A-C at p.265 as follows:
There can be no doubt from the foregoing resume that “fair hearing” has become the whipping principle for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. This approach of counsel in general is deprecated. Fair hearing should, for what it is and represents in our adjudicative process before the courts be invoked with every sense of seriousness and in appropriate settings. It is not the case in the instant appeal.

Therefore, it is my firm view and I hold that, want of fair hearing is far from being present in or applicable to and has been inappropriately raised in the setting of the instant matter. Consequently, the sixth prong of the sole issue is bound to fail. I hereby declare its failure, resolve it against the Appellant and in favour of the Respondent.

On the whole, this appeal succeeds in part and it is hereby allowed accordingly.

For the avoidance of doubt, the decision of the trial Court issuing the Garnishee Order Absolute, delivered on 26th May, 2011 is accordingly set aside.

I make no order for costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had perused, in advance, the judgment delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. I concur with it. I abide by the consequential orders decreed in it.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.

Appearances

Mr. M. O. Ozueh with him were Messrs N. I. Aniekwe and S. T. Akohol – Garnishee/Appellant For Appellant

AND

Mr. S. O. Okpale with him were Messrs C. P. Dikeocha and C. J. N. Nweke For Respondent