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IBRAHIM v. SARHAM & ORS (2022)

IBRAHIM v. SARHAM & ORS

(2022)LCN/16826(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/PH/144/2020

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

ALHAJI AMINU IBRAHIM APPELANT(S)

And

1. MAJOR GENERAL JAMIL SARHAM 2. NIGERIAN ARMY 3. CENTRAL BANK OF NIGERIA RESPONDENT(S)

RATIO

WHETHER OR NOT THE CONSENT OF THE ATTORNEY GENERAL OF THE FEDERATION IS REQUIRED BEFORE FUNDS IN THE HANDS OF A PUBLIC OFFICER AND FOR THE COURT TO HAVE JURISDICTION TO ENTER AN ORDER FOR GARNISHEE OF FUNDS HELD BY THE CENTRAL BANK OF NIGERIA

From my look-around exercise, I have observed that decisions of this Court, recently delivered, have come to the same position, which is that the Central Bank of Nigeria is a public officer, in the context of its holding funds on behalf of the Federal Government and its agencies. This Court has also consistently held that the prior consent of the Attorney General of the Federation is required before funds in the hands of a public officer and for a Court to have jurisdiction to enter an order for garnishee of funds held by the Central Bank of Nigeria. I am bound by those decisions and do not need any fresh inspiration to go on a different voyage. The same sentiment was expressed by this Court in the case of CBN v. Atana [2022] 3 NWLR (Pt. 1818) 509 to the effect that the Court of Appeal is bound to follow its previous decision as well as decisions of Courts of co-ordinate jurisdiction. Where the Court of Appeal is faced with its conflicting decisions, the guiding principles it must follow are as follows: (a) the Court is entitled and bound to decide which of the two conflicting decisions of its own it will follow;
(b) the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of a superior Court;
(c) the Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
(d) Where the Court is faced with its conflicting decisions, it should follow the decision later in time. This is encapsulated in the maxim judicia posteriora sunt in lege fortiori, which means the later decision is stronger in law.
At page 519 of the Law Report, Daniel-Kalio, J. C. A. stated:
“Going by the above guiding principles, I prefer and find myself bound by the decisions of this Court in C.B.N. v. Alhaji Mohammed Kakuri (supra) and C.B.N. v. Maiyini Century Company Ltd. (supra). I follow these decisions for two reasons. First, they are later in time than C.B.N. v. Njemanze (supra) cited by the respondent’s learned counsels. I am fortified in this view by the maxim judicia posteriora sunt in lege fortiora (the later decisions are stronger in law). Second, C.B.N. v. Njemanze (supra) cited by the respondent in my opinion cannot stand with the decision of the Supreme Court in C.B.N. v. Interstellar Comm. Ltd (supra) which tends to support the view that by Section 84 of the Sheriffs and Civil Process Act, the consent of the Attorney-General of the Federation is required in a case like this.”
PER ADEGBEHINGBE, J.C.A.

THE CONDITIONS THAT MUST BE FULFILLED FOR A COURT TO HAVE JURISDICTION OVER A MATTER

The law is settled that a Court has and can only exercise jurisdiction when:
(a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) 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; and
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction.
See Madukolu v. Nkemdilim [1962] 2 SCNLR 341.
PER ADEGBEHINGBE, J.C.A.

WHETHER OR NOT THERE IS A SPECIAL FORMAT IN RAISING THE ISSUE OF JURISDICTION

There is no special format for raising the issue of jurisdiction. See Sylva v. INEC [2015] 16 NWLR (Pt. 1486) 576. This is because, without jurisdiction, the whole trial or proceeding of the Court is a nullity however well conducted. That is why jurisdiction is very vital and fundamental to administration of justice in any judicial system. See Tukur v. Govt of Gongola State (No.2) (1989) 4NWLR (pt. 117) 517. 

It is also settled that where the jurisdiction of the Court or Judge is in issue in respect of a matter, that issue must first be considered and disposed of. See Magaji v. Matari [2000] 8 NWLR (Pt. 670) 722 at 734. That is the approach the lower Court, commendably, adopted, in line with the precepts of law laid down by the Courts, over the years. The lower Court’s discountenancing the preliminary objection would have produced easy appellate combustion for its decision, for lacking jurisdiction, if so found.  PER ADEGBEHINGBE, J.C.A.

WHETHER OR NOT AN ORDER OF COURT MADE WITHOUT THE JURISDICTION OF COURT SHOULD BE SET ASIDE

An order of Court which was made without jurisdiction ought to be set aside ex debito justitiae. That should be done without much ado. The lower Court would be qualified to set such an order aside where it made one. See Aborisade v. Abolarin [2000] 10 NWLR (Pt. 674) 41, Timitimi v. Amabebe [1953] 14 WACA 374, A. G. Anambra v. Okafor [1992] 2 NWLR (Pt. 224) 396 and N.N.P.C. v. Tijani [2006] 7 NWLR (Pt. 1007) 29 at 42. Where an order, including a judgment of a Court, amounts to a nullity, the Court that made that order in its inherent jurisdiction is empowered to set same aside and an appeal is not necessary for that purpose. See Adegoke Motors Ltd v. Adesanya [1989] 3 NWLR (Pt. 109) 250 and Menakaya v. Menakaya [2001] 16 NWLR (Pt. 738) 203 at 255. PER ADEGBEHINGBE, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): In the beginning, there was a suit filed by the appellant against the 1st and 2nd respondents (as defendants and the Commander Police I. G. Monitoring Squad – as the 3rd defendant) before the Port Harcourt Judicial Division of the Federal High Court. That was suit no. FHC/PH/222/2018. That Court delivered its judgment in favour of the appellant on 27/03/2019, which included orders that some sums of money should be paid to the appellant. (See pages 9-14 of the record of appeal).

It was with the inspiration of the judgment earned, coupled with the need to enforce same, that the appellant returned to the same Court with an application (in suit no. FHC/PH/MISC/88/2019) asking for an order nisi in the garnishee proceedings, for the enforcement of the judgment of the lower Court, dated 27/03/2019. The motion ex-parte (for the purpose) was filed on 10/07/2019, before the Federal High Court, at its Port Harcourt Judicial Division (lower Court). While the 1st and 2nd respondents in this appeal were cited in the process filed, as respondents, the Central Bank of Nigeria was cited in the same process as the Garnishee. The appellant was the applicant/judgment creditor/garnishor. (See pages 2-30 of the record of appeal). The lower Court, according to the appellant, granted the order nisi sought on 31/10/2019.

The 3rd respondent was served with the order nisi for garnishee. The 3rd respondent, resultantly, filed an affidavit to show cause on 29/11/2019 (pages 41-43). The 3rd respondent (as the garnishee) before the lower Court, also filed, on 03/12/2019, a preliminary objection challenging the jurisdiction of the lower Court to grant the order nisi or entertain the garnishee proceedings before it, for non-compliance with a condition precedent. The preliminary objection was heard by the lower Court. In its ruling on the preliminary objection, the lower Court agreed with the 3rd respondent and set aside its order nisi and held that it lacked jurisdiction to entertain the garnishee proceedings. At pages 159-160 of the record of appeal, the lower Court ruled:
“These are the submissions of Counsels to both Garnishee/Applicant and to judgment Creditor/Garnishor. The issue for determination is whether the said Preliminary Objection has merit or not.
Section 84(1) of the Sheriff and Civil Process Act provides – “Where money liable to be attached by garnishee proceedings is in the custody of or under the control of the public officer in his official capacity in custodia legis, the order Nisi should not be made under the provision of last proceeding section unless consent of such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer who holds a public office of the Federation, the Attorney-General of the Federation.
The question is the money sought to be attached or garnished in the custody or control of a public officer? In this proceedings, the Garnishee is the Central Bank of Nigeria, which undoubtedly is a public corporation. In the case of PURIFICATION TECHNIQUE NIG. LTD. V. A. G. LAGOS STATE (2004) 9 NWLR (pt. 879) 665 the Court held that where money sought to be attached is in a bank, it is not custody of a public office.
I have carefully considered the processes filed before this Court and the submission of Counsel and entirely agreed with the submission of the Garnishee/Applicant’s Counsel that the Central Bank of Nigeria being a Federal Establishment performing public duties is a public officer under the law.
Consequently, I hold that Section 84 of the Sheriff and Civil Processes Act is applicable in this proceedings. The Preliminary Objection succeeds and the order Nisi made by this Court on the 31st day of October, 2019 is hereby set aside for lack of consent of the Federal Attorney-General in the first place. It is noted that the Judgment Creditor has made efforts through Exhibit Aminu 1 to Aminu 3 to get the consent of the Federal Attorney-General but could not wait for their response before rushing to this Court for the order Nisi.”

It is against the order in the “ruling and judgment on garnishee proceedings” of the lower Court, quoted above, that this appeal was initiated and sustained by the appellant.

At pages 134-139B of the record of appeal, there is a notice of appeal filed by the appellant, on 18/02/2020. The process complains about the decision of the Federal High Court (Coram: Justice M. L. Abubakar) in Suit No. FHC/PH/MISC/88/2019, dated 06/02/2020. There are three grounds of appeal in the named notice.

The three issues for determination, deduced from the grounds of appeal, highlighted in the appellant’s brief of argument, which Richard U. Oyiwona Esq. settled, are:
“a. Whether or not the Court below became functus Officio as at on the 31st day of October, 2019 when the Garnishee Order Nisi was made against the 3rd Respondent in an open Court directing it to disclose the account of the 1st and 2nd Respondents? (Distilled from grounds 1).
b. Whether or not the consent of the Attorney General of the Federation was required by virtue of Section 84(1) of the Sheriff and Civil Process Act to garnishee the account of the 2nd Respondent in the hands of the 3rd Respondent in view of the Treasury Single Account (TSA) Policy of the Federal Government? (Distilled from grounds 2).
c. Whether or not the Court below was right in countenancing the preliminary objection of the 3rd Respondent which lack the locus to file such an application in garnishee proceeding? (Distilled from grounds 3).”

Hearing of the Appeal
At the hearing of this appeal, on 03/03/2022, Dr. R. U. Oyiwona (with U. S. Echo Esq.) appeared for the appellant. Learned counsel identified the appellant’s notice of appeal at pages 134-139 of the record of appeal. He identified the appellant’s briefs as follows:
a. appellant’s brief of argument, filed on 17/04/2020;
b. appellant’s reply brief of argument to the 3rd respondent’s brief, filed on 17/08/2020; and
c. Appellant’s reply brief of argument to the 1st and 2nd respondents’ brief, filed on 01/09/2020.

He adopted the enumerated briefs above as argument of the appeal. He urged the Court to allow the appeal and set aside the decision of the lower Court.

E. C. Onyenkwu Esq. (with C. Nyeche Esq.) appeared for the 1st and 2nd respondents. He adopted 1st and 2nd respondent’s brief of argument, filed on 17/08/2020, as argument of opposition to the appeal.

Babatunde Ojo Esq., appeared for the 3rd respondent. He adopted the 3rd respondent’s brief of argument, filed on 06/08/2020, as argument against the appeal. He urged this Court to uphold the decision of the lower Court and to dismiss this appeal. 

​Appellant’s Argument of the Appeal
Appellant’s brief of argument was settled by Richard U. Oyiwona Esq. Learned counsel recalled that when the order nisi was made by the lower Court, on 31/10/2019, that Court did not include the need for the consent of the Attorney-General of the Federation as part of the orders read out, as a condition precedent for the commencement of the garnishee proceeding by the applicant. However, when the enrolment of order was issued, it inexplicably contained such a condition. Reference was made to page 147 of the record of appeal, in respect of proceedings dated 31/10/2019 – in cross-reference to page 90A of the record of appeal.

Learned appellant’s counsel also recalled that on the day the 3rd respondent’s preliminary objection was argued, the learned trial Judge remarked that it was after the order nisi was read out in open Court that he retired into his Chambers and thereupon inserted the clause requiring that the consent of the Attorney General of the Federation should be obtained by the appellant.

In the view of learned counsel, the order nisi made by the lower Court ought to have included the time the consent of the Attorney General of the Federation should be obtained. Reference was made to pages 142-145 of the record of appeal, where the order nisi mentioned is spread out. It was submitted that the lower Court was functus officio and could not reverse itself, having granted the order nisi. The case of MT “Delmar” v. MT “Ane (Ex MT Leste)” [2016] 13 NWLR (Pt. 1530) 482 at 517 etc. was cited in aid of the proposition.

Learned counsel argued that the lower Court’s order nisi, of 31/10/2019, was properly made, in good faith and the lower Court erred in law and practice when it returned to chambers to review, alter or amend the order it earlier made in open Court, by inserting a clause regarding the consent of the Attorney General of the Federation.

On the second issue, the position taken by learned counsel is that by the provision of section 84(1) of the Sheriff and Civil Process Act, the money sought to be attached is not in the custody of a public officer, going by the status of the 3rd respondent. He relied on the decision in CBN v. Interstella Communications Ltd [2018] 7 NWLR (Pt. 1618) 294 at 346-347. He also submitted that money in the custody of the 3rd respondent is not in the custody of and under the control of the 1st and 2nd respondents. He relied on the cases of Oceanic Bank Plc v. Oladepo (2012) LPELR – 19670 and Purification Tech. (Nig.) Ltd. v. A. G. Lagos State [2004] 9 NWLR (Pt. 879) 665 at 680, which, learned counsel said, the lower Court cited in its ruling, before proceeding to disregard the position of the law.

Even where (and the fact was not conceded) the appellants were expected to obtain the consent of the Attorney General of the Federation, the opinion of learned counsel is that the appellant is not required to wait indefinitely for the consent. Notwithstanding the fact that there is no requirement for the consent of the Attorney General of the Federation, the appellant wrote letters to the office, which failed to respond. That fact was acknowledged in the ruling of the lower Court – at page 160 of the record of appeal. This Court was advised that the provision for consent is not intended to constitute a clog in the wheel of judgment enforcement procedure, but to avoid needless embarrassment to the Government, which may not be aware that the fund in the custody of a public officer has been attached. He submitted that a judgment must be obeyed and a judgment creditor should not be denied the fruit of his judgment. He cited the case of Akibu v. Oduntan & Ors. [1991] LPELR – 335(SC).

In the view of learned counsel, the consent of the Attorney General of the Federation is “superfluously needless and legally unnecessary”.

On the third issue, it was argued that the 3rd respondent, as the garnishee, had a limited responsibility at the garnishee proceedings. It was simply to show cause why the order nisi made by the lower Court should not be made absolute, as demanded by Sections 83 and 85 of the Sheriff and Civil Process Act. The 3rd respondent was expected to show the state of the account of the judgment debtor, not to shield the fund of the judgment debtor, by engaging the judgment creditor in legal battle. Reference was made to CBN v. Interstella (supra) at page 350, GTB Plc v. Innoson [2017] 16 NWLR (Pt. 1591) 181 at 203, and Gwede v. D. S. H. A. [2019] 8 NWLR (Pt. 1673) 30.

Learned counsel asked for what the lower Court was expected to do when the 3rd respondent took it upon herself to take up the burden of fighting the cause of the judgment debtor, who neither disputed the decision against it nor showed any interest in challenging same? He cited the decision in Amadi v. Abraham & Ors [2019] LPELR – 48314(CA) and Wushishi v. Imam & Ors [2017] LPELR – 41906(SC), on the issue of locus standi. He accused the 3rd respondent of filing the preliminary objection, without locus standi, to fight the cause of the judgment debtor. In the opinion of learned counsel, what the lower Court ought to have done was to have declined jurisdiction to entertain the 3rd respondent’s application and strike same out, accordingly.

In the opinion of learned counsel, miscarriage of justice was occasioned as the lower Court misapplied the law. He accused the lower Court of granting undue indulgence to the 3rd respondent.

He urged this Court to allow the appeal.

1st and 2nd Respondents’ Argument of the Appeal
O. G. Ogbom, Esq. settled the brief of argument filed on behalf of the 1st and 2nd respondents. On his part, from the grounds of appeal, there is one issue for determination, which he stated as: whether the appellant had complied with the requirement of the law before initiating the garnishee proceeding against the respondent at the lower Court.

In argument of the sole issue, learned counsel noted that garnishee proceedings is sui generis. He cited the case of Gwede v. D. S. H. A. (Supra) on the procedure to be embarked upon and Section 84(1) of the Sheriff and Civil Process Act. He pointed out that the provision demands that the consent of the Attorney General of the Federation is required before the judgment creditor can commence garnishee proceedings against a public officer, who has custody of money to be attached, in his official capacity or in custodial legis. He directed the attention of this Court to Section 84(3) of the statute on what ‘appropriate officer’ means – i. e. Attorney General of the Federation or Attorney General of a State. He also pointed in the direction of the Interpretation Act on the meaning of public officer. The cases of Federal Government of Nigeria v. Zebra Energy Ltd [2004] 9 NWLR (Pt. 879) 665 at 680 and Central Bank of Nigeria v. Shipping Company Sara B. V. (No. 1) were cited. He submitted that the CBN is an agent and funds in its hands are government funds held for and on behalf of the government.

He described the order of the lower Court dated 27/01/2020, setting aside the order nisi, made on 31/10/2019, as proper.

On the allegation that the lower Court, in Chambers, inserted an extra order into its original order nisi, learned counsel stated that there is no record to show that such took place. He submitted that the address of counsel cannot take the place of evidence. He insisted that the order nisi, as shown at page 147 of the record of appeal, included the condition involving consent of the Attorney General of the Federation and that parties are bound by the record of the Court.

Even where Section 84 of the Sheriff and Civil Process Act did not provide for prior consent, the order nisi was made based on condition for obtainment of consent, which the appellant failed to comply with. It was submitted that the lower Court was right to have taken the step it took in respect of the matter.

On the decisions in CBN v. Interstella (supra) and Purification Tech Nig. Ltd. v. A. G. Lagos (supra), learned counsel is of the view that those decisions were decided based on their peculiar facts and not applicable to this appeal. He pointed out that the letter, dated 10/06/2019, allegedly written to the Attorney General of the Federation, by the appellant, only demanded for payment of the judgment debt. It did not seek consent, as claimed by the appellant. While the letter dated 13/06/2019 was written as claimed, the appellant did not allow reasonable time to pass before filing his application in Court, according to learned counsel.

Learned counsel recalled that the 3rd respondent filed an Affidavit to Show Cause and a notice of preliminary objection based on the issue of lack of jurisdiction. He referenced the case of CBN v. Sajo [2020] Legalpedia (CA) 14682 which determined the issue of the consent of the Attorney General, as it concerns garnishee proceedings. Learned counsel insisted that the appellant failed to comply with the provision of Section 84 of the Sheriff and Civil Process Act. He urged this Court to dismiss the appeal, as it lacks merit.

Argument of the 3rd Respondent
Sunday Babatunde Ojo Esq. settled the brief of argument filed by the 3rd respondent. Learned counsel, in his appreciated wisdom, adopted the issues for determination submitted by the appellant.

He pointed out that the first issue is not derived from any ground of appeal. He directed the attention of the Court to pages 134-139 of the record of appeal. His request is that the issue should be struck out, with the aid of the cases of Momodu v. Momoh [1991] 1 NWLR (Pt. 169) 608 and B. A. I. Co. Ltd. v. Omolayo [1991] NWLR (Pt. 1710 71.

Without prejudice to the request narrated above, learned counsel argued that the proceeding of 31/10/2019 (page 147 of the record of appeal) is not part of the appeal herein, in view of the appellant’s serious aspersion cast on the integrity of the lower Court. Appellant claimed that the lower altered the order of the Court of 31/10/2019, in Chambers, after it had been signed in Court. Going further, learned counsel stated that the Court is bound by its record.

An examination of the record of appeal revealed to the 3rd respondent that the appellant wrote a letter, to request for the consent of the Attorney General of the Federation, before applying for an order nisi in the garnishee proceeding. The first letter is dated 10/06/2019. The second letter is dated 11/12/2019. The order nisi was made on 31/10/2019. (Reference to pages 15 and 85, respectively, of the record of appeal). He accused the appellant of failing to wait for a response before continuing with the garnishee proceedings. In the circumstance, it is the view of learned counsel that the allegation of the appellant is puerile, as it is to the effect that the lower Court made the consent already sought, mandatory. He described the allegation as mischievous and should be discountenanced.

Learned counsel also advised that the Court could raise the issue of jurisdiction on its own, with the aid of the decided case of Oloba v. Akereja [1988] LPELR – 2583(SC). Since the issue of consent is about jurisdiction, the opinion of learned counsel is that the allegation that the lower Court altered its order dated 31/10/2019 does not hold water.

As the Court is bound by its record, it was observed that the record of appeal (pages 142-145 and 147 of the record of appeal) shows that the lower Court included the obtainment of the consent of the Attorney General of the Federation as part of its order (dated 31/10/2019) and the said Order was served on the 3rd respondent by the appellant. It was submitted that the lower Court did not become functus officio after making the garnishee order nisi, dated 31/10/2019. He called in aid, Sections 83 and 84 of the Sheriff and Civil Process Act. It was submitted that after service of the order nisi and the garnishee must have shown cause or failed to do so, the Court will determine the order to make. It is any of those decisions, like pronouncing an order absolute or setting the order nisi aside, which will conclude the garnishee proceedings and which will make the Court functus officio. The attention of the Court was drawn to the appellant’s suggestion that the lower Court became functus officio after it entered the order nisi, dated 31/10/2019 and that, that Court lacked jurisdiction to hear and determine the preliminary objection challenging its jurisdiction. The understanding of the appellant was described as misrepresentation of the procedure for garnishee proceedings. On the right procedure, the case of Union Bank of Nigeria Plc. v. Boney Marcus Ind. Ltd. [2005] 7 S. C. (Pt. II) 70 was cited. He urged the Court to discountenance appellant’s argument.

By virtue of Section 84 of the Sheriff and Civil Process Act, according to learned counsel, the appellant was expected to have obtained the consent of the Attorney General of the Federation before filing the garnishee proceedings. He relied on the case of CBN v. Amao [2010] 16 NWLR (Pt. 1219) 271. With the issue of prior consent affecting jurisdiction, a threshold issue, it may be raised by the parties or the Court at any time, even at the stage of appeal. The case of Madukolu v. Nkemdilim [1962) 2 All NLR 581 at 589 was cited.

On the second issue, we were informed that Section 84(1) of the Sheriff and Civil Process Act has been subjected to judicial interpretation. As proof, the case of CBN v. J. I. Nwanyanwu & Sons Enterprises Nigeria Ltd [2014] LPELR – 22745 (CA) which decided that garnishee proceedings conducted without obtaining “the leave” of the Federal Attorney General against the CBN, which is a public body manned by public servants, is a nullity, was cited. Section 18 of the Interpretation Act 2004, Section 318(1)(c), (e) & (f) of the Constitution of the Federal Republic of Nigeria, 1999 and the case of Federal Government of Nigeria v. Zebra Energy Ltd. [2002] 18 NWLR (Pt. 789) 162 on the status of the 3rd respondent were cited. It was then submitted that the 3rd respondent, being a federal establishment, created by an Act of parliament to perform public duties under the Central Bank Act, 2007 and the Banks and Other Financial Institutions Act, Cap. B3 LFN, 2004, (BOFIA), is a public officer requiring the leave or consent of the Attorney General of the Federation before garnishee proceedings can be commenced against it. The cases of CBN v. James Ojembi Okefe [2015] LPELR – 24825(CA), CBN v. Amao (supra) and CBN v. Hydro Air PYT Ltd. [2014] 16 NWLR (Pt. 1434) 482 were cited. He insisted that lack of consent robbed the lower Court of jurisdiction. Other cases cited are CBN v. Kakuri [2016] LPELR – 41468(CA), CBN v. AMCON [2017] All FWLR (Pt. 900) 422, Sanni v. Unity Bank Plc & CBN [2017] All FWLR (Pt. 891) 882 and UAC v. Macfoy [1961] 3 WLR (P. C.) 1405 at 1409.

Learned counsel distinguished the case of CBN v. Interstella Communications Ltd. (supra) and submitted that the decision must be situated within its peculiar circumstances. We were warned that Courts have continued to insist on compliance with the requirement of prior consent of the Attorney General of the Federation in appropriate garnishee proceedings.

On the third issue, 3rd respondent’s counsel recalled that the decisions in UBA Plc v. Ekanem (No. 2) [2010] 6 NWLR (Pt. 1190) 207 and WEMA Bank Plc v. Brastem-Sterr Nig. Ltd. & Anor [2011] 6 NWLR (Pt. 1242) 58 at 79 decided that the garnishee is the main party in the proceedings and should be the one reacting, if the law is not being respected. He also recalled that the 3rd respondent, as the garnishee, filed an affidavit to show cause, along with a preliminary objection challenging the jurisdiction of the lower Court. He urged the Court to resolve the third issue against the appellant.

Appellant’s counsel urged this Court to dismiss the appeal.

Appellant’s Reply Briefs
Appellant’s reply brief of argument in response to the 1st and 2nd respondents’ brief of argument was settled by Richard U. Oyiwona Esq.

Learned counsel explained that the first issue for determination is a derivative of ground 1.

On the allegation of subsequent insertion of the requirement of consent of the Attorney General in the order of the lower Court dated 31/10/2019, the attention of the Court was drawn to pages 76-102 of the record of appeal (particularly page 77) where the fact is deposed to in the counter-affidavit filed by the appellant. The respondents herein did not deny that fact. The lower Court did not deny that fact. He requested that this Court should take judicial notice of the record of the lower Court.

Relying on the case of Nigerian Navy v. Ironbar [2019] LPELR – 47006(CA), it was submitted that the appellant did not need to wait ad infinitum having been given notice of the judgment and the sum sought to be attached.

The Court was directed to the case of A. R. C. of Nig. (No. 2) In Re: O. C. Marjoroh v. Fassassi [1987] LPELR – 539(SC) on the point that the integrity of the lower Court was not being challenged but its decision. He insisted that after handing down a decision in open Court, the lower Court was functus officio and could not alter the order thereafter. He relied on the case of Nigerian Navy v. Iyela [2008] LPELR – 2014(SC); [2008] 18 NWLR (Pt. 1118) 115.

Appellant’s reply brief of argument, in response to the 3rd respondent’s brief of argument, was settled by the same Richard U. Oyiwona Esq. There was nothing new canvassed in the process, useful to this judgment.

Other submissions were not different from existing arguments already canvassed on behalf of the appellant.

Determination of the Appeal
Before the appeal will be determined, on the merit, it is apt that I should record an observation and decision. It concerns the date of the ruling against which the notice of appeal herein was filed. The exact words used in a portion of the notice of appeal are:
“TAKE NOTICE that the Appellant being dissatisfied with the ruling of the Federal High Court of Nigeria, sitting at Port Harcourt, and presided over by Honourable Justice M. L. Abubakar in Suit No. FHC/PH/MISC/88/2019 on the 6th day of February, 2020, do hereby Appeal to the Court of Appeal, Port Harcourt Division upon the Grounds set out in paragraph 2 and will at the hearing of the Appeal seek the reliefs set out in paragraph 5.” It is represented by the words deployed above that the appellant’s appeal is against a certain ruling handed down by the Federal High Court in suit no. FHC/PH/MISC/88/2019, on 06/02/2020.

At page 137 of the record of appeal, it is further recorded that the reliefs sought by the appellant in this appeal, are:
“(a) An order allowing this appeal.
(b) An order setting aside the decision of the lower trial Court delivered on the 5th day of February, 2020.
(c) An order making absolute the garnishee order nisi of the learned trial Judge made on the 31st day of October, 2019 for the failure of the 3rd Respondent to file a valid affidavit of disclosure on the status of account of the 1st and 2nd Respondents. Alternatively
(d) An order remitting and relisting SUIT NO: FHC/PH/MISC/88/2019 in the Court below to be reassigned and heard by a new Judge of the Federal High Court, Port Harcourt Division.”

By the words deployed in the portion of the notice of appeal quoted above, bearing prayers sought, this Court is requested to set aside a decision of the lower Court handed down on 05/02/2020. This is inconsistent with the date – 06/02/2020 – cited earlier in the notice of appeal as the date of the ruling.

Against the tenor of the two portions of the notice of appeal, highlighted above, from the record of appeal, the only ruling of the lower Court included in the record of appeal from the lower Court and which appears relevant to this appeal is the Ruling dated 27/01/2020. The implication of these clash of dates is that the notice of appeal has not presented to this Court with certainty about the ruling it is directed at or in respect of which the jurisdiction of this Court is being excited. The appellant did not even mention 27/01/2020, the actual date of the Ruling, in the notice of appeal.

However, in paragraph 1.1 of the appellant’s brief of argument, it is stated:
“This is an appeal against the ruling/decision of Hon. Justice M. L. Abubakar of the Federal High Court, Port Harcourt Judicial Division, delivered on the 27th day of January, 2020, wherein he set aside the Garnishee Order Nisi made on the 31st day of October, 2019 (Decision/appealed against is contained in page 153-160).”

It must be emphasised that learned counsel, who are engaged to prosecute appeals on behalf of dissatisfied litigants, have a duty to ensure that there is no confusion about the date of the decision to be challenged on appeal. This is a very helpful course, if unnecessary distraction or fatality will be avoided in the appellate journey. It, however, appears that the Courts have been showing leniency whenever there is mis-statement of the date of the judgment appealed against in the notice of appeal. In the case of Jeric (Nig.) Ltd. v. U. B. N. Plc (Pt. 691) 447 at 458, the Supreme Court decided that the mis-stating in the notice of appeal of the actual year of the judgment appealed against is a mere irregularity which will not vitiate the appeal or cause any miscarriage of justice. The error is not fatal as to render the appeal incompetent. The Court explained that Courts no longer stick to technicalities as opposed to the determination of the parties’ rights on merits and substantial justice.
In his judgment in the case of L. S. D. P. C. v. Adeyemi-Bero [2002] 1 NWLR (Pt. 748) 268, Oguntade, J.C.A. (as he then was) stated:
“The mere fact that the appellant/applicant mis-stated the date the judgment of the lower Court as given in its Notice of Appeal would not in my view vitiate the said notice of appeal as to render it incompetent and therefore unamendable. On the contrary, my view is that the power vested in the Court to grant amendment of processes is to enable the Court to correct this kind of accidental slips and blunders. The error made by the appellant/applicant ought to be curable by an application to amend.”
In the appeal before us, there was no attempt to amend the notice of appeal to reflect the correct date of the ruling requiring the attention of this appellate Court. In the peculiar circumstance of this appeal, a specific prayer has been placed before this Court, to the effect that this Court should set aside the ruling of the lower Court dated 05/02/2020. There is no ruling made on that date by the lower Court shown in the record of appeal. Except this Court amends the prayer brought before it, suo motu, which will be unlawful in the circumstance, the prayers before the Court in the notice of appeal cannot be granted because it will amount to nothing or action without jurisdiction.
​Courts are not expected to make orders at large and without specific restrictions to that pleaded before them. It is also not the duty of the Court to go on voyage of discovery. Thus, prayers placed before the Court need to be specific, decisive, precise and to the point in such a way that there can be no question as to what is asked for. See Ozueh v Ezeweputa [2005] 4 NWLR (Pt 915) 221 at 241. The Court and parties are bound by the terms of prayers contained in the process before the Court. See Okoya v. Santili [1990] 2 NWLR (Pt. 131) 172 and Zaboley International Ltd. v. Omogbehin [2005] 17 NWLR (Pt. 953) 200 at 218.
In the case of Igbinedion v. Antia (2018) 15 NWLR (Pt. 1642) 262 at 272-273, we were warned, as follows:
“To start with, the appellants are right that a notice of appeal is the originating process that sets the ball rolling for the valid and lawful commencement of an appeal – Shelim v. Gobang (supra), therefore, any defect in the notice of appeal goes to the root of the appeal and robs this Court of jurisdiction to hear the appeal …

In other words, the importance of a notice of appeal in the process of an appeal is tremendous as it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent – see First Bank v. T.S.A. Industries Ltd. (supra).”
See also the case of S. P. D. C. v. Agbara (2019) 6 NWLR (Pt. 1668) 310.
In the circumstance, there is no valid or competent notice of appeal before this Court. This appeal will be and is hereby struck out.

Secondly, the appellant’s appeal was argued to complain about the fact that the lower Court set aside an order nisi made by that Court on 31/10/2019. Parties directed the attention of the Court to page 147 of the record of appeal, where the proceedings of the date – 31/10/2019 – was recorded or may be found. At page 147 of the record of appeal, which depicts proceedings taken on 31/10/2019, the material record on that page shows the following exchange and statement of the Court and no more:
“R. U. Onyinola: We have an application vide it exparte filed on 10/7/2019 for an order Nisi. In support is a 19 paragraph Affidavit and there is a Written Address. There are some exhibits, we urge it to be granted.
Court: Application is considered on condition that the consent of the Federal Attorney General must be seek and obtained. The return date is 25/11/2019.”

As it is apparent, there is no order granted or shown to have been granted on page 147 of the record of appeal. The record on that page did not even show that the lower Court mentioned the phrase “order nisi”. All that the lower Court wrote is that the application was considered.

Now, at pages 142-145 of the record of appeal, there is an enrolment of order drawn up in suit no. FHC/PH/MISC/88/2019, signed by Justice M. L. Abubakar (as he then was), dated 31/10/2019. In the enrolment of order, it is shown that a garnishee order nisi was granted on 31/10/2019 and the return date fixed for 25/11/2019. The implication of the discrepancy observed here is that the record of appeal transmitted to this Court is not complete because it does not depict where the orders reflected in the enrolment of order were recorded in the record of appeal, against the date 31/10/2019.

This is the same appeal in which the appellant took uncommon liberty to accuse the lower Court of high-sounding misconduct, without corresponding record to back up the allegation(s). This point is pertinent because the appellant’s bellyache was in respect of the record kept on 31/10/2019, by the lower Court. The law is settled that the actual ruling of a Court of law supersedes the enrolment of order derived from it. See Tabai J.S.C. in Akinyemi v. Soyanwo [2006] 13 NWLR (Pt. 998) 496 at 512. The ruling of the lower Court dated 31/10/2019, which the appellant claimed was set aside by the lower Court, in another of its ruling appealed against, is not part of the record of appeal before this Court.

The appellant did not formally challenge the record of appeal in the proceedings before us. Thus, parties and this Court are bound by the record of appeal presented to us. See Bashir v. Audu [1999] 5 NWLR (Pt. 603) 433. Where no party has raised the issue of the incorrectness of the record of Court, a Court will be bound to assume its correctness. See Mang v. Ibe [2000] 14 NWLR (Pt. 688) 591.


Where the Court of Appeal is confronted with manifestly incomplete record of appeal, it will lack jurisdiction to proceed with the determination of the appeal. See Chief Goodluck J. Gwali & Anor v. Eluwa West Africa Limited & Anor [2021] LPELR – 56050(CA) (per Olabode Abimbola Adegbehingbe, J.C.A.). This appeal is also hereby struck out.

For the record – Determination of the Appeal
Despite the conclusions reached above, this being the penultimate Court, it is apt that the appeal should be determined on the merit of argument canvassed by the parties, for record purposes.

Resolution of the First Issue
Under the first issue set for the determination of this appeal by the appellant, he asks:
“Whether or not the Court below became functus Officio as at on the 31st day of October, 2019 when the Garnishee Order Nisi was made against the 3rd Respondent in an open Court directing it to disclose the account of the 1st and 2nd Respondents (Distilled from grounds 1).”

Ground 1 of the notice of appeal, from which the appellant claimed to have deduced the first issue for determination states:
“GROUND 1
The learned trial Judge erred in law when he set aside the Garnishee order nisi he made on the 31st day of October, 2019, the subject matter of this appeal by relying on the preliminary objection of the 3rd Respondent.

PARTICULARS OF ERROR
(a) That after learned trial Judge made the garnishee order nisi on the 31st day of October, 2019, the said learned trial Judge became functus officio with respect to that order.
(b) The garnishee order nisi of the learned trial judge made on the 31st day of October, 2019, was not made in error.
(c) The duty of the Garnishee/Respondent was not to make the application which they made, thereby necessitating the learned trial Judge to set aside the garnishee order nisi earlier made.
(d) The role of the 3rd Respondent (the Garnishee) at the Court below was merely to file an affidavit of disclosure and not to assumed the role of either the 1st and 2nd Respondents (Judgment debtors in the Court Below).
(e) The role of the 3rd Respondent played in the Court below by filing the notice of preliminary objection which the Court below acted upon in setting aside the garnishee Order Nisi was contrary to the position of the Supreme Court in CENTRAL BANK OF NIGERIA V. INTERSTELLA COMM. LTD (2018) 7 NWLR (PT. 1618) PG 294.”

​Learned counsel to the 3rd respondent complained that the issue raised for determination and labelled first issue by the appellant, is not derived from ground 1 in the notice of appeal. Appellant’s counsel disagreed with the suggestion. I agree with the 3rd respondent’s counsel.

A single or multiple comparative glances at both ground 1 and the first issue for determination, progressively, confirmed that the appellant took his first issue away from ground 1 for formulation. They are not related. It became worse when the trajectories of the argument of the first issue is noted. Appellant’s argument of the first issue was also farther from ground 1. All comments or agitations about insertion of new requirements concerning consent of the Attorney General of the Federation by the lower Court in its order made on 31/10/2019, after the Court concluded sitting, did not emanate from ground 1.

The case of Gwede v. D. S. H. A. [2019] 8 NWLR (Pt. 1673) 30 at 58 determined that issues for determination must relate to the grounds of appeal filed and the grounds of appeal should arise from the judgment appealed against. An issue for determination that does not arise from judgment appealed against is incompetent. In the instant case, the respondent’s first issue did not arise from ground 1 in the notice of appeal, as alleged by the appellant. Consequently, the first issue is incompetent and is liable to be disregarded. See also Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224, Sogunro v. Yeku (2017) 9 NWLR (Pt. 1570) 290 and Bogobiri v. State (2017) 18 NWLR (Pt. 1597) 247. The first issue for determination is hereby struck out, along with ground 1, which is hereby deemed to have been abandoned.

Resolution of the Second Issue
The question raised under the second issue is:
Whether or not the consent of the Attorney General of the Federation was required by virtue of Section 84(1) of the Sheriff and Civil Process Act to garnishee the account of the 2nd Respondent in the hands of the 3rd Respondent in view of the Treasury Single Account (TSA) Policy of the Federal Government? (Distilled from grounds 2).

There is no doubt that going by the issue couched and set out immediately above, the Treasury Single Account, which the appellant sought the order of the lower Court to garnishee is admittedly kept, based on the policy of the Federal Government. The same issue came up in the case of CBN v. Bako [2021] 11 NWLR (Pt. 1786) 122 at 141 (per Adah, J.C.A.), and this Court reiterated the law, thus:
“Even if the issue is not academic, consent of the Hon. Attorney General in respect of money in custody of a public officer is a statutory requirement and failure to secure it will render any enforcement or steps taken to enforce a nullity. In this case, the matter if considered on merit will still lead to the nullification of the enforcement but because the issue is a nullity for breach of fair hearing, the matter must be remitted back to the lower Court for trial.”
In the above-mentioned decision of this Court, it was determined that the appellant in the appeal (3rd respondent before us in this appeal) is a public officer and that the case of CBN v. Interstella Communications (supra) was determined with its peculiar facts, in the clear view of the Supreme Court.
On the effect of the decision in CBN v. Interstella Communications (supra) on garnishee proceedings involving the 3rd respondent, this Court, in the case of CBN v. Oodo [2021] 18 NWLR (Pt. 1809) 461 at pages 524-532 of the Law Report, (per Nimpar, J. C. A.)

A.) explained as follows:
“I reproduced part of the judgment in extensor to put paid certain conceptions held by the 1st respondent on the question whether the appellant is a Public Officer or not. The apex Court in the above quoted judgment did not make the general statement that CBN is not a Public Officer in the context of Section 84 SCPA in all cases it was a qualified statement. The peculiar facts in that appeal were taken into account as the erudite jurist made those findings; it was not a general statement of law to be applied across the board. One can clearly see that it was stated therein that consent had been sought for and obtained in the peculiar facts of the case. The authority is distinguishable and therefore not applicable in this case.

Flowing from above, I resolve issue one in favour of the appellant and hold that the Central Bank in the circumstances of this appeal is a public officer and therefore consent of the Attorney General was a pre-condition to the granting of order absolute. In the absence of such consent, the order absolute was given without jurisdiction and therefore, it must be set aside. I hereby set aside the garnishee order absolute.”
From my look-around exercise, I have observed that decisions of this Court, recently delivered, have come to the same position, which is that the Central Bank of Nigeria is a public officer, in the context of its holding funds on behalf of the Federal Government and its agencies. This Court has also consistently held that the prior consent of the Attorney General of the Federation is required before funds in the hands of a public officer and for a Court to have jurisdiction to enter an order for garnishee of funds held by the Central Bank of Nigeria. I am bound by those decisions and do not need any fresh inspiration to go on a different voyage. The same sentiment was expressed by this Court in the case of CBN v. Atana [2022] 3 NWLR (Pt. 1818) 509 to the effect that the Court of Appeal is bound to follow its previous decision as well as decisions of Courts of co-ordinate jurisdiction. Where the Court of Appeal is faced with its conflicting decisions, the guiding principles it must follow are as follows: (a) the Court is entitled and bound to decide which of the two conflicting decisions of its own it will follow;
(b) the Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of a superior Court;
(c) the Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
(d) Where the Court is faced with its conflicting decisions, it should follow the decision later in time. This is encapsulated in the maxim judicia posteriora sunt in lege fortiori, which means the later decision is stronger in law.
At page 519 of the Law Report, Daniel-Kalio, J. C. A. stated:
“Going by the above guiding principles, I prefer and find myself bound by the decisions of this Court in C.B.N. v. Alhaji Mohammed Kakuri (supra) and C.B.N. v. Maiyini Century Company Ltd. (supra). I follow these decisions for two reasons. First, they are later in time than C.B.N. v. Njemanze (supra) cited by the respondent’s learned counsels. I am fortified in this view by the maxim judicia posteriora sunt in lege fortiora (the later decisions are stronger in law). Second, C.B.N. v. Njemanze (supra) cited by the respondent in my opinion cannot stand with the decision of the Supreme Court in C.B.N. v. Interstellar Comm. Ltd (supra) which tends to support the view that by Section 84 of the Sheriffs and Civil Process Act, the consent of the Attorney-General of the Federation is required in a case like this.”
In the same decision, this Court further remarked that by virtue of Section 84 of the Sheriffs and Civil Process Act, a judgment-creditor who chooses to recover a judgment debt by means of garnishee proceedings, if the funds sought to be obtained by garnishee order is in the custody or control of a public officer in his official capacity, must first obtain the consent of the relevant Attorney-General to attach such funds by garnishee before commencing the proceedings. Garnishee proceedings cannot validly commence and/or the Court would lack the jurisdiction to entertain it or make the order sought, without the consent of the relevant Attorney-General to such attachment having been first sought and obtained. The consent of the Attorney-General to the attachment of such funds is a pre-condition to a competent garnishee process and a valid exercise of jurisdiction to entertain it and issue the relevant orders. Any application for order nisi filed in such instance is incompetent and the Court lacks the jurisdiction to make the order nisi. Such an order nisi will be a nullity. No competent or valid garnishee proceedings can be based on a void garnishee order nisi. Once the order nisi is void or invalid, the Court would lack the jurisdiction to proceed to make the order absolute.
I consider the analysis given on the relative import of Section 84(1) of the Sheriffs and Civil Process Act, in the case of Utavie v. Capital Development Authority [2020] 14 NWLR (Pt. 1744) 368 at 387-388, relevant. This Court stated as follows:
“The relevant question that needs to be resolved is; Can the monies in these garnishee banks (sterling Bank Plc, sky Bank Plc; Wema Bank Plc and Diamond Bank Plc) be said to be in the custody or under the control of public officers in their official capacity? One obvious aspect to note is that the above stated garnishee banks are all commercial banks. They cannot by any stretch of the imagination be referred to as “public officers in their official capacities”. It is logical and common sense supports the idea since they (garnishee banks) are not public officers then monies deposited into their vaults by whosoever either public officers of private persons are in the custody or under the control of the said commercial banks which are the garnishee bankers in this suit. It follows therefore that the monies so attached by the order nisi are in the custody and under the control of the said garnishee banks. They are not public officers as defined by Section 84 of the Sheriffs and Civil Process Act, therefore the said Section 84 (supra) is not applicable in the instant suit. In Purification Techniques (Nig.) Ltd. v. Attorney-General, Lagos State (2004) 9 NWLR (Pt. 879) 665 at 681 paragraphs D-E this Court per Galadima, JCA (as he then was) held thus:
“… monies in the hands of garnishee banker are not “in the custody or under the control of the judgment debtors/customers. Such monies remain the property in the custody and control of the bankers; and payable to the judgment debtors until a demand is made”.
In the instant case, the monies held by the respondent in the garnishee bankers are not under the custody or control of the respondent a public officer. Consequently, such monies are not subject to the provisions of Section 84 of the Sheriffs and Civil Process Act, as contended by the respondent.”
Supposing the monies sought to be attached by garnishee proceedings are in the custody or control of the Central Bank of Nigeria or a government ministry or parastatal, for example, then the order nisi cannot be made unless consent to such attachment is first sought and obtained from the office of the Attorney-General of the Federation. That is the purport of Section 84 of the Sheriffs and Civil Process Act. But as I stated above since the monies sought to be attached via garnishee proceedings are in the custody and control of Commercial Bankers, then Section 84 of the Sheriffs and Civil Process Act, 2004 is not applicable and I so hold.”

The law is settled that a Court has and can only exercise jurisdiction when:
(a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) 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; and
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction.
See Madukolu v. Nkemdilim [1962] 2 SCNLR 341.

It is my determination that the lower Court arrived at the correct decision, when, on 27/01/2020, it held that it lacked jurisdiction to entertain the garnishee proceedings presented to it, where the prior consent of the Attorney-General of the Federation (a condition precedent) had not been first sought and obtained. The lower Court was correct to set aside the order nisi it granted earlier, due to want of jurisdiction.

Resolution of the Third Issue
The query in the third issue is:
Whether or not the Court below was right in countenancing the preliminary objection of the 3rd Respondent which lack the locus to file such an application in garnishee proceeding? (Distilled from grounds 3).

The grouse of the appellant, under the third issue for determination, is that the lower Court should have abstained from paying attention to the preliminary objection filed by the 3rd respondent. In resolving the third issue, we need to be reminded that the complaint brought before the lower Court, by the 3rd respondent, was that, that Court lacked jurisdiction to determine the garnishee proceedings before it. What the appellant has come to this Court to canvass is that the lower Court should not have allowed the 3rd respondent to raise the issue of jurisdiction, as she did.

It is my view and admonition that, it is the duty of every Court or Judge to resist any legal practitioner sweetly seeking to put the Court or Judge into trouble, as it was romantically suggested to us by the appellant’s counsel. The Court or Judge should, in few words, simply say: get thee behind me, somebody! 

The issue raised before the lower Court was jurisdiction. It is settled law that jurisdiction is the live blood of any adjudication without which no proceeding, however brilliantly conducted by the Court or tribunal can be valid. It is really a threshold matter or sometimes referred to as a periphery matter to be dealt with once raised or challenged in any proceeding. The issue may even be raised suo motu by the Court itself or informally by the parties.

There is no special format for raising the issue of jurisdiction. See Sylva v. INEC [2015] 16 NWLR (Pt. 1486) 576. This is because, without jurisdiction, the whole trial or proceeding of the Court is a nullity however well conducted. That is why jurisdiction is very vital and fundamental to administration of justice in any judicial system. See Tukur v. Govt of Gongola State (No.2) (1989) 4NWLR (pt. 117) 517. 

It is also settled that where the jurisdiction of the Court or Judge is in issue in respect of a matter, that issue must first be considered and disposed of. See Magaji v. Matari [2000] 8 NWLR (Pt. 670) 722 at 734. That is the approach the lower Court, commendably, adopted, in line with the precepts of law laid down by the Courts, over the years. The lower Court’s discountenancing the preliminary objection would have produced easy appellate combustion for its decision, for lacking jurisdiction, if so found.

An order of Court which was made without jurisdiction ought to be set aside ex debito justitiae. That should be done without much ado. The lower Court would be qualified to set such an order aside where it made one. See Aborisade v. Abolarin [2000] 10 NWLR (Pt. 674) 41, Timitimi v. Amabebe [1953] 14 WACA 374, A. G. Anambra v. Okafor [1992] 2 NWLR (Pt. 224) 396 and N.N.P.C. v. Tijani [2006] 7 NWLR (Pt. 1007) 29 at 42. Where an order, including a judgment of a Court, amounts to a nullity, the Court that made that order in its inherent jurisdiction is empowered to set same aside and an appeal is not necessary for that purpose. See Adegoke Motors Ltd v. Adesanya [1989] 3 NWLR (Pt. 109) 250 and Menakaya v. Menakaya [2001] 16 NWLR (Pt. 738) 203 at 255.

The lower Court made a garnishee order nisi on 31/10/2019. That same Court found, upon the prompting of the 3rd respondent, that it lacked jurisdiction because the prior consent of the Attorney-General of the Federation was not first sought and obtained before the garnishee suit was filed by the appellant. The lower Court agreed with the point made by the 3rd respondent and set aside the order nisi it made. The lower Court was right. The appellant is wrong.
​Section 84(1) of the Sheriff and Civil Process Act clearly demands prior consent of the Attorney General of the Federation before public funds held by the 3rd respondent could be attached by an order of garnishee. 

Where a statute lays down a certain procedure that ought to be followed before an action can be taken, or for setting a legal process in motion, it is incumbent and mandatory that such proceedings be complied with in order to authenticate the act or the legal process set in motion. See Gov. of Ebonyi State v. Isuama [2004] 6 NWLR (Pt. 870) 511 and N.N.P.C. v. Tijani [2006] 7 NWLR (Pt. 1007) 29 at 45.

Furthermore, contrary to the posturing of the appellant, it is inconsistent with the provisions of the law and the right of parties to a suit, to suggest that the 3rd respondent, as a party to the garnishee proceedings, should meekly come to Court, in a mute mode, and simply do whatever it is asked to do. The authorities cited by the appellant did not lay down any such principle. Rather, what the authorities (including the case of CBN v. Interstella Communications (supra) etc have stated, consistently, is that a garnishee is not expected to challenge the judgment, which is sought to be enforced, as if it is a party to the original dispute, which the garnishee is clearly not. In the case of Oboh v. N. F. L. Ltd. [2022] 5 NWLR (Pt. 1823) 283 at 335-336 (per the judgment of Peter-Odili, J. S. C.), it was detailed, as follows:
“It has to be stated that it is not the role of the garnishee to fight a proxy war against the judgment creditor on behalf of a judgment debtor and my learned brother, Ejembi Eko captured it well in the case of: GTB Plc v. Innoson Nigeria Limited (2017) 5 SC (Part 1) 68 at 93, (2017) 16 NWLR (Pt. 1591) 181 where he said:
“It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote the Knight errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment.”
In CBN v. Interstella Communications Ltd & 3 Ors (2018) All FWLR (Pt. 930) page 442 at 529, (2018) 7 NWLR (Pt. 1618) 294 Ogunbiyi, JSC said: “The role of a garnishee in any garnishee proceedings is delimited. As rightly argued by the counsel for the 1st and 2nd respondents it is not envisaged 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 Judgment (Enforcement) Rules”.”
The law is settled that jurisdiction can be raised at any time and even at the Supreme Court for the first time. See Emerald Energy Resources Ltd. v. Signet Advisors Ltd [2021] 8 NWLR (Pt. 1779) 579 at 617, INEC, Anambra State & Anor v. Ifeanyichukwu Okonkwo [2008] LPELR – 4315(CA) and Agwu & Ors v. Julius Berger Nig. Plc. [2019] 11 NWLR (Pt. 1682) 165.
A garnishee is enabled by law to dispute liability where appropriate, when served with the order nisi. Section 87 of the Sheriff and Civil Process Act provides:
“87. If the garnishee appears and disputes his liability, the Court instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.”
Order VIII Rule 8(1) of the Judgment (Enforcement) Rules, which is titled “Where garnishee disputes liability” provides:
“(1) If no amount is paid into Court, instead of making an order that execution shall issue, may, after hearing the judgment creditor, the garnishee, and the judgment debtor or such of them as appear determine the question of the liability of the garnishee, and may make such order as to the payment to the judgment creditor of any sum found to be due from the garnishee to the judgment debtor and as to costs as may be just, or may make an order under Section 87 of the Act.
(2) If an order is made under Section 87 of the Act for the trial or determination of any issue or question, it shall direct which of the persons interested, including such third person as is referred to in Section 88 of the Act, shall be plaintiff and which shall be defendant.”
A garnishee challenging the jurisdiction of a Court to determine the garnishee suit before it, is, in a way, disputing his or her or its liability. Such is provided, under the law, as demonstrated above.

The lower Court was therefore Correct to have countenanced the preliminary objection brought to it by the 3rd respondent. The third issue is therefore resolved against the appellant.

Conclusion
In summary and conclusion, this appeal is struck out for being incompetent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the incisive judgment prepared by my learned brother, Adegbehingbe, J.C.A., with the following little addition, by way of emphasis.

The record of appeal (the record) is an important and indispensable integral part of proceedings at the appellate Court, the compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by an appellate Court, where the record is incomplete, an appellate Court should not hear the appeal, finally, an appellate Court should strike out an appeal with incomplete record for the parties to be given another opportunity to correct the error vide the Supreme Court case of Access Bank PLC v Onwuliri (2021) 6 NWLR (Pt.1773) 499 following the case of Ukiri v EFCC (2018) 14 NWLR (Pt. 1639) 195.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in advance, the lead judgment just delivered by my learned brother, O. A. Adegbehingbe, JCA in which he adjudged the instant appeal as incompetent, and has consequently dismissed it.

I really do not have any additions to make to the well-reasoned judgment because, he had found that the Record of Appeal was incomplete and it is judicially futile in my view, to proceed with the determination of the appeal on its merit as it is not within the jurisdiction (inherent or substantive statutory powers) of the Court of Appeal in the exercise of its appellate powers to review the correctness of the decision of the lower Court, to speculate on the missing links in relation to documents or processes and or facts which are not available on the face of the compiled and transmitted Record of Appeal. Once this failure is established in the course of determining the appeal, the only appropriate order that should legitimately be made is to strike out the appeal for being incompetent.  agree with the decision reached, and I also strike out the appeal for being incompetent.

Appeal is struck out and I abide with the consequential orders made as to costs.

Appearances:

U. S. Echo, Esq. (holding brief for Dr. Richard U. Oyiwona) For Appellant(s)

H. E. Ndubuokwu, Esq. – For 1st and 2nd respondents. For Respondent(s)