CENTRAL BANK OF NIGERIA v. OKEB NIGERIA LIMITED & ORS (2014)

CENTRAL BANK OF NIGERIA v. OKEB NIGERIA LIMITED & ORS

(2014)LCN/7286(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of June, 2014

CA/A/554/2013

RATIO

APPEAL: GROUND OF APPEAL; HOW TO DETERMINE WHETHER A GROUND OF APPEAL ALLEGES AN ERROR IN LAW OR FACT

In determining whether a ground of appeal alleges an error in law or fact, it is relevant and crucial to construe the ground of appeal together with the particulars of error alleged for the classification of that ground as a ground of appeal.” Wema Bank Plc v Tonade (2008) LPELR 5096-CA; and of course that complaint has to be based on the “perception” of the appellant; the decision whether the perception is right or wrong is left to the appellate court so this Court fails to see the rationale behind learned counsel to the respondents, disagreement with perception; clearly Saraki v Kotoye (1992) 9 NWLR part 264 at 184 referred to by learned counsel to the respondents is not applicable to the situation at hand. per. M. MUSTAPHA, J.C.A.

PRACTICE AND PROCEDURE: GARNISHEE PROCEDURE; CONDITIONS TO BE SATISFIED FOR A GARNISHEE PROCEEDING TO BE VALID

It is trite also, that for a garnishee proceeding to be valid, it behoves the trial court to ensure that basic conditions set out in the case of CBN VS. AUTO IMPORT EXPORT, supra are complied with, National insurance Commission v Oyefesobi & Ors (2013) LPELR 20660 (CA); and the conditions are that:
a) The garnishee must be indebted the judgment creditor, within the state, and be resident in the state which the proceedings are to be brought.
b) The proceeding must be filed in any court which the judgment debtor could, under the High Court (Civil Procedure) rules or under the appropriate section or rule governing civil procedure in magistrates’ courts.
c) The application be made ex parte.
d) The service of the order nisi thereon binds or attaches the debt in the hands of the garnishee. per. M. MUSTAPHA, J.C.A.

JUSTICES:

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

CENTRAL BANK OF NIGERIA – Appellant(s)

AND

1. OKEB NIGERIA LIMITED
2. MR. VINCENT O. EBELE (JUDGMENT CREDITORS)
3. KEYSTONE BANK LIMITED (FORMERLY BANK PHB)
(JUDGMENT DEBTORS) – Respondent(s)

M. MUSTAPHA, J.C.A. (Delivering the Leading Judgment): By a motion dated and filed on the 4th of June 2013. The garnishee (appellant) sought for an order setting aside the garnishee order nisi, made by the High Court of the Federal Capital Territory on the 20th of May, 2013 against the appellant, as per pages 3-26 of the record.

The 1st and 2nd respondents opposed the application, as per pages 27-38 of the record; the appellant filed a reply on points of law, pages 39-48 of the record.

The application was argued on the 27th of June, 2013, pages 53-58 of the record; the learned trial judge, Justice M. M. Dodo dismissed the application, pages 59-70.

Dissatisfied, the appellant filed an appeal vide notice of appeal dated and filed on the 5th of August, 2013, pages 71-76 of the record; the notice contained five grounds of appeal.

Facts in brief:
The 1st and 2nd respondents obtained judgment before the High Court of the Federal Capital Territory, Abuja, on the 8th of March, 2012, against Keystone Bank limited, the 3rd respondent in this appeal, in the sum of N491,054,785; with post judgment interest of 10% per annum to commence on the 8th February 2013; with amount due as per the judgment to date standing at 536, 668, 556., as per paragraphs 9 and 16 of the 1st and 2nd respondents, at page 28 of the record.

The 1st and 2nd respondents obtained the garnishee order nisi on the 13th of May, 2013; the appellants by a motion dated and filed on the 4th of June 2013 sought to set aside the said order, the trial court dismissed the application, on the 2nd of August, 2013.

PRELIMINARY OBJECTION:
The notice of preliminary objection filed along with the respondents’ brief on the 2nd of December, 2013 was adopted on the 13th of May, 2014, alongside the response; the grounds of objection are as follows:
1. Grounds 1, 2, 4 and 5 of the notice of appeal dated and filed 5th of August, 2013 are incompetent, needless, argumentative and or at cross purposes with the particulars, hence offensive of order.
2. Ground 3 of the notice of appeal dated and filed 5th august, 2013 is manifestly incompetent as does not arise from the ruling of the learned trial judge and or against the ratio decidendi of the ruling of the Lower Court.
3. Issues 1, 2, and 3 formulated by the appellant lumped together invalid grounds of appeal and argued together render all the grounds of appeal and issues for determination incompetent.
4. The purported appellant’s brief of argument filed before this court on the 22nd of October, 2013 is undated and unsigned and as such a nullity and or worthless piece of paper, hence, incapable of animating the appeal.
5. Arising from the foregoing, the appeal itself is rendered incompetent and ought to be struck out as there is no valid extant ground much less valid appellant’s brief of argument to animate it.

The following issues were formulated for determination by the respondents in the preliminary objection; same were adopted by the appellant:
1. Whether grounds 1, 2, 4 and 5 of the grounds of appeal contained in the notice of appeal dated and filed 5th August, 2013 are competent, particularly having regard to Order 6 Rules 2(3) and 3 of the Court of Appeal Rules, 2011.
2. Whether ground 3 of the grounds of appeal is competent in law, having not arisen from the ratio decidendi or specific finding of the ruling of the Lower Court.
3. Whether undated and unsigned appellant’s brief of argument filed on the 22nd of October, 2013 before this court is valid in law, let alone animate the appeal.
4. Whether the appeal itself is not altogether rendered incompetent given the indiscriminate lumping of invalid grounds formulated for determination and canvassed together by the appellant and having regard to the undated and unsigned appellant’s brief.

Issues one and two:
Having gone through the grounds of appeal this court fails to see any basis for arguing that the said grounds are argumentative as contended by learned counsel to the respondents; on the contrary this court finds the particulars complained of consistent with the grounds they relate to; and so both Kamba v. Bawa (2005) 4 NWLR part 914 at 54 and Lagga v. Sarhuna (2008) 16 NWLR part 1114 at 427 do not apply in this case. if indeed the grounds were that incongruous or vague the 1st and 2nd respondents, as rightly argued by the appellant would have been unable to formulate their issue 2, which indeed is similar to the appellant’s issue 2; this Court is in full agreement with learned counsel to the appellant that the particulars in grounds 2 and 4 flow seamlessly; Order 6 Rule 3 of the Rules of this Court have been complied with contrary to the contention of learned counsel to the appellant.

Ground 3 on the other hand does appear in the opinion of this Court, to have arisen from the Court’s ruling; and nothing prevents the appellant from raising as a ground of appeal a complaint as to failure of the Lower Court to consider issues raised, ”

And in any event “The fact that a ground of appeal is argumentative is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal, issues arise for consideration by the Court. This is so because the modern approach in adjudication is to avoid technically in its entire ramification and concentrate on the principal duty of court to do justice. Moreover, where parties to an appeal and the court are not misled by the contents of a ground of appeal, complaint about its form, which form does not occasion a miscarriage of justice, becomes a technicality.

Courts now pursue the cause of substantial justice as against placing reliance on the rules of technicality. In the instant case, the plaintiffs’ preliminary objection challenging the form of defendants’ grounds of appeal was struck out as the grounds of appeal were not rendered incompetent by its from.” Nigerian Reinsurance Corp v. Cudjoe (2008) All FWLR Part 414.

There is nothing in the grounds complained of to suggest that the respondents were misled, in any way, more so as this court finds the said grounds concise enough, “A ground of appeal which particulars of error are argumentative or conclusion is not ipso facto incompetent so long as it is not capable of misleading the other party and the court is satisfied that its meaning can be reasonably elicited. It cannot be considered objectionable…” NWAZURUIKE V NWACHUKWU (2012) LPELR 15353 CA

In view of the foregoing this court has no hesitation in resolving this issues in favour of the appellant, and against the respondents.

Issue three:
The main grouse of the respondents here is the non signing of the appellant’s brief. The failure of the appellant to sign and date its brief is unfortunate, for want of better thing to say; but having said that the original and all other copies of the appellant’s brief are signed and dated; that being the case, unfortunate as the failure to sign the respondents’ copy is, that failure in itself cannot invalidate the appellant’s brief, especially when copies of the brief before the court are signed and dated 22nd October, 2013; A.C. Abia State v. AGHARANYA (1999) 5 NWLR (part 607) at 362 applies only to where the document is unsigned.

Having said that, annexing the unsigned documents to the respondents’ brief, as exhibits A and B, in an effort to establish the failings of the appellant is wrong; that procedure is to say the least alien; all the learned counsel to the respondent had to do is refer to the said document in the record; Attorney General of Enugu State v. Avop (1995) 6 NWLR (part 399) at 90.

This issue too is resolved in favour of the appellant, and against respondent.

Issue four:
Learned counsel to the respondents submits that invalid grounds are whimsically lumped together; he also repeated his submissions on the unsigned brief, which at this point is needless; he referred to Danboyi v Sa’adu (2011)15 NWLR (part 1269) at 1. It is the considered opinion of this Court, especially after having gone through the grounds of appeal that issues 1 and 3 are distilled from grounds 1 and 5 as submitted for the appellant; this court does not therefore believe that invalid grounds are lumped together, as contended by learned counsel to the respondent. “…it is a common place for lawyers to describe a ground of appeal that alleges error in law and misdirection as incompetent to void that ground of appeal. Nothing can be further from the truth; Ebere v. Onyenge (2000) 1 NWLR (Pt.643) pg. 63; “…a defect in any of the particulars in a ground cannot be a basis for declaring the ground of appeal as a whole as incompetent…” Haruna Esq., v. Kogi State House of Assembly (2010) LPELR.

That being the case, this issue too is accordingly resolved in favour of the appellant, and against the respondent.

Having resolved all the issues in favour of the appellant, the preliminary objection of the 1st and 2nd respondents is hereby dismissed, and accordingly struck out; the court will proceed to hear the appeal on its merit.

MAIN APPEAL:
The appellant formulated the following issues for determination in this appeal by this court:
1. Whether the Lower Court has jurisdiction to entertain the garnishee proceedings.
2. Was the Lower Court was right in holding that the appellant’s case was academic, and in relying solely on the affidavit evidence of the 1st and 2nd respondents without appropriate determination of crucial issues submitted to it for adjudication?
3. Whether the Lower Court ought not to have invalidated the garnishee order nisi for violating the rules of court.

Learned counsel to the respondents P. A. Akubo S.A.N formulated the same issues for determination by the court, though framed differently; this court will determine the issues as formulated by the appellant.

Issue one:
It is important learned counsel to the appellant submitted to have recourse to Order V111 Rule 2 of the Judgment (Enforcement) Rules, which obligates that a garnishee matter be taken to a court that has jurisdictional competence to entertain the suit; he referred the Court to Central Bank of Nigeria v. Auto Import Export & Anr (2013) 2 NWLR part 1337; and contended that the Lower Court erred in entertaining the matter, because if the 3rd respondent were to sue the appellant in respect of its money in appellant’s custody, the Lower Court would not have jurisdictional competence over the suit.

Learned counsel submitted that the appellant is an agency of the Federal Government, with license to supervise and regulate banks in Nigeria, including the 3rd respondent; he referred the court to S.2 of the Central Bank of Nigeria Act; that the relationship of the appellant with the 3rd respondent in relation to banking matters is governed by statute, and not common law of contract.

That section 251(1)(d) of the 1999 Constitution confers exclusive jurisdiction in any dispute arising between the appellant and a bank in Nigeria; that once the provisions of a statute are clear and unambiguous, the court is bound to give effect to its ordinary meaning.

Learned counsel further submitted that as long as the Lower Court cannot exercise subject matter jurisdiction in a dispute between the appellant and a Nigerian in respect of the bank’s money in appellant’s custody, it follows that it has no jurisdiction over any garnishee proceedings involving the appellant; he urged this court to so hold, and resolve this issue in favour of the appellant.

Learned counsel also submitted that as long as the trial court cannot exercise subject matter jurisdiction in a dispute between the appellant a Nigerian bank in respect of the bank’s money in the appellant’s custody, it follows that it has no jurisdiction over any garnishee proceedings involving the appellant; he urged this court to so hold and resolve this issue in favour of the appellant.

It is submitted for the respondents in reply that Order V111 Rule 2 of the judgment (enforcement) rules on which the appellant relies for his argument is procedural rule, and not a substantive legislation; and rules of court do not confer jurisdiction, but only regulate the practice in the court, and so cannot override statutory provisions; learned counsel referred to Afribank Nigeria Plc v Akwara (2006) 5 NWLR part 974; G.M.O.N & S CO. LTD v Akupta (2010) 9 NWLR part (1200), and G.M.O.N. & S CO. LTD V AKPUTA (2010) 9 NWLR (part 443) at 473.

Learned counsel also submits that the provisions of order V111 rule 2 are not mandatory, given the use of the word “may”; he referred the court to Odedo v INEC (2008) 17 NWLR (part 1117) at 610 and AMASIKE V REG. GEN C. A. A (2010) 13 NWLR (part 1211) at 337.

It is the submission of learned counsel for the respondents also that section 83 (1) of the Sheriffs and Civil process Act which is the substantive provision empowering the trial court to entertain garnishee proceedings did not in any way say that garnishee proceedings must be commenced before a court in which the 3rd respondent was to sue the appellant in respect of its money with the appellant.

That also there is nowhere in section 251 of the Constitution wherein it is indicated that garnishee proceedings as in this case can only be initiated at the Federal High Court on account of the appellant is an agency of the federal government; this he argued is more so because garnishee proceedings by nature deal with enforcement of judgment already delivered and not commencement of a fresh action or substantive claim warrants the invocation of section 251 of the Constitution; that in any case a High Court of the federal capital territory is a court established by the federal government he urged this Court to hold that the trial court had jurisdiction to entertain the garnishee proceedings in case.

Learned counsel to the respondent submitted that Order V111 Rule 1 does not confer any jurisdiction but merely regulates the exercise of power in garnishee proceedings; and also that the word “may” could be used as mandatory; he referred the court to OBIOHA v. DAFE (1994) 2 NWLR (part 325) at 180.

Having gone through the submissions of learned counsel on both sides and authorities cited, I venture to say on this issue, that Jurisdiction for the avoidance of doubt is the Alfa and Omega on the authority of a court to decide a case, any case. That much is trite, by a long line of authorities, so much so that stating it here is stating the obvious. Having said that, it is imperative for the purpose of clarity to state exactly the provisions Order V111 Rule 2 Judgment (Enforcement) Rules, as it relates to the garnishee proceedings; it states:
“Garnishee proceedings may be taken:
a) In any court, in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule, governing civil procedure in magistrates, court, as the case may be, sue the garnishee in respect of the debt; or
b) Where the debt is not yet payable, or is for an amount exceeding the jurisdiction of such court, in any court in which the judgment debtor could have sued the garnishee as aforesaid, if the debt had been immediately payable or had not exceeded the jurisdiction.
The appellant’s argue that the above provision must be satisfied before a court of law could entertain a garnishee matter, relying mainly on the authority of CBN v Auto Import Export supra; for the respondents the argument is that the said order is a procedural rule, and not substantive legislation, and that rules of court do not confer jurisdiction; reliance is placed in this regard on Afribank Nigeria plc v Akwara (2006) 5 NWLR part 974 among others; it is also argued that given the use of the word “may” the order is not mandatory.

On the use of the word “may” in Order V111 Rule 2, learned silk for the respondents contended while referring to Odedo v INEC supra, submitted that it does not signify mandate; this court holds a contrary view, because “may” could be construed as shall sometimes; this court cannot help but agree with learned counsel for the appellant that the application of the word should be on a case by case basis; in this court’s opinion that is why, “It is now trite that the word “shall” does not always mean “must” – a matter of compulsion. It could be interpreted, where the context so admits as “may”; whereas “may” is also not always “may” It may sometimes be equivalent to “shall”. Kamba v Kamba (2005) 4 NWLR part 914.

Having said that, contrary to the contention by learned counsel for the respondent “Garnishee proceedings are governed by the Sheriffs and Civil process Act…” UBA PLC V UBOKULO & ORS (2009) LPELR 8923-CA.
Clearly therefore a garnishee matter can only be initiated in a court where the judgment debtor can sue for the debt; the court has to have jurisdiction to entertain the suit by the judgment debtor against the garnishee in respect of the debt; CBN v AUTO IMPORT EXPORT supra; and it follows from this that section 83(1) of the Sheriffs and Civil Process Act goes hand in hand with Order V111 Rule 2 of the Judgment Enforcement Rules. The suggestion that the order is not mandatory, by reason of the use of ‘May’ is not founded from all indications.

The trial court in the considered opinion of this court had no jurisdiction to hear the garnishee proceedings in respect of this case; this is so because by reason of section 251 (1) of the Constitution and Order V111 Rule 2 it cannot entertain any suit by the 3rd respondent against the appellant, in respect of the 3rd respondent’s money in the appellant’s custody; the proper court to hear the proceedings is the Federal High Court; principally because the appellant is an agency of the Federal Government; section 251 (1) of the Constitution is very clear in this regard, as it provides inter alia:
“Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an act of the national assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes or matter;
d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the central Bank of Nigeria arising from banking… provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank”
The argument by learned counsel to the respondents that this section of the Constitution did not specifically state anywhere that garnishee proceedings must be initiated at the Federal High Court fails to impress, because the provision is very clear in its intent, even if it is argued it is not so stated specifically; a careful reading of section 251(1), (p), (q), (r) and (s) of the 1999 Constitution and the proviso thereto reveal that the intention of the Lawmakers is to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies is a party, A State High Court or the High Court of the Federal Capital Territory, Abuja has no jurisdiction in such matters notwithstanding the nature of the claim in the action.” Federal College of Education v Ogbonna (2007) LPELR 9025 CA.
It does not matter also in the considered opinion of this court that garnishee proceedings by their nature deal with the enforcement of judgments already obtained; and even if the High Court of the Federal Capital Territory is a creation of the Federal government, as argued by the learned S.A.N for the respondents, the augment still falls flat on its face because that does not by any stretch of imagination mean that the High Court of the Federal Capital Territory is a Federal High Court.

The “Federal” in Capital Territory does not make the courts in the territory “Federal High Courts”, strictu sensu; and in any event section 251(1) does not evidently refer to High Courts in the Federal Capital Territory, that much is clear. It is in this regard that this court held earlier in Federal College of Education Oyo v Akinyemi (2007) LPELR 8482-CA: “…that the Federal High Court derives its jurisdiction under Section 251 of the Constitution of the Federal Republic of Nigeria, 1999. And quite unlike the State High Court which is a court of unlimited jurisdiction, the Federal High Court is a Special Court with circumscribed jurisdiction which is clearly specified under Section 251 of the Constitution. In other words the Federal High Court can only adjudicate on matters mentioned in Section 251 of the Constitution where the Federal Government or any of its agencies is a party. See Omosowan v. Chiedozie (1998) 9 NWLR (Pt.566) 477, Minister of Works & Housing v. Thomas Nigeria Ltd. (2002) 2 NWLR (Pt.752) 740.
It is also clear to this court from the record, without any modicum of doubt, that the Appellant in this case is an agency of the Federal Government identification of parties, particularly as to whether they are agencies of the Federal Government or not has almost always not posed any problem; “…exclusive jurisdiction is vested in the Federal High Court in civil causes and matters arising from the administration, management and control of the Federal Government, the operation and interpretation it of the Constitution as affects the Federal Government as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government or any of its agencies. It is important to note that the proviso to the subsection gives a person the right to seek redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance, where the action is based on any enactment, law or equity…” MINISTER, F.M.H. & U. D. v. BELLO (2009) 12 NWLR (Pt.1155) 345 C.A. This court is left with no option but to resolve this issue in favour of the appellant and against the respondent in the circumstances.

Having resolved the all important issue of jurisdiction in favour of the appellant the other issues i.e. issues 2 and 3 have become mute, essentially, and needless to address; they are hereby struck out.

Accordingly the appeal succeeds; the ruling of the High Court of the Federal Capital Territory, complained of delivered on the 2nd August, 2013, by Hon. Justice M. M. Dodo in suit No. FCT/HC/105/2008 is set aside in its entirety for want of jurisdiction.

Parties to bear their respective costs.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the Judgment of my learned brother Mustapha JCA just delivered and I agree with the conclusion therein that this appeal has merit. I too allow it and I set aside the Ruling of the High Court of FCT delivered on 2/8/13.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had read in draft the judgment just delivered by my learned brother, M. Mustapha, JCA.

I am in full agreement with his reasoning and conclusion reached by my learned brother in the said judgment, in dismissing the preliminary objection and allowing the substantive appeal on the ground of lack of jurisdiction.

Parties are to bear their costs.

Appearances

Babajide Babatunde Esq. For Appellant

AND

P. A. Akubo, SAN for the 1st and 2nd respondents.
Dr. Joseph Nwobike, SAN for the 3rd respondent. For Respondent