Legalpedia Citation: (2014) Legalpedia (CA) 11111
In the Court of Appeal
Tue Nov 4, 2014
Suit Number: CA/C/148/2012
CORAM
MUSA DATTIJO MUHAMMAD JUSTICE, SUPREME COURT
PAUL OBI ELECHI JUSTICE, COURT OF APPEAL.
JOSEPH JUDE JELLA JUSTICE, COURT OF APPEAL.
PARTIES
CENTRAL BANK OF NIGERIA APPELLANTS
1.CHIEF (ENGR.) ETIM OKON EDET
2.MRS. GLORY ETIM OKON (Suing by Attorney, Barrister Emmanuel David Ukoh)
3.UNITED BANK FOR AFRICA PLC, ABAK ROAD, UYO
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st and 2nd Respondents obtained judgment against Urue Offong-Oruko Local Government Council in Suit No. HOK/UND.1/2003. They later obtained a Court order to attach the bank Account of Urue Offong- Oruko Local Government Council (the judgment debtor), maintained by the 3rd Respondent who is a bank in the total sum of Four Million, Four Hundred and Seventy, Three Thousand, Four Hundred and Twenty Eight Naira, Seventy- six kobo (N4, 473,428.76) with the cost of Three thousand naira. Neither the 3rd Respondent nor the Judgment Debtor paid the attached sum. The 1st and 2nd Respondent were then prompted to institute a Garnishee proceeding seeking an order nisi attaching the said sum which was granted and was later made absolute. The Appellant was ordered to pay out from the United Bank for Africa’s Plc., cash reserve deposit domiciled with the Appellant. Aggrieved by the decision of the trial Court, the Appellant has appealed to the Court of Appeal.
HELD
Appeal Allowed
ISSUES
1. Whether the garnishee proceedings in Suit No. HU/MISC.75/2011 was properly constituted in terms of parties to vest the trial Court with jurisdiction.?
2. Whether the learned trial Judge did not err in law to have made absolute its Garnishee order nisi of 8th June, 2011?
RATIONES DECIDENDI
LEGAL PERSONALITY- IT IS ONLY NATURAL PERSONS, AND JURISTIC OR ARTIFICIAL PERSONS THAT CAN SUE OR BE SUED
‘‘As a general principle, it is only natural persons, that is, human beings and juristic or artificial persons such as companies incorporated under the Companies Act are competent to sue or be sued. No action can be commenced by or brought against any party other than a natural person or persons, unless such party has been given by statute expressly or impliedly or by common law either a legal personality under the name by which it sues or is sued.’’ PER. O.A. OTISI, JCA
GARNISHEE PROCEEDINGS – DUTY OF A COURT WHERE A GARNISHEE DISPUTES HIS LIABILITY- SECTION 87 OF THE SHERIFF AND CIVIL PROCESS ACT
“By virtue of Section 87 if the garnishee appears and disputes his liability, the trial court, rather than ordering execution to issue, may order, that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings maybe tried.’’ PER. O. A. OTISI, JCA
INCOMPETENT SUIT- PROCEEDINGS OR ORDERS ARISING FROM AN INCOMPETENT SUIT AMOUNTS TO A NULLITY
‘‘Any proceedings or orders arising from an incompetent suit amount to a nullity; Nzom v. Jinadu (1987) LPELR-2143(SC),(1987) ANLR 377. Such incompetent action is liable to be struck out; The Administrators/Executors of the Estate of Gen. Sani Abacha (Deceased) v. Eke-Spiff (2009) LPELR- 3152(SC); Ifedapo Community Bank Ltd Vs Eternal Order Of C. &.S. Church, Saki Branch(supra),’’PER. O. A. OTISI, JCA
LEGAL PERSONALITY-A SUIT INSTITUTED BY A NON-JURISTIC PERSON OR AGAINST A NON-JURISTIC PERSON IS NOT SUSTAINABLE.
‘‘A suit thus instituted by a non-juristic person or against a non-juristic person is not sustainable. A court can only assume jurisdiction over juristic persons; MadukoluV Nkemdilim(supra); Maersk Line v. Addide Investments Ltd. (2002) 11 NWLR (PT 778) 317, (2002)l LPELR-ymi(SC); Agbonmagbe Bank Ltd v. General Manager G.B.OIIivant Ltd (1961) ALL N.L.R. 116.’’PER. O. A. OTISI, JCA
CASH RESERVE DEPOSIT- CASH DEPOSIT RESERVE IS STATUTORILY MAINTAINED BY ALL BANKS
‘‘Cash Reserve Deposits are statutorily maintained by all banks. See: Section 15(1)the Banks and other Financial Institutions Act and, Section 45 of the Central Bank of Nigeria (Establishment) Act Laws of the Federation of Nigeria, 2007.’’ PER. O. A. OTISI, JCA
AFFIDAVIT EVIDENCE- AFFIDAVIT EVIDENCE NOT CHALLENGED OR CONTROVERTED IS DEEMED ADMITTED
‘‘The position of the law remains that affidavit evidence which is not challenged or controverted howsoever is deemed admitted and can be relied upon by a court:; Registered Trustees of NACHPN v MHWUN (2008) 1 S. C. (PT 111)1, (2008) ,34 NSCQR Pt, 1 321; Henry Stephens Engineering Ltd v S.A. Yakubu (Nig.) Ltd (2009) 10 NWLR (PT 1149) 416,1 (2009) LPELR-1363(SC)Tukur v. Uba (2012) LPELR-9337(SC).’’PER. O. A. OTISI, JCA
EX NIHILO NIHIL FIT- WHERE AN ACT IS VOID, IT IS VOID AND NOTHING CAN BE ADDED TO IT.
‘‘It is trite law that where an act is void, it is void and nothing can be added to it; ex nihilo nihil fit, UAC V. Macfoy (1961)3 ALL ER 1172. It is void and the court is bereft of the necessary vires to entertain the suit, which is incompetent.’’ PER. O.A. OTISI, JCA
JURISDICTION- THERE MUST BE A COMPETENT PLAINTIFF AND A COMPETENT DEFENDANT BEFORE A COURT CAN BE VESTED WITH JURISDICTION
‘‘It is not in controversy that in order for an action to be properly constituted, so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant.’’ PER. O. A.OTISI, JCA
EXECUTION OF GARNISHEE PROCEEDINGS – PROCEDURE FOR EXECUTION OF GARNISHEE PROCEEDINGS IS PROVIDED IN SECTION 86 OF THE SHERIFF AND CIVIL PROCESS ACT
“The procedure for execution if a garnishee fails to pay into court the amount due to the judgment debtor, together with the costs of the garnishee proceedings; or if the garnishee does not dispute the debt due or claimed to be due from him, is clearly spelt out in Section 86 of the Sheriff and Civil Process Act. Such procedure does not include declaring the garnishee a judgment debtor and proceeding to declare another body a garnishee to the former garnishee now turned into judgment debtor”. PER. O. A. OTISI, JCA
LEGAL PERSONALITY- NO ACTION CAN BE BROUGHT BY OR AGAINST ANY PARTY OTHER THAN A NATURAL PERSON(S) UNLESS SUCH A PARTY HAS BEEN GIVEN BY STATUTE
‘‘The law does recognize that apart from, natural and Juristic persons, some non-legal entities, can sue and be sued eonomine. No action can be brought by, or against any party other than a natural person or persons unless such a party has been given by statute, expressly or,impliedly, either:-
(a) a legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate;
(b) a right to sue or be sued by that name e.g.,partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See: Fawehinmi v. N.B.A (No. 2) (1989) 2 N. W.L.R. (Pt.105) 558, (1989) 4 S.C (PT 1) 63; Carlen (Nig) Ltd v. UNIJOS (1994) 1 N. W.L.R. (Pt.323) 631; Ataguba v.Gura (Nig) Ltd (2005) 6 MJSC 156.’’PER. O.A. OTISI, JCA
CASES CITED
STATUTES REFERRED TO
1. Banks and other Financial Institutions Act
2. Central Bank of Nigeria (Establishment) Act
3. Laws of the Federation of Nigeria, 2007
4. Court of Appeal Rules, 2011
5. Sheriff and Civil Process Act