CENTRAL BANK OF NIGERIA v. LT. COR. ISAAC I. OKPANACHI & ORS
(2018)LCN/12282(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of December, 2018
CA/A/796/2015
RATIO
COURT AND PROCEDURE: GARNISHEE PROCEEDINGS
“A garnishee is therefore, a debtor to the judgment debtor – see Skye Bank v. Colombara & Anor (2014) 2 BFLR 177: (2015) 5 NWLR (Pt. 1453) 538, wherein it was held:
“A garnishee is essentially a third party, who being indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor from the creditor of the judgment debtor in the account thereof with the third party.” The third party envisaged as a prospective garnishee under Section 83 of the said Sheriff and Civil Procedure Act must be a person, who holds sums amounting to “debts due or accruing to the judgment debtor” C.B.N. v. Auto Import Export & Anor (2012) 4 BFLR 1, 34: (2013) 2 NWLR (Pt. 1337) 80. ” PER PETER OLABISI IGE, J.C.A.
JUSTICES:
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
CENTRAL BANK OF NIGERIA – Appellant(s)
AND
1. LT. COR. ISAAC I. OKPANACHI
2. CHIEF OF NAVAL STAFF
3. NIGERIAN NAVY BOARD – Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
By the motion Ex-parte dated 18th day of October, 2013 and filed 18/10/2013 before the National Industrial Court of Nigeria, Abuja Division the 1st Respondent in his quest to enforce monetary judgment given in his favour against the 2nd and 3rd Respondents, applied for an ORDER NISI against the Appellant as Garnishee in the sun of N437,840,914.30. The said Ex-parte motion reads as follows:-
1. An order nisi attaching the various sums of money standing to the credit of the Judgment Debtors (THE NIGERIAN NAVY, CHIEF OF NAVAL STAFF & NIGERIAN NAVY BOARD) or so much of it that is enough to pay the judgment sum of N437,840,914.30 (Four Hundred and Thirty Seven Million, Eight Hundred and Forty Thousand, Nine Hundred and Fourteen Naira, Thirty Kobo) only in the Judgment Debtors’ account and all their other accounts with the Garnishee Bank (Central Bank of Nigeria) to the Judgment Creditor of the judgment delivered on 24th June, 2013 to reinstate him into the Nigerian Navy and upon disobedience of the Judgment Debtors to carry out the Order of the Court accordingly.
2. An order nisi attaching the various sums of money standing to the credit of the Judgment Debtors (THE NIGERIAN NAVY, CHIEF OF NAVAL STAFF & NIGERIAN NAVY BOARD) or so much of it that is enough to pay the sum of N1, 431,397.42 as monthly pension to the Judgment Creditor with effect from August 2021 in satisfaction of the judgment delivered on 24th June, 2013.
3. An order nisi directing the Garnishee to show cause why the amount standing to the credit of the Judgment Debtors or so much of it that is enough to pay the outstanding judgment debt of N437, 840,914.30 (Four Hundred and Thirty Seven Million, Eight Hundred and Forty Thousand, Nine Hundred and Fourteen Naira, Thirty Kobo) only in the Judgment Debtors’ account with the Garnishee should not be paid over to the Judgment Creditor in satisfaction of the judgment of this Honourable Court delivered on the 24th of June, 2013.
4. An order nisi directing the Garnishee to show cause why the amount standing to the credit of the Judgment Debtors or so much of it that is enough to pay the sum of N1,431,397.42 in the Judgment Debtors’ account with the Garnishee should not be paid over to the Judgment Creditor with effect from August 2021 as monthly pension in satisfaction of the judgment of this Honourable Court delivered on the 24th of June, 2013.
5. An Order directing the Garnishee to pay to the Judgment Creditor the cost of N30,000.00 (Thirty Thousand Naira) only awarded on the 15th April, 2013 against the Judgment Debtors.
6. And further or other orders as this Honourable Court may deem fit to make in the circumstance.”
The Order NISI was granted on 30th October, 2013 in the following terms viz: –
“ORDER
UPON Reading the application, affidavit in support herein deposed to by Isaac Okpanachi, Male, Adult, Christian, Nigerian citizen of Suite IB Bassan Plaza, Central Business District, Abuja FCT filed and dated 18th October, 2013.
Upon hearing the Counsel to the Judgment Creditor/Applicant, Sam Ameh, Esq., move his Motion Ex-parte and after going through the affidavit in support of same particularly paragraphs 1,2, 3, 4,10, 11-17, and after going through the Written Address in support of the motion, the Court noted that:
(1) That the 3rd person indebted to the Judgment Debtor (The Central Bank of Nigeria) is the Garnishee.
The Judgment Creditor in this case is Lt. Col Isaac Okpanachi and the Judgment Debtor and the Chief of Staff and Nigeria Navy Board.
(2) That there is evidence before this Court that there is a valid Judgment of this Court delivered on 24th June, 2013 showing that (the Judgment Creditor) from the calculations of his salaries and emoluments which were duly computed, the sum of N437,840,914.30k, N1,431,397.42k, and N30, 000.00 was arrived at see paragraphs 4 and 5 in favour of the Judgment Creditor/Applicant against the Judgment Debtor.
(3) That there is ample evidence before this Court that such amount as were computed is presently with the Central Bank of Nigeria.
(4) That if this Application is not granted the Judgment Creditor may never realize the fruit of his Judgment.
Whereby the Court orders that the said sum of N437,840,914.30k (Four Hundred and Thirty Seven Million, Eight Hundred and Forty Thousand, Nine Hundred and Fourteen Naira, Thirty Kobo) sitting in the Judgment Debtors Account domiciled with the Garnishee be attached to this Court forthwith.
The Court also orders/directs the Garnishee to appear in Court on 25th November, 2013 to show cause why an Order Absolute should not be made upon it for payment to the Judgment Creditor the amount ordered by the Judgment Debtor.
The matter is therefore adjourned to 25th November, 2013.
This order is to be served on the Judgment Debtor, and Garnishee accordingly.
The Court has just seen on its file a Motion on Notice praying the Court for a Stay of Execution of the Judgment pending the determination of the appeal at the Court of Appeal, Abuja.
The Court is unable to do anything about this on the Authority of Purification Tech (Nig) Ltd v A-G Lagos State (2004) 6 NWLR (Pt 879) 665 at 669 ratio 4 where it was held inter alia:
“Consequently, the existence of an application seeking for an order of stay of execution of a Judgment does not preclude a Judgment Creditor from seeking to use Garnishee proceedings to enforce the Judgment. In this instant case, the contention of the respondents that the appellant was not entitled to enforce the Judgment in its favour by Garnishee proceeding because the respondent had filed an application for stay of execution is unattainable.” Therefore, the above Order still subsists.”
In apparent reaction to the above order and upon being served the same, the Appellant as Garnishee filed MOTION ON NOTICE on 25th November, 2013 at the Registry of the Court below. It was dated same day.
The said motion by the Appellant prayed the lower Court for the following:
“1) An Order setting aside the Garnishee Order nisi made by this Honourable Court on 30th October, 2013 against the Garnishee for want of Jurisdiction.
2) An Order striking out the entire Garnishee proceedings against the Garnishee/Applicant for want of Jurisdiction.”
The Motion was served on the parties and issues joined on Affidavits. The motion seeking to set aside the Garnishee Order was duly heard and a considered Ruling was given on it on 22nd day of October, 2015 and held as follows:
“The Court has gone through its record of proceedings of all the post Judgment Applications, and the arguments proffered for and against each issue raised. The law had not been breached in granting the order nisi. The jurisdiction of the Court has not been ousted by S.236 of the Armed Forces Act. It is jurisdiction remains intact and I so held. The Court is convinced that there is nothing to restrict or preclude this Court from making the Order nisi absolute.
In view of the consideration of all legal angles to the present application, the Court hereby makes the Order Nisi made on 30th October, 2013 Absolute. Ruling enter accordingly.”
It must be noted here that the Appellant did not appeal the order of the lower Court refusing to set aside the Garnishee Order nisi made on 30th October, 2013 against the Appellant and making the Order Nisi absolute. The Appellant rather appealed against the Order Nisi made on 30th October, 2013 vide her Notice of Appeal dated 20th October, 2015 filed on 30th October, 2015 against the Respondents herein containing three grounds of Appeal with their particulars are as follows: –
3. GROUNDS OF APPEAL
(1) The Learned Trial Judge erred in law when she refused to set aside the garnishee order nisi made against the Appellant on 30th October, 2013 when the same was made without jurisdiction.
PARTICULARS
a. Section 84 of the Sheriffs and Civil Process Act mandatorily requires the 1st Respondent to first seek and obtain the consent of the Attorney General of the Federation before commencing garnishee proceedings to attach funds in the custody of a Public Officer.
b. The matter was fixed for Ruling on the objection of the Appellant challenging the jurisdiction of the Court and no more.
c. Obtaining the consent of the Attorney General of the Federation is a condition precedent to the exercise of jurisdiction by the Lower Court to entertain the garnishee proceedings against the Appellant.
d. The Garnishee order nisi served on the Appellant being a nullity does not confer any jurisdiction at all on the Court.
e. The 1st Respondent having woefully failed to meet the condition precedent of seeking and obtaining the consent of the Attorney General of the Federation as provided under Section 84 of the Sheriffs and Civil Process Act for the exercise of the Court’s jurisdiction, the Court was duty bound to set aside the order nisi made on 30th October, 2013
f. The order of the Court refusing to set aside the order/nisi is perverse and occasion a miscarriage of justice.
(2) The Learned Trial Judge erred gravely in law when she made the order nisi of 30th October, 2013 absolute.
PARTICULARS
a. The order of 30th October, 2013 was that the said sum of N437,840,914.30K (Four Hundred and Thirty Seven Million, Eight Hundred and Forty Thousand, Nine Hundred and Fourteen Naira, Thirty Kobo) sitting in the Judgment debtors’ Account domiciled with the Garnishee be attached to this Court forthwith.
b. The order did not attach the said sum to the payment of the judgment debt.
c. A garnishee order absolute can only be legitimately made if and only if no sufficient reason appears.
d. The Appellant was not given any opportunity to offer reason why it is not liable to pay the judgment sum.
e. The matter was fixed for Ruling on the Objection of the Appellant challenging the jurisdiction of the Court and no more.
f. The Garnishee order absolute made on the date for the Ruling on the objection as to jurisdiction was clearly erroneous.
g. The Appellant was not given a fair hearing before the order absolute was made.
h. The Appellant does not have attachable fund or money of the 2nd and 3rd Respondents in its custody.
i. The order absolute in the circumstance occasioned substantial miscarriage of justice against the Appellant.
3. The learned trial Judge erred in law when she held that Appellant is not a public officer.
PARTICULARS
a. Within the meaning and intendment of Section 84(1) of the Sheriffs and Civil Process Act, the Appellant is a Public Officer in custody of public fund belonging to the 2nd and 3rd Respondents.
b. The decision of the Court of Appeal in Purification Technique Nig. Ltd v. Attorney General of Lagos State is not applicable to the case at hand and the case is clearly distinguishable.
c. The Appellant is a creation of Central Bank of Nigeria (Establishment) Act, Laws of the Federation of Nigeria, 2004 and its functionary by virtue of the statute are public officers.
d. The Court ought to have followed the decision of the Supreme Court in Suit No: SC/130/95, Alhaji Aliyu Ibrahim v Judicial Service Committee, Kaduna State & Anor (1998) 14 NWLR (Pt. 584) at page 1.”
e. The Ruling of the Court is clearly forlorn and against all known cannon of statutory interpretation.”
The Appellant’s Brief on Argument dated 21st March, 2016 was filed on 22nd March, 2016 and was deemed duly filed on 17th October, 2016. The 1st Respondent’s Brief dated 19th October, 2016 was filed on the same date. The 1st Respondent filed Notice of Preliminary Objection dated the 27th April, 2016 and filed the same date seeking for An Order striking out the appeal or dismissing it. The grounds for the objection are as follows:
“1. There is no Act of the National Assembly giving the Appellant the right to file the Notice of Appeal contrary to the provision of Section 243 of the Constitution of the Federal Republic of Nigeria(Third Alteration) Act 2010.
2. This matter is not an appeal relating to fundamental rights.
3. Even if it has a valid appeal, the period for filing the Brief of Argument had long lapsed and there is no application for enlargement.
4. That an order absolute had long been made against the Appellant/Applicant by the National Industrial Court since the 30th of September, 2015 and then Appellant has no right to appeal against it.
5. The Appellant’s Brief of Argument is headed Court of Appeal Lagos Division.
6. That this appeal is incurably bad and incompetent.
TAKE FURTHER NOTICE that at the hearing, the Applicant shall rely on all the Court processes filed in the suit and the affidavit in support of this Notice of Preliminary Objection.”
The argument on the Preliminary Objection was incorporated in the said 1st Respondent’s Brief of Argument.
In reaction to the Preliminary Objection, the Appellant filed a Reply Brief in response to the objection. The said Reply dated 7/11/2016 was filed on 8/11/2016 but deemed filed on 14th February, 2018.
The 1st Respondent’s Notice of Preliminary Objection challenges the competence of the Notice of Appeal filed by the Appellant and in consequence of that the 1st Respondent is also challenging the jurisdiction of this Court to entertain or adjudicate on the Appeal. It is an objection falling within the four walls of Order 10 Rule 1 of the Court of Appeal Rules 2016 which provides:
“A Respondent intending to rely upon a preliminary Objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registry within the same time.”
It thus incumbent upon me to deal with the preliminary objection first. See: ALH. M. A. MAGBAGBEOLA & ORS VS. ALH. PRINCE M. O. AKINTOLA & ORS (2018) 11 NWLR (PART 1629) 177 at 195 D – E per D. T. MUHAMMED, JSC who said:
“It is important to note that what the trial Court decided was only in respect of the preliminary objection raised by the 1st to 11th defendants/appellants. The trial Court did not go into the merit of the main suit before it. That is the right position of the law that where there is a preliminary point of objection, it is always neater to decide that objection first before delving into the main suit/case/appeal. See: Odiase v. Agho (1972) 1 All NLR (Pt. 1) 170; Fadiora v. Gbadebo (1978) 3 SC 219.
My Lords, the aim or purpose of a preliminary objection against a suit an application or an appeal is, if successful, to terminate the hearing of the matter under consideration in limine either partially or in toto. Accordingly, where competence of the matter is challenged, it is always better to determine same first before embarking to consider the said matter. Where the said matter is found to be incompetent that puts an end to it. See: Odiase v. Agho (supra); Fadiora v. Gbadebo (supra); Oloriode v. Oyebi (1984) 1 SCNLR 390; Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314.”
The Learned Counsel to the 1st Respondent ISAAC OKPARACHI ESQ. who settled 1st Respondent’s Brief contended on the Preliminary Objection that the Appellant cannot appeal the Ruling of the lower Court without leave first sought and obtained since the grounds of appeal has nothing to do with breach of fundamental right? He relied on the provisions of Section 243 (2) and (3) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010.
In order to further have a grasp of what the 1st Respondent is contending I believe it is necessary to set out the Affidavit in support of the objection which reads:-
“AFFIDAVIT IN SUPPORT OF PRELIMINARY OBJECTION
I, STEPHEN OJODOMO, Male, Adult, Christian, Nigerian, of 1B Bassan Plaza, Central Business district, Abuja, do hereby make oath and state as follows: –
1. That I am the Litigation Officer in the Chambers of Isaac Okpanachi a Co. 1B Bassan Plaza, Central Business district, Abuja.
2. That by virtue of my position aforementioned, I am familiar and conversant with the facts and circumstances of this case.
3. That I have the consent of the 1st Respondent/Applicant and that of my Chambers to depose to this affidavit.
4. That I was informed by SAM AMEH ESQ of Counsel at our office at Suite 1B, Bassan Plaza, Central Business District, Abuja on the 14th day of April, 2016 at about 10:00 am of the following facts which I verily believe to wit: –
(a) That the judgment in this case was delivered by the National Industrial Court on the 24th of June, 2013.
(b) That the 2nd and 3rd Respondents filed a Notice of Appeal when they have no right of appeal (S. 243(3)) Constitution of the Federal Republic of Nigeria 1999 (Third Alteration)
(c) That the Appeal was eventually struck out by the Court of Appeal, Abuja Division on the 30th of March, 2015 for incompetence. The ruling and order is attached as Exhibit “A”.
(d) That the 2nd and 3rd Respondents filed a motion for stay while the Present Appellant filed a motion to set aside the order nisi which the Judgment Creditor had obtained then.
(e) That upon the striking out of the Appeal, the processes were argued at the National Industrial Court and the order nisi was made absolute on the 30th of September, 2015 by the National Industrial Court.
(f) That the present Appellant refused to comply with the order absolute but rather filed a Notice of Appeal and an application for stay knowing it has no right of appeal.
(g) That the Appellant’s Brief of Argument dated 21st day of March, 2016 is out of time by 87 days as the Notice of Appeal without leave of Court is dated 20th October, 2015.
(h) That the Appellant’s Brief of Argument is headed in the Court of Appeal Lagos while the Notice of Appeal is headed in the Court of Appeal Abuja
(i) That this Notice of Preliminary Objection be sustained in the interest of justice.
5. That I deposed to this affidavit in good faith believing the same to be true and correct in accordance with the Oaths Act, 2004.”
He relied on the decision of this Court in the case of SHERATON HOTEL & TOWERS vs. HOTEL PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2015) ALL FWLR (PART 165) 340 at 358 – 359 HC per OSEJI, JCA.
In his response, the Learned Counsel to the Appellant OKON UYE Esq., who settled Appellants Reply Brief submitted that the submissions of 1st Respondent’s Learned Counsel is erroneous misleading and not sustainable in law. That ground 2 of the Notice of Appeal is a complete answer to the objection raised. That the Appellant was denied the right to fair hearing.
That the issue of fair hearing is clearly a fundamental right issue pursuant to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and the case of U.C.A.B.M vs MORAKIN (2014) 16 NWLR (Part 434) 589.
On whether there is right of appeal, the Appellant contended that under Section 240 of the aforesaid Constitution Appellant has right of appeal from decision of National Industrial Court of Nigeria pursuant to Section 240 and 243 of the 1999 Constitution. He also relied on the case of LOCAL GOVERNMENT CIVIL SERVICE COMMISSION EKITI STATE & ANOR vs. M. A. JEGEDE (2013) LPELR at 21131. That a lone ground of appeal is enough to make it competent relying on the case to ABUBAKAR vs. YARADUA (2008) 4 NWLR (PART 1078) 465 at 496 B and ALAO VS. AKANO (2005) 11 NWLR (PART 935) 160.
Where it is successfully shown that a Notice of Appeal is incompetent due to fundamental vice this Court will be bereft of jurisdiction to adjudicate on the appeal. See NONYE IWUNZE VS THE FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PART 1404) 500 AT 596 D – E where the apex Court per OLABODE RHODES-VIVOUR, JSC said: –
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fail to comply with statutory provisions or the relevant rules of the Court.”
The position of the law is also certain that where leave is required to enable an aggrieved party appeal a decision to this Court, the leave must be first sought and obtained. Otherwise this Court will lack the necessary vires to entertain the appeal. See Section 24 of the Court of Appeal Act 2004 Cap C.36 LFN which provides:-
“24. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this Section.”
2. BEN ANACHEBE ESQ V. KINSLEY IJEOMA (2014) 10 SCM 62 AT 79H TO 80 A per OGUNBIYI, J5C who said: –
“This is obvious for the reason that the periods within which a party can appeal in our courts are prescriptions of statutes; leave to appeal also where necessary, is a requirement of the Constitution. A party if desirous, ought to lodge his appeal within the statutory period allowed and an exception is unless the time to do so has been extended. See Owoniboys Technical Services Ltd v. John Holt Ltd (1991) 6 NWLR (Pt. 498) 550 at 557- 558.
It is also trite and held by this Court in plethora of cases that where leave is necessary before an appeal can be validly filed, it ought to be applied for and obtained and notice of appeal filed within the statutory period.”
3. G. N. NWAOLISAH V.S. PASCAL NWABUFOH (2011) 14 NWLR (PT. 1268) 600 AT 625 C- H TO 625 A per ADEKEYE, JSC who held:-
“Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. Hence an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. Nalsa Team Associates v. N.N.P.C (1991) 8 NWLR (Pt. 212) pg. 652; S.P.D.C. (Nig.) Ltd. v. Katad (Nig.) Ltd. (2006) 1 NWLR (Pt.960) pg. 198; Nyambi v. Osadim (1997) 2 NWLR (Pt. 485) pg. 1; Olanrewaju v., Ogunleye (1997) 3 NWLR (Pt. 485) pg. 12.”
See also CHIEF 1, EMENIKE VS PDP & ORS (2012) 12 NWLR (PT. 1215) 556 AT 595 E – F per MOHAMMED, JSC.
In his grandstanding, the Learned Counsel to the Appellant said on page 1 item 7 of the Appellant’s Reply Brief that:
“Ground 2 in the Notice of Appeal is a complete answer to the objection raised. The Appellant was denied of right to fair hearing.”
I have earlier on in this judgment reproduced the grounds of appeal and a critical examination of the said ground 2 juxtaposed with the judgment appealed, I cannot see any inkling of denial of fair hearing. It is not enough for a litigant to be waving flag of fair hearing to obtain a platform to challenge a decision of Court the intending appellant must clearly demonstrate on the face of the judgment and Notice of Appeal filed a prima facie evidence to show that there is a genuine grievance pertaining to notation of Appellant’s right to fair hearing.
The Decree Nisi granted on the 1st Respondent’s motion Ex-parte was made on 30th October, 2013. What ground 2 of the Notice of Appeal complained of is that:
“The Learned Trial Judge erred gravely in law when Order nisi of 30th October, 2013 absolute.”
This cannot be a ground complaining of lack of fair hearing. It is only in particular (2) to the ground that allegation was made that Appellant was not given a fair hearing before the Order absolute was made. From the record the Learned trial Judge directed that:
“The Court also Orders directs the Garnishee to appear in Court on 25 November, 2013 to show cause why an order Absolute should not be made upon it for payment to the judgment creditor the amount ordered by the judgment debtor.”
The Appellant was served. What a Garnishee served with Decree Nisi which is always made Ex-parte, should do is to file Affidavit showing cause why the Garnishee Order Nisi should not be made absolute. The Appellant after service of the order Nisi filed application before the lower Court vide motion dated and filed 25th November, 2013, the very date the lower Court fixed as Return Date to enable the Garnishee and the judgment Debtor showed up to show cause.
The appeal here is against order Nisi made on 30th October, 2013, NOT an appeal against the refusal of the lower Court to set aside the Order NISI made by the lower Court on 22nd October, 2015 on allegation of want of jurisdiction. The Ruling on Appellant motion of 25/11/2013 was delivered on 22/10/2015. Order Nisi was made absolute in the Ruling of 22/10/2015.
The appeal against the Order Nisi given on 30/10/2013 did not violate the right to fair hearing of the Appellant because it is when the order Nisi was served that Appellant that it could take steps to convince the Court why Order absolute should not be made. The lower Court heard the Appellant on her motion. And it was on that motion the lower Court made the order absolute. The appeal before us is not against the Ruling of 22/10/2015 dismissing Appellant’s motion and making the Decree Nisi absolute.
The Appellant needs leave of this Court to appeal against the Decree Nisi Order made by the lower Court on 30/10/2013 in obedience to Section 243 of the Constitution of Nigeria 1999 as amended. The grounds of appeal contained in the Notice of Appeal do not fall within breach of Appellant’s rights to fair hearing or any issue of violation of Fundamental Human Rights which can enable Appellant to appeal as of right without first seeking and obtaining the leave of this Court in accordance with the Court of Appeal Act aforesaid and Rules of this Court. See SKYE BANK PLC VS. VICTORIA ANAEMEM IWU (2017) 10 5CM 65 at 126 G – H to 129 A B per NWEZE, JSC who said: –
“Accordingly, I find, and hold, that, on a harmonious construction of Sections 240; 242(1); 243(1)(a) and 243(4), a litigant who is aggrieved by a decision of the trial Court, in other civil matters, can exercise a right of appeal with the leave of the Lower Court. The only innovation in this regard is that it makes the Lower Court the final Court with respect to such appeals, Section 243(4). Interestingly, Section 243 (4) employs the adjective “any” twice in conferring finality to the decisions of the Lower Court. It provides:
“243
(4) Without prejudice to the provisions of Section 254(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court.” [Italics supplied for emphasis]
Now, the adjective “any” is a word of enormous amplitude which admits of no limitation or qualification, buck v. Batey 1 QBD 79 and indeed, has been construed to mean “as wide as possible, “Becket v. Sutton 51 LJ CH; “some, out of many, an indefinite number; one indiscriminately of whatever kind or quantity,” Federal Deposit Ins. Corporation v. Winton C.C.A. Tenn 131; F2 780, 782, Texaco Panama Inc. v. S.P.D.C. (Mg.) ltd (2002) LPELR-3146 (SC) 28; A-C, (2002) 3 SCM, 110. Put differently, the word “any” has a diversity of meanings and may be employed to indicate “all” or “every” as well as “some” or “one” and its meaning in a given statute depends upon the context and the subject matter of the statute.” I take the view that, in the context of the appellate jurisdiction of the Lower Court, the word “any” in Section 243 (4) means any appeal in respect of the exercise of the civil jurisdiction of the trial Court. Hence, a litigant who is aggrieved by a decision of the trial Court in other civil matters can exercise a right of appeal with the leave of the Lower Court.
One final point on this, from the chapeau or opening words of Section 243 (1) (supra), vis, “Any right of appeal to the Court of Appeal…” (Italics supplied, it is evident that the section does not deal with the appellate jurisdiction of the Lower Court. From its tenor, the draftsperson acknowledges an extant “right of appeal to the Court of Appeal,” obviously, in Section 240.
Employing the marginal note, only, as a signpost to what the Section 243 (1) sets out to provide, Idehen v. Idehen (1991) LPELR-1416 (SC) 55; F-G; [1991] 6 NWLR (Pt. 198) 382; Oloyo v. Alegbe (1983) 2 SCNLR 35, 57; Uwaifo v. A-G Bendel State (1982) 7 SC 124, 1 87-1 88; 0.S.I.E.C and Anor v. A.C. and Ors (2010) LPELR-281 8 (SC)55; B-C, (2010) 12 (pt.2) SCM, 224; Yabugbe v. C.O.P. (1992) LPELR- 3505 (SC) 17-18, I take the view that the said Section [243 (1)] only relates to the exercise of the right of appeal [already donated by Section 240].
The expression “exercise of” is defined as “the use of power … or right to make something happen, Oxford Advanced Learners Dictionary (International Students Edition) 510. Against this background, it would seem obvious that, as a sign post, the general purpose of the expression “exercise of’ in the marginal notes to Section 243 (1) is to explain that the draftsperson’s intention in enacting the section is to provide for an aggrieved litigant’s power to effectuate or set in motion the right of appeal, already donated in Section 240 against, inter alia, the trial Court, the National Industrial Court.
FUTURISTIC LEGISLATIVE ACTION BY THE NATIONAL ASSEMBLY Fes Eze Eke, for the respondent, fell into the temptation of interpreting Section 243 (3) as making the right of appeal with leave contingent on the futuristic exercise of the powers of the National Assembly. However, this cannot be there, I entirely endorse the submission of Dr. Mekwunye, for the appellant, that there is no procedural lacuna on the mode of exercise of a right of appeal, with leave, against the decisions of the trial Court.
In my humble view, in the exercise of the right of appeal against the decisions of the trial Court, which Section 240 (supra) bequeaths to him and with respect to Section 243(4), “any appeal from any civil jurisdiction”, all a prospective appellant needs to do is to amble within the compass of Section 24 (1) of the Court of Appeal Act, an extant enactment of the National Assembly; an existing Act of the National Assembly.
Section 24 (1) (supra) provides thus:
“24. Time for appealing
(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.”
He needs equally, to rely on Order 7 Rules 5 and 10(1) of the Court of Appeal Rules, 2011, a subsidiary legislation, whose potency traces its pedigree to the Constitutive Act, Section 18(1) of The Interpretation Act, Cap 123, LFN, 2004; Din v. A – G Fed. (1986) 1 NWLR (Pt. 17) 471; Ishola v Ajiboye (1994) 6 NWLR (Pt. 352) 506; Olarenwaju v. Oyeyemi (2001) 2 NWLR (Pt. 697) 229. These two enactments have already set out the procedure of appeals either as of right or with the Lower Court’s leave.
In effect, within the framework of the extant enactment, namely, Section 24 (1) of the Court of Appeal Act (supra) and Order 7 Rules 5 and 10 (1) of the, Court of Appeal Rules, an aggrieved litigant can exercise the right of appeal against, inter alia; the trial Court, the National Industrial Court. Contrary to the submission of Fes Eze Eke, for the respondent,Section 241(1) (a) – (f) (i) (v) and Section 241 (2) (a)-(c) and Section 242 (1) and (2) are completely irrelevant to these proceedings since the formerSection 241 (1)(a) – (f) (i) – (v) and Section 241(2) (a) – (c) deals with appeals as of right from the Federal High Court or a High Court and the latter, Section 242 (1) and (2) deals with appeals with leave from the said Courts. In all, then on a holistic interpretation of Section 240 and 243 (1) of the 1999 Constitution, appeal lie from the trial Court to the Lower Court, that is, all decisions of the trial Court are appealable to the Lower Court: as of right in criminal matters [Section 254C (5) and (6)1 and Fundamental rights cases. [Section 243 (2)]; and with the leave of the Lower Court, in all other civil matters where the trial Court has exercised its jurisdiction, Sections 240 read conjunctively withSection 243 (1) and(4).”
Consequently, this appeal which is founded on the Notice of Appeal dated and filed on 20th day of October, 2015 on pages 186 – 190 of the record of appeal without the leave of this Court is incompetent and the Appellant’s appeal is hereby struck out for being incompetent and want of jurisdiction on the part of this Court. There will be no order as to cost.
However, since this Court is a penultimate Appellate Court. I will also consider the merit of the case in the event that this Court is found to be wrong by the apex Court. This will afford the ultimate Court the opportunity of what this Court decided on jurisdictional point and on the merit. See: ALHAJI JIBRIN ISAH VS. INEC & ORS (2014) 12 SCM (PART 2) 297 at 335 G – I to 336 A per OLABODE RHODES – VIVOUR, JSC.
MERIT OF THE APPEAL
The Appellant distilled three issues for determination of the appeal namely;
1. “Whether the failure to obtain prior consent of the Attorney-General of the Federation as prescribed by Section 4 of the Sheriffs and Civil Processes Act prior to the commencement of the garnishee proceedings against the Appellant is not fatal and robs the Court of jurisdiction to entertain the garnishee proceedings and whether Appellant is not a Public Officer (Ground 3).
2. Whether the lower Court having made the order Nisi without jurisdiction, such null order was not liable to be set aside (Ground 1).
3. Whether the failure by the lower Court to give the Appellant the opportunity to offer reason why it is not liable to pay the judgment sum after the Court wrongly assumed jurisdiction does not amount to a breach of the Appellant’s right to fair hearing (Ground 2).
The 1st Respondent’s also distilled three issues which are clearly in tandem with the issues for determination by the Appellant. The appeal will be considered on the three issues raised for determination by the Appellant and the issues will be taken together.
ISSUES 1, 2 AND 3
1. Whether the failure to obtain prior consent of the Attorney-General of the Federation as prescribed by Section 4 of the Sheriffs and Civil processes Act prior to the commencement of the garnishee proceedings against the Appellant is not fatal and robs the Court of jurisdiction to entertain the garnishee proceedings and whether Appellant is not a Public Officer. (Ground 3)
2. Whether the lower Court having made the order Nisi without jurisdiction, such null order was not liable to be set aside (Ground 1)
3. Whether the failure by the lower Court to give the Appellant the opportunity to offer reason why it is not liable to pay the judgment sum after the Court wrongly assumed jurisdiction does not amount to a breach of the Appellant’s right to fair hearing (Ground 2).
The Learned Counsel to the Appellant stated under issue 1 that it is not in dispute that the entire garnishee proceedings at the lower Court was commenced without the consent of the Attorney General of the Federation in violation of Section 84 (1) and (2) of the Sheriff and Civil process Act which the Learned Counsel reproduced along with Section 82(3) of the same Act. That the garnishee proceedings at the lower Court were filed because 1st Respondent assumed that the Appellant has the judgment debtors’ money in its possession. He submitted that Appellant is a Public Officer within the meaning of Section 84 of the Sheriff and Civil Process Act. He also relied on Sections 1, 39 and 40 of the Central Bank Act 2007. That the locus classicus case of IBRAHIM vs. JSC (1998) 14 NWLR CBN vs. ADEDEJI (2004) 13 NWLR (PART 890) 226 AT 245 F which he said make it clear that Appellant is a Public Officer.
He also relied on the case of CBN vs. HYDRO AIR LIMITED (2014) 16 NWLR (PART 1434) 482 at 521 E – F.
That failure to obtain the prior consent of the Attorney-General of the Federation renders the proceedings taken at the lower Court a nullity. He relied further on the case of CBN vs. SC SARA BV & ORS (2015) No1) 11NWLR (Part 1469) 130 at 155.
He stated that he is aware of the decision in the case of PURIFICATION TECHNIQUES NIGERIA LIMITED vs. ATTORNEY GENERAL OF LAGOS STATE (2004) ALL FWLR (PART 211) 1479 at 1495 per GALADIMA, JCA. That the fact of that case is not applicable here. He urged the Court to uphold Appellants argument.
Under issue 2, the contention of the Appellant is that the lower Court made the Decree NISI order without jurisdiction and that it is null and void. That the order is liable to be set aside for being incompetent. He relied on the case of AGIP (NI6) LIMITED vs. AGIP PETROLLI INTL (2010) 5 NWLR (PART 1187) 348 at 419.
He then quoted portion of the ORDER NISI on page 42 of the record showing that the Court stated that the Garnishee be attached to this Court forthwith contrary to the prayers of the 1st Respondent to the lower Court on what is the meaning of Garnishee proceedings. Learned Counsel to the Appellant relied on the case of CBN vs. AUTO IMPORT EXPORT (2013) 2 NWLR (PART 1337) 126. That the crux of the Garnishee proceeding is to ensure that the garnishee sum Proceeds from the hand of Garnishee to judgment creditor in satisfaction of debt.
He relied on the case of HALSBOURY’s LAWS OF ENGLAND 4TH EDITION page 955. That the order made attaching judgment Debtor Account with Appellant cannot be appropriate order in a garnishee proceeding and therefore null and void. He urged the Court so hold.
Under Issue 3, the Appellant submitted there are two stages in a garnishee proceeding viz stage of order Nisi and that of Order absolute. The Appellant stated that upon being served with the order Nisi, and based upon Appellant’s position that same ought not to have been made the Appellant challenged the jurisdiction of the lower Court. That having argued the objection, the Court adjourned the matter for a Ruling on whether or not it has jurisdiction but curiously in the same Ruling on jurisdiction wrongly adjudged itself as having jurisdiction and proceeded to made order nisi absolute without giving the Appellant the opportunity to be heard on the garnishee proceedings. That the lower Court thus denied them the opportunity of being heard. He relied on STB LIMITED vs. CONTRACT RESOURCES NIG. LTD. (2011) 6 NWLR (PART 108) 155.
That the Order absolute was made without hearing the Appellant. He relied on the cases of OTAPO vs. SUNMONU (1987) 2 NWLR (PART 58) 587 and DEDUWA V. OKORODUDU (1976) 9 – 10 SC 329. He finally urged the Court to find in Appellant’s favour.
In his response to Appellant’s submissions under issues 1 and 2, the Learned Counsel to the 1st Respondent submitted that monies in the hands of the Central Bank of Nigeria is money in the hands of a public officer under Section 85 of the Sheriff and Civil Process Act.
That the Appellant was brought before, the lower Court because it is a Banker to the judgment debtors and sued in that capacity only. He relied the case of PURIFICATION TECHNIQUES (NIG) LIMITED vs. A. G. Lagos State (2004) 9 NWLR (PART 879) 665 at 679 – 681 G – H per GALADIMA, JSC. That the money in the hands of a banker is not monies in the hands of a Public Officer and as such can be attached to pay a judgment debt through the garnishee proceedings. He also relied on the case of CENTRAL BANK OF NIGERIA vs. BOB KAY NJEMANZE & ORS (2015) 4 NWLR (PART 1449) 276 at 286 and 288 G – H per AGBO, JCA.
Under issue 3, the Learned Counsel to the 1st Respondent contended that the Appellant who claim that it was not afforded a hearing to offer reasons why the order absolute should not have been made, admitted in paragraph 3.3.1 of Appellant’s Brief that it was served with the order Nisi dated 30th October, 2013. That having been served Order Nisi what the Appellant as Garnishee was called upon to do, where he desires to challenge the order was to have filed an Affidavit showing cause pursuant to ORDER 8 Rule 8 of Judgment Enforcement Procedure Rules. That it was judgment Debtor that filed on Affidavit showing cause why Order absolute should not be made.
That the Appellant took several steps upon service of the Order Nisi on him to enable complain and give reasons why the Garnishee Order absolute should not have been made in the first instance. He urges this Court to dismiss the appeal with exemplary cost.
The whole essence, meaning and intendment of a garnishee proceedings and procedure have been explained recently by the superior Court in the land. I refer the following cases:-
1. GUARANTY TRUST BANK PLC VS INNOSON NIGERIA LIMITED (2017) 16 NWLR (PART 1591) 181 AT 197 F-H TO 198 A – H per EKO, JSC who said:-
“Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor, which form part of his property available in execution. The third party holds the debt or property of the judgment debtor. By this process, the Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of Phrases Legally Defined 3rd Ed. Vol. 2, pages 313-314 cited by Akintan, JSC, in his concurring judgment in Union Bank of Nigeria Plc. v. Boney Marcus Industries Ltd. (2005) 13 NWLR (Pt. 943) 654 at page 666. Lord Denning, Mr. In Choice Investment Ltd., v. Jerominimon (1981) QB 149 at 154-155, gives a simple illustration of garnishee proceeding thus:-
“A creditor is owed 100 by a debtor. The debtor does not pay. The creditor then gets Judgment against him for the 100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has 150 at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the (judgment creditor) out of the customers 150 – the ??100 which he owes to the creditor.”
The Master of the Rolls went on, in the case, to state further:
“There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”.
It is an order upon the bank to pay 100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See Pritchard v. Westminster (1969) 1 ALL ER 999 and Rainbow v. Mortgage Properties Ltd. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute to pay to the judgment creditor or into the Court, whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer just as if he himself directed the bank to pay it.”
I did this detour for a purpose. That is, to show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the Judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to.”
2. BARBEDOS VENTURES LTD V FIRST BANK OF NIGERIA PLC (2018) 4 NWLR (PART 1609) 241 AT 270H – 272A – C per AUGIE, JSC who said: –
“However, before resolving the main issue, there is an underlying and threshold procedural and jurisdictional (party) issue to be resolved whether the respondent is a proper garnishee in these circumstances”
To start with, garnishee proceedings are governed by the Sheriffs and Civil Process Act, and Section 83(1) thereof provides as follows-
“The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that is, is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid:-
A garnishee is therefore, a debtor to the judgment debtor – see Skye Bank v. Colombara & Anor (2014) 2 BFLR 177: (2015) 5 NWLR (Pt. 1453) 538, wherein it was held:
“A garnishee is essentially a third party, who being indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor from the creditor of the judgment debtor in the account thereof with the third party.”
The third party envisaged as a prospective garnishee under Section 83 of the said Sheriff and Civil Procedure Act must be a person, who holds sums amounting to “debts due or accruing to the judgment debtor” C.B.N. v. Auto Import Export & Anor (2012) 4 BFLR 1, 34: (2013) 2 NWLR (Pt. 1337) 80.
Thus, banks/bankers have become the typical garnishee given the nature of a banker-customer relationship. The nature of the relationship between a banker and his customer is contractual – Linton Industrial Training (Nig.) Ltd. V Central Bank & Anor. (2014) 1 BFLR 23 at 233; (2015) 4 NWLR (Pt.1448) 94. See also Akwule v. Queen (2012) BFLR 90, where this Court stated: –
“The relationship between a banker and customer is that of debtor and creditor in respect of the money deposited with the banker by the customer. This position becomes clearer when a customer asks for his money, the bank undertakes to pay cheques of the customer drawn on his current account; thus the bank becomes a debtor for the amount, which must be paid on demand. If the amount is not paid the customer can sue the bank.”
“Debt” and “Debtor” have also been explained for purposes of Garnishee proceedings in the said case on pages 295F-H to 296A-H the report by my Lord PETER-ODILI, JSC who said: –
“Aligned with the above principles and situating them contextually with the facts of this case and the wordings of Section 83 of the Sheriffs and Civil Process Act, it is clear that the intention of the legislature in setting up the procedure of recovery of debt by garnishee such as the one in contest in this case, envisions that the money available to be garnisheed is debt owing from such third person to the judgment debtor which could arise in four ways as follows:-
1. That judgment has been recovered against a judgment debtor which judgment had remained unsatisfied;
2. That a third party known as the garnishee is indebted to the judgment debtor;
3. That an order is made by a Court of competent jurisdiction that debts owing from such third person, called the garnishee, to such debtor be attached to satisfy the judgment or order; and;
4. That the Court after making the order of attachment, either by the same or any subsequent order, makes an order that the garnishee appears before the Court to show cause why the garnishee should not pay to the judgment creditor the debt due from the garnishee to the judgment debtor or so much it as may be sufficient to satisfy the judgment.”
Uwaifo, JCA (as he then was) well captured the procedure above stated when interpreting Section 81 of the Sheriffs and Civil Processes Law which is an impari materia to the current Section 83 of the Sheriffs and Civil Process Act in the cases of: United Bank for Africa Limited v. Societe Generale Bank Limited & 3 Ors (1996) 10 NWLR (Pt. 478) page 381 at 390, paras A – B thus:-
“By the process of garnishee, the Court has power under Section 81 of the Sheriffs and Civil Process Law to order a third person to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or so much of it as may be sufficient to satisfy the amount of the Judgment and the cost of the garnishee proceedings. It is a condition that the money must be due or have accrued to the judgment debtor for it to be liable to garnishment. For it is said that a judgment creditor cannot, by means of attachment, stand the judgment debtor because “he can only obtain what the judgment debtor could honestly give him.”
5. The Black’s Law Dictionary, 7th Edition 1999 at page 410 defines “Debt, as liability on a claim, a specific sum of money due by agreement or otherwise, the aggregate of all existing claims against a Person entity or State. A non-monetary thing that one person owes another, such as goods or services.”
6. “Debtor is defined as “One who owes an obligation to another, especially an obligation to pay money; Indebtedness is defined as “The condition or state of owing money, something owed, a debt.”
I have gone to this length so as to point out to the Appellant that the 1st Respondent and the lower Court followed the procedure laid down in the sheriff and Civil Process Act which led to the ORDER NISI made on 30th October, 2013 by the lower Court. The Appellant was given more than enough time and opportunity to file Affidavit showing cause why the Order Nisi should not be made absolute without prejudice to any other legal steps opened to the Appellant at the lower Court. The Appellant preferred to damn the consequence by challenging the jurisdiction of lower Court to make Order Nisi because of what Appellant perceived under Section 84 as giving her protection that the 1st Respondent must first obtain the consent of the Attorney General of the Federation before 1st Respondent could commence Garnishee Proceedings against the Appellant. The position of Appellant is patently wrong and without any legal foundation. It behoved the Appellant to file Affidavit showing cause why the order absolute should not be made. All her complains could be loaded into the Affidavit showing cause.
The Appellant believed it is a Public Officer holding public fund for 2nd and 3rd Respondents. Again, the Appellant misled itself. The money the target, of the Garnishee Proceedings is not the funds or monies of the Federal Government. The money belongs to the office of the 2nd and 3rd Respondents and as such it is not protected under Section 84 of the Sheriff and Civil Process. The Appellant has no right or obligations to shield the monies belonging to the 2nd and 3rd Respondents who had been adjudged by a Court of law to be debtors owing the 1st Respondent the money adjudged payable to him by 2nd and 3rd respondents by a Court of competent jurisdiction.
There is a world of difference between Federal Government monies and monies already allocated and appropriated to the 2nd and 3rd Respondents Department to meet their obligations and responsibilities as in the case of 1st Respondent who they are owing substantial sums of money. The Appellant cannot encumber or circumvent the enforcement of the orders made against the 2nd and 3rd Respondents by a Court of competent jurisdiction. It is the bounden duties of 2nd and 3rd Respondents to comply with the final judgment of the lower Court made against them.
Appellant is not at all protected from the facts and circumstance of this case. The Appellant cannot and is not allowed under the law to fight the battle of the Judgment debtors. See: CENTRAL BANK OF NIGERIA VS. INTERSTELLA COMMUNICATIONS LIMITED & ORS (2018) 7 NWLR (PART 1618) 294 at 346 A – H to 347 A – B per OGUNBIYI, JSC, who said:-
“It could not have been the intention of the legislature that Section 84(1) of the SCPA should be used as an umbrella for the 3rd and 4th respondents to evade a debt owed, by simply putting its funds in the hands of the appellant; it is not also the intention that a judgment creditor should first obtain the consent of the debtor before proceeding against the debtor to recover his money.
The submission by the learned counsel for the appellant would certainly be counter-productive. It will also defeat the doctrine of the Rule of Law, which, as rightly argued by 1st & 2nd respondents, counsel, is the hallmark or our democracy. This Court in NPA v. CGFC SPA (1974) NLR (Pt. II) 463 held that a section of a statute should not be given an undue emphasis, that it did not possess, and that a statute cannot be applied in a situation where its effect is clearly contrary to the intendment of the legislature in passing that law.
Again, and contrary to the submission advanced by the learned counsel for the appellant, the consent of the AGF had all along been obtained. Consequently, the garnishee proceedings against the appellant was rightly commenced and I so hold.
The other leg of the argument is where the appellant’s counsel holds out the CBN as a public officer and relied on the case of Ibrahim v. JSC (supra) in particular.
In the case under consideration, I have ruled that the relationship between the appellant and the 3rd and 4th respondents is that of banker and customer relationship. In other words, and as rightly argued by 1st and 2nd respondents’ counsel, the appellant is not a public officer in the context of Section 84 SCPA, when regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment.
It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government Funds with respect to government funds in its custody. Section 2(e)of the CBN Act provides thus:
“Act as a banker and provide economic and financial advice to the Federal Government.”
Section 36 of the CBN Act also provides:-
“The bank shall receive and disburse Federal Government moneys and keep accounts thereof.”
The appellant does not stand as public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise. Relevant to this conclusion is again the persuasive authority of CBN v. Ekong (supra) cited also by the appellant’s counsel wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the CBN:-
“Generally, it is for overall control and administration of the monetary and banking policies of the Federal Government. It is not established for commercial or profit-making purpose.”
The case of Purification Tech. (Nig.) Ltd. v. A.-G. Lagos State (supra) is also on all fours with the facts of the case under consideration herein. Again, the persuasive judgment of the Court of Appeal at pages 679 – 680 is relevant and; “There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other juristic personality or customers…
In resolving the 4th issue against the appellant, I hold the strong view that the consent of the 3rd and 4th respondents was adequately obtained by the 1st and 2nd respondents, and the garnishee proceedings was competently commenced. Further still on the relationship between the 3rd respondent and the appellant in this case, same is purely that of a banker to a customer. Therefore, the question of whether the appellant is a public officer, who cannot release funds except the consent of the AGF is obtained, does not apply to the facts and circumstances of this case.”
At pages 350 E -G His Lordship also said:
“I must say that the garnishee has taken so much interest in this case and appear to have forgotten its role as a banker to the Federal government. The role of a garnishee in any garnishee proceeding is delimited. As rightly argued by the counsel for the 1st and 2nd respondents, it is not envisaged that after a judgment creditor has gone through the rigours to establish his rights through the legal system, that the garnishee, who is asked to surrender the judgment debtor’s money in its possession should engage the judgment creditor in another bout of legal battle. See Order VIII Part II of the Judgments (Enforcement) Rules. Basically, the restrictive role and legal duty of a garnishee in a judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the judgment debtor’s state of account in its custody.
It is no wonder therefore that the lower Court while quoting the Court of Appeal case of Oceanic Bank Plc v. Oladepo & Anor (2012) LPELR – 19670 held the view that “it is not the business of a garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor” page 470 of the record of appeal.”
Therefore, the Appellant was not denied any fair hearing. It was given adequate time to defend itself and from the authorities cited above. The Appellant has no business holding on to the adjudged money instead of paying it to the creditor, the 1st Respondent as ordered.
Upon the failure of her application challenging the jurisdiction of lower Court the Appellant is not entitled to another round of opportunity of being heard.
The lower Court was on a solid ground in making the order nisi absolute against the Appellant. See CBN vs. INTERSTELLA COMMUNICATIONS LIMITED & ORS supra at 348 F-H to 349 A – B per OGUNBYI, JSC who said: –
“It is intriguing to say that the appellant did not file any process in Court in response to the order nisi until the 15th day of December 2011, which was a month later. The process filed eventually was a preliminary objection challenging the competence of the garnishee proceeding, pages 60-72 of the record are in reference. The order nisi was also made absolute only on the 13th June 2012, well over 6 months after the order nisi was mode on 16th November, 2011.
For all intents and purposes, can it be said rightly as claimed by the appellant’s counsel that his client was not given ample time to show cause why the order nisi should not be made absolute”
The answer to the question certainly must be in the negative. Relevant to the case at hand is the decision of this Court in Omnia (Nig.) Ltd v. Dyk Trade Ltd. (2007) 15 NWLR (Pt. 1058) 576. In that case, the defendant filed a preliminary objection to the substantive suit but failed to file his defence, he was held to have conceded all the facts in the statement of claim. At page 628 para of the report, Chukwuma-Eneh, JSC had this to say:-
“The more fundamental objection to raising this issue is that the defendant once it has decided to challenge the action by way of a preliminary objection before filing its defence is taken as having conceded all questions of facts as contained in the statement of claim, as correct.”
By analogy and in applying the principle enunciated in the foregoing decision to the appeal herein, the appellant having had ample opportunity to show cause within 30 days, deliberately decided not to join issues on the substantive application; rather it filed a preliminary objection. The deductive outcome is that the appellant had conceded all the facts in the application. Consequently, with the preliminary objection holding failed therefore, the order nisi was ripe to be made absolute and I so hold.”
The Central Bank of Nigeria cannot turn itself into a professional protector of debtors who are merely its customers when the money involved does not belong to the Federal Government.
In all ramifications, the three issues nominated for determination are hereby resolved against the Appellant. This appeal is totally devoid of merit. It fails and same is hereby dismissed in its entirety. Costs of N200,000 is hereby awarded against the Appellant in favour of 1st Respondent only.
The ORDER NISI made by the lower Court on 30th October, 2013 is hereby affirmed. The Garnishee Order absolute was/is not appealed by the Appellant and so it remains valid binding on the parties and subsisting.
However, having found earlier that the appeal is incompetent, the appeal herein is hereby struck out.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA. My brother has satisfactorily resolved all the issues raised in the appeal.
I am in complete agreement with his reasoning and conclusion thereat. I too do hold that the appeal is devoid of merit and it is hereby dismissed. I abide by all the consequential orders inclusive of the order as to costs as made in the lead judgment.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE JCA. I agree with the reasoning and adopt the conclusion and orders reached therein. The Appeal is dismissed.
Appearances:
Okon Uye For Appellant(s)
Isaac Okpanachi with him, Samuel Ameh and O.O. Ifijeh for 1st Respondent.
P. E. Okohue, Esq. with him, Elizabeth Achimugu for 2nd and 3r Respondents For Respondent(s)
