UNITY BANK v. IGALA CONSTRUCTION CO. LTD & ANOR
(2020)LCN/15769(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, May 21, 2020
CA/A/311/2019
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
UNITY BANK PLC APPELANT(S)
And
1. IGALA CONSTRUCTION CO. LTD 2. CENTRAL BANK OF NIGERIA RESPONDENT(S)
RATIO:
HEARING THE MOTION ON NOTICE FOR GARNISHEE /JUDGMENT
It is settled that unless and until the Garnishee/Judgment debtor is afforded the 14 days’ notice from date of service, any attempt at setting it down for hearing would be tantamount to non- compliance with the said Section 83(2) of the Sheriff and Civil Process Act. The provision of the Act uses the word ‘shall’ and admittedly that it could be used in a directory manner but in this situation, it was used in a mandatory sense because it is meant to ensure that adequate notice is given to the judgment debtor before hearing the Motion on Notice for garnishee order nisi to be made absolute. YARGATA BYENCHIT NIMPAR, J.C.A.
NOTICE GIVEN TO THE JUDGMENT DEBTOR
It is however, the law that 14 days’ must be given to the Judgment Debtor between serving it with the Order Nisi and the date fixed for hearing is absolute. It is obvious there was a breach of the law in this case.
When a statute prescribes a particular manner a notice or method of doing an act or exercising of authority, no other method will be allowed as substitute, which means all other methods are excluded and discretion is taken out of the equation. See BERNARD AMASIKE V THE REGISTRAR GENERAL, CORPORATE AFFAIRS COMMISSION (2010) LPELR-456(SC). Performing that duty in breach of the statute definitely means the Court acted without jurisdiction. YARGATA BYENCHIT NIMPAR, J.C.A.
THE IMPORTANCE AND DETERMINATION OF JURISDICTION
Jurisdiction is very important in the determination of matters before the Court, see ARUEZE V NWUAKONI (2018) LPELR-46352(SC) and NDIC V CBN & ANOR (2002) LPELR-2000(SC) where the apex Court held as follows:
“Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity…. This importance of jurisdiction is the reason why itcan be raised at any stage of a case, be it at the trial, on Appeal to Court of Appeal or to this Court; a fortiori the Court can suomotu raise it. It is desirable that Preliminary Objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a Trial in nullity.”
The failure to allow and give the required period of notice divested the Court below of jurisdiction to hear and make the order nisi absolute. YARGATA BYENCHIT NIMPAR, J.C.A.
THE BASIC CRITERIA AND ATTRIBUTES OF FAIR HEARING
The Apex Court in the case of SANI V STATE (2017) LPELR-43475(SC) held as follows:
“Now, a fair trial of a case implies that every reasonable and fair minded observer, who watches the proceedings, should be able to come to the conclusion that the Court has been fair to all parties see Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419, wherein this Court set out certain basic criteria and attributes of fair hearing, as follows- (i) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision, which may be prejudicial to any party in the case; (ii) That the Court or Tribunal shall give equal treatment, opportunity, and consideration to all concerned; (iii) That the proceedings shall be heard in public and all concerned shall have access to and to be informed of such a place of public hearing; (iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.” Per AUGIE, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of Justice of the Federal Capital Territory, Abuja delivered by Hon. Justice Y. Halilu on the 23rd day of January, 2019 in Suit No. FCT/HC/1039/02, wherein the Preliminary Objection filed by the Appellant challenging the jurisdiction of the Court below was dismissed along a Motion for Stay of Execution. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 19th February, 2019 setting out 4 grounds of Appeal.
Facts relevant to the Appeal are amenable to brief summary. The Appeal emanates from a Garnishee Order Nisi made by the Court below on the 14th August, 2017 in favour of the 1st Respondent (Judgment Creditor) against the Appellant as Judgment debtor. The Appellant filed a Preliminary Objection on the 29/8/2017 and it was argued on the 15th January, 2019. The lower Court delivered its Ruling on the 23rd January, 2019 dismissing the preliminary Objection. The history of what led to the ruling appealed against is also straightforward. The Appellant, a Judgment debtor had appealed against the Judgment of the Court below which was dismissed by the Court and further went on Appeal to the Supreme Court. It failed to file a brief and withdraw the Appeal, the appeal was dismissed.
Meanwhile, the Appellant had filed a motion for Stay of Execution which was heard and ruling delivered same day with the Ruling appealed against. The Appellant contends that no ruling was delivered in respect of the Preliminary Objection and the affidavit to show cause was not also considered. Upon the dismissal of the preliminary objection, the Court below made the garnishee Order Nisi absolute, thus this Appeal.
In accordance with the Rules of Court, briefs were filed and exchanged between the Appellant and the 1st Respondent only. The Court granted leave for the Appeal to be heard on these briefs only. The Appellant’s brief settled by PAUL O. EHIEMOMOH ESQ., is dated 23rd May, 2019 and filed on the 24th May, 2019. It donated 2 issues for determination as follows:
1. Whether having regards to the Appellant’ Notice of Preliminary Objection which was argued in the proceedings of 15th day of January, 2019, and Ruling delivered on the 23rd January, 2019, the learned Trial Judge was right in making the garnishee Order Nisi Absolute without first determining the Preliminary Objection of the Appellant, one way or the other, or considering the affidavit to show cause filed by the 2nd Respondent as Garnishee. (Distilled from Grounds 1 and 4).
2. Whether the learned Trial Judge was right when he relied on the provision of Section 84 of the Sheriff and Civil Process Act, Cap. S6 LFN 2004, a ground not raised in the application for stay, but in the Notice of preliminary Objection and the case of CBN v Interstella Communication ltd (2018) 7 NWLR (Pt. 1618), a judicial authority not contained in Counsel’s Written Address but raised by the Respondent’s Counsel in the course of oral arguments in Court without giving the appellant the opportunity to address to it on in arriving at his decision to grant the garnishee order absolute. (Distilled from Grounds 2 and 3).
The Respondent’s Brief settled by DAYO AKINLAJA SAN, FCIArb, is dated 21st day of June, 2019 and filed on the 24th day of June, 2019, it distilled 2 issues as follows:
i. Whether the learned Trial Judge was not right and did not occasioned a miscarriage of justice to the Appellant in going ahead to dispose of the Appellant’s notice of Preliminary Objection and making the garnishee order nisi absolute, after resolving the issue of the competence of the Appellant’s application for Stay of Execution.(Grounds 1 and 4).
ii. Whether the learned Trial Judge was not right and did not occasion a miscarriage of justice to the Appellant in his Lordship’s resolution of the Preliminary Objection of the Appellant in his Lordship’s interpretation of Section 84 of the Sheriffs and Civil Process Act vis-à-vis the Supreme Court decision in the case of CBN v Interstella Communication Ltd (2018) 7 NWLR (Pt. 1618) 294. (Ground 2 and 3).
The 2nd Respondent was represented by a legal officer and who informed the Court that they did not file any process.
Upon a careful study of the Notice of Appeal, the Record of Appeal and the Briefs of parties, the issues distilled by the parties are similar and therefore, it will be expedient to adopt the issues donated by the Appellant who initiated the Appeal, that way all its areas of complaint would also be addressed. They shall be resolved seamlessly.
APPELLANTS SUBMISSIONS:
The Appellant commenced arguing issue one with the submission that upon its being served with an order of Garnishee Nisi, it promptly filed a preliminary Objection challenging the jurisdiction of the Trial Court because the return date was less than the number of days stipulated by Section 83(2) of the Sheriff and Civil Process Act and the Appellants funds with the 2nd Respondent is money in custodia legis therefore the consent of the Attorney General of the Federation is required for Garnishee proceedings to commence against it and before a Garnishee Nisi order can be made. It admitted that the objection was opposed and in the meantime it also filed a Motion for Stay of Execution. The Preliminary Objection was heard on the 15th January, 2019 and without delivering a ruling, the Court below directed the Appellant to move its Motion for Stay of Execution on the 17th January, 2019. On the 17th January, 2019 the Motion for Stay of Execution was taken and ruling delivered on the 23rd January, 2019 determining only the Motion for Stay of Execution and without determining the Preliminary Objection contrary to settled principle that a Court is bound to rule on every application, relied on ORAJEAKA V OWUAMALAM PHD (2011) LPELR-4883 (CA) and FAAN V WAMAL (2011) LPELR-1261(SC) 16 and AFRO-CONTINENTAL NIG.LTD V CO-OP ASSOCIATION OF PROFESSIONAL INC. (2003) 13 NSCQR 186.
The Appellant submitted that the objection bordered on jurisdiction of the Court to entertain the Garnishee Proceedings against the CBN. Appellant submits that being an issue of Jurisdiction, it must be determined before the Court can proceed to determine any other application, citing LAKANMI V ADENE (2003) 14 NSCQR 384; BUDO NUHU V OGELE (2003) 16 NSCQR 390 and ARUEZE V NWAUKONI (2018) LPELR-46352 (SC) in support. Learned Counsel for the Appellant referred to page 132 of the Record where the Ruling is found and submitted that from the commencement, the Ruling was on the application for Stay of Execution and not a composite Ruling in spite of its reference toSection 84 of the Sheriffs and Civil Process Act and the case of CBN V INTERSTELLA COMMUNICATION (supra) which came up in the application challenging jurisdiction through the Preliminary Objection, except for the mention of the case, it cannot bea Ruling on the Preliminary Objection. He contended that failure to rule on the challenge to jurisdiction is a breach of Appellant’s right to fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended). On the correlation between a determination of an issue and the right to fair hearing, Appellant relied on BELL ATLANTIC COMMUNICATION LTD V NDON (2018) LPELR-44431(CA) and FAAN V WAMAL EXP. SERVICES (NIG ) LTD (2011) 8 NWLR (Pt. 1249) 219 or (2011)LPELR- 1261 (SC). Arguing further, the Appellant submitted that failure to consider the preliminary objection led the Court below into error because the Appellant was not allowed the required number of days before the return date, and referred to ZENITH BANK V OHAJA (2016) LPELR-40618 (CA) on the imperative of giving Judgment Debtor 14 days to return date. In continuation of submissions, the Appellant observed that the Court below also failed to consider the Affidavit to show cause filed by the 2nd Respondent before making the Garnishee order Nisi absolute. On this, the Appellant urged the Court to resolve issue one in its favour.
On issue two, the Appellant submitted that the Ruling appealed against addressed the application for Stay of Execution and proceeded to make the Garnishee order Nisi absolute, it relied on Section 84 of the Sheriff and Civil Process Act (supra) at pages 141-142 of the Record. He argued that none of the parties in the Motion for Stay of Execution relied on Section 84 or the authority of CBN V INTERSTELLA COMMUNICATION (supra) as referred to in the Ruling, Counsel drew the attention of the Court to pages 64- 123 and 128-130 of the Record. Furthermore, the Appellant added that the 1st Respondent did not urge the Court below to make the Garnishee order Nisi absolute and a Court should decide a matter based on the issues submitted to it for resolution, citing AGBEJE V AGBA AKIN (2002) 9 NSCQR 1 and ARCHIBONG V ITA (2004) 17 NSCQR 295. The Appellant emphasized that the Trial Court went outside issues presented before it by the Motion for Stay of Execution. He argued that the Court did not consolidate the two Motions prior to the Ruling and the Ruling is not a composite Ruling, therefore the Trial Judge erred in importing issues in the Preliminary Objection into the Motion for Stay of Execution. The Appellant contended that having not consolidated the applications, the Trial Judge erred in doing what it did. Furthermore, the Appellant submitted that the Respondent only cited the case of CBN V INTERSTELLA COMMUNICATION (supra) in his oral submissions and Appellant’s Counsel was not given an opportunity to react to the authority, it relied on JAMES V INEC (2013) LPLER- 203 22 (CA) and AFRICAN REINSURANCE CORPORATION V JDP CONSTRUCTION LIMITED (2003) 2 SCNJ 28. In the alternative, Learned Counsel for the Appellant submitted that assuming that the Court below could rely on the authority cited, the said authority can be distinguished and is inapplicable to the facts in this Appeal. He submitted that an authority is only for what it decides as held in the case of DONGTOE V CIVIL SERVICE COMMISSION PLATEAU STATE (2002) 22 CHR 95. And before an authority can apply, the facts must be the same, referred to ADETOUN OLADEJI (NIG) LTD V NIGERIA BREWERIES PLC (2007) LPLER- 160 (SC) and MAILANTARKI V TONGO (2017) LPELR-42467(SC). The Appellant highlighted the factual differences in the two cases and submitted that the consent of the AttorneyGeneral of the Federation was necessary in this case, referred to OBIUWEUBI V CBN (2011) 45 NSCQR 51 and Section 45 of the Central Bank of Nigeria Act. Appellant further submitted that the case of CBN V INTERSTELLA (supra) was based on its peculiar facts and the doctrine of stare decisis is not meant to be of general application without looking at the ratio decidendi as held in the case of ABDURRAHMAN V ABDULHAMID (2014) LPELR-23592(CA). The Appellant finally urged the Court to allow the Appeal.
1ST RESPONDENT’S SUBMISSIONS:
The 1st Respondent on its first issue submitted that the contention of the Appellant that the Court below did not rule on the Preliminary Objection is totally false and misleading because the Ruling delivered was a composite Ruling and the portion relevant to the Motion for Stay of Execution is at pages 132 -141 while the portion on the Preliminary Objection is at 141- 142 of the Record of Appeal. He continued to submit that delivering the Ruling as one did not occasion a miscarriage of justice because the Court below resolved all issues, relied on RASAKI V AJIJOLA (2018) ALL FWLR (Pt. 931) 556. Furthermore, the 1stRespondent submitted that the Trial Judge had the discretion to do what he did because of the abusive nature of the application for Stay of Execution and rejected the contention that the Ruling was a consolidation of the two applications. Learned Counsel for the 1st Respondent submitted that Order 41 Rule 8 of the Court below is not applicable.
Continuing its arguments, the 1st Respondent submitted that when a statute is unambiguous, it should be interpreted in its ordinary and natural meaning, relying on BABABE V FRN (2019) 1 NWLR (Pt. 1652) 100; DANKWAMBO V ABUBAKAR (2016) 2 NWLR (Pt. 1495) 157 and D-G, OJOKOLOBO V ALAMU (1987) 3 NWLR (Pt. 61) 377. He submitted that the Preliminary Objection was taken before the Motion for Stay of Execution was taken and both were adjourned for Ruling which is an indication that the Judge wanted to give an encompassing Ruling in respect of both. It argued that the merit of the two processes were determined in the Ruling and the Appellant was not denied fair hearing by the failure to give it 14 days as stipulated by the Sheriff and Civil Process Act when it was served on the 24th August because the Court finally took themotion on the 15th January, 2019 and the 14 days’ required were allowed the Appellant. Furthermore, it submitted that the 14 days requirement is between the service of the Garnishee order Nisi and the Garnishee Proceedings.
On the alleged failure to consider the Affidavit to show cause filed by the 2nd Respondent, the 1st Respondent submitted that the grounds of the Affidavit to show cause was founded on the pending Appeal which was still at the Apex Court when the Affidavit was filed and therefore, the Trial Judge had no reason to consider the Affidavit urging the Court not to make the order absolute.
On issue two, the 1st Respondent further re-emphasized that the Ruling was encompassing and covered the two applications before the Court. Furthermore, it argued that the Motion for Stay was dismissed because no Appeal was pending as at that time and the contention on the authority of CBN V INTERSTELLA (supra) and Section 84 of the Sheriff and Civil Process Act are without basis. It submitted that the argument on the consolidation of the ruling is also untenable and without basis. On the responsibility to give advance notice of the authoritycited, the 1st Respondent argued that it is only when the authority is discovered after Written Addresses have been adopted and not when making oral submissions and Counsel to the Appellant had reacted to the authority in its response. The Respondent Counsel referred this Honourable Court to the record of 15th January, 2019, and relied on CANAL INV. LTD V T.C.R. LTD (2017) 3 NWLR (Pt. 1553) 441. Furthermore, he submitted that a Court can rely on any authority it deems appropriate in the circumstances for the matter and counsel address are merely to assist the Court, citing ZAKIRAI V MUHAMMAD (2017) 17 NWLR (Pt.1595) 181 and the Court may rely on an authority supplied by a party. He continued to submit that this line of argument is not founded on any Ground of Appeal.
On the applicability of the authority of CBN V INTERSTELLA (supra), the 1st Respondent submitted that the Appellant is not a public officer and cannot rely on the requirement for consent of the Federal Attorney General before Garnishee Proceedings can commence against the Appellant and the Ruling of the Trial Court on that point was not appealed against, relying on EMEKA V OKOROAFOR;UKPONG V COMMISSIONER FOR FINANCE & ECONOMIC DEVELOPMENT and USMAN V GARKE (SUPRA). The 1st Respondent submitted that the rationale for applying the said authority as prescribed in Section 84 of the Sheriff and Civil Process Act is to avoid embarrassing the Government and because the CBN provides advice to the Government on Financial and Economic matters. Furthermore, he argued that the 2nd Respondent acts as banker to other banks as provided in Section 41 of the Central Bank Nigeria Act, therefore, it went on to say, the 2nd Respondent is also a regulatory authority over the Appellant and in the context of Garnishee Proceedings, the authority is relevant because the relationship is simply that of banker and customer. He cited PURIFICATION TECH (NIG) LTD V A. G. LAGOS STATE (2004) 9 NWLR (Pt. 894) 665. The 1st Respondent submitted that the Court is bound by the decision in CBN V INTERSTELLA (Supra) as held in ADO V STATE (2017) 15 NWLR (Pt. 1587) 65; SULEIMAN V C.O.P.(2008) 8 NWLR (Pt. 1089) 298 at 330 and ABACHA V FAWEHINMI (2000) 6 NWLR (Pt. 660) 228. The 1st Respondent observed that the 2nd Respondent did not oppose the Garnishee Proceedings and did not Appeal against the Ruling, therefore the Appellant cannot have a good case. Consequently, the 1st Respondent urged the Court to dismiss the Appeal.
RESOLUTION OF THE APPEAL
The Appellant is a Judgment Debtor and upon being served with a Garnishee Order Nisi, it quickly filed two applications before the Trial Court, one of which is a Preliminary Objection filed on the 29/8/2018 and it states thus:
TAKE NOTICE that the at the hearing of this Garnishee proceedings on the 5th of September, 2017, or at any subsequent adjourned date thereafter, the Judgment Debtor/Applicant shall raise a Preliminary Objection against these proceedings in Motion No. FCT/HC/M/9041/17 and will contend that the proceedings are incompetent ab initio and this Honourable Court is without jurisdiction to adjudicate and determine the proceedings as constituted and initiated.
TAKE FURTHER NOTICE that the grounds of the Applicant’s objection are as follows:-
1. By virtue of Section 84 of the Sheriffs and Civil Process Act, CAP S6, Laws of the Federation of Nigeria, 2004, the consent of the Attorney General of the Federation must first be sought and obtained by a Judgment Creditor before monies in the custody of a public official (CBN) in this instance) can be attached by way of Garnishee proceedings.
2. No consent of the Attorney General of the Federation was sought and obtained before the order to show cause was issued by this Honourable Court in favour of the judgment Creditor on the 14th August, 2017.
3. Contrary to Section 83 (2) of the Sheriffs and Civil Process Act 2004, a copy of the order to show cause has not been served on the judgment Debtor/Applicant at least, 14 days before the date fixed for hearing of this proceedings on 5th September, 2017.
4. The upon the Judgment of the Court of Appeal, Abuja in Appeal NO. CA/A//409/2013 striking out the Judgment Debtor/Applicant’s Appeal on the 2nd August, 2017, the Applicant extended an Appeal against the decision of the Court of Appeal to the Supreme Court of Nigeria on the 11th August, 2017. The same judgment sum of this Honourable Court delivered on the 26th day of April, 2013 being sought to be executed by way of this proceedings (Sum of N33,787,896.69 and US$435,000 Dollars) is currently the subject matter of the Applicant’s appeal to Apex Court.
5. Further to the Notice of Appeal referred to, in paragraph 4 above, the Applicant also filed an application, seeking to stay the execution of this same judgment of the same judgment debt in the sums of N33,787, 896.69 and US$435, 000 at the Registry of the Court of Appeal of this Honourable Court who delivered judgment on 11th August, 2017 and the Registrar of the Honourable Court who delivered in this matter on the 26th April, 2013 (Court 2) as well as the Chief Registrar of this Honourable Court have both been served with the Applicant’s Notice of Appeal and Motion on Notice to stay execution of the judgment pending the determination of the Applicant’s appeal at the Apex Court.
6. That despite the best efforts of the Applicant, and the Bailiff of the Court of Appeal and the Supreme Court to effect service of the Applicant’s Notice of Appeal and Application for stay of execution on the judgment Creditors Counsel, Bola Aidi& Co at their office on record at Suite B28, Landmark Plaza, Maitama, Abuja, those efforts have been futile as the offices have remained locked since 21st August, 2017.
7. That on the24th August, 2017, this Applicant was served with an order Nisi issued on the 14th August, 2017 by this Honourable Court sitting as the vacation Judge despite the Notice of appeal and motion for stay of execution already filed against the same judgment debt of N33,787,896.69 and US$435,000.
8. Following 6 & 7 above, all issues relating to, or connected with the judgment debt in the sum of N33, 787,896.69 and US$435, 000 are already subjudice and pending before the Supreme Court of Nigeria and this Court is therefore functus officio on any issue connected to this judgment debt.
9. Pursuant to the order of this Honourable Court issued on the 14th August, 2017, the Central Bank of Nigeria (Garnishee) was ordered to come and show cause why the sums of N33, 787,896.69 and US$435, 000 should not be paid to the judgment Creditor and upon receipt of this order, the Garnishee (CBN) immediately debited the Applicant’s account with this sum even though this debt remain under litigation at the Apex Court.
10. No Order Nisi has been served on the Judgment debtor within 14th days to the date of hearing this matter on the 5th September, 2017.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
11. Pursuant to items 1, 2, 3, 4, 5, 6, 7 and 8 above, these proceedings are incompetent and deprives this Honourable Court of jurisdiction and pursuant to 9 and 10 above, this proceedings constitute on abuse of Court process and have been filed in breach of due process of law also depriving this Court of jurisdiction ab initio.
12. WHEREOF the judgment Debtor/Applicant shall urge this Honourable Court to decline jurisdiction and competence to adjudicate on these proceedings and to, in consequence, strike out this Garnishee proceedings and discharge the Order Nisi dated 14th August, 2017 in Motion No. FCT/HC/M/9041/17 for want of jurisdiction and competence with costs.
In view of the jurisdictional issues raised in the Appeal which are highlighted in both issues, the Appeal shall be determined seamlessly commencing with the jurisdictional aspects of the Appeal and others touching on alleged breach of right to fair hearing. This is because of the importance of jurisdiction to the determination of matters which obviously impacts on the competence of the Court.
The Court below delivered a ruling on 23rd day of January, 2019. The Preliminary Objection was taken on the 15th day of January, 2019 while the Motion for Stay of Execution was taken on the 17th January, 2019 and the ruling delivered on the 23rd January, 2019. Part of the argument of the Appellant is that it was not given the required 14 days from the date it was served with the Garnishee Order Nisi, he claimed it less than the days required by law, Section 83(2) of the Sheriff and Civil Process Act, the sections says:
“At least fourteen days before the day of hearing, a copy of the order nisi shall be served on the garnishee and on the Judgment Debtor.”
The Order was made on the 14th August, 2017 and served on the 24th August, 2017 with hearing fixed for the 5th September, 2017. From the 24th August to the 5th September 2017, is not up to 14 days’ period of notice required by law to be given to the Appellant. On the effect of failure to give 14 days’ notice, it is settled that unless and until the Garnishee/Judgment debtor is afforded the 14 days’ notice from date of service, any attempt at setting it down for hearing would be tantamount to non- compliance with the said Section 83(2) of the Sheriff and Civil Process Act. The provision of the Act uses the word ‘shall’ and admittedly that it could be used in a directory manner but in this situation, it was used in a mandatory sense because it is meant to ensure that adequate notice is given to the judgment debtor before hearing the Motion on Notice for garnishee order nisi to be made absolute. The apex Court reiterated the various ways the word can be interpreted in the case of FIDELITY BANK PLC V MONYE & ORS (2012) LPLER-7819(SC) thus:
“…Is not always that a Court of law would interpret the word ‘must’ or ‘shall’ as mandatory. The Court must examine the context within which the word is used. The word “MUST’ is often, interchangeable with the word ‘SHALL’ and both can mean “MAY” where the context so admits. The authors of the Black’s Law Dictionary are of the view that: “This word (must), like the word “SHALL”, is primarily of mandatory effect and in that sense is used in antithesis to “MAY’. But this meaning of the word is not the only one and it is often used in a merely directory sense and consequently is a synonym for the word, “MAY”, not only in the permissive sense of that word, but also in the mandatory sense which it sometimes has.” In the case of Amadi v. N.N.P.C. (2000) 10 NWLR (Pt.674)76 at 97, this Court had the opportunity of clarifying the matter further, where Uwais, JSC, (as he then was) stated, inter alia: “it is settled that the word “shall” when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission. See: Ifezue v. Mbadugha (1984) 1 SCNLR 427 at pp 456 – 7 ….if used in a mandatory sense then the action to be taken must obey or fulfill the mandate exactly; but if used in a directory sense then the action to be taken is to obey or fulfil the directive substantially see Woodward v. Sarsons (1875) LR 10 CP 733 at p. 746; Pope v. Clarke (1953) 1 WLR 1060; Julius v. Lord Bishop of Oxford (1881) 5 AC (H .L.) 214 at pp. 222 and 235 and State v. Ilori (1983) 1 SCNLR 94 at 1 10. In Liverpool Boroush Bank v. Turner (1861) 30 L.J. Ch. 379 at p. 657, it was held – No universal Rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory with animplied nullification for disobedience. It is the duty of Courts of Justice to try and get at the real intention of the legislature by carefully attending, to the whole scope of the statute to be construed.”
Furthermore, other authorities where Section 83(2) of the Sheriff and Civil Process was considered, it interpreted the word shall as an imperative and I also adopt that interpretation, see ZENITH BANK V OHAJA (supra). The import has therefore been settled in a plethora of authorities. The 1st Respondent argued that the motion was ultimately taken after 14 days’ period and therefore, the provision was complied with. The essence of the provision is to give the Judgment Debtor 14 days’ before fixing the Motion for hearing. In this case less than 14 days’ was allowed the Appellant and the date fixed for hearing was less than 14 days’. The fact that the Motion was not heard on the day it was first fixed to be heard cannot save the failure to give 14 days’ notice before the date fixed, see ZENITH BANK V OHAJA (2016) LPELR-40618 (CA). After service on the Judgment Debtor, the entire process shift onto the Court and whether it decides to hear the motion that first day or not is the discretion of the Trial Judge. It is however, the law that 14 days’ must be given to the Judgment Debtor between serving it with the Order Nisi and the date fixed for hearing is absolute. It is obvious there was a breach of the law in this case.
When a statute prescribes a particular manner a notice or method of doing an act or exercising of authority, no other method will be allowed as substitute, which means all other methods are excluded and discretion is taken out of the equation. See BERNARD AMASIKE V THE REGISTRAR GENERAL, CORPORATE AFFAIRS COMMISSION (2010) LPELR-456(SC). Performing that duty in breach of the statute definitely means the Court acted without jurisdiction.
Jurisdiction is very important in the determination of matters before the Court, see ARUEZE V NWUAKONI (2018) LPELR-46352(SC) and NDIC V CBN & ANOR (2002) LPELR-2000(SC) where the apex Court held as follows:
“Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity…. This importance of jurisdiction is the reason why itcan be raised at any stage of a case, be it at the trial, on Appeal to Court of Appeal or to this Court; a fortiori the Court can suomotu raise it. It is desirable that Preliminary Objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a Trial in nullity.”
The failure to allow and give the required period of notice divested the Court below of jurisdiction to hear and make the order nisi absolute.
The other jurisdictional challenge relates to the alleged failure of the Trial Court to rule on the Preliminary Objection. The Ruling of the Trial Court is at pages 132-142. The first part of the ruling dwelt on the application for Stay of Execution that is page 132- 141 while a mention of the Preliminary Objection is at pages 141-142. There was the issue of whether the Court consolidated the Rulings and delivered them as one or he just decided to deliver the Rulings together. There was no order for consolidation of the
two applications on Record. Let me state categorically that as provided by the various rules of trial Courts, a Judge has the discretion to consolidate several actions pending before it on application of parties, and provided that certain conditions are fulfilled. There was no application for consolidation by any party in this Appeal and probably, that informed the submissions of Learned Counsel to the 1st Respondent that it was not a consolidation. Now, if there was no order for consolidation on what authority or basis was the Ruling for the two separate applications which were taken on different dates delivered in one Ruling on the 23rd January, 2019? One can say, for convenience and expedience, the Court could deliver the Rulings on the same day, but in so doing, the separate applications must be considered in their individual distinctions, that is to say, consider one and resolve it before moving to the other because they maintain their distinctiveness and simply, two Rulings being delivered one after the other. The most important thing is for issues presented in each of the applications be determined separately and decision on each of the issues handeddown in clear terms. Agreed that every Judge has his style of Judgment writing, however, in every Ruling or Judgment the Court must demonstrate certain things, a full and dispassionate consideration of all issues properly raised and heard in the case and the final conclusion manifestly seen to be a logical outcome of such an exercise. In OJOGBUE & ORS V NNUBIA & ORS (1972) LPELR-2388(SC) the Apex Court held:
“A judgment of the Court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such an exercise.”
A Judgment on the merits is therefore a Judgment that determines an issue either of law or fact and states which party is right. So the issues raised in an application must be addressed by the Court in the Ruling. Looking at the Ruling appealed against, particularly pages 141-142 of the record of Appeal where the Trial Judge adverted his mind to the Preliminary Objection, he said thus:
“I have also taken my precious judicial time to consider the arguments of counsel with respect to the Garnishee proceedings earlier ignited by Judgment Creditor’s counselwhereof this Court granted Order Nisi which had to be put on hold on account of the appeal lodged by the Judgment debtor/Applicant which both Court of Appeal and Supreme Court have struck out and dismissed in that order.
I have listened and considered the argument of Paul for the Judgment Debtor/Applicant in relation to issue bothering on Section 84 of the Sheriff and Civil Process Act which relates to the issues of consent of the Attorney General of the Federation. Upon a juxtapose of the said Section 84 of the Sheriff and Civil Process Act and the recent decision of the Supreme Court in CBN V INTERSTELLA COMMUNICATIONS LTD (2018) 7 NWLR (Pt. 1617) pages 305 – 309, the arguments of the learned counsel (Paul Esq.) has clearly been dwarfed by that of AKINLAJA SAN. Central Bank of Nigeria being a banker’s bank and that Judgment debtor not being a public Officer, the consent of the Attorney general of the Federation then becomes most unnecessary in this instance. In the absence of any other better argument, every other attempt made by Paul of counsel, was to sway this Court into postponing the evil day… without much ado, the Order Nisi made bythis Court is hereby made absolute, this I have done in the interest of justice and fair play.”
As can be seen, the only issue picked or chosen for determination is whether there was need for prior consent of the Attorney General of the Federation before the Garnishee Order Nisi can be issued. In fact, the other issue which is also jurisdictional was swept under the carpet. No mention of the prayers sought nor submissions in respect of those issues were considered. The Trial Court failed to consider the Preliminary Objection fully; it was a partial or incomplete consideration. The unlawful consolidation of the rulings and failure to consider all the issues fully occasioned a miscarriage of justice. It is also evident on record that the Preliminary Objection was not specifically adjourned for Ruling on Record. Apart from the date the Preliminary Objection was taken, no specific adjournment and the next step was the hybrid Ruling in respect of both the Preliminary Objection and the Motion for Stay of Execution by the Trial Court. At the point of adjourning of the proceedings of the 15th January, 2019, the Court said:
“Matter adjourned to the 17th January, 2019, for arguments on the competence of the motion for stay and possible Ruling.”
There was no mention whatsoever of the Preliminary Objection and on the 17th of January, 2019 the Court took the Motion for Stay of Execution and it was adjourned to the 23rd for Ruling. Then, the hybrid ruling was delivered on the said date. Definitely, the Court below did not give the proceedings the consideration it deserved and no thorough determination. Proper procedure is very important and relevant aspect of due adjudication because failure, could occasion a miscarriage of justice and it did, in this case because it breached the right to fair hearing. The 1st Respondent tried to rationalize what the Court below did, he ascribed it to heavy docket which caused the mix up. That is not a legal excuse and it cannot sustain the ruling, the irregularity is fundamental as it goes to the root of the application.
A Court is duty bound to consider all issues presented to it for consideration and determination, see HONEYWELL FLOUR MILL PLC V ECOBANK (2018) LPELR-45127(SC) which held thus:
“There is every necessity for a Tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so may result in a miscarriage of justice. See page 1257 of Vol. iii of the record… It is now a settled matter that once issues are presented before a Court, it has to attend to each and every one of them save for when any aspect is subsumed in the already considered issue that it can be taken as settled…In Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131 at 150 paras, G-H, the Supreme Court per Uwais JSC held as follows:- “It is the duty of the Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court fails to do so without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such question.”
The effect of the failure to consider and determine all issues presented by the parties in a dispute apart from showing that the Court failed in its duty, it also could occasion a miscarriage of justice. In some cases, the Appellate Courts would send back the matters for fresh hearing to include the issues not earlier considered. In others, particularly where it was fundamental such as breach of right to fair hearing, the Appeals were allowed. In this case, the issue left undecided is a jurisdictional issue of giving the Appellant 14 days from the date the Judgment Debtor was served with the Order Nisi to the date fixed for hearing the motion for Garnishee order absolute and that was considered earlier in this judgment.
I disagree with the Appellant when he submitted that the Preliminary Objection was not taken, it was taken but without a full consideration in the Ruling delivered, so it is more in the nature of a breach of fair hearing and not the principle set down in BELL ATLANTIC COMMUNICATIONS LTD V NDON (supra). Failure to hand down a decision on a fundamental issue is a breach. On this basis of this defect, the proceedings culminating with the Order Absolute is declared null and void and must be set aside. There was a breach of Appellant’s right to fair hearing, a fair trial is also an aspect of fair hearing. The Apex Court in the case of SANI V STATE (2017) LPELR-43475(SC) held as follows:
“Now, a fair trial of a case implies that every reasonable and fair minded observer, who watches the proceedings, should be able to come to the conclusion that the Court has been fair to all parties see Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419, wherein this Court set out certain basic criteria and attributes of fair hearing, as follows- (i) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision, which may be prejudicial to any party in the case; (ii) That the Court or Tribunal shall give equal treatment, opportunity, and consideration to all concerned; (iii) That the proceedings shall be heard in public and all concerned shall have access to and to be informed of such a place of public hearing; (iv) That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.” Per AUGIE, J.S.C.
The Order Garnishee absolute is hereby set aside.
I should ordinarily strike out the Appeal on the basis of breach of fair hearing but this being an intermediate Court and in compliance with the position taken by the Apex Court in the case of IKPEKPE V WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR-44471(SC) wherein EKO, JSC admonished intermediate Courts in this manner:
“The issue at the Lower Court was whether the Appellant was entitled to the N300,000.00 awarded to him, as damages for the wrongful act of the Respondents, as Defendants at the Lower Court, having struck out the suit, did not decide or resolve the question. They should have resolved it, in case they may be wrong as an intermediate Court, on the issue of jurisdiction. The appeal before the Lower Court was not an interlocutory appeal but an appeal against final decision. It therefore behooved the Lower Court, an intermediate Court, to resolve all the issues before it or express an opinion on the merits of the case. This alternative course was what this Court enjoined the Lower Court to take, as can be seen from NIPOL LTD v. BIOKU INVESTMENT & PROCO LTD (1992) 23 NSCC (pt. 1) 606 at 618; KATTO v. CBN (1991) 9 NWLR (pt. 214) 126 at 149.”
In obeisance to the admonition of the Apex Court that all issues be determined as reflected above, I shall proceed to consider the remaining aspect of the Appeal.
The other issue seriously contested is the Trial Court’s reliance on Section 84 of the Sheriffs and Civil Process Act. It states thus:
“Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodial egis, the order nisi shall not be made under the provisions of the last proceeding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public official or of the Court in the case of money in custodia legis as the case may be.”
Fundamentally, the requirement is that prior consent of the Attorney General of the Federation or State as applicable is a condition precedent to the commencement of Garnishee proceedings where the funds are in the custody of a Public Officer. The question that is thrown up is whether the Central Bank of Nigeria is a public officer. The section has received judicial attention in a number of cases decided by this Court, in the case of CBN V OSCKO PETROLEUM LIMITED & ORS (2018) LPELR-46732(CA); and CBN V UKPONG (2006) LPELR-11610(CA) held that the Central Bank of Nigeria is indeed a Public officer. However, this Appeal majorly dwells on the Supreme Court decision in the case of CBN V INTERSTELLA COMMUNICATION(supra), heavily relied on by the Court below and the Respondent. The Respondent posits that the Central Bank of Nigeria is not a public officer and relied on the case of INTERSTELLA (supra) thus:
“The Appellant’s contention herein centers on the provision of Section 84(1) of the Sheriffs and Civil Process Act which counsel submits was not complied with in that the consent of the Attorney-General of the Federation, was not first sought and obtained before the order Nisi was made. … The outcome of the said suit gave reason for the 3rd Respondent, herein, to constitute an inter-ministerial Committee which included the Attorney-General of the Federation as one of the members to negotiate with the 1st and 2nd Respondents on the terms, with a view to settling and paying NITELS’s debts owed the 1st and 2nd Respondents. Withthe total default of the AGF to obey the consent judgment orders, the 1st and 2nd Respondents resorted to the Court vide a Garnishee Proceeding. An order Nisi was made by the Court on 16th November, 2011 and the judgment debtors and Garnishee/Appellant were summoned to appear before it to show cause why the order Nisi should not be made absolute. The Order Nisi was thereafter made absolute. An Appeal before the Lower Court by the Appellant/Garnishee and 3rd and 4th Respondents was dismissed and the Judgment by the trial Court was affirmed. The crux of issue 4 is whether the lower Court was right when it held that the appellant herein is not a public officer and hence the AGF’s consent as required under Section 84(1) of SCPA does not apply to the case herein. It is the submission by Appellant’s counsel that by Section 84(1) it is mandatory that the consent of the Attorney-General of the Federation, be sought and obtained first before the Garnishee proceedings herein can be competent. In addition to the foregoing peculiar situation of circumstance of this case it would be pertinent to draw attention to page 73 of the record before us where the 3rd and 4thRespondents filed a motion for an order setting aside the order Nisi made by the Federal High Court on 16th November, 2011. Specifically at page 77 of the record, the said respondents in their paragraph 13 of the affidavit in support of the application deposed to this fact and said; “That the Judgment Creditor had so far been paid the sum of Two Billion, Seven Hundred Million Naira in fulfillment of the agreement and towards the discharge of the compromised sum of Twelve Billion Naira (N12,000,000,000.00).” As rightly submitted by the learned counsel for the 1st and 2nd Respondents, the said foregoing deposition is an admission against interest made by the 3rd and 4th respondents from whom the Appellant wants the 1st and 2nd Respondents to obtain consent. It is a fact admitted which need no further proof. See Rauph Bello Oseni V. Chief LasisiBajulu& 2 Ors (2010) All FWLR (Pt 511) 813 at 831 – 832 and also Section 123 of the Evidence Act 2011. In further confirmation of the 3rd and 4th Respondents’ commitment, are Exhibits ‘I’ and ‘L’ contained at pages 31 and 35 of the record which are very instructive. The documents are very unambiguous that the 3rdand 4th Respondents conceded the debt of N12 Billion to the 1st and 2nd Respondents on behalf of NITEL. Exhibit ‘L’ specifically affirms thus in part: “that the Federal Government shall pay Interstella Communications Limited, the sum of N12,000,000,000.00 (Twelve Billion Naira) only, in full and final settlement of the Judgment debt. I am to inform you that the Federal Government will commence payments to discharge the negotiated sum as soon as practicable ….” Following from the foregoing explicit and clear cut concession, will it now be just and proper that the 3rd and 4th Respondents should recede on their commitment to the 1st and 2nd Respondents on behalf of NITEL? The answer in my view is certainly in the negative. Rather and as rightly argued and submitted by the learned Counsel for the 1st and 2nd Respondents, the peculiar facts of this case herein removes it from the purview of the general interpretation of Section 84 of the Sheriffs and Civil Process Act in that the consent of the 4th Respondent by virtue of Exhibits ‘I’ and ‘L’ has already been obtained and the Appellant (CBN) was acting as a Banker only, to the 3rd Respondent (FGN). It should benoted clearly that the principle underlying securing the AGF’s consent as prescribed in Section 84 SCPA is to avoid embarrassment on him of not having the prior knowledge that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt, which the government may not know anything about. See the persuasive authority of the case of Onjewu V. KSMCI (2003) 10 NWLR (Pt 827) 40 at 89. The learned counsel for the Appellant made reference exhaustively to Section 84(1) of the SCPA and submitted emphatically that the Attorney-General of the Federation is the appropriate officer from whom consent must be obtained in respect of money in the custody of a public officer in the public service of the Federation. Counsel submits further that the Appellant as well as its officials have been held to be public officers and relied on the case of CBN V. Adedeji (supra) wherein the lower Court followed the decision of this Court in Ibrahim V. JSC under reference. For purpose of clear understanding, it is expedient that the provision of Section 84(1) of the SCPA is hereby reproduced as follows: “where money liable to be attached by garnishee proceedings isin the custody or under the control of a public officer in his official capacity or in custodiolegis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodia legis, as the case may be.” I have indicated earlier in the course of this judgment that the case under consideration herein is very peculiar and the circumstance cannot be fitted within the general interpretation of Section 84 of SCPA. Again the case of Onjewu V. KSMCI (supra) is well under reference. Furthermore, and as rightly submitted on behalf of the 1st and 2nd Respondents, certain qualifying conditions must be met for a case to come under the purview of Section 84 of SCPA. In other words, justice would demand that the AGF must be a neutral/nominal party in the transactions and proceedings giving rise to the application for order nisi and not him being the debtor. It is well and explicit on the facts of this case that the AGF has all along held out himself to be an activeparticipant in the several stages of negotiations, transactions and even part payment of the debt owed. Paragraph 13 of the affidavit in support of the AGF’s application of page 76 of the record is under reference as admission against interest. In the circumstance, the AGF cannot be a neutral /nominal party in this case. It is right to say that by implication Section 84 of the SCPA which stipulates “consent” had already been fully complied with as the government itself negotiated the terms, and took steps to settle the debts, before it later reneged on full satisfaction thereof. The most potent factor which makes Section 84(1) of the SCPA inapplicable herein is because the Attorney-General is the debtor and has been sued in that capacity. With the AGF being the Judgment Debtor therefore, will it not be absurd to require that his consent should be sought especially having admitted that he had taken the move by paying part of the debt in question. …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 thatthe 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 made 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. Ukpong (supra) cited also by the Appellant’s counsel wherein Fabiyi, JCA (as he then was) held thus on his considerationof 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 . AG 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 said “… 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.” Per OGUNBIYI, J.S.C ( Pp. 68 -81, paras. D-C ).
It is clearly expressed in the judgment copiously reproduced above that the erudite jurist who made it clear that in the context of facts relevant to that appeal, the provision of Section 84 of the Sheriff and Civil Process Act cannot apply because of the peculiar nature of the case wherein the Attorney General of the Federation was a party and consented to the judgment. It is clear that the judgment also considered previous decision wherein CBN was held to be a public officer but did not over rule those earlier authorities but made a distinction between those decisions and the one in issue. It is therefore wrong of counsel to cite the decision out of context. The Apex Court was very emphatic on the non-applicability of the provision to the peculiar facts and clearly refrained from over ruling precious decisions. It therefore follows that in a normal situation, that authority is not applicable except if the facts are on all fours with the case in hand. In this case the facts are distinctively different.
The import of Section 84 of the Sheriffs and Civil Process Act isstraight forward that where the fund to be Garnishee is in the custody of a public officer, then the Attorney General must give a prior consent. The argument of the 1st Respondent that because the Central bank is a banker’s bank, therefore the issue of consent is not necessary is not tenable. The statutory provision did not create that distinction. The CBN being a public officer, before Garnishee proceedings can legally commence against funds in its custody, the consent of the Attorney General of the Federation must be sought and obtained. The distinction was made in the case of INTERSTELLA (supra) and strictly in view of the peculiar facts in that case. I agree with the Learned Counsel for the 1st Respondent in his submission that where the provision of a statute is unambiguous, it should be given its natural and ordinary meaning, see BABABE V FRN (2019) 1 NWLR (Pt. 1652) 100; DANKWAMBO V ABUBAKAR (2016) 2 NWLR (Pt. 1495) 157 and OJOKOLOBO V ALAMU (1987) 3 NWLR (Pt. 61) 377. The provision of Section 84 is clear and the case of INTERSTELLA (supra) further held that the other condition for the consent is where the Attorney General of the Federation is neutral or a nominal party to the proceedings. In this Appeal, the Attorney General is a neutral party with no interest whatsoever, and therefore all conditions necessary for consent are fulfilled and the Trial Court erred by relying on the authority of INTERSTELLA (supra) without taking time to read through to see that facts differ. If he read it, the difference would have been clear and he couldn’t have ruled in the manner he did. I agree with the Appellant that there was need for the consent of the Attorney General of the Federation in this case and its absence divested the Court below of jurisdiction and consequently, the Order Nisi made absolute was made without jurisdiction and consequently, it is hereby set aside.
The Appellant also made heavy weather alleging he was not given a chance to react to the case of INTERSTELLA (supra) cited in the course of oral submissions by counsel to the 1st Respondent. This is preposterous, the Learned Counsel by his own showing at pages 15 of the Appellant’s brief, shows were the Appellant’s counsel, the same Counsel before the Court, submitted that the case of INTERSTELLA (supra) is not adjudgment in rem and urged the Court below to distinguish the decision. That is a reaction and if he wanted more time he should have applied for time. There is no rule against Counsel citing authorities to aid the Court in the course of oral address and in the presence of counsel on the other side. The authority was not cited behind Counsel for the Appellant. This is really not a complaint that deserves any sympathy and it is hereby discountenanced. The Court can rely on any authority whether cited by parties or discovered in the course of its own research in arriving at a decision. The error is purely because the authority is not applicable and not because it was relied upon without giving the Appellant a chance to respond to it.
Flowing from above, the appeal is meritorious. The ruling of the Trial Court delivered on the 23rd day of January, 2019 is hereby set aside. There shall be no order as to cost.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.
I agree entirely with his reasoning and conclusion which I adopt as mine. I too, find the appeal meritorious and I do allow it. I abide by the consequential order as made in the lead judgment.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
PAUL O. ESHIEMOMOH ESQ. For Appellant(s)
DAYO AKONLAYA, SAN, with him, BOLA AIDI ESQ., OBIDIKE OKWO ESQ., OSUYIKANMI KEHINDE ESQ., J. O. AKINLAYA ESQ. and FASHINA OLYOMI ESQ. For Respondent(s)