CORAM
PARTIES
CENTRAL BANK OF NIGERIA
UMAR SAJO & 2 ORS
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The 1st Respondent had earlier instituted an action against the 2nd and 3rd Respondents in the High Court of Adamawa State sitting at Yola and obtained judgment against them. In the course of enforcement or execution of the judgment against the 2nd and 3rd Respondents, the 1st Respondent commenced garnishee proceedings against the Appellant and two other banks. Both the order nisi and the order absolute were made against the Appellant in its absence. However, it applied immediately after the order absolute was made by the Court below for both orders to be set aside mainly on the grounds that the application for the order absolute was heard and determined less than fourteen days after it had been served with the order nisi and hearing notice and that the consent of the Attorney General of the Federation had not been obtained before the application for the order nisi was made as required by Sections 82 and 84 of the Sheriffs And Civil Process Act. The Court below dismissed the application mainly on the basis that it was functus officio. The Appellant immediately approached this Court by a Notice of Appeal for an order setting aside the decision of the Court below. The Notice of Appeal is brought upon three Grounds of Appeal. Although the 1st Respondent raised a notice of preliminary objection to the competence of the appeal; he also filed a Respondent’s brief of argument.
HELD
Appeal Allowed
ISSUES
Whether the Lower Court was vested with the requisite jurisdiction when it made the Garnishee Order Nisi and Garnishee Order Absolute. Whether the High Court (Court Below) denied the Appellant fair hearing when it failed to consider the issue of Garnishee Proceedings being heard less than (14) days on the return date contrary to Section 83 (2) of the Sheriff And Civil Process Act raised and argued by the Appellant before the Honourable Court below, thereby denying the appellant Fair Hearing.
RATIONES DECIDENDI
LEAVE OF COURT TO APPEAL – FACTORS THAT DETERMINED WHETHER LEAVE OF COURT TO APPEAL IS REQUIRED OR NOT
“Leave of Court to appeal is required only when the decision sought to be appealed against is not a final decision or the appeal is on grounds other than law. See Section 242 (1) of the 1999 Constitution FRN and Anacheba vs. Ijeoma & Ors (2014) LPELR – 23181 SC page 27. This Court in Alamieyeseigha Vs. C. J. N. (2005) 1 NWLR (Pt. 906) 60 also held that an appeal is as of right and requires no leave of the Court where the decision appealed against is either interlocutory or final provided the ground of appeal involves question of law. In determining whether a decision of a Court is final or interlocutory, the question the Court will ask itself is whether the decision finally disposes the rights of the parties to the suit. It is final decision if it finally disposes the rights of the parties. However, if the ruling does not then the decision remains an interlocutory decision. See the decision of this Court inOgoja L. G. Vs. Offoboche (1991) 7 NWLR (Pt. 458) 48. –
ORDER OF COURT – STATUS OF AN ORDER OF COURT MADE IN THE ABSENCE OF JURISDICTION
“Where an order made by a Court is made without jurisdiction the order is a nullity and the court can set it aside. See Ibok Vs. Honesty II (2007) NWLR (Pt. 1029) 55 and Onwoka Vs.Maduka (2002) 18 NWLR (Pt. 799) 586”. –
COMMENCEMENT OF GARNISHEE PROCEEDINGS – CONDITION PRECEDENT TO THE COMMENCEMENT OF GARNISHEE PROCEEDINGS AGAINST A PUBLIC OFFICER
“This Court in several of its decisions has held that the prior consent of the Attorney-General under Section 84 of the Sheriffs and Civil Process Act is necessary and mandatory before the judgment of the Court can be properly enforced against the state. Obtaining the fiat of the Attorney-General is a condition precedent which must be complied with before a party commences garnishee proceeding and failure of the party to obtain the consent of the Attorney-General robs the Court of the jurisdiction to entertain the action and renders the whole proceeding a nullity. See OnjewuVs. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 827) 40, Government of AkwaIbom State Vs. Powercom (Nig) Ltd (2004) 6 NWLR (Pt. 868) 202, Central Bank of Nigeria Vs. Hydro Air PTY (2014) 16 NWLR (Pt. 1434) 482, Central Bank of Nigeria Vs. Alhaji Mohammed Kakuri (2016) LPELR – 41469 CA, Appeal No. CA/L/710/2015 Sani Vs Unity Bank Plc& Central Bank of Nigeria (unreported) delivered on 10th March, 2017, Appeal No. CA/YL/132/2015 Central BANK OF Nigeria Vs. Asset Management Corporation of Nigeria & 10 Ors (unreported) delivered on 12th April 2017, Appeal No. CA/YL/76/2016, Central Bank Vs. MaiyiniCentury Co. Ltd (unreported) delivered on 30thMay, 2017 and Central Bank of Nigeria Vs. OSCKO Petroleum Ltd &Ors (2018) LPELR – 46732 CA.
There are however some decisions of this court and I have come across only a couple where the contrary view was held. These are; Central Bank of Nigeria Vs. Zenith Bank Plc&Anor (2019) LPELR – 48383 CA and C. B. N. Vs. Musa Zakari (2018) LPELR – 44751. I will cast my lot with those who held the view that the consent of the Attorney General is a condition precedent for the commencement of garnishee proceedings against a public officer which the appellant is; not because those who held the opposing view are apparently a minority but because the position of the law as contained in the majority judgments was not affected by the decision of the Supreme Court in Central Bank of Nigeria Vs. Interstella Communications Ltd & 3 Ors (2018) 7 NWLR 294 (Pt. 1618) 294.-
COURT- WHETHER FAILURE BY A TRIAL COURT TO RESOLVE AN ISSUE MAY RESULT IN SETTING ASIDE THE DECISION
“Failure by a trial Court to consider an issue is not a denial of fair hearing but a failure to perform its duty of adjudication. Where any issue is raised by any of the parties the Court is bound to resolve it. Failure to resolve all issues is capable of affecting the justice of the matter. Failure to resolve an issue may or may not result in setting aside of the decision reached depending on whether or not there has been a miscarriage of justice. Where there has been a miscarriage of justice, an appellate Court will intervene and set aside the judgment resulting therefrom. Where there is sufficient material before the appellate Court an order of retrial will not be made. The appellate Court will then be in as good a position as the trial Court to make a pronouncement on the issue. See Uka Vs. Irolo (2002) 7 SCNJ 137 and the decisions of this Court in Lawal Vs. Magaji (2009) LPELR – 4427 CA, Dangana Vs. I. G. P. (2018) LPELR – 45276 CA and Anadi Vs. Anadi & Ors (2017) LPELR – 42757”.-
CASES CITED
Not Available
STATUTES REFERRED TO
Central Bank of Nigeria Act|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Act 2004 Sheriffs and Civil Process Act|