IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE - JUDGE
DATE: 16TH September, 2019 -
SUIT NO: NICN/KN/18/2019
1. ABDULLAHI ABUBAKAR JUDGMENT CREDITOR/RESPONDENT
1. POLICE SERVICE COMMISSION JUDGMENT DEBTORS
2. INSPECTOR GENERAL OF POLICE
FEDERAL MINISTRY OF FINANCE GARNISHEE
REPRESENTATION: Judgment Creditor present.
Muktar Musa for the judgment creditor respondent.
Garnishee Applicant absent.
1. On the 21st May, 2019 the Garnishee, Federal Ministry of Finance filed the Notice of preliminary objection pursuant to Section 6(6) (b) of the 1999 constitution of Nigeria as amended and section 84 of the Sheriff and civil process Act and the inherent jurisdiction of the court.
In the notice, the Garnishee as applicant gave the grounds for the objection as:
i. The Garnishee is not a juristic person.
ii. That the requisite consent required by law before the Order Nisi was made, was not sought and obtained and as such the Order Nisi is a nullity.
In the written address in support of the Notice of Preliminary objection a sole issue was formulated for determination. That is: “whether or not the Honourable court has jurisdiction to entertain this suit.”
The objectors made submissions on two sub-issues, the first on the legal personality of the Garnishee/Respondent, the Federal Ministry of Finance and the second, on the issue of the requisite consent for obtaining the Order Nisi before attaching the Money in the possession of the public officer as provided in section 84 of the Sheriffs and civil processes Act.
2. On the 1st sub issue, the objectors submitted at paragraph 4.2 of the Constitution of the Federal Republic of Nigeria (CFRN), as amended, anybody, persons or authority whose civil right or obligation is in issue can refer the matter to court for the purpose of determination.
And according to counsel for the objectors, the nagging question here is does the word “person or body” referred to in section 6 (6) (b) include both juristic and non juristic persons. Answering the question, he stated that only a natural or artificial person having legal personality can sue or be sued. That in other words, it is trite that only natural, juristic or judicial persons have legal capacity to sue or be sued, citing the cases of NDOMA-EGBA V. GOVT OF CROSS RIVER STATE (1991) 4 NWLR (pt 188) 773-786 paras F – G and ABIA STATE UNIVERSITY V. ANYAIBE (1963) 3 NWLR pt 439 pg 646 – 662.
3. The objectors argued that it followed that no action is maintainable by any person or body against any person or body unless the person is clothed with a legal personality or right to sue in that name and cited EROKORO V. GOVT. Of CROSS RIVER STATE (1991) 4 NWLR PT 183 P. 325. Where the Court of Appeal held that the mere fact that a statute recognizes the existence of a body for the purpose of performing a particular function or functions does not automatically vest that body with the power to sue and be sued without more. That the power to sue and be sued can only be donated by the state or law maker, either directly or by necessary implication. It was argued for the objectors that the implication of the said holding in EROKORO is that even if a body is in subsistence such as the 1st Garnishee Respondent for the purpose of performing certain functions does not automatically vest in that body the power to sue and be sued unless such a power is donated to it by the enabling law otherwise it cannot sue or be sued as the case at hand; that is, the Federal Ministry of Finance, the 1st Garnishee in this case is neither established by an Act of the National Assembly nor is it registered with the Corporate Affairs Commission or any authority.
4. It was argued further that the burden of proof of juristic personality usually lies on the person claiming its subsistence. That the fact that the Federal Ministry of Finance, the Garnishee, is a department of the Federal Government is not enough to allow it a juristic personality it not being a creation of statute, with reliance placed on the case of S.D AGBOOLA & 2 ORS V. GABRIEL SAIDU & ANOR (1991) 2 NWLR PT 175 pg 576.
5. In the second sub issue it was argued that failure to obtain consent before attaching any money in the possession of a public officer pursuant to the grant of an Order Nisi as provided in section 84 of the SHERIFFS AND CIVIL PROCESESSES ACT (scp), renders the proceedings incompetent citing the case of BEN OBI NWABUEZE V. JUSTICE OBI OKOYE (1989)4 NWLR (pt. 91) 664 at 713. Arguing that the court’s jurisdiction can only crystallize when the precondition laid down by section 84 of SCP Act has been complied with. That the failure of the Judgment creditor to provide evidence that the Attorney General of the Federation’s consent was sought and obtained is fatal to its application and the Order Nisi obtained. That the consequence of the breach of section 84 of the SCPA renders the entirety of the Garnishee proceedings invalid ab initio with reliance placed on the case of CBN VS. SHIPPING CO SARA B.V. & 3 ORS NO.1 (2015) II NWLR pt 1469 p.130/156, where the Court of Appeal held that the consent of the Attorney General having not been sought and obtained rendered the proceedings incompetent by robbing the court of jurisdiction and they urged the court to strike out the suit.
6. In the counter affidavit of the Judgment creditor it was averred that this Honourable Court gave Judgment in favour of the judgment creditor on 21st May, 2014. And the Judgment creditor was not suing the Garnishee Applicant that the monies of the Judgment Debtors come through the Garnishee. That after the Garnishee has divided the monthly allocation of all funds, that of the Federal Government is shared by the Garnishee to all the Ministries departments and agencies of the Federal Government, in the Judgment Debtors. That the consent of the Attorney Government of the Federation had been sought and obtained as shown in exhibit AA1. And that the Court of Appeal gave judgment in an interlocutory Appeal against the ruling of this Honourable court by the Central Bank of Nigeria where it was held at page 20 of the judgment annexed as exhibit AA2 that the consent of the Attorney General of the Federation is not needed for a garnishee against a Federal Government Agency.
7. In the written address of Judgment Creditor Respondent to the preliminary objection a sole issue was formulated for determination:
“Whether this Honourable can grant the Order sought by the Applicants”.
Early reliance was placed by the Respondent on the Supreme Court’s decision in the case of GUARANTY TRUST BANK PLC V. INNOSON NIGERIA LTD (2017) LPELR 42368 (SC) where the court held that it is not for a garnishee to fight the cause of the judgment debtor who either accepts the judgment against him and does nothing about it or who may be indolent to fight his cause that no power inheres in the garnishee to make himself a busy body. That 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 forestall such unwanted seizure or attachment. That it is not for the Garnishee to embark on any of such options, which he lacks the locus standi to embark on. That the cause of action accruable to the Garnishee is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor.
8. In response to the Garnishee’s submissions on juristic personality, the judgment creditor through counsel provided out that it is pertinent to bear in mind that the Applicant herein is a garnishee and not sued by the Respondent as argued by the Garnishee. That garnishee is just a form of execution of Judgment of a court and not an entirely new suit in which the Applicant can claim that it is not a juristic person and therefore cannot be sued. That the only duty of Garnishee in a Garnishee proceeding is to satisfy the court why the fund in its possession belonging to the Judgment Debtor should not be Garnished to pay the judgment Debt. That it is not the duty of a garnishee to play the role of advocate for the judgment Debtor or to protect the Debtor’s money in its possession citing CENTRAL BANK OF NIGERIA V. ABDULLAHI ABUBAKAR the unreported suit No. CA/K/136/2017 emanating from this court and the case of OCEANIC BANK PLC V. MICHEAL OLUSEGUN OLADIPO & ANOR (2012) LPELR 19670.
9. The preliminary objection filed by the Garnishee has to do with the judgment of this Honourable court delivered on the 21st May, 2014 per Mani J of blessed memory. Wherein the reinstatement of the judgment creditor to the service of the Nigerian Police force was ordered with his full rank, position and benefits and for payment of all his salaries, allowances and entitlements from the 7th of February, 1995 to date. That up till date the judgment Debtors have refused to comply with the Order of this court. This state of affairs caused the judgment creditor to initiate garnishee proceedings against the Judgment Debtors and by necessary implication of the proceedings the Central Bank of Nigeria emerged as Garnishee on whom an order absolute was made by this court on the 24th of June 2019 in the sum of
N1,279,673:75k (one million two hundred and seventy nine thousand six hundred and seventy three naira seventy five kobo) making the garnishee order nisi given on the 8th of May 2018 absolute and the Garnishee Central Bank discharged thereby.
10. On the 23rd April 2019 the Judgment Creditor had filed a motion exparte pursuant to S.83 of the SCPA a garnishee Order Nisi deducting directly from source the judgment sum of
N33,853,824.62k (Thirty three million, eight hundred and fifty three thousand, eight hundred and twenty four naira sixty two kobo).the order nisi was given on the 8th of May, 2019, Ordering the Garnishee the Federal Ministry of finance to show cause why the order absolute should not be made against it. Thereafter the Garnishee filed the said preliminary objection on the 21st May, 2019 seeking to strike out the Garnishee proceedings in the affidavit to show cause by the Federal Ministry of Finance the deponent had averred that the Garnishee is not a juristic person, that the Federal Ministry of Finance does not maintain any account for the Judgment Debtors or any Government organization. That the Garnishee is not a custodian of the judgment Debtor’s fund or any public fund. That the Garnishee is not indebted to the judgment debtors. And the Judgment Debtors do not take any direct allocation from the Garnishee. That the monthly allocation of funds is usually shared among the 3 tiers of government namely Federal states and local government joint account and not shared among the Ministry Department and or Agencies (MDAS).
11. I have taken time in this ruling to go through the submissions/arguments of the parties, I must state straight away that I am convinced by the arguments put forward by the judgment creditor on two fronts. The first is that of the decision of the Supreme Court in the case of GURANTY TRUST BANK V. INNOSON (Supra). I find and I hold that the Garnishee Federal Ministry of finance does not have the locus to go this far to forestall the garnishee proceeding initiated by the judgment creditor to realise the fruit of the judgment entered in his favour this court since the 21st of May, 2014.
On the second front I am equally persuaded by the unreported ruling delivered by the Court of Appeal Kaduna Division in CA/K/181/M/2018 where it was held that the prior consent of the Attorney General of the Federation is not required to enforce the judgment of a court against an agency of the Federal Government through a garnishee proceeding. Consequently, I hold that the emergence of the Garnishee, the Federal Ministry of Finance is a result of the implication of law in garnishee proceedings, the upshot of which is that monies belonging to a Judgment Debtor can be garnished to satisfy a judgment debt owing or due to the Judgment Creditor by virtue of a subsisting judgment of a court of competent jurisdiction. The argument that the Federal Ministry of Finance is not a juristic person is equally hereby discountenanced as the arguments therein amount to technical which must not be allowed to defeat the ends of justice technicalities.
On the basis of the above reasoning’s the preliminary objection of the objectors Federal Ministry of Finance is hereby struck out.
And ruling is entered accordingly.
HON. JUSTICE E. D. E. ISELE