ODOR & ANOR v. GOV OF IMO STATE & ORS
(2020)LCN/15386(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Wednesday, September 30, 2020
CA/OW/388/2018
RATIO
GARNISHEE PROCEEDINGS: DUTY OF A GARNISHEE
A Garnishee cannot assumed the power to fight for the judgment debtor, in a garnishee proceedings, with a view to defend the interest of the judgment debtor and protect the judgment debtor’s funds in its (garnishee’s) custody, thereby defying the Order Nisi, made by the Court.
See the case of Guaranty Trust Bank PLC Vs. Innoson Nigeria Ltd., (2017) LPELR – 42368 SC, where it was held:
“The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession, belonging to the judgment debtor, should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor, nor protect the debtors money in its possession. See Oceanic Batik PLC Vs. Michael Olusegun Oladepo & Anor. (2012) LPELR – 79670 (CA)” Per Kekere-Ekun, JSC.
Per Eko JSC:
“It is not for a garnishee to fight the cause of a judgment debtor, who either accepts the judgment against him and does nothing about it, or who may be indolent to fight its cause. No power in law inheres in the garnishee to make himself a busybody and proceed, like Don Quixotee, the Knight Errant, to fight the cause of the judgment debtor, who is his customer.” PER ITA GEORGE MBABA, J.C.A.
INTERPRETATION OF STATUTES: PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
Now it is a principle of the interpretation of statutes that in construing a statute effect must be given to the objects which the legislature intend that such legislation shall have if it is possible to give effect to such purpose without doing violence to the words of the legislation. This is known as the Golden Rule of Interpretation. Furthermore, it is a cardinal principle of the interpretation of Statutes that a particular provision must not be taken in isolation for interpretation but that the whole statute must be read as a whole in order to get the real meaning of words in the Statute. (i) Ekpo v. Calabar Local Government Council (1993) 3 NWLR (Pt. 281) 324 at 337; (ii) Adewumi v. Attorney-General, Ondo State (1996) 8 NWLR (Pt. 464) 73 at 77, 116. In the Interpretation of constitutional provisions, certain rules have emerged:- Because the function of the Constitution is to establish framework and principles of government which are broad and general in terms and intended to apply to the varying conditions entailed by the development of the diverse communities that exist in the dynamic and pluralistic Nigerian society, mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. On the contrary, some of these principles of constitutional interpretation must be borne in mind; (a) the Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision of the Constitution cannot be severed from the rest of the Constitution; (b) the principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used measure the purpose and scope of its provisions; (c) words of the Constitution are not to be read with stultifying narrowness; (d) Constitutional language is to be given a reasonable construction, and absurd consequences are to be avoided: (e) Constitutional provisions dealing with the same subject matter are to be construed together; (f) Seemingly conflicting parts are to be harmonised, if possible, so that effect can be given to all parts of the Constitution; (g) The position of an article or clause in a Constitution influences its construction; (h) where in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them without resorting to any external aid. (I) words of a Constitution may not be ignored as meaningless: some meaning or effect should be given to all the words used therein if it is possible to do so in conformity with the intention of the framers.” See (i) Rabiu v. State (1980) 9-11 S.C. 130 at 249; (ii) A.G. Bendel State v. A.G. Federation (1981) 10 S.C. 122; (1982) 3 NCLR 1. (iii) Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) p. 506 at 518-9; 558-9. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
GARNISHEE PROCEEDINGS: WHETHER THE COURT IS EMPOWERED TO ORDER A THIRD PARTY TO PAY THE DEBT DIRECTLY TO THE JUDGMENT CREDITOR
Garnishee proceedings are processes used to enforce money judgments by seizing or attaching the debts due or accruing to the judgment debtor which form part of his property available in execution. The Court is empowered to order a third party to pay the debt direct to the judgment creditor the debt due or accruing from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings.
This process makes the garnishee proceedings a special form of execution of judgment by a statutory proceeding in which a judgment debtor’s property, money or credit in possession, custody or under control of or owing by a garnishee are applied to the payment of former debt to a third person as against the debtor and the garnishee. See FIDELITY BANK PLC. VS. OKWUOWULU & ANOR (2012) LPELR – 8497 (CA); U.B.N PLC VS. MARCUS IND. LTD (2005) 7 SC (Pt. 1) 70; FBN PLC VS. FCMB PLC (2013) LPELR – 22050 (CA).
It is the law that the duty of the Garnishee is to appear in Court and show cause why the order nisi should not be made absolute. See Section 83 (1) of the Sheriffs and Civil Process Act 2004. It is not the duty of the Garnishee to defend the judgment debtor. See TOTAL UPSTREAM NIG LTD VS. A. I. C. LTD & ORS (2015) LPELR–25388 (CA). PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
1. CHIEF EMMANUEL ODOR (Administrator Of The Estate Of Sylvanus Nmazu Odor (Deceased) 2. AUGUSTINE ODOR APPELANT(S)
And
- THE GOVERNOR OF IMO STATE 2. ATTORNEY–GENERAL, IMO STATE 3. THE COMMISSIONER FOR LANDS, SURVEY & URBAN PLANNING, IMO STATE UNITED BANK FOR AFRICA PLC RESPONDENT(S)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Imo State High Court (Coram: Hon. Justice F. I. Duruoha–Igwe, J.) delivered on 23/4/2018 in Suit No. HOW/52M/2017 (see page 100 of the Record of Appeal, hitherto to be referred to as “the Record” for short.)
The facts of this case are that on 2/2/2017 the Trial Court delivered judgment in favour of the Appellants in Suit No. HOW/617/2012: CHIEF EMMANUEL ODOR & ANOR VS. THE GOVERNOR OF IMO STATE & OTHERS in which the Appellants were awarded a total of One Hundred and Sixty-Six Million, Six Hundred and Fifty-Seven Thousand, Eight Hundred and Twenty-Five Naira, Seventy-Four Kobo (N 166, 657, 825.74) only as special and general damages and cost (see pages 66 – 92 of the Record).
On 22/2/2017, the Appellants commenced garnishee proceedings against various garnishees including the Respondent. On 27/3/2017 the trial Court made an order nisi against the garnishees including the Respondent. (Pages 9 – 11 of the Record).
The Garnishee/Respondent filed a number of affidavits in the course of showing cause as ordered by the Trial Court at various dates (see pages 24–27, 33–34, 47–49 of the Record) and the Appellants filed counter affidavit and further counter affidavit.
The Garnishee/Respondent disclosed some amount of money in the accounts of the judgment debtor and after some time of scrutiny of the accounts, the trial Court delivered a short ruling, discharging the Garnishee/Respondent.
Dissatisfied with the short ruling the appellants have appealed to this Court on a two ground notice of appeal filed on 7/5/2018 (pages 101–105 of the Record).
The Grounds of Appeal, with their particulars, are:
“GROUND ONE
The learned trial judge erred in law in discharging the Garnishee (United Bank for Africa Plc.) when the said Garnishee did not show cause why the order nisi should not be made absolute.
PARTICULARS OF ERROR
(i) The Judgment Creditors filed an exparte application for a garnishee order nisi to be made against the garnishees.
(ii) On the 27/3/2017, the lower Court granted the said exparte application.
(iii) All the garnishees and the judgment Debtors were duly served with the garnishee order nisi.
(iv) On the 7/6/2017 and 17/7/2017, the lower Court discharged all the garnishees except the Garnishee/Respondent (United Bank for Africa Plc.).
(v) The Garnishee/Respondent (United Bank for Africa Plc.) admitted having funds of the judgment debtors in her custody.
(vi) The Garnishee/Respondent in her further further further further affidavit filed, disclosed that she had funds of the judgment debtors in her custody to the tune of N185M.
(vii) The Garnishee/Respondent did not show cause why the order nisi should not be made absolute in respect of the funds or money of the judgment debtors in her custody or possession.
(viii) The garnishee/respondent ought not to have been discharged.
GROUND TWO
The learned trial judge erred in law in failing and or refusing to make absolute the garnishee order nisi when the garnishee/respondent (United Bank for Africa Plc.) had in her custody and possession money or funds of the judgment debtors and did not show cause why the order absolute should not be made.”
It should be noted that the two grounds of appeal contain the same particulars so that there is no need duplicating the same.
The Relief sought from this Court is:-
“To allow the appeal set aside the decision of the Lower Court and make a garnishee order absolute against the Garnishee/Respondent to pay the judgment debt plus the cost of the garnishee proceedings.”
The Record of Appeal was compiled and transmitted to this Court outside the required period allowed by the Rules of this Court, hence by an order of this Court granted on 9/5/2019, same was regularized and deemed properly compiled and transmitted on the said date.
The Appellants’ Brief of Argument, settled by Leslie A. Njemanze Esq. was filed on 3/6/2019 while the Respondents’ Brief settled by B. N. Amaghereonu Esq. Assistant Director, Ministry of Justice Imo State Owerri was filed on 16/7/19.
This appeal was heard on 9/7/2020, on which date both Counsel adopted their respective briefs, the Appellants’ Counsel urging us to allow the appeal while the Respondents’ Counsel urged us to dismiss same. The Appellants’ Learned Counsel in his Brief of Argument distilled a sole issue for determination, which was adopted by the 1st-3rd Respondents’ Learned Counsel, as follows:-
“Whether having regard to the circumstance of the garnishee proceedings and the law, the Lower Court was right in discharging the Garnishee/Respondent (Grounds 1 and 2)”
In his Appellants’ Brief, the Learned Counsel summarized the facts of the case and submitted in summary as follows:-
(a) He stated the meaning, purpose, principles, procedure and nature of garnishee proceedings as enunciated in GTB PLC. VS. INNOSON NIGERIA LTD (2017) 16 NWLR (PT. 1591) 181 at 197; CITIZEN INTERNATIONAL BANK VS. SCOA (NIG) LTD (2006) 18 NWLR (PT. 1011) 332; UBN PLC VS. BONEY MARCUS IND. LTD (2005) 13 NWLR (PT. 943) 654 at 666-667 paras F–A; Sections 83, 85 and 86 of the SHERIFFS AND CIVIL PROCESS ACT and FIDELITY BANK PLC. VS. OKWUOWULU (2013) 6 NWLR (PT. 1349) 197 at 212–214.
(b) Once the garnishee order nisi is made against a garnishee, the garnishee has the onerous duty and task of showing cause why the order should not be made absolute since the garnishor no longer has any duty to place any materials before the Court, once service of the order nisi has been effected on the garnishee; the onus is on the garnishee to show by credible, cogent and convincing evidence why the order should not be made absolute and must establish that no account exists in its system, or if it exists, it is heavily in debt and not in credit, relying on FIDELITY BANK PLC. VS. OKWUOWULU (supra) GOVERNOR OF IMO STATE VS. OGOH (2015) LPELR–25949 (CA); CBN VS. OKPANACHI (2018) LPELR–46730; CBN VS. INTERSTELLA COMMUNICATIONS (2017) (SC); IHEAKAM VS. FIRST BANK OF NIGERIA (2017) LPELR–43545 (CA).
(c) On return date of a garnishee order, that it gives effect to the provisions of Section 86 of the Sheriffs and Civil Process Act so that the Court will make the order nisi absolute on proof of service, if the garnishee does not, within the prescribed period, pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the costs of the garnishee proceedings, and does not dispute the debt due or claimed to be due from him to such debtor or if he does not appear, relying on WEMA BANK PLC VS. BRASTEM–STERR (NIG) LTD (2011) 6 NWLR (PT. 1242) 58 at 82; ZENITH BANK PLC VS KANO (2016) LPELR–40335 (CA); SKYE BANK VS. YAVAT B. DAVID (2016) 41548 (CA); that the duty of the garnishee in garnishee proceedings is to satisfy the Court why the funds in his possession belonging to the judgment debtor should not be garnished to pay the judgment debt and not to play an advocate for the judgment debtor or protect the debtor’s money in his possession, relying on GTB PLC. VS. INNOSON (NIG) LTD (supra).
(d) That the Garnishee/Respondent’s affidavit of 14/2/2018 contains admissions that it has in her possession or custody money of the Judgment Debtors/Respondents to the tune of more than N200,000,000.00 (Two Hundred Million Naira) which sum is sufficient to satisfy the judgment debt; that by virtue of the provisions of Sections 20 and 123 of the Evidence Act, facts admitted need no further proof, as they are taken as established and form part of the agreed facts of the case, which judicial admissions are conclusive, relying on TAIWO VS. ADEGBORO (2011) NWLR (PT. 1259) 562 at 583 and EGBUNIKE VS. ACB LTD (1995) 2 NWLR (PT. 375) 34; that in the instant appeal after all deductions from the initial sum of N510,000,000.00 (Five Hundred and Ten Million Naira) disclosed in the Garnishee/Respondent’s first affidavit of 19/6/2017, the Garnishee/Respondent admitted in the affidavit of 14/2/2018 that it still has in her possession or custody the sum of more than N200,000,000.00 (Two Hundred Million Naira) belonging to the Judgment Debtors; that from the affidavit evidence before the Lower Court, it was clear that the judgment Debtors/Respondents were customers of the Garnishee/Respondent and 9 of their accounts were in credit and that they were not indebted to the Garnishee/Respondent; that as at the time the Lower Court discharged the Garnishee/Respondent there was no third party interest in the accounts (except the sum of N44.7 Million after proceedings in Suit No. HOW/50M/2017) and that the Garnishee/Respondent had more than N200, 000,000.00 belonging to the Judgment Debtors/Respondents in her custody or possession; that the Garnishee/Respondent failed to show credible and convincing evidence why the Lower Court should not make an order absolute in the circumstance; that the Lower Court ought to have given effect to the provisions of Section 86 of the Sheriffs and Civil Process Act and make the order absolute, relying on WEMA BANK PLC VS. BRASTEM–STERR (NIG) LTD (supra); OCEANIC BANK PLC VS. OLADEPO (2013) 8 WRN 157; CITIZEN INTERNATIONAL BANK LTD VS. SCOA NIGERIA LTD (2006) ALL FWLR (PT. 323) 1680.
Learned Counsel urged us to hold that having regard to the circumstance of the Garnishee proceedings and the law, the Lower Court ought not to have discharged the Garnishee/Respondent but ought to have given effect to the provisions of Section 86 of the Sheriffs and Civil Process Act and made the order absolute. In conclusion and prayer, this Court was urged to hold that this appeal is meritorious and to allow same, set aside the decision of the lower Court, and make an order absolute against the Garnishee/Respondent.
B. N. Amaghereonu Esq. in the Respondents’ Brief, as earlier stated, adopted the lone issue formulated by the Appellants and after summarizing the facts of the case, submitted that garnishee in aid of execution of judgment is an incidental remedy wherever a Plaintiff seeks to collect the judgment debt by reaching the Defendant’s property in the hands of third party. He referred to AZUBUIKE VS. DIAMOND BANK PLC (2014) 3 NWLR (PT. 1394) 166 at 127 (sic) (167?) paras C–E Ratio 2 and SOKOTO STATE GOVERNMENT VS. KAMDAX NIGERIA LTD (2004) 9 NWLR (PT. 878) 345 at 380 paras C–E for the nature of procedure and scope of garnishee proceedings. He then submitted that in this suit the Garnishee/Respondent showed cause by stating that the money in the account of the Judgment Debtor with it had been attached by the National Industrial Court, Owerri for the settlement of a judgment debt in the Suit No. NIC/OW/59/2014: CHIEF IKEDI OHAKIM VS. IMO STATE GOVERNMENT & ORS which made the Lower Court to discharge the Garnishee/Respondent and refused to make the order absolute; that the affidavit evidence of the Appellants and the Garnishee/Respondent had adequately resolved all the issues relating to liability of the Garnishee/Respondent hence the Lower Court did not resort to Section 87 of the Sheriffs and Civil Process Act which empowers the lower Court to resolve any issue or question necessary for determination of liability to be tried in open Court, which would naturally include the examination–in–chief of witnesses, cross-examination and reexamination, to determine or resolve the issue in contention. He also stated that the Appellants had 2 other garnishee proceedings against the Judgment Debtors at Owerri High Court; that the Garnishee/Respondent did not depose in its affidavit of 14/2/2018 that the only caveat or encumbrance is that the Garnishee Proceedings in Suit No. HOW/50M/2017: ODOR VS. THE GOVERNOR OF IMO STATE was still pending and that the Garnishee/Respondent has not been discharged in that proceeding but that its defence which was correct was that the Judgment Debtors’ funds in its custody were attached in some other cases at the National Industrial Court, Owerri.
Learned Counsel also submitted that the Garnishee/Respondent proved to the Trial Court by credible and convincing evidence the state of affairs of the funds in its custody and thus complied with the provisions of Section 86 of the Sheriffs and Civil Process Act in its affidavit evidence; that the Garnishee Proceedings which led to this Appeal and the Appeal itself are incompetent as the consent of the Attorney–General which is required by law to be first sought and obtained was not so sought and obtained by the Appellants before commencing the garnishee proceedings, relying on Section 84 of the Sheriffs and Civil Process Act; GOVERNMENT OF AKWA IBOM STATE VS. POWERCOM NIG. LTD (2005) ALL FWLR (PT. 246) 1353; CHRISTOPHER ONJEWU VS. KOGI STATE MINISTRY OF COMMERCE & INDUSTRIES (2003) 10 NWLR (PT. 827) 40.
Learned Counsel then urged us to dismiss this Appeal and uphold the decision of the Lower Court in discharging the Garnishee/Respondent and not to make any order absolute, as the Appeal lacks merit.
RESOLUTION
I would like to commence the resolution of this lone issue by a brief discourse on the nature and principles governing the garnishee proceedings. The starting point is the provision of Section 83 of the Sheriff and Civil Process Act LFN Cap 56 2004, which provides:
“83. (1) The Court may, upon the exparte 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 called 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 course 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 cost aforesaid.
(2) At least 14 days before the day of hearing the copy of the order nisi shall be served upon the garnishee and the judgment debtor.”
This provision has been given judicial pronouncements by the Appellate Courts. See SKYE BANK PLC VS. DAVID & ORS (2016) LPELR– 41548 (CA) Pages 19–22 paras F–B. Garnishee proceedings are processes used to enforce money judgments by seizing or attaching the debts due or accruing to the judgment debtor which form part of his property available in execution. The Court is empowered to order a third party to pay the debt direct to the judgment creditor the debt due or accruing from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings.
This process makes the garnishee proceedings a special form of execution of judgment by a statutory proceeding in which a judgment debtor’s property, money or credit in possession, custody or under control of or owing by a garnishee are applied to the payment of former debt to a third person as against the debtor and the garnishee. See FIDELITY BANK PLC. VS. OKWUOWULU & ANOR (2012) LPELR – 8497 (CA); U.B.N PLC VS. MARCUS IND. LTD (2005) 7 SC (Pt. 1) 70; FBN PLC VS. FCMB PLC (2013) LPELR – 22050 (CA).
It is the law that the duty of the Garnishee is to appear in Court and show cause why the order nisi should not be made absolute. See Section 83 (1) of the Sheriffs and Civil Process Act 2004. It is not the duty of the Garnishee to defend the judgment debtor. See TOTAL UPSTREAM NIG LTD VS. A. I. C. LTD & ORS (2015) LPELR–25388 (CA). In this case the Garnishee/Respondent has deposed to various affidavits as indicated above, disclosing all the accounts of the judgment Debtors in its custody or possession. It has also shown all the accounts which have been attached and which still had credit balance in them. For instance, at pages 47–49 of the Record, in the Further Further Further Further Affidavit of the 13th Garnishee/Respondent, the averments therein disclosed credit balances. From the Further Counter Affidavit at pages 54–55 of the Record, it is clear that none, except 2 of the accounts mentioned in paragraph 4 (a) – (j) of the Further, further, further, further, affidavit filed by the 13th Garnishee on 14/2/2018 was attached.
Even though the Garnishee/Respondent stated that the accounts indicated had been attached, it is clear that the order nisi made by the Trial Court in respect of this suit was first in time. The Learned Trial Judge stated thus at page 96 of the Record:-
“On the issue of which order nisi was first in time, my order nisi was made on 27th March, 2017 whereas that of the National Industrial Court sitting at Owerri was made in September 2017. So I have no reason whatsoever not to make my order nisi against the 13th Garnishee absolute. However, there appears to be some confusion in the computation. According to Learned Counsel some monies had been paid out of this account despite their protestations.
I will adjourn for them to give us the computation.”
After this adjournment it was discovered that the Garnishee/Respondent was not discharged in another proceedings in Suit No. HOW/50M/2017. However, the Garnishee/Respondent was discharged by the Trial Court on the ground that the Garnishee/Respondent which was the 13th Garnishee in that proceeding was not discharged.
I see no reason for this discharge. The 13th Garnishee in Suit No. HOW/50m/2017 which is the Garnishee/Respondent herein had disclosed in its affidavit clearly stating that there were sufficient funds in the judgment debtor’s accounts. This information was enough for the Trial Court to make the order absolute. I so hold.
However, there is the provision of Section 84 of the Sheriffs and Civil Process Act 2004 to contend with. The Section provides:-
“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 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 of the Court in the case of money in custodia legis, as the case may be.”
Subsection 2 provides:
“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”
Subsection 3 provides:-
“(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.”
It is clear that for a judgment creditor to successfully enforce judgment debt by garnishee proceedings there must be compliance with the provision of Section 84 (1) of the Sheriffs and Civil Process Act, 2004. See ONJEWU VS. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY & ORS (2002) LPELR–5507 (CA) pages 37–53 paras A–D where the Court held as follows:-
“Section 287(3) of the Constitution of the Federal Republic of Nigeria, 1999 reads: – “(3) The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively.” It seems to me that the argument of Mr. Idakwoji, of Counsel for the Appellant is that Section 287 has covered the field, that it is self-executing and that there is no need to look into other legislation to find the means or procedure by which the right conferred is to be executed or implemented. On the other hand, it is the argument of Mr. Ajewole, of Counsel for the 3rd Respondent/Garnishee that the provisions of Section 287 are not self-executing but need another procedural law for the enforcement. A constitutional provision is self-executing when It lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed or protected without the necessary aid of legislative enactment – See (1) Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) 506 at p. 557. Also: (2) Willis v. St. Paul Sanitation Co. (1982) 48 Minn. 140, 50 NW 1110, 1111-2; (3) Rockefeller v. Hogue 244 Ark. 1029, 429 SW. 2d.85, 88; and (4) Higgins v. Cardinal Mfg. Co. (1961) 188 Kan. 11, 360 P2D 456, 462 It is apparent from the language of S. 287(3) of the Constitution that it has left it to Legislation by the National Assembly and the several States Assemblies of the Federation under their respective legislative powers to give effect to the right of enforcement of the decisions of those enumerated Courts. I am therefore, in agreement with the submission of Mr. J.O. Ajewole, learned Counsel for the 3rd Respondent/Garnishee that this provision of the law is not self-executing i.e. it leaves it to some other authority to enact legislation to put in flesh by way of another legislative enactment setting out the conditions and procedure by which the abstract right to enforce the decisions of the Courts granted by S. 287(3) shall be implemented. As a first step we shall take an excursion into Item 57 of the 2nd Schedule to the said Constitution – Part 1 – Exclusive Legislative List. The Item reads:- “57. Service and execution in a State of the civil and criminal processes, judgments, decrees, orders and other decisions of any Court of law outside Nigeria or any Court of law in Nigeria other than a Court of law established by the House of Assembly of that State.” In effect Item 57 indicates that by virtue of S. 4 of the Constitution. It is only the National assembly that can legislate in respect of these matters except in respect of such matters from a Court of law established by a House of Assembly of that State. In the latter case, the respective States Houses of Assembly may legislate. The judgment in question was that of the High Court of Kogi State. That Court was established not by the House of Assembly of Kogi State but for Kogi State by the Constitution vide Sections 5(e) and 270 of the Constitution. However, in respect of other Courts in Kogi State which are established under S. 6(5)(k) of the Constitution the House of Assembly of that State may legislate for the service and execution in Kogi State of processes, judgments, etc. It would appear prima facie therefore that both the State Proceedings Edict, 1988 and the Sheriffs and Civil Process Law, Cap. 123 Laws of Northern Nigeria, 1963 applicable to Kogi State are not the appropriate legislation under which the lower Court could have acted to revoke the Garnishee Order it earlier made since the subject matter in issue is a judgment of the High Court of Kogi State and is properly a matter of legislation by the National Assembly. I shall come to this matter later in this judgment. The next question then is what law is applicable under Item 57 of Part I of the 2nd Schedule to the 1999 Constitution for the enforcement of judgments by the High Courts and the Higher Superior Courts In my respectful view, that legislation is to be found in the Sheriffs and Civil Process Act, Cap. 407 LFN, 1990. The heading to that Law reads, “An Act to make provision for the appointment and duties of Sheriffs, the enforcement of Judgments and orders, and the service and execution of civil process of the Courts throughout Nigeria.” Furthermore, the Sheriffs and Civil Process Act, Cap 407 is an existing law by virtue of Section 315(1) of the 1999 Constitution which provides:- “315.(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be – (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and (b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.” The Sections of that Act which for the purposes of this appeal relate to the execution of money judgments by the procedure of Garnishee are Sections 83 and 84 which read:- “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 called 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. (1) 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. 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 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 of the Court in the case of money in custodia legis, as the case may be. (2) In such cases the order or 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.” At this stage, in so far as both Section 8(3) of the Kogi State Proceedings Edict, 1984 and Section 84(1) of the Sheriffs and Civil Process Law of Kogi State merely require the previous consent of the Kogi State Attorney General as a pre-condition to an Order of Garnishee Nisi from the State High Court, neither legislation can be held to be inconsistent with the provisions of Section 84(1) of the Sheriffs and Civil Process Act (the Act of the National Assembly) now under consideration. Therefore, neither of the two enactments would need to be declared invalid under Section 315(3) of the Constitution on the ground of inconsistency with the provision of the Sheriffs and Civil Process Act – which is the Act of the National Assembly on the matter. It now remains to consider whether the provisions of Section 84(1) of the Sheriffs and Civil Process Act is itself inconsistent with the provisions of Section 287(3) of the 1999 Constitution because of the requirement of the consent of the Attorney-General of Kogi State. First, I must deal with the contention of the Appellant that to seek and obtain the consent of the Attorney-General “(who is a party to this suit)” before he can levy execution is to make the Attorney-General a judge in his own cause and therefore act contrary to the principle of fair hearing. With respect, appellant cannot seriously support this contention for the following reasons- Firstly, in paragraph 4 of his own affidavit in support of his application to the lower Court for the issue of the Writ of Summons in this case he deposed thus: in respect of the Attorney-General whom he has sued as 2nd Defendant:- “4. That the 2nd Defendant in this suit is the Chief Law Officer of Kogi State Government and therefore joined in this suit as a nominal party.” Secondly, appellant knows that the role of the Attorney-General in such cases is constitutional; i.e. as Chief Law Officer of the State and Commissioner for Justice of the Government of the State – See Section 195(1) of the 1999 Constitution, Another complaint of the appellant against the requirement in the Sheriffs and Civil Process Act, Section 84(1) is that such a requirement connotes inequality of parties or litigants before the law and is contrary to the rule of law enshrined in Section 36(1) of the 1999 Constitution. With respect, an analysis of certain legislation which have been held valid under the 1979 Constitution S.33(1) which is in parimateria with Section 36(1) of the 1999 Constitution would reveal that where necessary, the dictates of public policy make it necessary in the interest of public good to enact legislation with a specific class or group in view. A particular example of such legislation is the Public Officers Protection Act which vitiates any action brought against a public officer in his personal capacity for torts committed by him in his official capacity if brought outside a period which is much less than the general limitation period stipulated by law in respect of such torts. Now it is a principle of the interpretation of statutes that in construing a statute effect must be given to the objects which the legislature intend that such legislation shall have if it is possible to give effect to such purpose without doing violence to the words of the legislation. This is known as the Golden Rule of Interpretation. Furthermore, it is a cardinal principle of the interpretation of Statutes that a particular provision must not be taken in isolation for interpretation but that the whole statute must be read as a whole in order to get the real meaning of words in the Statute. (i) Ekpo v. Calabar Local Government Council (1993) 3 NWLR (Pt. 281) 324 at 337; (ii) Adewumi v. Attorney-General, Ondo State (1996) 8 NWLR (Pt. 464) 73 at 77, 116. In the Interpretation of constitutional provisions, certain rules have emerged:- Because the function of the Constitution is to establish framework and principles of government which are broad and general in terms and intended to apply to the varying conditions entailed by the development of the diverse communities that exist in the dynamic and pluralistic Nigerian society, mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. On the contrary, some of these principles of constitutional interpretation must be borne in mind; (a) the Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision of the Constitution cannot be severed from the rest of the Constitution; (b) the principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used measure the purpose and scope of its provisions; (c) words of the Constitution are not to be read with stultifying narrowness; (d) Constitutional language is to be given a reasonable construction, and absurd consequences are to be avoided: (e) Constitutional provisions dealing with the same subject matter are to be construed together; (f) Seemingly conflicting parts are to be harmonised, if possible, so that effect can be given to all parts of the Constitution; (g) The position of an article or clause in a Constitution influences its construction; (h) where in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them without resorting to any external aid. (I) words of a Constitution may not be ignored as meaningless: some meaning or effect should be given to all the words used therein if it is possible to do so in conformity with the intention of the framers.” See (i) Rabiu v. State (1980) 9-11 S.C. 130 at 249; (ii) A.G. Bendel State v. A.G. Federation (1981) 10 S.C. 122; (1982) 3 NCLR 1. (iii) Ishola v. Ajiboye (1994) 6 NWLR (pt. 352) p. 506 at 518-9; 558-9. Now, without subjecting the provisions of Section 84(1) of the Sheriffs and Civil Process Act to examination only with respect to the provisions of Section 287(3) of the Constitution, let us look into other relevant provisions of the Constitution. In this particular case which relates to funds of the State in the hands of a public officer, a look into the provisions of Section 120 of the Constitution would throw some light into the matter. Section 120 of the 1999 Constitution provides:- “120.(1) All revenues or other moneys raised or received by a State (not being revenues or other moneys payable under this Constitution or any Law of a House of Assembly into any other public fund of the State established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund of the State. (2) No moneys shall be withdrawn from the Consolidated Revenue Fund of the State except to meet expenditure that is charged upon the Fund by this Constitution or where the issue of those moneys has been authorised by all Appropriation Law, Supplementary Appropriation Law or Law passed in pursuance of Section 121 of this Constitution. (3) No moneys shall be withdrawn from any public fund of the State, other than the Consolidated Revenue Fund of the State, unless the issue of those moneys has been authorised by a Law of the House of Assembly of the State.” The corresponding provision of the 1999 Constitution with regard to “Powers and Control over Public Funds” of the Federation is Section 80. For the present judgment, it would not be necessary to quote that section. In my respectful view it is obvious that by the provision of Section 120 any money in the hands of a public officer which apparently has not been spent and is put in a bank account, must have been appropriated by the State House of Assembly for a particular purpose and for which it has to be spent. If it is expended otherwise than for the purpose for which the House of Assembly of the State authorised the money in the Appropriation Law, Supplementary Appropriation Law or as provided in Section 121 of the Constitution, such expenditure would have been in breach of the provisions of the Constitution – the Grundnorm of this country. In my humble view. the rationale for the provision in Section 84(1) of the Sheriffs and Civil Process Act for the previous consent of the Attorney-General before a Court could validly issue even an Order Garnishee Nisi against funds in the hands of a Public Officer is to ensure that moneys that have been voted by the House of Assembly of a State for a specific purpose in the Appropriation Bill presented to that House and approved in the Budget for the year of Appropriation does not end up being the subject of execution for other unapproved purposes under the Sheriffs and Civil Process Law. There are lawful procedure and other lawful means, in my respectful view, by which a judgment creditor of Government can obtain payment of any judgment debt ordered in his favour than by disturbing the Appropriation account for the year which had been duly passed by the appropriate Legislature under the provisions of Section 120 of the same Constitution which enacted Section 287 (3). Such moneys though in a Bank Account can only assuredly be withdrawn on the authority of a public officer for the purpose for which the House of Assembly authorised the money. The Attorney-General being a public officer and also an officer of the Court would in the circumstance not give his consent to the levy of execution against such money if it would be in breach of the provisions of Section 120 of the Constitution to do so. Furthermore, the Courts should be loath to make all order of mandamus against him for that purpose. In the event, it is my opinion that the requirement for the previous consent of the Attorney-General for an Order Garnishee Nisi in Section 84 of the Sheriffs and Civil Process Act is not inconsistent with either the provisions of Section 36(1) or of Section 287(3) of the 1999 Constitution. On the contrary it is a provision to ensure sound public administration. It is a matter of good public policy aimed at protecting the public funds. It makes for good sense too. I consider that this point was well taken by Mr. Ajewole of Counsel for the 3rd Respondent/Garnishee both in the Respondent’s Brief and his oral address in this Court. Furthermore, it is now clear that when the learned trial judge made the Garnishee Order Nisi against funds of the Kogi State Government held in the 3rd Respondent/Garnishee Bank he had no jurisdiction to do so. Such order was accordingly void. The condition precedent for his entertaining jurisdiction had not arisen – Madukolu v. Nkemdilim (1962) 2 SCNLR 341. The orders of Garnishee – Nisi and absolute having been made without jurisdiction, it was within the jurisdiction of the lower Court to set those orders aside on the application of a party aggrieved by the orders – Skens Consult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6. If the Court had no jurisdiction to make the order that it made it had jurisdiction to rescind it. Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt. 167) p. 270 at Pt. 273 and p. 279.”
Consequently, this appeal fails for noncompliance with the provisions of Section 84 (1) of the Sheriffs and Civil Process Act, 2004. Same is hereby dismissed. I make no order as to cost.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning of my Lord Andenyangtso, JCA that the Trial Court had no reason/justification, in law, to refuse to make the Order Nisi, absolute, in the circumstances of this case, the Garnishee having disclosed that it had the judgment debtors funds in its (garnishee) custody, enough to satisfy the judgment debt.
A Garnishee cannot assumed the power to fight for the judgment debtor, in a garnishee proceedings, with a view to defend the interest of the judgment debtor and protect the judgment debtor’s funds in its (garnishee’s) custody, thereby defying the Order Nisi, made by the Court.
See the case of Guaranty Trust Bank PLC Vs. Innoson Nigeria Ltd., (2017) LPELR – 42368 SC, where it was held:
“The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession, belonging to the judgment debtor, should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor, nor protect the debtors money in its possession. See Oceanic Batik PLC Vs. Michael Olusegun Oladepo & Anor. (2012) LPELR – 79670 (CA)” Per Kekere-Ekun, JSC.
Per Eko JSC:
“It is not for a garnishee to fight the cause of a judgment debtor, who either accepts the judgment against him and does nothing about it, or who may be indolent to fight its cause. No power in law inheres in the garnishee to make himself a busybody and proceed, like Don Quixotee, the Knight Errant, to fight the cause of the judgment debtor, who is his customer.”
I think this appeal came to a meritorious end, when my learned brother, Andenyangtso, JCA, in the lead judgment, said:
“I see no reason for this discharge. The 3th Garnishee in suit No. HOW/50M/2017, which the Garnishee/Respondent herein, had disclosed in its affidavit clearly, stating that there were sufficient funds in the judgment debtor’s account. This information was enough for the Trial Court to make the order absolute. I so hold.”
I so hold, too.
Appearances:
L. A. Njemanze Esq. (who settled the brief)
K. I. Uduma Esq. For Appellant(s)
N. Amaghereonu, ADCL. For Respondent(s)
