Legalpedia Citation: (2023-09) Legalpedia 94984 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Mon Sep 4, 2023

Suit Number: CA/A/290/2017

CORAM

Mohammed Mustapha JCA

James Gambo Abundaga JCA

Abdul-Azeez Waziri JCA

PARTIES

CENTRAL BANK OF NIGERIA

APPELLANTS

1. REUBEN ADEJOH – JUDGMENT CREDITOR/ RESPONDENT
2. FEDERAL COLLEGE OF EDUCATION (TECH) GUSAU
3. THE GOVERNMENT COUNCIL, FEDERAL COLLEGE OF EDUCATION (TECH) GUSAU
4. THE PROVOST, FEDERAL COLLEGE OF EDUCATION (TECH) GUSAU
5. THE REGISTRAR, FEDERAL COLLGE OF EDUCATION (TECH) GUSAU – JUDGMENT DEBTORS/ RESPONDENTS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CAPITAL MARKET, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT ENFORCEMENT, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

This is an appeal against the interlocutory ruling of the lower Court dismissing the Motion filed, praying for the setting aside and/or discharge the Garnishee Order Nisi.

The Appellant claims the learned trial Judge showed clear bias against the Garnishee/Appellant contrary to the constitutionally enshrined principle of fair hearing when his lordship considered the judgment creditor’s/Respondent’s further and better affidavit.

 

HELD

Appeal allowed

ISSUES

1. Whether the failure of the learned trial Judge to consider the submissions of the Garnishee/Appellant on the latest Authority on the status of the Garnishee/Appellant as a public officer within the contemplation of Section 74 of the Sheriffs and Civil Process Cap. 56 Laws of the Federation of Nigeria (2004) did not amount to a breach of the Garnishee/Appellant’s Right to fair hearing and thereby occasioned a miscarriage of Justice to the Appellant?
2. Whether the decision of the Learned Trial Judge to entertain the Judgment Creditor/Appellant’s fuller and better Counter-Affidavit filed on 19/12/2016 did not amount to a breach of the Garnishee/Appellant’s right to fair hearing?

RATIONES DECIDENDI

FAIR HEARING – MEANING OF FAIR HEARING

Fair hearing is a hearing which is fair to all the parties to the suit giving each one an opportunity to be heard. – Per Abdul-Azeez Waziri, JCA

FAIR HEARING – MEANING AND IMPORTANCE OF FAIR HEARING

Let me begin here by saying that of all the fundamental rights disposed in this Constitution, the most pungent in its effect is the right to fair hearing. Fair hearing has been aptly defined to mean giving equal opportunity to the parties to be heard in the litigation before the Court it must therefore mean a trial that is conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It means fair trial, see the cases of INEC vs Musa (2003) 3 NWLR (Pt. 806) 72; Ariori & Ors vs. Elemo & Ors (1983) LPELR – 552 (SC) (1983) 1 SCNLR 1.

In the case of Alsthom S. A & Anor vs. Saraki (2005) 3 NWLR (Pt. 911) 208, Ejiwunmi held:

“Fair hearing according to our law, envisage that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or Tribunal hearing the parties’ case shall be fair and impartial without showing any degree of bias against any of the parties.  See Elike vs. Nwankwoala & Ors (1984) 12 (SC) 301; Isiaka Mohammed vs. Kano W. A (1968) 1 ALL NLR 424.” – Per Abdul-Azeez Waziri, JCA

CUSTODIAL EGIS – PRECONDITION WHERE ANY MONEY BELONGING TO A JUDGMENT DEBTOR IS IN THE CUSTODIAL EGIS

I wish to point out that the law is certain and well settled that consent of the Attorney General is a precondition where any money belonging to the Judgment Debtor is in the “custodial egis.” Section 84 of the Sheriffs and Civil Process that 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 custodial egis, the order nisi shall not be made under the provisions of the last preceding Section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of Money in Custodial egis as the case may be (…47 of 1955)

(2) In such cases the order of notice must be served on such public officer or on the Registrar of the Court as the case may be.

(3) In this Section “appropriate officer “means: (a) In relation to money which is in the custody of a public officer who holds a public office in the public serve of the Federation, the Attorney General of the Federation.

(b) In relation to money.” – Per Abdul-Azeez Waziri, JCA

FAIR TRIAL – EFFECT OF PROCEEDINGS CONDUCTED IN BREACH OF RIGHT TO FAIR TRIAL

The effect of proceedings conducted in breach of right to fair hearing the Supreme Court in the case of Eye vs. FRN (2018) 7 NWLR (Pt. 1619) 495 held:

“The circumstances that arise showed that the Court of first instance having tumbled all the applications and trenching them as one of the facts or evidence that had no relationship or relevance to a specific application of the Appellant. The fallout therefore is that the right of fair hearing of the Appellant had been clearly breached and the correctness of the decision was neither here nor there.

This is because the proceedings having been fundamentally flawed on account of the failure to adhere to the rule of natural justice of the Appellant’s right to fair hearing jeopardized the proceedings and nothing could come out of it.”

The repercussion is that ruling given in breach of the right of fair hearing of the Garnishee/Appellant is tantamount to a nullity same having been conducted without jurisdiction. – Per Abdul-Azeez Waziri, JCA

INTERPRETATION – CONDUCT OF COURTS IN INTERPRETING STATUTES

The lower Court is not clothed with legal authority to import, add to, or subtract from the clear provisions of Section 84 of the Sheriffs and Civil Process Act, 2004. See the cases of Federal Republic of Nigeria vs. Vijay Lalwani (2013) LPELR – 2037 6 (CA); Atiku vs. Bodinga (1988) 2 NWLR (Pt. 76) 369; Oloba vs. Akereja (1988) 3 NWLR (Pt. 84) 505. The word used in Section 84 of the Sheriffs and Civil Process Act, 2004 which requires that consent of the Attorney General shall be obtained to attach funds in custody of a public officer like the Appellant before the commencement of Garnishee proceeding is clear and unambiguous. – Per Abdul-Azeez Waziri, JCA

ENFORCEMENT – WHEN THERE ARE STATUTORY REQUIREMENTS FOR ENFORCEMENT

…consent of the Honourable Attorney General in respect of money in custody of a public officer is a statutory requirement and failure to secure it will render any enforcement or steps taken to enforce it a nullity. – Per Abdul-Azeez Waziri, JCA

CENTRAL BANK OF NIGERIA – WHETHER CENTRAL BANK OF NIGERIA IS A PUBLIC OFFICER

It is settled law that the Central Bank of Nigeria is a public officer. See: CBN V APRIMPEX ENTERPRISES LTD & ORS (2021) LPELR – 55546 (CA) pp. 11-12 Paras A-C, CBN V MOGBO (2022) LPELR-57726(CA) Pp 11-13 Paras F-A.

Therefore, going by the provisions of Section 84 of the Sheriffs and Civil Process Act, the consent of the Attorney General of the Federation must be sought and obtained before any money in the Central Bank belonging to the judgment debtor can be attached. – Per J. G. Abundaga, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Sheriffs and Civil Process Act, Cap 56, Law of the Federation of Nigeria, 2004
3. National Industrial Court of Nigeria Civil Procedure Rules, 2017
4. Interpretation Act
5. Evidence Act, 2011
6. National Industrial Court Rules, 2007
7. Rules of Professional Conduct for Legal Practitioners, 2007

 

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