CBN v. JAY JAY & ORS (2020)

CBN v. JAY JAY & ORS

(2020)LCN/14880(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/MK/121/2019

RATIO

APPEAL: WHETHER A RESPONDENT WHO HAS NOT CROSS-APPEALED OR FILED A RESPONDENT’S NOTICE CAN FROMULATE ISSUES FOR DETERMINATION

A respondent who has not cross – appealed or filed a respondent’s notice cannot formulate issues for determination outside the grounds of appeal. Such issues are incompetent and liable to be struck out. See Arum V Nwobodo (2013) 10 NWLR (Pt. 1362) 374 and Okonkwo V Ezeaku (2020) 5 NWLR (Pt. 1718) 477. PER EYO EKANEM, J.C.A.

GARNISHEE PROCEEDINGS: IMPLICATION OF SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT 2004

Section 84(1) of the Sheriffs and Civil Process Act, 2004, provides that –
“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 custodia legis, 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 the Court in the case of money in custodia legis as the case may be.”
Section 84(3) of the same Act states:
“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 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 foregoing provisions have been held to be a condition precedent to the exercise of a Court of the jurisdiction to entertain garnishee proceedings covered by the provision. A Court is competent to exercise jurisdiction only where the case before it is initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. Thus where a judgment creditor fails to obtain the requisite consent of the Attorney-General before taking out a garnishee proceeding in a situation covered by Section 84 (1) of the Act, the Court is deprived of jurisdiction to entertain such a proceeding. See Onjewu V Kogi State Ministry of Commerce and Industry (2003) 10 NWLR (Pt. 827) 40, Government of Akwa Ibom State V Powercom Nig Ltd (2004) 6 NWLR (Pt. 868) 202 and CBN V Ainamo (2019) 7 NWLR (Pt. 1672) 407. PER EYO EKANEM, J.C.A.
STARE DECISIS: RULE ON BINDINGNESS OF DECISIONS OF SUPERIOR COURTS ON INFERIOR COURTS

Though the decisions of superior Courts are binding on inferior Courts, a decided case furnishes a basis for the determination of a later case only if the facts or issues in the subsequent case are similar to those in the earlier case. Thus a lower Court would not be bound to follow decisions of superior courts cited before it which were not informed by similar facts or issues the lower Court subsequently confronts. This is because a case is authority for only what it actually decides in the context of the prevailing facts. See Clement V Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39, Ado V State (2017) 15 NWLR (Pt. 1587) 65 and Interdrill (Nig) Ltd V UBA Plc (2017) 13 NWLR (Pt. 1584) 52. PER EYO EKANEM, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

CENTRAL BANK OF NIGERIA APPELANT(S)

And

1. YUSUF JAY JAY (JOSEPH) 2. COMMISSIONER OF POLICE NASARAWA STATE & 1 OR RESPONDENT(S)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The 1st respondent sued the 2nd respondent in the High Court of Nasarawa State (the lower Court) for the enforcement of his fundamental rights. He was the 1st applicant in the suit. He and his co – applicants claimed several reliefs including the sum of N100,000,000:00 as general damages for the breach of their fundamental rights. The lower Court granted the application.

For the purpose of the enforcement of the judgment, the 1st respondent applied by a motion ex – parte for a garnishee order nisi attaching the judgment debt plus N5,000,000:00 in the accounts of the 2nd respondent with three banks including the appellant. This was done after the 1st respondent wrote a letter to the Attorney – General of the Federation on the judgment debt without any response. The order nisi was made as prayed. Upon being served with the enrolled order, the appellant filed an affidavit to show cause on 27/4/2018, deposing that it does not maintain any account in the name of the 2nd respondent. Subsequently on 10/7/2018, the appellant filed a notice of preliminary objection praying the Court

to set aside the garnishee order nisi and discharge it on the ground, inter alia, that the 1st respondent did not comply with Section 84 of the Sheriffs and Civil Process Act, 2004.

The lower Court dismissed the objection, heard parties on their affidavit evidence and thereafter granted a garnishee order absolute against the appellant.

Dissatisfied with the decision, the appellant has appealed to this Court by means of a notice of appeal which incorporates three grounds of appeal.

Pursuant to the rules of this Court, the appellant filed:
(i) A brief of argument settled by Mrs. L.O. Patrick which was filed on 12/9/2019, and
(ii) A reply brief prepared by P.H. Oboma, Esq. which was filed on 14/10/2019.

The 1st respondent filed his brief of argument on 7/10/2019. It was settled by A.J. Yusuf, Esq.

At the hearing of the appeal on 18/11/2020, Emmanuel Katkur, Esq., for the appellant adopted and relied on the briefs of argument filed on behalf of the appellant in urging the Court to allow the appeal. Adejoh J. Yusuf, Esq., for the 1st respondent adopted and relied on 1st respondent’s brief of argument in urging the Court to

dismiss the appeal. The 2nd respondent though served with the processes of Court including hearing notice was absent and unrepresented by counsel. He did not also file any brief of argument.

In the appellant’s brief of argument, the following issues have been formulated for the determination of the appeal:
i. Whether the learned trial judge was right in assuming jurisdiction to make a Garnishee Order Absolute attaching funds in statutory custody of the Appellant without the prior consent of the Honourable Attorney-General of the Federation first sought and obtained in compliance with Section 84 of the Sheriffs and Civil Processes Act Cap S6 LFN 2004.
(Distilled from Ground 1 of the Notice of Appeal)
ii. Whether in the light of all material evidence placed before the trial Court, the learned trial judge was right in construing the Appellant’s Preliminary Objection attacking the jurisdiction of the Court for non-compliance with Section 84 of the Sheriffs and Civil Processes Act Cap S6 LFN 2004 as an attempt to avert justice.
(Distilled from Ground 2 of the Notice of Appeal).
iii. Whether the trial Court was right

in relying on public knowledge of the treasury single account policy to speculate the existence of an account in the name of the 2nd Respondent”.

In the 1st respondent’s brief of argument, counsel for the 1st respondent states as follows:
“Your lordships, while the 1st Respondent will be adopting the three issues formulated for determination of the Court by the Appellant, the 1st Respondent shall call upon this Court to consider the following two issues for determination:
i. Whether or not the trial Court acted without jurisdiction having regard to the provision of Section 84 of Sheriffs and Civil Process Act in view of exhibit “A” of pages 184 – 185 of the record of appeal? Ground 1 and 2 of the notice of Appeal.
ii. Whether or not the silence of Attorney – General of the Federation in response to exhibit “A” does not qualified (sic) as having sought the statutory consent of the Attorney – General of the Federation. See Grounds 1 and 2 of the notice of appeal”.

The formulation of issues by 1st respondent’s counsel is most awkward and unorthodox. Having adopted the

issues formulated by appellant’s counsel, it is impermissible for him to proceed to formulate his own issues. The result of this fresh formulation is that 1st respondent’s counsel has in effect formulated five issues for determination of the appeal from the three grounds of appeal contained in the notice of appeal. That is nothing but proliferation of issues which appellate Courts frown at. As has been rightly pointed out by appellant’s counsel, the supplementary issues formulated by 1st respondent’s counsel do not arise from the grounds of appeal crafted in the notice of appeal. The 1st respondent did not file a cross – appeal or a respondent’s notice. A respondent who has not cross – appealed or filed a respondent’s notice cannot formulate issues for determination outside the grounds of appeal. Such issues are incompetent and liable to be struck out. See Arum V Nwobodo (2013) 10 NWLR (Pt. 1362) 374 and Okonkwo V Ezeaku (2020) 5 NWLR (Pt. 1718) 477. Furthermore, the two issues are said to be distilled from grounds 1 and 2 of the notice of appeal. This again is proliferation of issues as two issues cannot spring

from the same grounds of appeal.
Consequent on the foregoing, I hereby strike out the two extra issues formulated by 1st respondent’s counsel along with his argument in respect thereof on pages 6 – 8 paragraphs 2.1 – 2.13 of his brief of argument.
Counsel for the appellant proffered the following arguments in respect of the issues formulated by him.

In respect of issue 1, appellant’s counsel submitted that for the jurisdiction of the trial Court to be validly invoked with a view to making a garnishee order for the attachment of public funds in circumstances governed by Section 84 of the Sheriffs and Civil Process Act, the consent of the appropriate officer contemplated under the provision must be sought and obtained. In this instance, she added, it is the consent of the Attorney – General of the Federation that must be sought and obtained. She contended that the absence of such consent robs the Court of jurisdiction. She cited and relied on Onjewu V Kogi State Ministry of Commerce and Industry (2003) 10 NWLR (Pt. 827) 40 among other cases. She referred to the case of CBN V Interstella Communication Ltd (2018) 7 NWLR

(Pt. 1618) 294 and stated that the Supreme Court in that case did not nullify the law as it relates to obtaining the prior consent of the appropriate officer. Rather, she contended that the apex Court held that on account of the peculiar facts of the case, the consent of the Attorney – General was deemed to have been obtained. She then distinguished the instant matter from the facts of CBN V Interstella Communication Ltd supra.

In respect of issue 2, counsel submitted that issue of jurisdiction can be raised at any stage of proceedings and that it is the primary obligation of counsel as a minister in the temple of justice to raise issue of jurisdiction. It was her contention therefore that the trial Court misdirected itself when it made the garnishee order absolute by holding that the conduct of the appellant in attacking the jurisdiction of that Court after having filed an affidavit to show cause created doubts in the mind of the Court and amounted to an attempt to avert justice. She submitted that the attack on the jurisdiction of the trial Court did not amount to an attempt to subvert or avert justice. Counsel posited that there was substantial

hostility of facts in the parties’ affidavit evidence concerning the existence or otherwise of an account in the name of the 2nd respondent. She lamented that the trial Court jettisoned the procedure for resolution of such disputes as contemplated in Section 87 of the Sheriffs and Civil Process Act.

Arguing her issue 3, counsel contended that the lower Court erred in making a garnishee order absolute by heavily relying on public knowledge of the TSA policy of the Federal Government when the 2nd respondent is neither a ministry, agency or parastatal within the context of that policy.

Counsel for the 1st respondent, referred to CBN V Interstella Communication Ltd supra. and submitted that the primary purpose for seeking of the consent of the Attorney – General is only to put that officer on notice of a pending judgment debt so as to avoid causing the embarrassment to him of not having 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. He then posited that the trial Court was right in holding that the failure of the Attorney –

General to reply to Exhibit A raises an irrefutable presumption of implied consent. He further posited that the silence of the Attorney – General amounted to giving implied consent by him. He invoked the case of CBN V Interstella Communication Ltd in support of his position.

Counsel argued that the role of the appellant is to file an affidavit to show cause and not to play the role of the judgment debtor.

In respect of issue 2, counsel submitted that the appellant cannot say that the 2nd respondent does not operate an account with it in view of its letter attached to the affidavit of the 2nd respondent to the effect that its account with it had been attached. He further submitted that there was no substantial hostility of facts to warrant a setting aside of the order nisi. He finally stated that the issue of the trial Court relying on public knowledge of the Treasury Single Account policy did not arise in view of affidavit evidence.

In her reply, appellant’s counsel argued that the case of CBN V Interstella Communication Ltd supra. is materially different from the instant appeal. She further argued that a mere letter to the Attorney

– General did not qualify as consent within the purview of Section 84 of the Sheriffs and Civil Process Act.

It seems to me that one issue will suffice for the determination of this appeal, to wit;
Was the lower Court right in assuming jurisdiction over the garnishee proceeding?

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 foregoing provisions have been held to be a condition precedent to the exercise of a Court of the jurisdiction to entertain garnishee proceedings covered by the provision. A Court is competent to exercise jurisdiction only where the case before it is initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. Thus where a judgment creditor fails to obtain the requisite consent of the Attorney-General before taking out a garnishee proceeding in a situation covered by Section 84 (1) of the Act, the Court is deprived of jurisdiction to entertain such a proceeding. See Onjewu V Kogi State Ministry of Commerce and Industry (2003) 10 NWLR (Pt. 827) 40, Government of Akwa Ibom State V Powercom Nig Ltd (2004) 6 NWLR (Pt. 868) 202 and CBN V Ainamo (2019) 7 NWLR (Pt. 1672) 407.
There is no contest between the parties that the funds that were attached by the lower Court were in the custody or control of the Central Bank of Nigeria which has been held

to be within the contemplation of the phrase “Public Officer”. See CBN V Kakuri (2016) LPELR- 41468 (CA). It is also not in dispute that the express consent of the Attorney-General of the Federation was not obtained or given before the garnishee proceeding was commenced. The contention of the 1st respondent is that having written to the Attorney-General of the Federation to communicate the failure of the 2nd respondent to pay the judgment debt, he had complied with all the duties imposed on him before commencing the garnishee proceedings and so his case was not caught by Section 84 (1) of the Act.
The trial Court agreed with the 1st respondent, holding at page 277 of the record of appeal as follows:
“On the issue of the failure of the Judgment Creditor to obtain the consent of the Attorney-General before involving the Central Bank of Nigeria in this proceeding, I wish to state here that the Applicant’s perception is misconceived. Exhibit A attached to the Judgment Creditors counter Affidavit is a letter written to the Attorney General of the Federation by the Judgment Creditor’s counsel A.Y. Jibrin Esq, requesting for

the consent of the Attorney General dated 25th day of January, 2018. While this proceeding was instituted in this Court on the 8th day of March, 2018, which in my opinion in (sic) enough time in between, for the office of the Attorney General to have communicated their response to the counsel. A response from the Attorney General is necessary to Exhibit A, failure of the Attorney General to reply to Exhibit A raises an irrefutable presumption of implied consent of the Attorney General to the Judgment Creditor’s counsel. See the case of Gwani V Ebule (1990) 5 NWLR (Pt. 149) 201 where the Court while relying on the Supreme Court’s decision in JOE IGA Vs AMAKIRI (1976) 11 S.C. held that:
“The Appellant by his silence in the circumstances in which a reply is obviously expected raises an irrefutable presumption of admission by conduct or representation”.
It is this Court’s opinion that the silence of the Attorney General of the Federation to Exhibit A in the circumstances in which a reply is obviously expected raises an issue of the tacit or implied consent as the Judgment Creditor cannot wait till infinity for the Attorney

General either in person or through officers in his department to wake up from their slumber to give consent for the Judgment Creditor to be able to claim what rightly belongs to him”.
With all due respect, I do not agree with the trial Court. The case of Gwani V Ebule supra relied upon by the trial Court to arrive at its conclusion has no bearing on the instant matter. In the case ofGwani V Ebule supra, the appellant owed the respondent money for work done for him. He wrote demanding for payment for the labour he supplied as agreed but the appellant did not reply to the letter of demand. In this instance, the Attorney-General of the Federation is not indebted to the 1st respondent as the judgment sum was not awarded against. Where the Attorney-General fails to expressly give or withhold his consent for the attachment, the Judgment Creditor cannot rush to the Court to commence garnishee proceeding on the basis of an implied consent. The judgment creditor can sue the Attorney-General for an order of mandamus to compel him to give his consent or to exercise his discretion one way or the other. In the case ofFawehinmi V Akilu (1987) 2 NSCC 1265, 1289

the Supreme Court recognized that mandamus may be issued against a public officer or office with a public duty but that the order is not available where there is no duty but only a discretion. The Court went on to state (per Obaseki JSC), that:
“The duty must be reasonably certain…. but may be a duty to exercise a discretion……”
With the duty imposed on the judgment creditor to first obtain consent from the appropriate officer, it is my view that the Attorney-General has a duty to express his consent or refusal and that he can be compelled by mandamus where he fails to do so within a reasonable time to express his position one way or the other.
In the case of Government of Akwa Ibom State V Powercomm Nig Ltd supra. 223 Opene, JCA, took an even stronger view of the issue thus:
“….an order of mandamus can be issued against the Attorney-General to compel him to give the necessary consent if he is reluctant to do so rather than the cry over an anticipated or imaginary refusal to give consent, if he is reluctant to do so”.
Appellant’s counsel placed reliance on the case of

CBN V Interstella Communication Ltd supra where the Supreme Court held at page 344 that:
“it should be noted 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”.
The above does not mean that if Attorney-General does not respond to application for consent for attachment, then consent can be presumed. The case of CBN V Interstella Communication Ltd supra was decided on its peculiar facts. Indeed, Ogunbiyi, JSC, acknowledged this fact when his lordship stated at page 344 thus:
“Rather and as rightly argued and submitted by learned counsel for the 1st and 2nd respondents, the peculiar facts of this case herein remove 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 Exhibit “I” and “L” had already been obtained and the appellant (CBN) was acting as a banker

only, to the 3rd respondent (FGN)”.
What are the peculiar facts of the case of CBN V Interstella Communication Ltd supra? They include:
(i) By Exhibits “I” and “L”, the Federal Government and the Attorney-General of the Federation undertook to pay N12 Billion in full and final settlement of the debt of N23 Billion owed by the NITEL to the judgment creditors, who accepted the offer.
(ii) With the consent of the Federal Government and the Attorney –General, the agreed sum of N12 billion was entered as consent judgment in favour of the Judgment Creditors.
(iii) The Federal Government and Attorney General-General paid N2.7 billion of the judgment debt through the Central Bank of Nigeria, but thereafter delayed payment.
In the above circumstances, it was held that consent of the Attorney-General had already been obtained and that for Section 84 of the Sheriffs and Civil Process Act to apply, the Attorney-General must be a neutral/nominal party in the transactions and proceedings giving rise to the application for an order nisi and not him being the debtor. It was further held that with the

Attorney-General of the Federation being the judgment debtor, it would be absurd to require his consent. None of these circumstances exist in the instant matter to bring it into the purview of the case of the CBN V Interstella Communication Ltd supra. Though the decisions of superior Courts are binding on inferior Courts, a decided case furnishes a basis for the determination of a later case only if the facts or issues in the subsequent case are similar to those in the earlier case. Thus a lower Court would not be bound to follow decisions of superior courts cited before it which were not informed by similar facts or issues the lower Court subsequently confronts. This is because a case is authority for only what it actually decides in the context of the prevailing facts. See Clement V Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39, Ado V State (2017) 15 NWLR (Pt. 1587) 65 and Interdrill (Nig) Ltd V UBA Plc (2017) 13 NWLR (Pt. 1584) 52.
Contrary to the holding of the lower Court, the fact that the appellant raised a preliminary objection to the garnishee proceeding on the basis of Section 84 of the Sheriffs and Civil Process Act after prevaricating as to whether

the 2nd respondent owns an account with it does not mean that it was trying to avert justice. This is because where a Court lacks competence or jurisdiction to entertain a matter, the entire process will amount to a nullity ab initio. The issue of competence is extrinsic to adjudication. Therefore, the issue of jurisdiction can be raised at any stage even on appeal for the first time irrespective of the conduct of the party raising it. See Madukolu V Nkemdilim (1962) All NLR 587, Attorney – General of Lagos State V Eko Hotels Limited (2018) 7 NWLR (Pt. 1619) 518 and Zakari V Nigerian Army (2015) 17 NWLR (Pt. 1487) 77.
It is therefore my view that in the light of what I have said thus far, the garnishee proceeding was commenced in breach of Section 84(1) of the Sheriffs and Civil Process Act, 2004. A condition precedent to the commencement of the proceeding was not fulfilled and so the Court lacked the competence to entertain it.
I therefore enter a negative answer to the issue for determination and resolve it in favour of the appellant.
Before reaching the denouement of this judgment, it seems to me proper to make the

following comment. It is the responsibility of the Attorney – General of the Federation to ensure that judgment debts owed by the Federal Government or any of its ministries, departments or agencies are paid and promptly too. The Attorney – General should not allow himself, government ministries, departments or agencies to use Section 84(1) of the Sheriffs and Civil Process Act to frustrate the judgments of Courts. Acting otherwise implies that the Attorney–General has set out to frustrate the enforcement of judgments of Courts. Treating judgments of Court in this manner imperils delivery of justice and throws our society closer to anarchy.
On the whole, the appeal has merit and I accordingly allow it. I set aside the decision of the trial Court, nullify the garnishee proceeding and discharge the appellant.
The parties shall bear their costs.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Joseph E. Ekanem, JCA, in which this appeal has been allowed. The resolution of the issue arising for determination has been fully considered and

resolved, and, I adopt same as mine.
I also allow this appeal and abide by the orders made in the lead Judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE. J.C.A.: I have read in draft the judgment of my learned brother, Joseph E. Ekanem, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

Appearances:

Emmanuel Katkur, Esq. For Appellant(s)

Adejoh J. Yusuf, Esq. – for 1st respondent
2nd respondent unrepresented though served with hearing notice. For Respondent(s)