IN THE NATIONAL INDUSTRAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 22ND JUNE, 2020
CENTRAL BANK OF NIGERIA ………… APPLICANT
1. OBONI MUSA & 180 ORS …………………. JUDGEMENT/ CREDITORS/RESPONDENTS
2. THE COMMANDANT GENERAL, NIGERIA
SECURITY AND CIVILDEFENCE CORPS JUDGEMENT/
3. THE DIRECTOR, CIVIL DEFENCE, IMMIGRATION DEBTORS/APPLICANTS
AND PENSION SERVICE BOARD.
4. NIGERIA SECURITY AND CIVIL DEFENCE CORP
5. KEYSTONE BANK LIMITED …………………….. GARNISHEE/RESPONDENT (FORMER BANK PHB)
ADEBAYO M. OGUMOLA for the Judgement Creditor
ANI JOEL for the Judgement Debtor Applicant
W. A. ADENIRAN for the Garnishee Applicant CBN with C. EZEOBIKA, C. OKEOGU and E. O. OBANJO
1. The Judgement Creditor had approached this court for an order Garnishee Absolute following the grantof an order in Nisi made on 8th July, 2015,, in response thereto the;
2. Applicant filed a NOTICE OF PRELIMINARY OBJECTION on 16th January 2019 supported by a 10 paragraph affidavit deposed to by Chioma Ezeobika, objecting: That this Honourable Court lacks the substantive jurisdiction to entertain this Garnishee proceeding.
GROUNDS FOR THE OBJECTION
1. This Honourable Court lacks the substantive jurisdiction to entertain the instant Garnishee proceeding by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria. 1999 (as amended).
2. The substantive jurisdiction to hear and entertain the instant Garnishee is vested only in the Federal High Court.
3. The instant Garnishee proceeding is incompetent and the Order Nisi made on 8th July, 2015, including the Ruling of 10th February 2016,which substituted Key Stone Bank with Central Bank of Nigeria are null and void, having been respectively concluded without jurisdiction.
WRITTEN ADDRESS IN SUPPORT OF APPLICANT’S NOTICE OF PRELIMINARY OBJECTION.
3. Learned Counsel for the Applicant submitted that the only Court vested with jurisdiction over an agency of the Federal Government is the Federal High Court; and that the Applicant which is also an agency of the Federal Government, is a party to the instant garnishee proceeding, thus, that the only Court vested with competent jurisdiction to entertain this matter is the Federal High Court. Section 251(1) (d) (e) (I)) (p) & (r) of the 1999 Constitution (as amended); CENTRAL BANK OF NIGERIA v OKEB NIG. LTD (2014) LPELR-23162 (CA), per M. Mustapha JCA; CBN v AUTO IMPORT EXPORT (20 13)2 NWLR (Pt. 1337) P. 80 at Pp. 133-134, paras G-A; CENTRAL BANK OF NIGERIA v. JOSEPH AZORO &ORS (2018) LPELR-44389 Pages 25-27 (CA).It is counsel’s submission that the law is settled that garnishee matters can only be initiated in a Court where the Judgment Debtor can sue for a debt. Order VIII Rule 2 of the Judgment (Enforcement) Rules LFN 2004.Counsel posited that where a statute or a Constitution provides for a particular way/mode of a doing a thing or for the attainment of a particular objective, that mode and no other must be followed. Thus, that it is the relevant provision of the Constitution, in addition to Order VIII Rule 2 of Judgment (Enforcement) Rulesand no other, that must be strictly adhered to. OKPALAUZUEGBU V EZEMENARI (2011) 14 NWLR (Pt. 1268) 492 at 524-525.He submitted that garnishee proceeding is separate and independent and that a Court may have jurisdiction on the suit which birthed the judgment sought to be enforced but if the route of enforcement chosen is garnishee, the Court might lack jurisdiction. DENTON-WEST V MUOMA (2007) LPELR-8172(CA); PURIFICATION TECHNIQUES (NIG) LTD V A.G, LAGOS STATE (2004) 9 NWLR (Pt. 879) 665 at 677.
4. The Judgment Creditors/ Respondents filed a 17 paragraph COUNTER AFFIDAVIT TO NOTICE OF PRELIMINARY OBJECTION DATED 16TH JANUARY, 2019 (on 11th February, 2019) and deposed to by A.M. Ogunmola.
WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT TO NOTICE OF PRELIMINARY OBJECTION
WHETHER THE APPLICANT NOTICE OF PRELIMINARY OBJECTION IS NOT AN ABUSE OF COURT PROCESS.
5. Counsel contended that this present application is a gross abuse of judicial process for the applicant to bring this application, this court in a considered ruling delivered on the 10th day of February, 2016 dismissed the application filed by the applicant in this instant suit and held that the court has jurisdiction to entertain the garnishee proceedings, which ruling was appeal against by the applicant and the appeal was struck out by the court of appeal.Furthermore, that once a court of law arrives at a decision on an issue placed before it and a decision taken, no party can invite the same court to set aside its earlier findings and substitute same with a fresh finding, as the court lacks jurisdiction to review its earlier findings and substitute same with fresh findings. CBN VS. AHMED (2001) 11 NWLR (PAGE 369) PT. 724.He maintained that the arguments of the applicant in their bid to show that this court has no jurisdiction over garnishee proceeding after completion of trial and judgment delivered over employment matter and payment of arrears of salaries as involved in the instant case are more relevant in attacking the validity of the constitution (third alteration) Act that ushered in the jurisdiction of the court as set out in Section 254 (of the Amended constitution). BABATUNDE VS. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (2007) ALL FWLR (Pt. 372) 1721, at page 1752.He argued that undoubtedly, the coming in of the third alternation Act provided a radical change and departure from the authorities cited by the applicant, the Act has widened the hitherto narrow and specialized jurisdiction of the National Industrial Court to includes issuing of injunctions and exclusive jurisdiction of employment matters which embraces garnishee proceeding against the Applicant for attachment of any money in its possession subject to “notwithstanding” to the exclusive jurisdiction of the National Industrial court use in. Section 254 (c) of the third alteration Act, which vest exclusive jurisdiction in the National Industrial Court including garnishee proceeding. S.C.C. (NIG) LTD & ORS VS. YUSUF SEDI 02013) 1 NWLR (PT. 1335) PART 231; OBIUWEUBI VS. CBN (2011) 2 - 3 SC (pt. 1) page 46.
6. Counsel contended that this present application is a gross abuse of judicial process for the applicant to bring this application, after the pronouncement on this issue by this court in a considered ruling delivered on the 10th day of February, 2016
7. It is counsel’s position that the powers and jurisdiction of the National Industrial court to grant an Order Nisi against a judgment debtor and any other person referred to as the Garnishee is well rooted in Order 51 of the National Industrial Court Rules 2017. Oceanic Bank PLC VS Oladepo (2013) WRN, per ( Mbaba, JCA).
REPLY ON POINTS OF LAW TO THE JUDGMENT CREDITOR’S WRITTEN ADDRESS IN OPPOSITION TO THE NOTICE OF PRELIMINARY OBJECTION DATED 16TH JANUARY, 2019 filed on 13th February, 2019.
8. The Counsel noted that the Judgment Creditors argument is solely hinged on the fact that the Applicant’s Notice of Preliminary Objection amounts to an abuse of court process and also that the Applicant had initially filed a preliminary objection which was struck out by the Honourable Court; contending that it is a misplaced argument on the part of the Judgment Creditors to state that the present Application is abuse of court process. Counsel submitted that where a party duplicates a court process, the more current one which results in the duplication is regarded as an abuse of the court process. The abuse consists in the intention, purpose and aim of the party exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts even though on different grounds. SARAKI V KOTOYE (1992) 9 NWLR (264) 156 @ 188489.He submitted that a court may have the requisite jurisdiction (substantive and procedural) to determine the substantive suit, but if the route of enforcement chosen is garnishee, that same court might lack jurisdiction to enforce same. DENTON-WEST V MUOMA (2007) LPELR-8172 (CA) and PURIFICATION TECHNIQUES (NIG) LTD V A.G, LAGOS STATE (2004) 9 NWLR (Pt879) 665 at 677.It is counsel’s submission that by a combined reading of Order VIII Rule 2 of the Judgment (Enforcement) Rules LFN 2004 and Section 251 of the 1999 Constitution (as amended),the Honourable Court lacks the Substantive jurisdiction to determine the instant garnishee proceeding.
9. The Judgment Debtors/Applicants filed a NOTICE OF PRELIMINARY OBJECTION on 25th March, 2019supported by a 4 paragraph affidavit deposed to by Ani Joel, challenging the jurisdiction of the Court to hear and/or adjudicate on the said Motion and/ or any application for an Order of Garnishee Absolute as constituted and conceived.
GROUNDS FOR OBJECTION
1) The Judgment/Creditors/Respondents did not comply with mandatory provisions of Section 84(1) & (3) (a) of the Sheriff and Civil Process Act, 2004accordingly, this Honourable Court lacks the requisite jurisdiction to hear the application for Order of Garnishee Absolute ab initio.
2) The condition precedent required for the grant of Order of Garnishee Nisi were not fulfilled by the Judgment Creditors/Respondents before initiating this suit.
3) The failure to obtain the consent of the Honourable Attorney General before initiating this suit robs this Court of its jurisdiction to entertain and adjudicate on the said Motion on Notice and/or any application for an Order of Garnishee Absolute as constituted and conceived.
WRITTEN ADDRESS IN SUPPORT OF THE JUDGMENT DEBTORS’/ APPLICANTS’ PRELIMINARY OBJECTION IN OPPOSITION TO GRANT OF ORDER OF GARNISHEE ABSOLUTE.
Whether this Honourable court having due regards to the obvious facts of this case and the mandatory provisions of section 84(1) & (3) (a) of the Sheriff and Civil Process Act has the jurisdiction to entertain and adjudicate on any application as constituted and conceived howsoever and whatsoever by the Judgment Creditors/ Respondents for the grant of Garnishee Order Absolute?
10. Learned Counsel submitted that the law is settled without any authority to the contrary that before a litigant can invoke the judicial powers of this Honourable Court as enshrined in Section 6 (6) (a) & (b) of the 1999 Constitution, three basic principles must be fulfilled.
(a) The court must be properly constituted;
(b) The subject matter of the suit must be one within the jurisdiction of the Court and;
(c) The suit comes to the Court having been initiated by due process of the law.
11. These principles must all be fulfilled before the Court can assume jurisdiction. In A — G Lagos State vs. Dosunmu (1989) 3 NWLR part III p552, The Supreme Court sitting as a Constitutional Court at page 567 paragraphs A — B per Oputa JSC (of blessed memory) citing with approval the case of Madukolu vs. Nkemdilim (1962) I ALL NLR 587 at 595 stated the principles with modification and explained same in these words:
1) It is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for one reason or another, and;
2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3) The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
12. Furthermore, that where there is a condition precedent to be fulfilled before initiating a suit, the failure to comply with the condition precedent will rob the Court of the jurisdiction to hear or entertain the suit where objection is raised. EGUAMWENSE vs. AMAGHIZEMWEN (1993) 9 NWLR (part) 315, p1per Karibi-Whyte, JSC at page 23.It is counsel’s submission that the Order of Garnishee Nisi made by this Honourable Court in favour of the Judgment Creditors was done in excess of the Jurisdiction of the Court for non-compliance with the mandatory provisions of Section 84 (1) & (3) (a) of the Sheriff and Civil Process Act.Counsel contended that the money in the account of the 3rd Judgment debtor sought to be attached by the Order of Garnishee Absolute is the fund allocated to the Corps by the Appropriation Act signed by the President of the Federal Republic of Nigeria; and that the consent of the Attorney General of the Federation is a mandate requirement before initiating a suit to attach such moneys. ONJEWU VS KOGI STATE MINISTRY OF COMMERCE & INDUSTRY & 2 ORS (2003) 10 NWLR Part 827 p.40, per Muntaka Commassie JCA (as he then was).Counsel submitted that it is an elementary principle of the law that a court of law will not assist a person to commit illegality and that the grant of “an order of Garnishee Absolute” to use the money appropriated to the Corps in the appropriation Act meant for the management and administrative running of the Nigeria Security and Civil Defence Corps would amount to a breach of the provisions of Section 80 (3) and (4) of the 1999 Constitution and the Appropriation Act; ONJEWU V KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY and 2 ORS (supra), per Oduyemi J.C.A at P&9 paragraphs B-C explained the purport of Section 84 (3) & (4) of the Sheriff an Civil Process Act and Section 80 (3) & (4) of the 1999 Constitution.
13. The Garnishee filed an affidavit to show cause;
1st Claimant Judgment Creditor filed a 10 paragraph COUNTER AFFIDAVIT TO GARNISHEE’S TO SHOW CAUSE on 18th November2019 and deposed to by Oboni Musa.
WHETHER THE GARNISHEE/APPLICANT DISCLOSE THE ACTUAL AMOUNT IN ITS POSSESSION BELONGING TO THE JUDGMENT DEBTORS.
14. Learned Counsel submitted that the Garnishee/Applicant has been playing the role an advocate for the judgment debtor by appealing against the order nisi of this Honourable court to the Court of Appeal whilst appeal was struck out and cost awarded against the applicant is still outstanding till date. And that the Garnishee/Applicant holds the judgment debtor’s money sufficient to satisfy the judgment debt. OCEANIC BANK PLC VS. MICHEAL OLADEPO (2013) 8 WRN 157 AT 172.
15. On the 17th February 2020 parties adopted and adumbrated their respective processes and this matter was adjourned for this ruling.
16. Having carefully summarized the positions of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit in any the two applications before the court.
17. Before the Court are two preliminary objections’; - The gravamen of the GarnisheeApplicant’s objection is that by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria. 1999 (as amended) only in the Federal High Court has the substantive jurisdiction to hear and entertain the instant Garnishee. And all the actions taken by this court in respect of the Garnishee in this suit were done without jurisdiction and are hence null and void.
18. While the Judgement debtors objection is on the grounds that, the failure to comply with the condition precedent robs the Court of the jurisdiction and that non-compliance with the mandatory provisions of Section 84 (1) & (3) (a) of the Sheriff and Civil Process Act which require that the consent of the Attorney General of the Federation is a mandate requirement before initiating a suit to attach such money. ONJEWU VS KOGI STATE MINISTRY OF COMMERCE & INDUSTRY & 2 ORS (supra).
19. The judgement creditors in response had counter argued that issue in the raised in this application, this court had in a considered ruling delivered on the 10th day of February, 2016 dismissed and the court held that it has jurisdiction to entertain the garnishee proceedings, this ruling was appeal against by the applicant and the appeal was struck out by the court of appeal. Furthermore, that this court has exclusive jurisdiction of employment matters which embraces garnishee proceeding against the Applicant for attachment of any money in its possession. the Judgement creditor continues that the words @ subject to “notwithstanding” to the exclusive jurisdiction of the National Industrial court use in.Section 254 (c) of the third alteration Act, vest exclusive jurisdiction in the National Industrial Court including garnishee proceeding. S.C.C. (NIG) LTD & ORS VS. YUSUF SEDI 02013) 1 NWLR (PT. 1335) PART 231; OBIUWEUBI VS. CBN (2011) 2 - 3 SC (pt. 1) page 46. And that the powers and jurisdiction of the National Industrial court to grant an Order Nisi against a judgment debtor and any other person referred to as the Garnishee is well rooted in Order 51 of the National Industrial Court Rules 2017. Oceanic Bank PLC VS Oladepo (2013) WRN, per (Mbaba, JCA).
20. I hold that the contention are argument of the Applicant with regard to Section 241 of the 199 CFRN (as amended) is somewhat moribund and cannot hold water considering the pronouncement of the Court of Appeal in MAINSTREET BANK REGISTRARS LTD v. AHAIW 2019 LPELR CA where the Appellate court after considering the provisions of Section 251 of the 1999 CFRN (as amended) held and I quote; -
21. “…Indeed the Constitutional endowment of power bestowed lavishly upon it, for good reasons makes it ex abundanti cautela, that notwithstanding the provisions of Sections 251, 257 and 272 of the Constitution, it shall exercise the powers enumerated therein the Constitution. ?It should be noted that the Sections 251, 257 and 272 relate to the jurisdictions of the Federal High Court of the Federal Capital Territory and the State High Courts respectively. This, therefore, means that the National Industrial Court has the exclusive jurisdiction over those genre or species of matters notwithstanding the parties involved as donated to the Federal High Court or the other high Courts of the Federal Capital Territory of State High Court.” Per Danjuma, J.C.A. (Pp. 63-65, Paras. B-E). this means that the fact that the Judgement debtors and the Garnishee are Federal Government Agencies is of no moment in respect of this suit and the position of the law in 1999 CFRN.
22. Also see CBN V. ABUBAKAR (2019) LPELR CAa case similar to the instant case where inter alia the issue was the actions of a Garnishee were evaluated following an order Nisi of this court and the Court of Appeal held: “Assuming that the jurisdiction of the National Industrial Court to entertain the Garnishee proceeding is properly challenged, I have no doubt that on a proper interpretation of Section 251(1)(d) and Section 254(c) (1)-(6) of the Constitution of Nigeria, 1999 (as amended), the National Industrial Court (the lower Court) is the proper Court vested with jurisdiction to entertain the action instituted by the Respondent/Judgement Creditor against the Judgment/Debtor (the Police Service Commission and Inspector General of Police). This is because this suit falls within the employer-employee relationship, and therefore falls within the purview of Section 254(c) (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides:
''254(c)(1) Notwithstanding the provisions of Sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters relating to or connected to labour, employment, trade unions, industrial relations and matters arising from work place, the condition of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected with disputes arising from payment or non-payment of salaries, wages, pension, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public officer, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto."
23. ." The limits of the jurisdiction of a Court are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. A Court cannot do more than this, it cannot confer on itself jurisdiction not granted it by statute. See ABUBAKAR V ABUBAKAR (2015) ALL FWLR (PT. 808) AT PAGE 693. In determining whether or not a Court has the requisite jurisdiction to determine a matter, what is considered is the claims of the plaintiff as outlined in the plaintiff's statement of claim. This is indeed the law. See ABIA STATE INDEPENDENT ELECTORAL COMMISSION V KANU (2013) 13 NWLR (PT.1370) 713 PARAS D-E.
24. I am of the solid view that the cases of GEORGE V FRN (2011) ALL FWLR (PT.587) 664 and OBIUWEUBI V CBN (2011) ALL FWLR (PT.575) 208 are no longer applicable to the instant situation in view of the decision in the case of CBN V. UBANA & ORS (2016) LPELR-40366 (CA)." Per Abundaga, J.C.A. (Pp. 9-13, Paras. B-E)”
25. Furthermore, I agree with the Judgement creditor that Order 51 if the NICNCOR enables this court to undertake Garnishee proceeding pursuant to the powers conferred on this court by the constitution. I resolve this issue against the applicants.
26. The Judgment Debtors grouse is that this court did not obtain the consentof the Attorney general before making an order Nisi, contending that the consent of the Attorney General was mandatory. This very same issue had been raised previously in this self-same suit and this court had delivered a considered ruling thereon. I have carefully read the argument and contention of the Judgement Debtor and I find no reason to vary this court’s decision on this matter. In other words, the Judgment debtor have not convinced this court by reason of fresh or compelling legal argument of the need for this court to depart from its earlier holding in its ruling of 10th February 2016 in this suit. I resolve this issue against the Judgment Debtors accordingly.
27. The Applicant had filed two Affidavits to show cause. 16th and 18th of November 2018, the latter was field with the court’s direction as rt specific dates. Before I delve into the merits of these processes, it is necessary to address a contention of the Garnishee Applicant that he Judgment Creditor filed an affidavit counter to their Affidavit to show cause and describe the Judgement creditors affidavit an unknown and unprecedented process.
28. Contrary to the Applicants contention the Court of Appeal in FIDELITY BANK v. GUMAU & ANOR (2019) LPELR-47068(CA) considered the provisions of Section 87 of the Sheriffs and Civil Process Acttogether with case law position and held that , that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars and conflict with the facts deposed by the judgment creditor, there is a dispute of liability warranting the use of Section 87 of the Sheriffs and Civil Process Act” - CENTRAL BANK OF NIGERIA VS. HYDRO AIR PROPERTY LTD (2014) 16 NWLR (PT. 1434) 482, MAINSTREET BANK LTD VS. UNITED BANK FOR AFRICA PLC. (2014) LPELR 24118(CA), ECO BANK (NIG.) PLC. VS. MBANEFO & BROS LTD (2014) LPELR 41106 (CA), TOTAL UPSTREAM NIGERIA LTD VS. A.I.C. LIMITED (2015) LPELR 25388(CA).The Appellant court went on to state that a “third scenario is where a garnishee order nisi is granted on the basis of a general statement of a judgment creditor that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars showing that it has no such funds, a dispute as to liability warranting the use of Section 87 of the Sheriffs and Civil Process Act will only arise where the judgment creditor deposes to a further affidavit contesting the assertions of the garnishee, otherwise the garnishee would be discharged on the basis of its deposition - Zenith Bank Plc. Vs. Kano (2016) LPELR 40335 (CA), Eco Bank Nigeria Limited Vs. Udofia (2018) LPELR 45164(CA), All Works Commercial Company Ltd Vs. Central Bank of Nigeria (2018) LPELR 45991(CA).
29. It is in this circumstances that this court must consider the Judgement creditors affidavit and especially as FIDELITY BANK v. GUMAU & ANOR (supra) held that such an affidavit, as that of the Judgment creditor, “…is in furtherance of the principle that where specific facts in a response affidavit are not covered by the depositions in the original affidavit, the party must file a further affidavit to counter those specific facts, otherwise they will be deemed admitted - Badejo vs. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15, Dana Airlines Ltd Vs. Yusuf (2017) LPELR 43051(CA), Yandy Vs. Alhaji Umar Na Alhaji Lawan& Sons Ltd (2018) LPELR 45634(CA), Akiti Vs. Oyekunle (2018) LPELR 43721(SC).
30. Relying on the above I find that the Judgment Creditors counter affidavit, without more, to the Garnishees Applicants Affidavits to show cause,would have been good and proper process for hearing of an Garnishee in default as per Section 87 of the Sheriffs and Civil Process Act.
31. I resolve this issue for the judgement creditor and against the Garnishee Applicants.
32. I had stated earlier that the Garnishee had filed two affidavits to show cause,as well as a notice of preliminary objection which I had resolved above and the law is quite clear as to what the role of a Garnishee is in these type situations; -
“A garnishee who has been served with the garnishee order nisi has a duty to respond to the substance of the order served on it. If it does not pay the money into court, then it must show because why an order absolute should not be made, for the order nisi is the basis of making the order absolute. The affidavit to show cause must therefore address the substance of the order served on it….”
33. Per Hon. Justice Salami, JCA at P. 36 – in the he case of CITIZENS INTERNATIONAL BANK LIMITED v. SCOA NIGERIA LIMITED (2006) ALL FWLR (PT. 323) 1680is illustrative of what is expected of a garnishee who disputes liability and desires to show cause and what the affidavit showing cause entails.
34. In this instant case the initial Garnishee had filed an affidavit disclosing to the situation of the their funds which were deposited with he present Garnishee, neither the 1st or 2nd affidavit to show cause of the present Garnishee are of any help to the court rather these processes, together with the nature Applicant Preliminary objection I find, in the circumstances of this case these process obfuscate the actual position of the judgment sum.
35. I am aware of the provisions of Section 87 of the Sherriff and Civil Process Act and the case of FIDELITY BANK v. GUMAU & ANOR I have considered all the processes before this court. I am also guided by the Superior court in ZENITH BANK V. EDEH & ANOR 2019 LPELR CAwhere it was held that ; - “It is trite that the bank does not own the money in the bank; therefore, it cannot cry more than the bereaved so to speak, it left the lower Court no choice but to proceed and make the orders.
In OCEANIC BANK PLC v OLADEPO & ANOR (2012) LPELR - 19670 (CA), this Court had an opportunity to address the rising role of the devil's advocate played by banks in garnishee proceedings, where the Court held thus;-) “We have stated, several times, 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. Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst!, It can therefore be made to pay the debt of the judgment debtor, if the court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody.
36. In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor's money sufficient to satisfy the judgment debt." Per MBABA, J.C.A (Pp. 21-22, paras. C-B)
37. Also, in CBN V. ABUBAKAR (supra) Where the Appellate Court held that; - “’Order 49 Rule 20 of the National Industrial Court (Civil Procedure) Rules, 2017, cited and relied on by the Respondent's counsel provides:
''Where the Court has delivered a monetary judgment in favour of any of the parties in the case before it, the winning party may apply to the Court for the enforcement of the judgment by filing a garnishee proceeding amongst other procedure as may be allowed under National Industrial Court Act, 2006 or any other Act or Rules of this Court.’
38. It is the law that the judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every Court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution. SeeNGERE & ANOR V OKURUKET & ORS (2014) LPELR 22883 (SC). A Garnishee who is asked to show cause has only one thing to do, and that is, to disclose the true account status of the judgment debtor in its custody. It can therefore be made to pay the debt of the judgment debtor if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true account of the judgment debtor in its custody. 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. SeeOCEANIC BANK PLC V OLUSEGUN OLADEPO & ANOR (2012) LPELR-19670 (CA); CBN V INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR-43940 (SC). The only defences that may therefore be open to a Garnishee is that, either the judgment debtor has no such monies in its custody, or that the money if there is, is encumbranced by a lawful obligation on it in respect of which it has no choice but to obey. Where a Garnishee, such as in the instant case undertakes to challenge the validity of the judgment debt, I believe it has gone out of its way and thus exposes itself to attendant legal consequences”
39. Also in TOTAL UPSTREAM NIGERIA LTD v. A.I.C LTD & ORS(2015) LPELR-25388(CA)also following Oceanic bank case the Court of Appeal held thathIn SKYE BANK PLC VS DAVID & ORS (2014) LPELR (23731) CAthis court reaffirmed its decision in Oceanic Bank's case. In the circumstance it needs be emphasized that it is not the duty of a garnishee to defend the judgment debt sought to be enforced against the judgment debtor. The duty of a garnishee upon receipt of Garnishee order nisi is to file before the relevant court an affidavit to show cause why the judgment debtor's money in his custody should not be attached to satisfy the judgment debt. It then behoves a garnishee to present the true state of affairs regarding the monies before the court. Either there is no or insufficient fund in his custody or that the available fund is under lien or assigned to a third party in which case the court instead of proceeding to make an order for Garnishee absolute may order that any issue or question necessary for determining his liability be tried or determined as provided for in Section 87 of the Sheriff and Civil Process Act." Per OSEJI, J.C.A. (P. 45, paras. A-F)
40. In the circumstances having found that the Garnishee lacks the vires to raise the arguments in his Preliminary objection and that his role is limited to supplying the court the proper position of the JDA bank balance as at the date of service of the Order Nisi. The 2ndgarnisheei find that the Garnishee has not provided the information required.
41. See KIGO (NIG.) LTD. V. HOLMAN BROS. (NIG.) LTD. (2001) 47 WRN PG.1 AND THE LAMORA (1916) AC 27. Once a matter is on appeal, the court has jurisdiction to preserve the res. The exercise of this discretion is dictated by the facts and circumstance of each case. Where a party complains in a monetary judgment that the respondent may not be able to secure a refund of the judgment debt after an appeal, the court has a discretion to grant a conditional stay upon the payment of the judgment/debt into an interest yielding account for delivery to who ultimately establishes title after an appeal.
42. This court is obliged in the instant appeal to make an order that will be in the interest of justice and conducive - with the effect that the appellant shall not come back to a hollow victory after an appeal in their favour, while respondent shall not suffer any loss if the judgment of this court is confirmed on appeal." Per Adekeye, J.C.A. (Pg. 21-22, Paras C-C).
In line with the above and considering the state of the applications before this court at this time and in order to make a proper determination of the actual state of affairs: I find that it is imperative that the court demand and order as follows; - The garnishee is hereby ordered to pay the judgment sum plus any incidentals granted to the Judgment creditors accordingly.
43. The application of the Judgement Creditor has merits and succeeds. The order of this Court is that the Judgement Creditors Application is hereby granted. And the order Garnishee Nisi is hereby made Absolute.
44. This is the Court’s ruling and it is entered accordingly.
JUSTICE E. N. AGBAKOBA