CORAM

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ITA.G. MBABA (PJ), OFR, Justice Court of Appeal

PATRICIA A. MAHMOUD, Justice Court of Appeal

PETER O. AFFEN, Justice Court of Appeal

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PARTIES

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CENTRAL BANK OF NIGERIA

APPELLANTS 

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1. PETER O. IKPILA

2. BEM DUTSE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING LAW, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The judgment creditors/Applicants had taken out the suit against Inspector General of Police and 3 others as judgment debtors and the Central Bank of Nigeria (CBN) and 5 others (namely First Bank PLC, Zenith Bank PLC, UBA PLC, Fidelity Bank PLC, and Diamond Bank PLC) as Garnishees.

This is an Appeal against the decision of the Federal High Court, Jalingo, wherein the trial Court entered garnishee Order Absolute against the 1st Garnishee (CBN) in the sum of N16,600.000 (Sixteen Million, Six Hundred Thousand Naira) and awarded cost of N200,000 (Two Hundred Thousand Naira) only against it. The 2nd and 4th Garnishees (1st Bank of Nigeria and United Bank for Africa) were discharged.

At the trial, the counsel for the judgment creditors had urged the court to make the Order and the 1st Garnishee was not opposing.

 

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HELD

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Preliminary Objection upheld

Appeal dismissed

 

 

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ISSUES

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1. Was the trial Judge right to order the Order Nisi, Absolute in the circumstances of this case in which oral evidence of the Appellant and the Exhibit B admitted that Appellant was in custody of the funds of the Judgment Debtors as per the Treasury Single Account (T.S.A) in its custody?

2. Was the consent of the Attorney General of the Federation necessary to file the Garnishee proceedings and to enforce the Judgement of the trial Court?

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – CONDUCT OF COURTS WHERE PRELIMINARY OBJECTIONS ARE RAISED

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As is usually the case, the Preliminary Objection has to be determined first, as its success can terminate the Appeal, in-limine. See KLM ROYAL DUTCH AIRLINE VS. ALOMA (2017) LPELR – 42588 (SC); EZE VS. STATE (2022) LPELR – 57833 (SC). – Per I. G. Mbaba, JCA

 

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PRELIMINARY OBJECTION – THE APPROPRIATE PRAYER TO MAKE AFTER CONTESTING A PRELIMINARY OBJECTION

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A lot of times, such term “discountenance the objection” is used, loosely, by counsel, when they mean to say that an application or objection be struck out or dismissed.  The appropriate prayer to make, at the end of contesting a Preliminary Objection is to urge the Court to dismiss the objection (not to discountenance it), as the word “discountenance” appears to imply that the Court should over look or ignore the process! – Per I. G. Mbaba, JCA

 

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COURT ORDER – THE CONDUCT OF PARTIES TO COURT ORDERS

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Of course, a court order must be obeyed, even if the Order is perverse, until such a time that the Order is set aside.  See, LABOUR PARTY VS. INEC (2009) LPELR – 1732 (SC); OGUNLEYE VS. AINA (2012) LPELR – 7877 (CA); STATE VS. SOLOMON (2020) LPELR – 55598 (SC) and SHUGABA VS. UBN PLC (1999) LPELR – 3068 (SC), where it was held:

“… It is trite that an order of the court must be obeyed, and if the order is couched as a condition precedent, then as would be expected in such a situation, the order must contain its own sting or coercive consequence, if the condition precedent is manifestly violated or ignored, with reckless abandon.” Per ACHIKE, JSC (P. 39, paras. B-C)

See also NWANKA VS. ADIKAMKWU (2014) LPELR – 22927 CA, where this court founded on the LABOUR PARTY VS. INEC (SUPRA), and held:

 “It is now firmly settled that a Court Order must be obeyed, even if such Order is perverse, until such a time that the Order is set aside by a competent Court” See also OBA ALADEGBAMI VS. OBA FASANMADE [1988] 3 NWLR [PT.81] 129. The above is to underscore the fact any judgment made by a Court deserves and demands obedience whether or not the judgment was well founded, and nobody must be allowed to stand in the way of translating the decision of a Court. The power to punish for contempt is also Constitutional and the Courts are expected to guard their powers, integrity and decisions, jealously, ready to punish any act of disobedience, or conduct that puts a Court or its decision in derision, or poses an affront to its being obeyed or respected. See the case of OGUNLEYE VS. AINA (supra) at 77, where this Court frowned at the attitude of a trial Court that appeared to undermine the integrity of the Court: “The learned trial judge therefore dealt serious blows on the integrity of the judgment of this Court and on the judicial process when he held e held for contempt, merely because he has, not obeyed the Order of which he is appealing against or which he want stayed or suspended, pending appeal … That can only…be fall decisions reached in beer palours and other unserious social organizations, not a Court of law. A Court will cease to be one; to suffer such indignities, A Court’s decision has to be obeyed and/or enforced, at the pains of sanction against disobedience. See ODOGWU VS. ODOGWU (2002) 41 WRN 1; (1992) 2 NWLR (PT.225) 539.”

See also the views of my lord, NDUKWE ANYAWU, JCA in ACCESS BANK PLC VS. SAADU (2021) LPELR – 55762 (CA), where she said:

There was a subsisting Order of Court which the Appellant ought to have obeyed but neglected to obey same. This Order was brought to the Appellant’s notice. The Appellant did not refute being seised of the Order however, gave a flimsy reason why it did not obey it. “It is now firmly settled that a Court Order must be obeyed even if such Order is perverse until such a time that the Order is set aside by a competent Court”. See LABOUR PARTY VS. INEC (2009) LPELR 1732; OBA ALADEGBEMI VS OBA FASANMADE (1988) 3 NWLR PT. 81, PG. 131; SHUGABA VS. UNION BANK OF NIGERIA PLC (1999) LPELR 3068 where Ogunbiyi JSC held: “The law is well settled that an Order of Court must be obeyed regardless of the attitude of a litigant towards the validity thereof”. See NIGERIAN ARMY VS. MOWARIN (1992) 4 NWLR PT. 235, PG. 345. The Appellant refused to remove all the restrictions on the Respondent’s Account. The Appellant cannot choose to obey or disregard any Court Order served on her. See SHERIFF VS. PEOPLES DEMOCRATIC PARTY (2017) LPELR 41805. The Appellant had no choice in this. The right thing to do is to obey the Order by lifting the restrictions and inform the Respondent in writing or formally the Standard Bank Procedure for continuing as their Customer. Courts do not make Orders in vain and the Orders are meant to be obeyed. See NNSC LIMITED VS. SABANA AND CO. LIMITED (1988) 2 NWLR PT. 74, PG. 23; A. G. ANAMBRA STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2005) LPELR 13N where Tobi JSC held: “The law in this instance is clear that it is settled that it is the unqualified obligation of every person against or in respect of whom an order made by a Court of competent jurisdiction to obey it unless and until that order is discharged and this the moreso, where the person affected by the order believes it to be irregular or void. In so far as the order exists, it must be obeyed to the letter”. See GOVERNOR OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR PT. 18, PG. 621. An Order of Court, no matter the fundamental vice attached thereto, remains legally binding and valid until set aside by due process of law.”

I think Appellant and its Counsel demonstrated grave disdain and disrespect to existing Court Order, when they failed to appeal against it (the Order) or comply with it, and completely ignored the Order, but advanced argument that this Court should not indignity itself by seeking to enforce it, operating as the Registry of the lower Court!

Of course, every court has a duty to give effect to subsisting valid order of court.  See JOE BEST ESTATE DEVELOPMENT & PROPERTIES LTD VS. NZEGWU & ORS. (2008) LPELR – 24317 (CA):

“As submitted by learned counsel for the 1st Respondent in his brief, it is an elementary rule of legal procedure that every order or judgment of a Court of competent jurisdiction is valid and must be obeyed until set aside. In Odu v. Jolaose (2005) 16 NWLR (Pt.950) 178 @ 195 A – B, the Supreme Court went further to observe: “As I understand it, the plain and unqualified obligation of every person against, or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged. This is so even in cases where the person affected by an order believes it to be irregular or even void. So long as it exists, the order must be obeyed to the letter: See Mobil Oil (Nig.) Ltd v. Assan (1995) 1 NWLR (Pt.412)129.” Per IYIZOBA, JCA (Pp. 11-12, paras. F-D). – Per I. G. Mbaba, JCA

 

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COURT OF APPEAL – CONDUCT OF THE COURT OF APPEAL WHEN PRELIMINARY OBJECTION IS SUSTAINED BY HER IN AN APPEAL

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Because, ours is the Penultimate Court, I deem it necessary to also consider this Appeal on its merits, as parties may want to approach the Apex Court. So that the Apex Court, may have a basis to determine this Appeal on its merits, I venture to consider the merit of the Appeal. – Per I. G. Mbaba, JCA

 

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GARNISHEE PROCEEDINGS – THE MEANING AND EFFECT OF A GARNISHEE PROCEEDING – THE PROCESS OF A GARNISHEE PROCEEDING

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…garnishee proceedings is a beautiful judicial intervention process, that applies to hunt down and trap the funds of a reluctant and/or recalcitrant debtor, found in the custody of a third party, by using the judicial process to compel or force the said 3rd party to use the debtor’s fund in its (3rd party’s) custody to satisfy the judgment debt, adjudged in favour of a judgment creditor. See the case of GTB Vs INNOSON NIG. LTD (2017) LPELR – 42368 (SC), where it was held:

Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. The third party holds the debt or property of the Judgment Debtor. By this process, Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of phrases Legally Defined 3rd Edition Vol.2, pages 313 – 314 cited by Akintan, JSC, in his concurring judgment in UNION BANK OF NIGERIA PLC. v. BONEY MARCUS INDUSTRIES LTD. (2005) 13 NWLR (Pt.943) 654 at page 666. Lord Denning, MR, in CHOICE INVESTMENT LTD. v. JEROMINIMON (1981) QB 149 at 154 – 155, gives a simple illustration of garnishee proceeding thus: “A creditor is owed 100 pounds by a debtor. The debtor does not pay. The creditor then gets judgment against him for the 100 pounds. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has 150 pounds at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the [judgment creditor] out of the Customer’s pounds 150 – the 100 pounds which he owes to the creditor.” The master of the Rolls went on, in the case, to state further: “There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay pounds 100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason way the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See PRITCHARD V. WESTMINISTER (1969) 1 ALL ER 999 and RAINBOW v. MOORGATE PROPERTIES LTD. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it.” I did this detour for a purpose. That is, to show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to.” Per EKO, JSC (Pp. 8-11, paras. F-C). – Per I. G. Mbaba, JCA

 

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GARNISHEE – WHETHER THE GARNISHEE CAN FIGHT THE CAUSE OF A JUDGMENT DEBTOR

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As is in keeping with the garnishee proceedings, the Garnishee is not expected, and is not in a position to contest the merits of the judgment debt, or to assume the role of a defence Counsel, to defend the Judgment Debtor, by employing processes to refuse or frustrate the garnishee proceedings, or the order made by the Court to enforce the settlement of the judgment debt. See OBOH & ANOR VS NIGERIA FOOTBALL LEAGUE LTD & ORS (2022) LPELR – 56867 SC, where the Supreme Court said:

It has to be stated that it is not the role of the garnishee to fight a proxy war against the judgment creditor on behalf of a judgment debtor and my learned brother, Ejembi Eko captured it well in the case of GTB Plc VS Innoson Nigeria Limited (2017) 5 SC (Part 1) 68 at 93 where he said: “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 his cause. No power in law inheres in the garnishee to make himself a busy body and proceed like Don Quixote the Knight errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment.” In CBN v. Interstella Communications Ltd & 3 Ors (2018) All FWLR (Pt.930) page 442 at 529 Ogunbiyi JSC said: “The role of a garnishee in any garnishee proceedings is delimited. As rightly argued by the Counsel for the 1st and 2nd Respondents, it is not envisaged after a judgment creditor has gone through the rigours to establish his rights through the legal system, that the garnishee, who is asked to surrender the judgment debtor’s money in its possession should engage the judgment creditor in another bout of legal battle. See Order VIII, Part II of the Judgment (Enforcement) Rules.” Per PETER-ODILI, JSC (Pp. 56-57, paras. D-E). – Per I. G. Mbaba, JCA

 

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GARNISHEE PROCEEDING – THE ROLE OF A GARNISHEE IN A GARNISHEE PROCEEDING

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The role of the garnishee, once served with the Order Nisi by the Court, is to make full disclosures to the Court, concerning the state of account of the judgment debtor in its (Garnishee’s) custody, without embellishment or deceit; that is to assist the court to appreciate the state of the funds (if any) of the judgment debtor in the custody of the Garnishee.  See the case of CBN VS. INSTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR – 43940 (SC), where the Supreme Court held:

The role of a Garnishee in any Garnishee Proceeding is delimited. As rightly argued by the counsel for the 1st and 2nd Respondents, it is not envisaged that after a judgment creditor has gone through the rigours to establish his rights through the legal system, that the garnishee, who is asked to surrender the Judgment Debtor’s money in its Possession should engage the Judgment Creditor in another bout of Legal battle. See Order VIII Part II of the Judgments (Enforcement) Rules. Basically, the restrictive role and legal duty of a Garnishee in a Judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the Judgment Debtor’s state of account in its custody. It is no wonder therefore that the lower Court while quoting the Court of Appeal case of Oceanic Bank Plc v. Oladepo & Another (2012) LPELR- 19670 held that the view that “it is not the business of a Garnishee to undertake to play the role of an advocate for a Judgment Debtor by trying to shield and protect the money of the Judgment Debtor” page 470 of the record of Appeal. There is no cogent reason advanced by the appellant that the concurring findings of facts by the two lower Courts were wrongly arrived at such that will cause this Court to disturb same. See Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt 93) 225: Nneji v. Chukwu (1996) 10 NWLR (pt 378) 265; BFI Groups Corp. V. Bureau of Public Enterprises (2012) LPELR – SC. 12/2008. By the rule 

of jurisprudence, no injustice will be done to a Garnishee, neither will it be denied any legal right when made to give up the judgment Debtor’s money in its custody. It is also inequitable for a Garnishee to continue to latch on to the money that does not belong to it when the judgment Debtor has conceded the Judgment. The appellant in the appeal herein, was in no way denied fair hearing before the Order Nisi was made absolute. Rather and as rightly submitted by 1st and 2nd Respondents counsel, it abandoned its statutory role to take over the conduct of the Judgment Debtors’ case.” Per OGUNBIYI, JSC (Pp. 91-92, paras. A-E). – Per I. G. Mbaba, JCA

 

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GARNISHEE – WHETHER A GARNISHEE CAN CLAIM THAT THE FUNDS IT HOLDS FOR A JUDGMENT DEBTOR BELONGS TO THE FEDERAL GOVERNMENT AND HENCE THE FEDERAL GOVERNMENT SHOULD HAVE BEEN JOINED IN A SUIT

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Thus, Appellant’s counsel resort to asserting that the funds belonged to the Federal Government of Nigeria and that the Federal Government should have been joined in the suit for the trial court to have jurisdiction, appear to be such wasted effort to fight the Garnishee Proceedings, on behalf of the Judgment Debtors, which the Court have always deprecated. See OCEANIC BANK PLC VS. OLADIPO & ANOR (2012) LPELR – 19670 (CA); CBN VS. INSTERSTELLA COMMUNICATION LTD (SUPRA).  – Per I. G. Mbaba, JCA

 

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GARNISHEE – WHETHER THE CONSENT OF AN APPROPRIATE OFFICER UNDER S.84 OF THE SHERIFF AND CIVIL PROCESS ACT IS NECESSARY TO GIVE EFFECT TO A GARNISHEE ORDER – WHERE THE JUDGMENT DEBTOR HAS NOT APPEALED AGAINST THE JUDGMENT DEBT SOUGHT TO BE ENFORCED BY THE GARNISHEE PROCESS

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…Section 84 (1) of the Sheriff and Civil Process Act…

I always have problems, when this provision is raised to frustrate a valid judgment of Court to recover judgment debt from government or its agencies, especially where the consent of the Attorney General is touted in a way to suggest subjecting or subjugating the judgment of Court to the censor, preview, review or overriding influence or interference or intervention of the learned Attorney General of the State or of the Federation.

The situation becomes more vexatious or scandalous, where the learned Attorney General is directly a party to the suit which the judgment debt is due to the Respondent/or judgment creditor!

Such issue was discussed extensively in the case Havilah Motors Ltd Vs The A.G. Bayelsa State & Anor (2019) LPELR – 48942 CA, where it was held:

“…In resolving this issue for determination in this appeal, it must be pointed out and emphasized that the garnishee proceedings that led to this appeal were begun sequel to a consent judgment of the lower Court delivered by His Lordship, Abiri, CJ on 15th February, 2012. That judgment is a judgment of a Court of competent jurisdiction. There has not been any appeal against it. It has not been set aside by any Court of competent jurisdiction. Not at all. It is a valid and subsisting judgment. It is a judgment that must be enforced by all Persons and authorities in the country as provided by S.287 (3) of the 1999 Constitution of Nigeria, as amended. May I also reiterate that the steps taken by the Appellant to enforce the consent judgment are very well known to the law and practice in Nigeria. In refusing or declining to make its earlier Order nisi absolute, the learned judge of the lower Court remarked thus: “l have in the course of looking at the relevant laws and case law authorities found that the Order nisi earlier granted required the consent of the Attorney General of the State. See the case of FIRST BANK OF NIGERIA Plc. V. HON. ALEX TESUFA DUMBO AND ATTORNEY GENERAL OF BAYELSA STATE SUIT NO. CA/PH/607/2013 delivered on the 22nd October, 2015……. ” The learned Chief Judge proceeded to quote a part of the judgment under review where this Court specifically held that the enforcement of a judgment of a State High Court by garnishee proceedings requires the consent of an appropriate officer under S.84 of the Sheriff and Civil Process Act (SCA). The learned Chief Judge, though had other decided cases to choose from, remained convinced that that was not necessary and this belief and conviction cannot ex-facie be faulted because the doctrines of precedent and stare decisis makes mandatory for the lower Court to consider and apply any relevant and applicable decision of this Court. Now, in the course of the hearing and determination of this appeal, this Court has been referred to an earlier decision of this Court in CBN V. INTERSTELLA COMMS. LTD & ORS. (2015) 8 NWLR (Pt 1462) 456. At page 508 E-F, Abba-Aji JCA (As he then was) specifically held that: “Where the Attorney General has consented to a judgment debt, or waived his right by paying part thereof on behalf of the government, then his consent under Section 84 of the Sheriffs and Civil Process Act becomes superfluous”. This decision has now been fully affirmed by our most revered apex court in CBN V. INTERSTELLA COMMS. LTD & ORS (2018) 7 NWLR (Pti618) 294 in a judgment delivered on 15th December, 2017. In more specific terms the Supreme Court per Ogunbiyi, JSC held that a garnishee proceeding is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor. At pages 337 to 339, the Supreme Court explained that a garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. With respect to the requirement of obtaining the consent of an Attorney General before funds of any governments or their agencies can be attached to satisfy a judgment debt by way of a garnishee proceedings, the Supreme Court emphatically held that where the judgment debt to be enforced arose from a consent judgment that was freely negotiated by an Attorney General the provisions of Section 84 with respect to consent will not apply and therefore a judgment creditor needs not first obtain the consent of the debtor before proceeding against the debtor to recover his money. After having read and fully read the decision in FBN Plc. V. DUMBO & ANOR (supra), I am fully satisfied that it is not relevant and applicable to the facts and circumstances of the instant appeal. In my humble view the decision of this Court as affirmed and upheld by the Supreme Court in CBN V. INTERSTELLA COMMS LTD & ORS (supra) is more relevant and applicable in the determination of the lone issue in this appeal. Therefore, to the extent that the judgment debt sought to be enforced in this appeal is a consent judgment that all available evidence showed was very freely negotiated and arrived at as well to the extent of having been a valid and subsisting judgment of a Court of competent jurisdiction the case relied by the lower Court was totally inapplicable. In also being more relevant and applicable, the Supreme Court held in CBN V. INTERSTELLA (supra) that a party to a Suit who did not appeal against the judgment of a Court is presumed to have conceded to it. In the instant appeal, the Defendant/Judgment debtor/1st Respondent did not appeal against the consent judgment of the lower Court. Therefore, it was binding on it by operation of law. While the judgment debtor in CBN V. INTERSTELLA & ORS (supra) was shown to have commenced payment of the consent judgment sum and was held to have been estopped from denying liability, it does not matter, in my view, even if payment of the judgment debt has not commenced at all as in the instant appeal so long as the consent judgment is valid and subsisting. The argument of learned counsel Mr. Abasi for the 1st Respondent that because payment of the judgment debt had not commenced must be preposterous and of no moment. Both this Court and the Supreme Court have sufficiently emphasized that it is not the business of a garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. 

Going by the decision of the Court in the said case of CBN Vs Interstella Comm. Ltd & Ors (2018) 7 NWLR (Pt.1618) 294 cited in the above case, it is obvious that the requirement of consent of Attorney General to enforce Garnishee Judgment debt is not without discrimination and/or challenge in appropriate situation, like where the Attorney General was a party to a consent judgment which is sought to be enforced by Garnishee proceedings, and where the judgment debtor has not appealed against the judgment debt, which is sought to be enforced by the garnishee process. 

I strongly opine that the application of the Section 84 of the Sheriff and Civil Process Act, without discrimination and made to stall or frustrate the judgment of a competent Court, by subjecting the judgment to the consent of the Attorney General before enforcement, especially where the judgment, giving rise to the judgment debt, has not been appealed against, is a disservice to the provisions of the Constitution of Nigeria 1999, as amended, which vests conclusiveness and enforceability to the final judgment of the High Court and calls for obedience and enforcement, except where same is set aside, on Appeal. See Section 240 of the 1999 Constitution, which vests power of appeal against decisions of the Federal High Court, High Court of the State, National Industrial Court etc. on only the Court of Appeal, and does not contemplate of any interference/intervention of Attorney General, in respect of Garnishee decisions of the High Courts. – Per I. G. Mbaba, JCA

 

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GARNISHEE – WHERE THE REQUIREMENT OF THE CONSENT OF THE ATTORNEY GENERAL OF THE FEDERATION TO GARNISHEE UNDER SECTION 84 (1) OF THE SHERIFFS AND CIVIL PROCESS ACT BECOMES AN ABERRATION – DUTY OF COURTS TO GUARD THEIR JURISDICTION

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And the powers of the Attorney General, be it of the Federation or States, are specified and circumscribed by the Constitution, and none suggests any power to interfere, oversee or supervise the civil decisions of High Courts, with a view to evincing, granting or refusing consent to commencement or enforcement of garnishee proceedings and payment of judgment debts against a public officer. See Sections 174 and 211 of the Constitution of FRN, as amended.

The Section 84 of the Sheriff and Civil Process Act, therefore, appears to pose an affront to the Constitution and to the powers of the High Court to enforce its decision, inviolate, subject only to review on appeal, to the Court of Appeal, in my opinion.

See also the caution of my lord Abiru, JCA in the case of CBN VS. VISA B1 – STAR LTD & ORS (2023) LPELR – 59960 (CA) where it was held that there are conflicts about CBN, as Public Officer, as to warrant the consent of Attorney General to commence, prosecute and enforce Garnishee judgment debt, thus:

There are decisions that hold that the Appellant is not a public officer in those circumstances as to warrant consent of the Attorney General of the Federation before garnishee proceedings could be commenced against it and these cases rely on the Supreme Court decision in Central Bank of Nigeria Vs Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (Pt. 1618) 294 to support their position. These are the cases of Central Bank of Nigeria Vs Appah (2020) LPELR 51214(CA), Central Bank of Nigeria Vs JOD Partnership Limited (2021) LPELR 53217(CA), Central Bank of Nigeria Vs Foluso (2021) LPELR 54879(CA), Central Bank of Nigeria Vs Tripple C Acquisition Ltd (2022) LPELR 57441(CA), Central Bank of Nigeria Vs Ezeanya (2022) LPELR 57598(CA). On the other side of the divide are cases that say that the Appellant is a public officer in those circumstances and that the consent of the Attorney General of Federation was required before funds in its possession can be attached by garnishee proceedings and they distinguished the Supreme Court decision in Central Bank of Nigeria Vs Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (Pt. 1618) 294 on the ground that it was decided on its peculiar facts and did not lay down a general rule. These are the cases of Central Bank of Nigeria Vs Atana (2019) LPELR 49194(CA), Utavie Vs Capital Development Authority (2019) LPELR 49095(CA), Central Bank of Nigeria Vs Ekpo (2021) LPELR 54147(CA), Akpan Vs Economic and Financial Crimes Commission (2021) LPELR 55800(CA), Central Bank of Nigeria Vs John (2021) LPELR 55875(CA), Central Bank of Nigeria Vs Bako (2021) 11 NWLR (Pt 1786) 122, Central Bank of Nigeria Vs Anwan (2021) LPELR 56075(CA), Ibrahim Vs Sarham (2022) LPELR 58716(CA), Central Bank of Nigeria Vs Enoch (2022) LPELR 58804(CA). The above said, the facts of this case are peculiar and different from those of the several above referred cases and it is trite law that each case must be determined on its particular or peculiar facts and circumstances – CSS Bookshop Ltd Vs. The Registered Trustees of Muslim Community in Rivers State (2006) All FWLR (Pt 319) 819, Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179, United Bank for Africa Vs. Fadlallah (2021) LPELR 55184(CA). Thus, it is settled in our jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the peculiar facts and circumstances of a particular case – Emeka Vs. Okadigbo (2012) 18 NWLR (Pt 1331) 55 at 96, Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (Pt 1333) 506 at 538A, All Progressives Grand Alliance Vs Oye (2019) 2 NWLR (Pt 1657) 472. The distinguishing factor in this case is that the Attorney General of the Federation is one of the judgment debtors. The Attorney General of the Federation was a party in the lower Court and he took part in the trial and judgment was entered against him and the second Respondent. The accounts garnisheed are those of the second Respondent and the Attorney General of the Federation with the Appellant. In Central Bank of Nigeria Vs. Interstella Communications Ltd & 3 Ors. (2018) 7 NWLR (Pt. 1618) 294, the Supreme Court was of the view that where the Attorney General of the Federation is the judgment debtor or one of the judgment debtors, the requirement of his consent to garnishee under Section 84 (1) of the Sheriffs and Civil Process Act is an aberration. 

Every Court is expected to guard its powers/jurisdiction jealously. It, therefore, baffles me, when I read the ease, with which judges subjugate or are quick and quick and ready to forgo their constitutional powers, or donate same to appointees of the Executive Arm of Government (that is, Attorney General) and to permit same to interfere with valid decisions of Court in the name of resort to consent of the Attorney General to commence or enforce or permit commencement or enforcement of garnishee proceedings, against a public officer! See the case of the Shell Petroleum Dev. Co. Nig. Ltd Vs Anaro & Ors (2016) LPELR – 24750 SC:

“The law is well settled and holds good that it is incumbent on every Court to strictly guard its jurisdiction which should be cherished without emphasis. It follows therefore that any legislation that purports to take away or in any form tamper with the jurisdiction of a Court must be specific and unambiguous on the point. It must leave no room for speculation.” Per OGUNBIYI, JSC (P. 56, paras. E-F)  – Per I. G. Mbaba, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Sheriff and Civil Process Act Cap S6, Laws of the Federation of Nigeria, 2004

3. Court of Appeal Rules 2021

4. Federal High Court (Civil Procedure) Rules 2009

5. Appropriation Act 2015

6. Evidence Act, 2011

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