WEMA BANK PLC v. GEORGE & ORS
(2021)LCN/15877(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, November 18, 2021
CA/A/553/2017
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
WEMA BANK PLC APPELANT(S)
And
1. MR. EUGENE GEORGE (For Himself And On Behalf Of The Descendants Of Aguba George Of Igobgene Town, Yenagoa) 2. BAYELSA STATE GOVERNMENT 3. ATTORNEY GENERAL OF BAYELSA STATE 4. CAPITAL CITY DEVELOPMENT AUTHORITY YENAGOA RESPONDENT(S)
RATIO
THE PRINCIPLE THAT GROUNDS OF APPEAL MUST ARISE FROM JUDGMENT APPEALED AGAINST
An Appellant cannot conjecture a Ground of Appeal, formulate an Issue on it and proceed to argue and submit on what is neither in the Records nor formed the basis of the decision of the Court below. In Mercantile Bank of Nigeria Plc Anor vs. Nwobodo (2005) 14 NWLR (Part 945), 379, the Supreme Court held this:
“It is always an elementary law that grounds of appeal must of necessity arise from the Judgment, Ruling or decision or any pronouncement of the Court below. When a Ground has not the remotest connection with what the Court below decided and which agitated the mind of the Appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal. In the event that there is only one such Ground, then of course, there would simply be no appeal as what it set down as a Ground of Appeal is non-existent being no more than a figment of imagination of the Appellant…”
See also The Minister of Petroleum Mineral Resources Anor vs. Expo Shipping Line (Nig) Ltd (2010) LPELR -SC1/2003; Ikweki Ors vs. Ebele & Anor (2005) 2 SC (Part II), 96. PER GAFAI, J.C.A.
THE POSITION OF LAW ON GARNISHEE
What then does Garnishee mean? My lord Saulawa, JCA, (as he then was), in the case of CBN v. Auto Import Export & Anor (2012) LPELR- 7858 (CA), defined Garnishee as follows:
“The term ‘garnish’, as a verb, means (i) to subject a property to garnishment; (ii) to attach a property, held by a third party, order to satisfy a debt; (iii) to notify a person, a bank etc, of a pendency of a proceeding has been undertaken and that he (it) may be liable as stakeholder or custodian of the defendants’ property. Hence, the term ‘garnishee;; denotes a person or an institution (e.g. a bank) that is either indebted to, or is baited for another, whose property has been subjected to garnishment. Also termed ‘garnishee – defendant’. See BLACK’S LAW DICTIONARY 8th edition 2004, at 703 thus: Garnishment is a(n) … inquisitorial proceeding, affording a harsh and extraordinary remedy. It is an anomaly, a statutory invention sui generis, with no affinity to any action known to the common law … It is a method of seizure; but it is not a ‘levy’ in the usual acceptation of that term. It is a proceeding by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hands of his debtor – 38 C.J.S. Garnishment & 3, at 248 – 50 (2003). See also FEDERAL CIVIL PROCEDURE, (2003) 601; Garnishment, 64, 118.” PER ADAH, J.C.A.
BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This Appeal is against two Rulings delivered by the High Court of the Federal Capital Territory coram Halilu, J. delivered on the 22nd of May, 2017 and on the 6th of June, 2017 both in respect of garnishee proceedings initiated by the 1st Respondent. The 1st Respondent had sued the 2nd – 4th Respondents at the High Court in Yenagoa Bayelsa State at the end of which judgment was entered against him. His appeal to the Court of Appeal Port-Harcourt Division was however determined in his favour. The 1st Respondent then initiated the enforcement of the latter Judgment at the High Court of the Federal Capital Territory Abuja, sequel to which garnishee proceedings commenced before the Court below against six garnishees namely (1) Sterling Bank Plc, (2) United Bank for Africa Plc, (3) Wema Bank Plc, (4) Ecobank Plc, (5) First Bank of Nigeria Plc and (6) Access Bank Plc as the 1st – 6th Garnishees respectively. At the end of the proceedings, an Order Absolute was made against the 3rd and 4th Garnishees. The 3rd Garnishee now the Appellant herein, was aggrieved by the decision of the Court below and has thus approached this Court by its Notice of Appeal filed on the 7th of May, 2017 containing three Grounds which altogether have now been subsumed in the Appellant’s Amended Notice of Appeal filed later on the 10th of November, 2017 containing seven Grounds; viz:
“GROUND 1
The learned trial judge erred in law when he refused to set aside his garnishee order absolute made on the 22nd May, 2017 against the Appellant having been brought to his knowledge the Appellant’s affidavit to show cause dated 19th May, 2017 and filed same date indicating that the Judgment Debtors though maintain an account with the Appellant the said account has no funds or money therein.
Ground 2
The learned trial judge erred in law when he held on the 6th June, 2017 that he became functus officio after making the Garnishee Order Absolute.
GROUND 3
The failure of the learned trial Judge to hear and consider the Appellant affidavit to show cause dated and filed on the 19th May, 2017 amounts to a denial of the Appellant’s fundamental right to fair hearing.
GROUND 4
The learned trial judge erred in law when he entertained the garnishee proceeding initiated by the 1st Respondent to enforce a judgment obtained outside the Federal Capital Territory Abuja when he (1st Respondent) did not pay the requisite filing fee to register the aforesaid judgment.
GROUND 5
The learned trial judge erred in law when he entertained the garnishee proceeding initiated by the 1st Respondent to enforce a judgment obtained outside the Federal Capital Territory Abuja when he (1st Respondent) did not fully comply with the relevant provisions of the Sheriff and Civil Process Act on registration and enforcement of judgment obtained outside the jurisdiction of the Court.
GROUND 6
The learned trial judge erred in law ab-initio and acted in violation of the provisions of Section 83 of the Sheriff and Civil Process Act 1990 CAP 407 by entertaining the garnishee proceedings when the judgment debtors, 2nd, 3th and 4th Respondents, the Judgment Creditor (1st Respondent and the Appellant all resides outside the jurisdiction of the Court.
GROUND 7
The learned trial judge erred in law ab-initio and acted in violation of the provisions of Section 84 (1) of the Sheriff and Civil Process Act 1990 CAP 407 by entertaining the garnishee proceedings without first satisfying himself that the consent of the State Attorney had been first sought and obtained by the 1st Respondent prior to initiating the proceeding.”
The respective particulars enumerated under these Issues are noted.
In its Amended Brief of Argument filed on the 10th November, 2017, three Issues for determination have been formulated for the Appellant thus:
“ISSUE 1
Whether the trial Court was right to entertain the garnishee proceeding initiated by the 1st Respondent to enforce a judgment obtained outside its jurisdiction purportedly registered within his Court jurisdiction in the absence of payment of requisite filing fee for the alleged and full compliance with the provisions of Sheriff and Civil Process Act on Registration of judgment and proceedings there under (Distilled from Grounds 4 and 5)
ISSUE 2
Whether having regards to the provisions of Section 83 and 84 (1) of the Sheriffs and Civil Process Act, the learned trial judge was right to entertain the garnishee proceedings initiated by the 1st Respondent when the consent of the State Attorney General was not first sought and obtained and all parties to the judgment sought to be enforced as well as the garnishee are outside the jurisdiction of the Court (Distilled Ground 6 and 7)
ISSUE 3
Was the refusal of the learned trial judge to consider on merit the Appellant’s application to set aside his garnishee order absolute justifiable having regard to the circumstance of the case (Distilled from Grounds 1, 2 and 3)”
In his Brief of Argument filed on the 6th June 2018, the 1st Respondent formulated five Issues for determination thus:
1. “Whether having shown no cause before the trial Court as a garnishee, the appellant’s grounds of appeal do not amount to making a case for the judgment debtors;
2. Whether monies in commercial banks qualify as monies in public officers’ custody, so as to require the Attorney-General’s prior consent before Attachment;
3. Whether failure of garnishee to depose to a mere affidavit to show cause nor appear Court qualifies as a sin of counsel that should not be visited on litigants;
4. Whether the registration of the Court of appeal judgment by the FCT High Court registrar and the subsequent issuance of a suit number, are not acts of a public officer presumed by law to have been properly done;
5. Whether the trial Court was not right to have held itself to be functus officio, having made the order absolute”
The 2nd – 4th Respondents’ Brief of Argument filed on the 3rd of December, 2020 presented a lone Issue for determination thus:
“Whether the lower Court had the requisite jurisdiction to entertain the entire garnishee proceedings and make the garnishee orders, when there was no sufficient evidence before the Court to show that 1st Respondent fulfilled the condition precedent to the enforcement of judgment obtained from outside the jurisdiction of the lower Court.” (Distilled from Ground 4 and 5)
Although the entire proceedings and the Orders made by the Court below are understandably short, none of the parties here, more particularly the Appellant, quoted the specific main portion of the proceedings that are the subject of this Appeal. To attain a better understanding of the respective arguments of the parties, I think it is expedient to first understand the basis of it all; which I find to be at page 53 of the Record of Appeal thus:
“IT IS HEREBY ORDERED AS FOLLOWS:-
1. Court: hereby makes the Order Nisi Absolute against Wema Bank Plc (3rd Garnishee) and Eco Bank Plc (4th Garnishee) in respect of said sum total being the sum of N50,000,000.00 (Fifty Million Naira only) the claim of the Plaintiff/Judgment Creditor against the Judgment Debtors representing the Judgment Debt in the Judgment delivered on the 19th day of March, 2014. By this Order the said sum should be paid into the account of this Court to satisfy the Judgment of this Court as disclosed by the 3rd Garnishee having failed to supply facts in line with the rules to show cause and that of the 4th Garnishee affidavit to show cause as per the disclosed monies in their account name: Bayelsa State Government Capital City Development Authority, Account No: 4802000434 domiciled with the Bank’s Sani Abacha Way, Yenagoa, Bayelsa State Branch and Account Name: Bayelsa Capital City Development Authority, Account No: 4802002191 domiciled with the Bank’s Sani Abacha Way, Yenagoa, Bayelsa State: Branch in line with the rules to show cause.”
2. For the Garnishees who have filed affidavit showing cause having been satisfied with the contents of the affidavits, the various Garnishees namely;
1. STERLING BANK PLC (1ST GARNISHEE)
2. UNITED BANK FOR AFRICA PLC (UBA) (2ND GARNISHEE)
3. FIRST BANK OF NIGERIA PLC (5TH GARNISHEE)
4. ACCESS BANK PLC (6TH GARNISHEE) are hereby discharged.”
Let me begin by clarifying some recurring misconceptions running through the Appellants’ arguments under its first Issue for determination; where the Appellant canvassed several submissions on the particular argument that the Judgment that was registered, if at all, in the Court below and by which therefore that Court proceeded as it did by granting the Orders that are the subject of this Appeal is the Judgment of the High Court Yenagoa. This contention is not correct nor is it supported by the Record. Firstly, neither the proceedings nor the Orders made by the High Court, Yenagoa were presented to the Court below and are thus not part of the Record. Secondly, it is clear that what was the subject of the proceedings before the lower Court is the enforcement of the Judgment of this Court sitting at Port-Harcourt Division delivered on the 19th of March, 2014.
Thirdly, it would be illogical for the 1st Respondent to seek enforcement of the Judgment of the High Court Yenagoa because that Judgment had nothing to be enforced in his favour. The Court below was presented both the Judgment and the enrolled Order of this Court. See pages 7 to 38 of the Record. Fourthly, at no point in the entire proceedings before the Court below was the Judgment or Orders by the High Court Yenagoa, if any, made an issue. Conversely however, it is the Judgment of this Court delivered on the 19th of March, 2014 that has been the recurring reference in the Orders made by the Court below at pages 49 to 54 of the Record; without any reference to any Orders of any other Court(s) because there was none presented before it.
Of the nine pages containing the Appellant’s arguments under its first Issue (supra), their first to the eighth pages contain arguments and submissions canvassed along the same misconception that it is the enforcement of the Judgment of the High Court of Yenagoa that was the subject of the enforcement by the Court below; which Issue, as the Appellant indicated, is distilled from its Grounds 4 and 5 of its Amended Notice of Appeal (supra). The purpose of both a Ground of Appeal and Issues formulated thereunder is to identify and disclose with near precision the exact complaint(s) the Appellant harbours against a specific part or the entirety of the decision of the Court below; easily ascertainable from the Record.
An Appellant cannot conjecture a Ground of Appeal, formulate an Issue on it and proceed to argue and submit on what is neither in the Records nor formed the basis of the decision of the Court below. In Mercantile Bank of Nigeria Plc Anor vs. Nwobodo (2005) 14 NWLR (Part 945), 379, the Supreme Court held this:
“It is always an elementary law that grounds of appeal must of necessity arise from the Judgment, Ruling or decision or any pronouncement of the Court below. When a Ground has not the remotest connection with what the Court below decided and which agitated the mind of the Appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal. In the event that there is only one such Ground, then of course, there would simply be no appeal as what it set down as a Ground of Appeal is non-existent being no more than a figment of imagination of the Appellant…”
See also The Minister of Petroleum Mineral Resources Anor vs. Expo Shipping Line (Nig) Ltd (2010) LPELR -SC1/2003; Ikweki Ors vs. Ebele & Anor (2005) 2 SC (Part II), 96.
Consequently, the Appellant’s first leg of its first Issue for determination (supra) not being one arising from the decision and Order of the Court below nor rooted in the Record is thus incompetent and struck out.
The other leg of the Appellant’s arguments thereunder is that which questions the Order made by the Court below on the ground that the 1st Respondent did not comply with the provisions of Sections 105 and 107 on registration of Judgment before seeking for the Order that was granted by the Court below. I find this argument to be the same in its thrust with the arguments under the sole Issue formulated by the 2nd – 4th Respondents (supra) and Issue 4 of the 1st Respondent (supra). Although the 2nd – 4th Respondents’ Issue is unarguably meant to strengthen the second leg of the Appellant’s first Issue, it is in fact more encompassing. All the three will thus be determined together under the 2nd to 4th Respondents’ Issue without forsaking the worth of any.
Relying on the provisions of Sections 104 to 107 of the Sheriffs and Civil Process Act Cap 56 LFN 2004, it is argued for the 2nd to 4th Respondents that there was nothing before the Court below to show any evidence of due registration of the Judgment in the manner provided under Sections 104 and 105 of the said Act nor is there any record to show that the 1st Respondent had filed the requisite affidavit in the Court which delivered the Judgment as provided under Section 107 of the Act.
It is further argued for these Respondents that the non- compliance by the 1st Respondent with these provisions robbed the Court below of jurisdiction to entertain the garnishee proceedings and also thus rendered the entire proceedings a nullity. Reliance was placed on the decisions of this Court in CBN vs. Ubana & Ors (2016) LPELR – 40366 (CA) at pages 12 B – D; Arowosaye vs. Ogedengbe (2009) All FWLR (Pt.476), 1926 @ 1972 – 1973 paras. E – A; Oloja & Ors vs. Gov. Benue State & Ors. (2015) LPELR- 24583 (CA) among others. It is also the argument for these Respondents that the requisite payment to be made by the 1st Respondent under Section 106 (1) of the Act for the registration of the Judgment was not shown to have been made; which, as these Respondents submitted, robbed the Court of jurisdiction to entertain the 1st Respondent’s application.
The 1st Respondent has canvassed arguments on this Issue where he responded tersely altogether in four short paragraphs thus:
“We submit that only Certified True Copy of the Nigeria Register of Judgment as contemplated by Section 105 of the Sheriffs and Civil Processes Act can show whether or not the said Court of Appeal Judgment was not registered.
A mere verbal allegation by the Appellant will not suffice.
The Registrar of FCT High Court having registered the said Court of Appeal Judgment and issued a suit Number is presumed by the Evidence Act to have acted properly. The onus is on the Appellant to rebut same by proving the contrary. Page 1 of the Order Nisi clearly refers to the said Court of Appeal Judgment that was enforced, being CA/PH/572/2011. And paragraph 1 of page 2 of the Order Absolute also refers to the Court of Appeal Judgment that was enforced. Section 105 Subsection (1) of the Sheriffs and Civil Processes Act clearly states that,
“Upon production of such certificate to the Registrar or other proper officer of any Court of like jurisdiction in any other State or the Federal Capital Territory, such officer shall forthwith register the same by entering the particulars thereof in a book to be kept by such officer and to be called lithe Nigeria Register of Judgment”
We submit that until the Appellant shows that the 1st Respondent’s judgment is not contained in the Nigeria Register of Judgment, the 1st Respondent has no burden to prove otherwise. The onus remains on the Appellant.
We therefore urge this Court to resolve this issue also in favour of the 1st Respondent and dismiss the Appeal in its entirety with substantial cost.”
From a composite study of the provisions of Sections 104 to 107 of the Sheriffs and Civil Process Act, it is clear that a Judgment Creditor desiring to enforce a Judgment or Order in another State other than the State where the Court which delivered the Judgment is situated shall, as a first step, depose to and file an affidavit in the Registry of the Court which made the Judgment stating that the amount has become due but unpaid or that an act ordered to be done has remained undone or that the person ordered to forebear from doing any act has disobeyed such order. Then, almost simultaneously, apply and obtain from the Registry of that Court a duly signed and sealed Certificate of Judgment, then proceed to the enforcing Court and register the Certificate of the Judgment with the Registrar of the Court; whereupon the Registrar will immediately enter the particulars of the Judgment in a Book called the Nigerian Register of Judgments kept specifically for that purpose. Upon such registration, the Judgment becomes a record of the enforcing Court with the same effect as a Judgment of that Court. The enforcing Court may then proceed with the process of its enforcement or execution. See Section 37 of the Sheriff and Civil Process Act.
As read, the argument of the 1st Respondent is that the Judgment that he sought to enforce before the Court below was duly registered in the Registry of the Court and that in any case, it is the duty of the Appellant and the 2nd – 4th Respondents to prove the contrary. I think that this issue is not as protracted as the 1st Respondent seems to think. It is not in dispute that from the minute a Judgment is registered in the enforcing Court, the registered Judgment and the records of its due registration become an integral part of the records of the enforcing Court. Thus, the Certificate of Judgment and the records of its registration together with all receipts for payments of prescribed fees under Section 106 shall all form part of the Record of Proceedings of the enforcing Court; which will ultimately also be contained in its Record of Appeal. From the entire Record of Appeal, there is no single endorsement or record or even a sentence showing that any Certificate of the Judgment in Issue was ever deposited in its Registry nor is there anything showing or even tending to show that such Judgment was registered in its Registry whether in line with Sections 104 and 105 of the Act or howsoever. What was presented to the Court below is a certified true copy of the Judgment and Order of the Court of Appeal; not a Certificate of Judgment; nor also was there before the Court evidence or even a semblance of the evidence of its registration in its own registry. See pages 7 to 38 of the Record. In the absence of any such evidence in the Record, it is logical and safe to agree with the 2nd to 4th Respondents that the 1st Respondent never obtained from the Court of Appeal Registry in Port-Harcourt the requisite Certificate of Judgment and thus no such Certificate of Judgment could have been registered in the Registry of the Court below.
As explained earlier, those steps that the 1st Respondent was required to follow are statutory requirements; not rules of Court. They are also mandatory requirements; not optional. Failure to comply with those provisions to the latter will lead to a reversal of all that has ensued in their breach as they touch on the jurisdiction of the Court below to properly and validly assume adjudicatory powers on the proceedings initiated incompetently before it. The Court below acted without jurisdiction when it proceeded to determine the garnishee proceedings without first satisfying itself that the necessary preconditions thereto under Sections 104 to 107 of the Sheriffs and Civil Process Act were complied with. Consequently, the entire proceedings are liable to be set aside.
Having formed the view expressed here, I do not think it necessary to further consider the other subsidiary Issues for both the Appellant and the 1st Respondent. The Appeal succeeds. The second leg of the Appellant’s second Issue for determination and the 2nd – 4th Respondents’ lone Issue are resolved in their favour. The garnishee proceedings and the Orders made by the Court below on the 22nd of May 2017 are hereby set aside.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading in draft from the judgment just delivered by my learned brother, Bature Isah Gafai, JCA.
I agree that the appeal is meritorious and I also allow it.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the Judgment just delivered by my learned brother, Isa Bature Gafai, JCA.
This appeal is factored against lower Court’s decision in a Garnishee proceeding. My learned brother has in the lead judgment excellently rendered the facts of this case. I adopt the facts as narrated in the lead judgment for this consideration. Let me begin this consideration by pointing out that Garnishee proceedings is a mode of enforcing any outstanding judgment of the Court with the view of recovering a judgment debt from the Garnishee. What then does Garnishee mean? My lord Saulawa, JCA, (as he then was), in the case of CBN v. Auto Import Export & Anor (2012) LPELR- 7858 (CA), defined Garnishee as follows:
“The term ‘garnish’, as a verb, means (i) to subject a property to garnishment; (ii) to attach a property, held by a third party, order to satisfy a debt; (iii) to notify a person, a bank etc, of a pendency of a proceeding has been undertaken and that he (it) may be liable as stakeholder or custodian of the defendants’ property. Hence, the term ‘garnishee;; denotes a person or an institution (e.g. a bank) that is either indebted to, or is baited for another, whose property has been subjected to garnishment. Also termed ‘garnishee – defendant’. See BLACK’S LAW DICTIONARY 8th edition 2004, at 703 thus: Garnishment is a(n) … inquisitorial proceeding, affording a harsh and extraordinary remedy. It is an anomaly, a statutory invention sui generis, with no affinity to any action known to the common law … It is a method of seizure; but it is not a ‘levy’ in the usual acceptation of that term. It is a proceeding by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hands of his debtor – 38 C.J.S. Garnishment & 3, at 248 – 50 (2003). See also FEDERAL CIVIL PROCEDURE, (2003) 601; Garnishment, 64, 118.”
This procedure is engrained in Section 83 of the Sheriffs and Civil Process Act, which provides expressly as follows:
83. (1) The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person, hereinafter catted the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid, (L.N. 47 of 1955. First Schedule. Forms 25 and 26.)
(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.
In the instant case, the appellant distilled three issues. These three issues are worded as follows:
1. Whether the trial Court was right to entertain the garnishee proceedings initiated by the 1st Respondent to enforce a judgment obtained outside its jurisdiction purportedly registered within his Court jurisdiction in the absence of payment of requisite filing fee for the alleged and full compliance with the provisions of Sheriff and Civil Process Act on Registration of judgment and proceedings thereunder. (Distilled from Grounds 4 and 5).
2. Whether having regards to the provisions of Section 83 and 84 (1) of the Sheriffs and Civil Process Act, the learned trial judge was right to entertain the garnishee proceedings initiated by the 1st Respondent when the consent of the State Attorney General was not first sought and obtained and all parties to the judgment sought to be enforced as well as the garnishee are outside the jurisdiction of the Court. (Distilled from Grounds 6 and 7).
3. Was the refusal of the learned trial judge to consider on merit the Appellant’s application to set aside his garnishee order absolute justifiable having regard to the circumstance of the case. (Distilled from Grounds 1, 2 and 3).
Having regards to the grounds of appeal filed by the appellant, the three issues distilled for consideration by the Court apparently not only represent the grievances of the appellant against the judgment of the lower Court, they also cover the issues raised by the respondents. I will therefore, anchor this consideration on the three issues generated by the appellant. I shall start with issue one.
Issue One:
Whether the trial Court was right to entertain the garnishee proceedings initiated by the 1st Respondent to enforce a judgment obtained outside its jurisdiction purportedly registered within his Court jurisdiction in the absence of payment of requisite filing fee for the alleged and full compliance with the provisions of Sheriff and Civil Process Act on Registration of judgment and proceedings thereunder.
From the record before this Court, the judgment enforced is not the judgment of a coordinate Court. It was the decision of this Court in Appeal No: CA/PH/572/2011, Mr. Eugene George (For himself and on behalf of the descendants of Aguba George of Igbogene Town Yenagoa) v. (1) Bayelsa State Government (2) Attorney General of Bayelsa State (3) Capital City Development Authority Yenagoa.
Section 287 (2) of the 1999 Constitution of Nigeria provides that:
287. (2) The decisions of the Court of Appeal shall be enforced any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal.
By this Constitutional provision, the judgments or decisions of this Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Court of Appeal. With this gifting from the Constitution, there is no other law that can moderate or reconfigure that endowment to require that the judgment of this Court be registered in any subordinate Court before it is enforced. The requirement of registration is only applicable to coordinate Courts crossing State boundaries owing to the circumstances propelled by Federalism. The provision of Sheriffs and Civil Process Act in Section 104 and 105 are very definite and clear. For clarity and convenience, these two Section read:
104. Any person in whose favour a judgment is given or made in a Court of any State or the Capital Territory may obtain from the registrar or other proper officer of such Court a certificate of such judgment in the form and containing the particulars set forth in the Second Schedule or as near thereto as the circumstances will permit, which certificate such officer is hereby required to grant under his hand the seal of such Court. [L.N. 47 of 1955. Second Schedule.]
105. (1) Upon production of such certificate to the registrar or other proper officer of any Court of like jurisdiction in any other State or the Capital Territory such officer shall forthwith register the same by entering the particulars thereof in a book to be kept by such officer and to be called “The Nigeria Register of Judgment.” [L.N. 47 of 1955.]
(2) From the date of registration the certificate shall be a record of the Court in which it is registered and shall have the same force and effect in all respects as a judgment of that Court, and the like proceedings may be taken upon the certificate as if the judgment had been a judgment of that Court.
(3) For the purpose of this section –
(a) the High Courts (including any Court deemed to be a High Court) of the several States and the Capital Territory are Courts of like jurisdiction to one another;
(b) the Magistrates’ Courts exercising jurisdiction the several States and the Capital Territory are of like jurisdiction to one another.
The requirement of obtaining a certificate of judgment is only relevant where the decision to be enforced is from a Court of coordinate jurisdiction in a separate State from the State of the Court issuing the judgment. This requirement is not applicable to judgments of the Court of Appeal and the Supreme Court. It is in this respect that issue one must be and it is hereby resolved in favour of the respondent.
Issue Two:
Whether having regards to the provisions of Section 83 and 84 (1) of the Sheriffs and Civil Process Act, the learned trial judge was right to entertain the garnishee proceedings initiated by the 1st Respondent when the consent of the state Attorney General was not first sought and obtained and all parties to the judgment sought to be enforced as well as the garnishee are outside the jurisdiction of the Court.
This issue deals with the issue of the requirement of the consent of the Hon, Attorney General. Section 84 of the Sheriffs and Civil Process Act, provides as follows:
84. (1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or custodial egis, 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 custodial egis, as the case may be. (L.N. 47 of 1955.)
(2) In such cases the order of notice must be served on such public officer or on the registrar of the Court, as the case may be.
(3) In this section, “appropriate officer” means-
(a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation;
(b) In relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney- General of the State.
The basis for the securing of the Attorney General’s consent as stipulated in Section 84 SCPA, is to avoid embarrassment of not knowing that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt which the government may not know anything about. See CBN v. Interstella Communications Ltd., & Ors. (2017) LPELR-43940 and the case of Onjewu v KSMCI (2003) 10 NWLR (Pt. 877) 40 at 89.
In this case, the affidavit in support of the application before the trial Court did not show any fact of the consent of the Attorney General of Bayelsa State, being had before the order nisi was issued and finally made absolute. This was certainly the draw back to this enforcement of the judgment debt. On the basis of lack of consent of the Hon. Attorney General of Bayelsa State is contrary to the express provision of Section 84(1) of the Sheriffs and Civil Process Act. It follows that the lower Court was clearly in error to entertain the garnishee proceedings ad initiated in this case. Issue 2, is resolved in favour of the appellant.
Issue Three:
Was the refusal of the learned trial judge to consider on merit the Appellant’s application to set aside his garnishee order absolute justifiable having regard to the circumstance of the case.
This issue was distilled from grounds 1, 2 and of the grounds of appeal. Grounds one, two and three complained of the fact that the 3rd respondent filed an affidavit to show cause on 19th May, 2017, but it was not considered before the order was made absolute. He contended that failure to hear his application was a breach of his fundamental right. A look at the particulars of error in count 1 show the following details:
Particulars of Error:
1. The garnishee nisi was served on the appellant who forwarded same on the 17th May, 2017 to its counsel, Adamson Adeboro & Co., with the instruction to file affidavit to show cause that the Judgment Debtors have no funds in the accounts they maintained with the appellant.
2. The appellant through its Solicitor Emmanuel Ewere Esq., of Adamson Adeboro & Co., filed an affidavit to show cause dated 19th may, 2017 being a Friday:
3. The Appellant’s affidavit to show cause could not get to the trial Court’s filed before the matter was heard on Monday the 22nd May, 2017 at about between 9:00am – 9:15am or thereabout.
4. It was found that the Appellant’s counsel, Emmanuel Ewere Esq., had a matter in Court 31 on the same date in the same premises with the trial Court in this matter i.e. Jabi, Abuja. It was also discovered that the said Emmanuel Ewere having arrived at Court 31, Jabi settled down before moving to Court 32, the trial Court in the same Jabi, Abuja and upon getting there discovered that the matter had been called first and concluded by 9:15am or thereabout and the trial Court made the garnishee nisi absolute against the appellant.
5. The appellant timeously on the 23rd May 2017, applied by Motion on Notice to have the Garnishee Order absolute set aside. The Appellant filed further affidavit on the 2nd June, 2017. The 2 (two) affidavit explained the circumstances leading to the application for setting aside the garnishee order absolute, same having been given by default of appearance, hence a default judgment.
6. The learned trial judge upon listening to parties before him on the 6th June, 2017 refused to set aside the default order/ judgment.
7. The failure of the learned trial to set the garnishee order absolute with all the facts before him the Judgment Debtors have no funds in their account with the Appellant has led to miscarriage of justice to the Appellant.
The order nisi was allegedly served on 17/05/2017 on the appellant. The appellant reacted and filed his affidavit to show cause on 19/05/2017 but the order absolute was made on 22/05/2017. After discovering that he was moved to file a Motion to set the order aside but the Motion was turned down by the lower Court on the ground that the Court was functus officio.
At the time of making the order nisi absolute on 22/05/2017, the affidavit of the appellant had been filed at the lower Court. It appears the attention of the learned trial judge was not drawn to the process filed, so the affidavit was not considered. If the Court made the order against the appellant without fair hearing, it is our law that such a hearing is a breach of right to fair hearing. The repercussion is that the proceedings held in defiance of the right of the appellant to fair hearing is a nullity. If it is a nullity, then the trial Court had jurisdiction to review that order. Failure to review the order absolute was therefore, in error. I am of the view therefore, that the making of the Garnishee Order absolute against the appellant was not right.
From the foregoing therefore, I am of the view that the appeal has merit. I agree that this appeal be and it is hereby allowed. The Ruling of the lower Court in Suit No: FCT/HC/CV/18/2017, delivered on 22/05/2017, is hereby set aside.
Appearances:
ADEBORO ADAMSON, ESQ. For Appellant(s)
PREYE AGEDAH, ESQ., with him, PRETTY EKPE, ESQ. – for 2nd and 4th Respondents. For Respondent(s)