3PLR – OSIMENE V. COMMISSIONER FOR AGRICULTURE, WATER RESOURCES AND RURAL DEVELOPMENT AND ORS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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OSIMENE
V.
COMMISSIONER FOR AGRICULTURE, WATER RESOURCES AND RURAL DEVELOPMENT AND ORS
IN THE COURT OF APPEAL
[CALABAR DIVISION]
3PLR/2003/142 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
SIMEON OSUJI EKPE, JCA. (Presided)
SULE AREMU OLAGUNJU, JCA.(Delivered the leading judgment)
ISTIFANUS THOMAS, JCA.
BETWEEN
E.E. OSIMENE
AND
- COMMISSIONER FOR AGRICULTURE, WATER RESOURCES AND RURAL DEVELOPMENT
- MINISTRY OF AGRICULTURE, WATER RESOURCES AND RURAL DEVELOPMENT
AND
- GOVERNMENT OF CROSS RIVER STATE
AND
- STANDARD TRUST BANK (CALABAR BRANCH)
- ALL STATES TRUST BANK LTD. (CALABAR BRANCH)
REPRESENTATION
O.O. Obono-Obia ESQ., – for the judgment creditor/appellant
O.Aladedoye ESQ., – for the 1st garnishee/respondent
MAIN ISSUES
CONSTITUTIONAL LAW – Doctrine of separation of powers – factors mitigating against exclusive practice of same.
CONSTITUTIONAL LAW – Doctrine of separation of powers – purport of the Nigerian Constitution – whether section 84 of the Sheriffs and Civil Process Act is void for lack of compliance with same.
INTERPRETATION OF STATUTES – Section 84 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria 1990, sections 6 (6)(b) and 287(3) 1999 Constitution – whether contradictory.
PRACTICE AND PROCEDURE – Garnishee proceedings – where conducted in breach of law and laid down procedure – effect of.
PRACTICE AND PROCEDURE – Trial Judge – need for parties to be heard on issue raised suo motu – effect of non compliance therewith.
MAIN JUDGEMENT
SULE AREMU OLAGUNJU JCA. (Delivered the following judgment):
The appeal from Calabar Judicial Division of Cross River State High Court is on execution of judgment in which the judgment/creditor’s application for an order of garnishee to attach the judgment debtors’ money in custody of the garnishees/respondents was refused as incompetent for failure by the judgment creditor/applicant to satisfy the condition precedent to making such an application. As the events leading to the application for garnishee order being declared to be incompetent are wrapped up in tortuous procedure that gave rise to involved facts a detailed review of the material facts would ease an understanding of the simple issues raised in this appeal.
In pursuance of execution of a judgment given to the appellant by the same High Court in earlier proceedings the appellant as a judgment creditor applied for garnishee order against the 2 garnishees/respondents who are bankers for attachment of the sum of N871,859 from the accounts of the judgment debtors with the two banks. To this end, an order nisi was issued on 28/6/2000 fixing 17/7/2000 for hearing of the matter; that is to say, an invitation to the garnishees to show cause why they should not pay the sum claimed to the judgment creditor, the appellant herein, from the accounts of the judgment debtors with them. There was a delay in serving the order nisi on the garnishees and the judgment debtors, after which the following steps were taken by the garnishees and the judgment creditor.
On 13/7/2000 the 2nd garnishee filed what is headed as ‘affidavit of reply’ in which it was deposed on her behalf that ‘the account of the judgment debtor shows a debit balance on N42,284.81 since 22/6/2000.’ On 6/9/2000 the 1st garnishee filed a motion on notice praying the court to set aside or discharge the garnishee proceedings because the judgment sought to be enforced is shown in the order nisi to have been delivered the judgment sought to be enforced is shown in the order nisi to have been delivered on 24/9/2000, almost three months after the order nisi was granted. In a counter affidavit by the appellant, filed on 17/11/2000, the judgment creditor deposed that the judgment was delivered ‘on 24/9/96’ and that the date ‘24/9/2000’ in the drawn up order is due to a clerical error. On 26/7/2000, learned counsel for the appellant moved the court that the order nisi be made absolute because of the garnishees’ failure to react to the order nisi as stipulated by section 86 of the Sheriffs and Civil Process Act, chapter 407 of the Laws of the Federation of Nigeria, 1990. And the court adjourned to 3/8/2000 for ruling on the application that was further adjourned to 26/9/2000.
There followed a mix-up in the recording of the proceedings between 3/8/2000 and 11/10/2000 for which see page 26 of the record. Whereas the proceedings following immediately those of 3/8/2000 are headed as taking place ‘on 11/9/2000’ at the conclusion of the proceedings of the same day the record was signed and dated ‘27/9/2000’. During the proceedings of that day, the learned trial Judge recorded that fact that the court clerk informed him that ‘counsel from the Ministry of Justice filed papers in reaction to the motion’ which he (the Judge) had not seen; he thereafter, adjourned the case to an undisclosed date. However, on 11/10/2000 when the case came up again, at the prompting of learned counsel for the garnishees and the judgment debtors the court took note of the fact that there were two motions pending before it. But learned counsel for the judgment creditor/appellant told the court that his client had ‘not been served with …..copy of any processes filed by the debtors’. He reminded the court that the case was fixed for ruling on that day and delved into a review of the antecedents of the proceedings up to that date and urged the court to ignore the two applications before the court. At the end of the submissions the court upheld the contention of learned counsel for the garnishees and the judgment debtors that they were entitled to hearing and adjourned the case to 22/11/2000 for hearing of the two motions.
However, on 22/11/2000 the court did not sit and after two adjournments when the judgment creditor was in court but the other parties were absent the learned trial Judge on 6/3/2001 deferred to the prayer of learned counsel for the judgment creditor and adjourned to 12/3/2001 for ruling, presumably, on the application of the judgment creditor for a garnishee order. After a review of the history of the action leading to the judgment being sought to be enforced and of the application for a garnishee order and a recourse to section 83 of the Sheriffs and Civil Process Act and sub-section 6(6)(b) of 1999 Constitution of the Federal Republic of Nigeria on the vesting of judicial powers In the Courts generally the learned trial Judge refused to grant a garnishee order on the ground that the judgment creditor/applicant did not seek leave of the State Attorney-General as stipulated by section 84 of the Sheriffs and Civil Process Act and struck out the judgment creditor’s application.
Against the foregoing factual background, dissatisfied with the decision of the court below the judgment creditor/applicant is challenging that decision on three grounds of appeal from which he distilled in his brief of argument the following three issues:
“i. Whether there was before the learned Judge an ex parte motion which he declined jurisdiction to entertain?
- Whether section 84 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, is still a valid law in view of the provision of section 6 sub-section 6(b) and section 287 sub-section 3 of the Constitution of Federal Republic of Nigeria, 1999?
iii. Whether it was proper for the learned trial Judge to raise by his own accord, the issue of the appellant not complying with section 84 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990, and resolving same without affording the appellant the opportunity of being heard on it?”
In an application filed on 21/1/2002 the appellant prayed this court for an order that the appeal be heard on the appellant’s brief of argument only because the two garnishees/respondents who were duly served with the appellant’s brief of argument on 1/11/2001 did not file their respondents’ brief up to 24/12/2001 when the time to do so ran out. The motion came up for hearing on 21/5/2002 but in the meantime, on 17/4/2002, the 1st garnishee/respondent had filed a brief of argument so that the prayer was varied and this court made an order that the appeal be heard on the appellant’s and the 1st garnishee/respondent’s briefs of argument only. In her brief of argument the 1st garnishee/respondent adopted issue 2 in the appellant’s brief of argument and in addition formulated the following two issues for determination:
“i. Whether the learned trial Judge was right to have declined jurisdiction in the circumstances of the case?”
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iii. Whether the resolution of the issue of jurisdiction by the learned trial Judge suo motu has occasioned any miscarriage of justice.”
I will begin examination of the issues with issue 2 in the appellant’s brief of argument adopted by the 1st garnishee/respondent. The main contention of learned counsel for the appellant on this issue is that the restrictions placed by section 84 of the Sheriffs and Civil Process Act on execution of judgment by garnishee order are inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, though winding up his argument on the issue the learned counsel controverted in the alternative that even if the restrictions imposed by section 84 are held not to be in violation of the Constitution they do not apply to the garnishees/respondents who are in custody of the judgment debtors’ money as they are not public officers as defined by that section.
On the main argument, learned counsel for the appellant contended that section 84 of the Sheriffs and Civil Process Act, Cap. 407 of the Laws of the Federation of Nigeria, 1990, is inconsistent with sections 6(6)(b) and 287 (3) of the Constitution of the Federal Republic of Nigeria, 1999; runs counter to sections 251(1) and 272(1) thereof, and is to that extent void. The offending section provides as follows:
“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 custodia legis, 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 custodia legis, as the case may be.
(2) In such a case 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 service of the Federation, the Attorney-General of the Federation;
(b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the state, the Attorney-General of the state.”
The conflict of that section with the provisions of the Constitution is ranged by the learned counsel along two broad spectra, viz, the archaic philosophical doctrine that has been jettisoned by constitutional evolution and the separation of powers between the three major organs created by the Constitution along the axis over which state craftsmanship is balanced as a safeguard against arbitrariness where one arm is exercising the powers of one or both of the two others.
On the antiquated doctrine, it is the contention of the learned counsel that the provision of section 84 of the Sheriffs and Civil Process Act is a vestige of the English ancient constitutional maxim that ‘the king can do no wrong’; that it is part of the relics of our colonial heritage that has become anachronistic having been superseded by the constitutional provisions that came in the wake of our independence which repudiated ‘ the doctrine of sovereign infallibility or state immunity’. The doctrine, he argued, has been rejected by the Supreme Court in several of its decisions quoting extensively from Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C 40, 58, and Ransome Kuti v. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211, 230, and from the decision of this court in Jallo v. Military of Governor of Kano State (1991) 5 NWLR (Pt. 194) 754-758. He submitted that ‘the doctrine of sovereign or state immunity implicit in section 84 of the Sheriffs and Civil Process Act is inconsistent with the provisions of section 6(6) (b) and section 272(1) of the 1999 Constitution in the sense that it is absurd for the enforcement of the judgment of a court established under the Constitution to be subjected to the whims and caprices of the Attorney-General, be it at the federal or state level’.
As regards the question of separation of powers of the three organs of the state, to wit, the legislature, the executive and the judiciary, the learned counsel argued that leaving execution of judgment to the control of the executive arm of the Government implied by the provisions of section 84 of the Sheriffs and Civil Process Act amounts to a negation of the principle of separation of powers under the Constitution as expounded in Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C 1; (1981) 1 All NLR (Pt. 2) 1, 86, with elaboration on the powers of the judicial arm to make binding and authoritative decision and the correlative powers to enforce the decision as examined in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C 158; (1983) 14 NSCC 226, 265. The learned counsel further contended that it is a violation of the separation of powers enshrined in the Constitution for the enforcement of a court judgment to be subjected to the whims and caprices of the executive branch, via the consent of the Attorney-General. He submitted that the provisions of the Sheriffs and Civil Process Act which derives their legitimacy from the Constitution cannot override the Constitution.
Wrapping up the diverse ways in which the existence of section 84 of the Sheriffs and Civil Process Act impinges upon the Constitution the learned counsel refers to the declaration of social objective in subsection 17(2) (a) of the Constitution that in furtherance of the social order ‘every citizen shall have equality of rights, obligations and opportunities before the law.’ He contended that making the consent of the Attorney-General a precondition for execution of judgment by garnishee order has eliminated the idea of equality before the law as it has raised the executive arm of the Government above the law or, at least, ‘placed it in a higher pedestal or advantageous position over other litigants in the same legal system’. One indirect effect, he agitated, is that ‘the Attorney-General becomes invariably the superintendent of the court’, a scenario which, he argued, is tantamount to undermining the independence of the judiciary that is thereby denied a free hand to enforce its own judgment.
Highlighting the net result of the restrictions imposed by section 84 of Sheriffs and Civil Process Act on execution of judgment by garnishee order, the learned counsel contended that the section is decidedly an obstruction against execution of judgment as any application for consent of the Attorney-General to levy execution by garnishee order against the government or any of its agencies will meet a brick wall. The result, he argued will be frustration of the intention of the legislature over the policy of execution of judgment by garnishee order which does not contemplate making the government a sacred cow as far as enforcement of judgment is concerned. A contrary tendency, he submitted, would be in clear conflict with independence of the judiciary the values which sections 6(6) (b) and 287(3) of the Constitution are set out to protect and, therefore, renders section 84 of the Sheriffs and Civil Process Act which professes the opposite to be void. He relied on the decisions of the Supreme Court in Doherty v. Balewa,(1961) 1 All NLR, 604, 615-616, Lakanmi v. Attorney-General Western Nigeria (1970) 6 NSCC 143, 160, and Abacha v. Fawehinmi (2001) 51 WRN 29; (2000) 6 NWLR (Pt. 660) 228, 315, commending to this court the decisions of the High Court of Plateau and Imo States in Anzewu v. Rini (1983) 4 NCLR 422, 425, and Nigerian Oil Seeds and Chemical Products Ltd. v. Attorney-General of Imo State (1984) 5 NCLR 487, 491-492, as exemplifying the reaction of courts to legislations that purport to whittle down the judicial powers of the courts conferred by the Constitution.
Rounding off the arguments on issue 2 learned counsel for the appellant submitted in the alternative that even where this court finds that section 84 of the Sheriffs and Civil Process Act does not compromise any provision of the Constitution on independence of the judiciary the section does not apply to the case on appeal because the garnishees/respondents who have the custody of the money belonging to the judgment debtors/respondents who are indebted to the judgment creditor/appellant are not public officers within the contemplation of section 84. That being the case, he contended, the judgment creditor/appellant does not require consent of the Attorney-General of Cross River State before levying execution by garnishee order on the judgment debtors/respondents’ money in custody of the garnishee/respondents who are ‘bankers’ and not public officers’ of Cross River State.
The learned counsel drew on the principle of law on interpretation of statutes that ‘where the words of a statute are clear and unambiguous the courts must construe them in their natural meaning in order to convey the intention of the legislature’ in support of which he cited Obomhense v. Erhahon (1993) 7 SCNJ 479, 497, and Ifakwo v. Madu (2001) 38 FWLR 1252, 1258. He submitted that ‘there is no way the legislature will intend that funds in the custody of a public officer will include funds or money in the custody of private bodies such as the garnishees’. He concluded that on both sides of the argument raised in issue 3 the learned trial Judge is wrong to have declared the application for garnishee order to be incompetent because consent of the Attorney-General as a condition precedent to the validity of the application was not obtained and urged this court to reject that view of the law and to overrule the learned trial Judge.
Replying learned counsel for the 1st garnishee/respondent debunked the arguments advanced on behalf of the judgment creditor/appellant contending that section 84 of the Sheriffs and Civil Process Act does not contain anything inconsistent with sections 6 and 287 of the Constitution of the Federal Republic of Nigeria, 1999, as it neither removes the adjudicatory power of the courts as regards enforcement of judgment by garnishee order nor does the section deny an individual access to the court. He referred to the test formulated by this court in N.N.P.C v. Fawehinmi (1998) 7 NWLR (Pt. 559) 598, 612, where it is posited that before an enactment can be held to infringe the provisions of section 6 of the Constitution, in particular subsection 6(6)(b) thereof, the enactment must:-
(1) provide for sharing of judicial powers of the state with any other body than the courts in which the powers are vested by the Constitution;
(2) purport to remove judicial power vested In the Court or redefine it is such a manner as to whittle it; or
(3) limit the extent of the power vested.
Elaborating on the approach underlying the application of the test, the learned counsel drew attention to the admonition by the court, per Ayoola, JCA., as he then was, at page 613, that it is not sufficient for a court which is called upon to strike down the provision of a statute on the ground that it constitutes an infringement of the right of access to court by the citizenry guaranteed by the Constitution to hold off the cuff that such an obstacle to access to court is erected; the court ‘must also go further to inquire and make findings whether or not such obstacle is improper’. Emphasizing the kernel of the approach the learned Justice followed up with the thrust that:-
“A statute that prescribes the procedure for invoking the exercise of judicial powers cannot ex ipso facto be said to be in conflict with section 6 or section 33(1) of the Constitution…”
It is the contention of learned counsel for the 1st garnishee/respondent that section 84 of the Sheriffs and Civil Process Act belongs to the class of legislative provisions designed to regulate the exercise of the right for enforcing judgments by garnishee orders. Dismissing any negative imputation, the learned counsel contends forcefully that the section was not invented to undermine the independence of the judiciary nor was it contrived to stifle the constitutional right of a judgment creditor to enforce a judgment debt by a garnishee order.
On the alternative argument that shorn of the debate about constitutionality section 84 of the Sheriffs and Civil Process Act is inapplicable to the garnishees/respondents because they are not public officers, learned counsel for the 1st garnishee/respondent argued that, primarily, the question does not arise from any of the 3 issues formulated for determination by the appellant or from any of the 3 grounds of appeal from which those issues are distilled. It is settled law, he contended, that where an argument does not arise from the issues for determination and does not flow from the ground of appeal from which the issue is formulated such argument must disregarded by the court citing in support the decision of this court in N.N.P.C v. Okwor (1998) 7 NWLR (Pt. 559) 637, 650. He urged this court to disregard the point.
But if it is necessary to consider the point, he dismissed, in the alternative, as a misconception the argument of the appellant that section 84 of the Sheriffs and Civil Process Act does not apply to the garnishees/respondents because they as the persons in custody of the judgment debtors/respondents monies are not public officers. He argued that it is erroneous to say that monies kept in the banks by judgment debtors/respondents belong to the banks qua garnishees/respondents. Such funds, he agitated, are at the disposal of the judgment debtors who exercise control over the funds expounding that the judgment debtors being the agents of the bodies responsible for the disbursement of the funds in the banks they and not the banks are the custodians of the funds for the purpose of section 84 of the Sheriff and Civil Process Act. Therefore, the monies cannot be attached by a garnishee order without the leave of the State Attorney-General he submitted thus rebutting argument of learned counsel for the appellant to the contrary.
The focus of the vigorous attack by learned counsel for the appellant on section 84 of the Sheriff and Civil Process Act as being inconsistent with certain provision of the Constitution is the independence of the judiciary. The preamble to the attack, in my view, boils down to generalization which was steered through avoidable philosophical labyrinth and got the argument bogged down in a doctrinal verbiage far and away from the main issue of whether the restrictions placed upon the right of enforcement of judgment by garnishee order impinges upon the appellant’s constitutional rights. Thus whether as contended by the learned counsel the ancient maxim ‘the king can do no wrong’ as the pillar of state immunity under the English Constitutional Law has been expelled from the body of our jurisprudence on constitutional law must wait for a more suspicious occasion that would offer an opening for its full debate alongside the dicta from a number of landmark decisions noted by the learned counsel in his argument. Therefore, I must address myself to the second limb of the issue on separation of powers under our Constitution which I consider to be the thrust of the appellant’s attack on section 84 at the Sheriffs and Civil Process Act.
Against this analytical backdrop the argument of learned counsel for the appellant is well taken that by apportionment of functions under the Constitution of this country and of the countries whose model of Constitution we adopted care is taken to device safeguards so as to ensure that one arm of the government does not encroach upon the functions of either of the two other arms. In that way, the legislature which has the responsibility to make law does not meddle with the functions of the executive responsible for implementing the law and vice versa. Conversely, the sensitive turf of the judiciary is securely fenced round by constitutional safeguards to ward off encroachment by either of the two other arms, the legislature and the executive. The doctrine of separation of powers in constitutional law as expounded in a winding discourse by the learned counsel might as a general principle be vindicated by a crop of decisions on the point which cut across the rungs of the hierarchy of superior courts of record, viz, Attorney-General of Bendel State v. Attorney-General of the Federation (1981) 10 S.C 1; (1981) 1 All NLR (Pt. 2) 1, 86, Unongo v. Aku (1983) 2 SCNLR 332; (1983) 14 NSCC 563, 575-577, Adeyemi (Alafin of Oyo) v. Attorney-General, Oyo State (1984) 1 SCNLR 525; (1984) 15 NSCC 397, 433-435, House of Assembly, Bendel State v. Attorney-General, Borno State (1984) 5 NCLR 161, 165-166, Anya v. Attorney-General, Borno State (1984) 5 NCLR 225, 230-231, and Nigerian Oileads and Chemical Products Ltd. v. Attorney-General of Imo State, supra, at pages 491-492. But it seems that two countervailing developments have set in to cripple the advancement of the dogma of separation of powers in evolution of jurisprudence on Constitution in the legal history of this country to which any proponent of the theory of separation of powers must address himself.
Firstly, the epoch-making decision of the Supreme Court in Lakanmi v. Attorney-General of Western State, supra, as the first courageous application of the doctrine of separation of powers on a major issue was followed by a political reaction that sent a daunting signal to the judiciary that the political system of the country bristling with authoritarian supremacy of the military caste was not ready to accommodate the dogma of separation of powers between the judiciary, on the one hand, and the legislature working in tandem with the executive, on the other hand. Not only was the decision of the Supreme Court abrogated post-haste barely 2 weeks after the judgment was delivered by Federal Military Government (Supremacy and Enforcement) Decree, No. 28 of 1970, but more belligerently the Decree also declared to be a nullity any decision, whether made before or after the commencement of the Decree, pronouncing any Decree or Edict to be invalid. For the sting of the decision leading to the wrath of the government of the day, see pages 160-161 and 163-164 of the law reports and for the reflections on the application of the doctrine of separation of powers after Decree No. 28 of 1970, see Adeyemi (Alafin of Oyo) v. Attorney-General, Oyo State, supra, at pages 418-419. The Decree lapsed on the promulgation of the Constitution of the Federal Republic of Nigeria, 1979, but it was reenacted in 1984 during another spate of military intervention as Decree 13 of 1984 and became heir to all the controversies susceptible to Decree No. 28 before it as discussed by this court in Ndili v. Akinsunmade (2000) 8 NWLR (Pt. 668) 293, 326-327.
The second factor militating against the evolution of a coherent doctrine of separation of powers in our jurisprudence is lack of clear cut separation of functions between the legislature and the executive during the military rule when the two organs became fused together the powers appertaining to the office of each organ were vested in one body which united the exercise of the powers of the two organs. Coupled with this is the fact brought out by Uwais, JSC., as he then was, during the deliberations on Adeyemi (Alafin of Oyo) v. Attorney-General of Oyo State, supra, at page 475, that under the 1963 Constitution that was in force when the military took over power in 1966 separation of power ‘was not as complete or watertight as it is in the Untied States’ as under the 1963 Constitution the President, the Prime Minister and the Ministers who exercised executive powers were also members of the legislature.
With those limitations which blurred the separation of functions between the legislature and the executive arms of the government, contrary to the arguments of learned counsel for the appellant, it is not possible to evolve in our jurisprudence on constitutional law cut and dried principles on the doctrine of separation of powers. Nor is it realistic to contend as insisted by the learned counsel that all justiciable matters are the preserve of the judiciary to the exclusion of any other organ or body within or outside the Constitution. That notion is negated by subsection 36(1) of the 1999 Constitution which recognizes ‘other tribunal established by law’ as a body which may determine civil rights of the citizenry in addition to the courts. Subsection 36(1) is substantially similar to sub-section 22 (1) of 1963 Constitution the latter of which came for interpretation in Adeyemi (Alafin of Oyo) v. Attorney-General of Oyo State, supra. I find particularly apposite to the point at issue the view of the court, per Nnamani, JSC., who said at page 466, inter alia, as follows:
“The use of the term or other tribunal to my mind suggests an intention to vest the power to determine questions relating to civil rights of a person not only in courts but in another institution similar to it……..Indeed to hold that all justiciable issues must necessarily go to courts within the canopy of the judiciary would mean that several tribunals often set up to deal with matters which sometimes are not even suitable for adjudication by the regular courts would be unconstitutional e.g. the National Industrial Court, Compensation Tribunals etc.”
If the theory of separation of powers as the main group on which the argument of learned counsel for the appellant is premised cannot be sustained by the practice by which our Constitution was being operated; if the crack left in the postulate about absolute and exclusive jurisdiction by the judiciary over all justiciable matters is irredeemable the bottom is knocked out of the argument of the learned counsel that section 84 of the Sheriffs and Civil Process Act is void because it is in breach of the doctrine of separation of powers between the judiciary and the other two arms of the government, viz, the legislature and the executive.
True enough, the 1999 Constitution streamlined the functions of the legislature and the executive arms of the government to enhance the theory of separation of powers. Yet no principles have as yet been built around the practice of the emergent democratic organs to demonstrate how the ‘constitutional contrivance’ operates in practice to afford tested precedents. But more significantly, absolute control over justiciable matters by the judiciary is a desideratum that leaves a yawning gap in the learned counsel’s thesis to bring his proselytizing to a selling point.
Learned counsel for the appellant has also dramatized the conflict between section 84 of the Sheriff and Civil Process Act and sub-section 6(6)(b) of the 1999 Constitution to reinforce his argument that there is an infringement of the doctrine of separation of powers for the same facile reasoning. There is hardly any leeway in hiding under the shadow of another constitutional provision to seek backing for a theory that has been demonstrated to be shaky and propped up by unrelated legal principles. In any case, three is no argument about the object of sub-section 6(6)(b) of the Constitution, which defines the perimeter of the judicial powers under the Constitution, a question which is not in issue in this appeal. The section does not provide an answer to the question of whether the legislature usurped the power of the judiciary by enacting section 84 of the Sheriffs and Civil Process Act which enjoins consent of the official of the executive before execution by garnishee order can be levied against the government headed by the executive. The scope of sub-section 6(6)(b) of the 1979 Constitution which is in pari materia with the provisions of subsection 6(6)(b) of the 1999 Constitution having been explained in Senator Adesanya v. The President of the Federal Republic of Nigeria (2002) 44 WRN 80; (1981) 2 NCLR 358, 363, a decision which was later applied by this court in Buremoh v. Akande (2000) 15 WRN 42; (2000) 5 NWLR (Pt. 690) 260, 270, that constitutional provision does not advance the argument of learned counsel for the appellant about the validity of section 84 of the Sheriffs and Civil Process Act any inch further. A recourse to that provision is forlorn as catching at straws.
With the argument on separation of powers leading to no resolution of the issue of the validity of section 84 of the Sheriffs and Civil Process Act the debate in now narrowed down to the rules of interpretation of statute. The thrust of the argument of learned counsel for the appellant on this point is that the enjoinment by section 84 that a judgment creditor must seek consent of the Attorney General before levying execution by garnishee order on money in custody of a public officer is a constraint which severely curtails the right of the judgment creditor, undermines the equality of rights before the law as ‘declared’ by the Constitution and an encroachment on the powers of the High Court to enforce judgment. That the provision of section 84 is to that extent inconsistent with the provisions of the Constitution and is, eo ipso, void. Learned counsel, for the 1st garnishee/respondent who denied that there is any inconsistency between section 84 of the Sheriffs and Civil Process Act and any provision of the Constitution rests his argument on the test formulated by this court in NNPC v. Fawehinmi, supra, for determining whether a legislation or part thereof should be struck out for being in conflict with the provisions of the Constitution.
A review of the arguments of learned counsel which encapsulate the material facts with the applicable principles of law bearing on those facts has dispensed with a repetition of details by narrowing down the inquiry to examination of the principles of law on which the parties joined issue, to wit, whether section 84 of the Sheriffs and Civil Process Act is invalid as being inconsistent with the provisions of the Constitution. The exercise has further been eased by the submission of learned counsel for the 1st garnishee/respondent which is a pointer to the operating principle enunciated by this court in N.N.P.C v. Fawehinmi, supra in which it was formulated the test to be applied for determining whether the provisions of a statute infringes a provision of the Constitution. I find the test to be apposite and I will examine the three points posited which must be answered in the affirmative before an offending provisions of the law can be struck out.
Firstly, I have examined carefully section 84 of the Sheriffs and Civil Process Act and it does not betray chipping away at judicial powers by conferring judicial power on any body outside the court. I do not consider a judgment creditor being made to secure consent of the State Attorney-General before granting garnishee order to attach government money in custody of a public officer to amount to sharing the power of the trial court with the Attorney-General, a member of the executive arm of the government. The issue of order nisi remains under the control of the court which thereafter has the absolute discretion to issue execution against the garnishee. Secondly, by no stretch of the imagination can section 84 be interpreted as removing judicial powers vested In the Court and redefining it with the intention to whittle down the power. Thirdly, the offending section cannot be said to limit the extent of the powers of the High Court as the court remains the sole authority (in respect of levy of execution by the High Court) with the absolute discretion to order execution of judgment either by garnishee order or by any other form by which a judgment debt can be enforced.
As part of the test posited by that decision I must take a hard look at the intrinsic nature of section 84 of the Sheriffs and Civil Process Act with a view to gaining an insight into the kind of mischief which is to be contained by the section. The second type of funds being protected by restriction on garnishee order is money in custodia legis, i.e. money paid into court during litigation over the money. I cannot be certain about the money of the first kind in custody of a public officer. But I take judicial notice of the fact that in Nigeria of today the Federal and State Governments are the largest employers of labour the employees of which cannot be denied their monthly wages or salaries without all hells breaking loose. I will also take note of the fact that the various governments of the Federation are responsible for providing numerous social services which are basic to the well being of the citizenry, e.g. health, education, housing , infrastructure, etc. I am not unmindful of the custody of the resources and I must, therefore, also take note of the fact that the funds from which to fulfill the various obligations, the resources of the nation, are not kept in the official quarters of the President or the Governors; they are kept in the banks by public officers. To give a judgment creditor the liberty to attach such funds at will is an invitation to chaos. I shudder to think of the prospect of executing garnishee order on the paymaster of a military unit, a public officer by definition, for attachment of money in his custody that is meant for payment of the salaries of the other ranks. Money in custody of our numerous sub-treasurers would not provoke a dissimilar reaction from civilian workers if part of the money meant for payment of their salaries and wages is attached by garnishee order.
Similarly, an unrestricted attachment of money in custodia legis would shake the foundation of confidence in the administration of justice if the litigants are made to experience by any indiscretion that their money in custody of the court is not safe and is by latitudinarian tendency to enforcement of judgment by garnishee order within easy reach of a third person, qua a judgment creditor, with whom the litigants have no dealing. I cannot fathom out what excuse would a Chief Registrar have for a judgment debtor who wins an appeal calling for the return of the sum of judgment debt which he had paid to the court for deposit in an interest yielding account to abide the outcome of the appeal if during the pendency of the appeal the deposit had been garnisheed in custody of the bank to satisfy an entirely different judgment debt or claims unconnected with judgment debt.
If that scenario aptly depicts the type of mischief to which unrestricted attachment of money in custody of a public officer or in custodia legis is susceptible and which section 84 of the Sheriff and Civil Process Act is designed to prevent it can be seen clearly that the section is intended to rationalize the exercise of the judicial powers over execution of judgment by garnishee order conferred on court by section 83 of the Act. Therefore, within the test postulated by this court in NNPC v. Fawehinmi, supra, section 84 of the Sheriffs and Civil Process Act is a necessary complementary provision designed to streamline the exercise of the power conferred on the court by section 83 of the Act with a view to clearing any pitfall that might be in the way of exercising the power of execution of judgment by garnishee order.
In the alternative argument of issue 2 the learned counsel contended that section 84 of the Sheriffs and Civil Process Act does not apply to the judgment creditor/appellant because the garnishees/respondents who have the custody of the judgment debtors’ money are not public officers, therefore, he submitted, the appellant does not require consent of the Attorney-General before levying execution by garnishee order. The objection raised by learned counsel for the 1st garnishee/respondent that the point taken by the appellant does not arise from any of the grounds of appeal or from the issues formulated from those grounds was not answered by the appellant who filed no reply brief. I have examined the three grounds of appeal filed by the appellant and I agree with the observation of learned counsel for the 1st garnishee/respondent that the point is not raised in any of the three grounds. He is equally right that where a point raised during argument is not made subject of complaint in the grounds of appeal that point must be disregarded. Let me add in amplification that such a point raises a fresh issue which can be taken up on appeal only with leave of this court. The appellant having obtained no leave of the court before raising the point the argument on the point must be disregarded and I do so. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16, Iweka v. Scoa (Nig.) Ltd. (2000) 15 WRN 106; (2000) 7 NWLR (Pt. 664) 325, 338.
The elaborate argument by learned counsel for the appellant of issue 2 appears to ignore two salient factors. Firstly, the energetic attack of section 84 of the Sheriffs and Civil Process Act with a broadside on the office of the Attorney-General verges on desperation to get out of the way section 84 which the learned counsel conceived to be a stumbling block to the success of enforcing the judgment. The approach, in my view, is shortsighted because it overlooks the fact that execution by garnishee order is only one among other forms of enforcing a judgment open to a judgment creditor for which see Government of Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592; (1989) 20 NSCC (Pt. 111) 214, 224, in which a run-down of the methods of enforcing judgment is given. Secondly, the attack on the Attorney-General is based on the assumption that the holder of the office being part of the executive arm of the government would naturally not give the necessary consent. The learned counsel did not give any reason for his conjecture which is made a priori and is thus based on speculation that has no rational basis. Coming from a legal practitioner who cherishes honour as much as any Attorney-General the attack is brash and unwarranted. It will be enough to say that a careful revision of the decision in Shitta-Bey v. Federal Public Service Commission, supra, will show that the benefit of the decision for the appellant goes beyond the barren agitation about the doctrine of sovereign immunity on page 10 of his brief of argument as the kernel of that decision is that an order of mandamus can be issued against a public body as much as a public officer personifying the public body. It seems to me that an order of mandamus to compel the Attorney-General to give the necessary consent rather than fulmination over an anticipated or imaginary refusal of consent is the answer to the dilemma about how to overcome the recalcitrancy of the Attorney-General if the learned counsel had done his home-work.
Be that as it may, by way of summary let me pause here to say that apart from justification for the existence of section 84 of the Sheriffs and Civil Process Act herein canvassed the contention that that section is in conflict with sections 6 and 287 (3) of the Constitution is contradicted by the doctrine of the separation of powers enlisted in aid of the argument. This is because of lack of the basic element that is indispensable to the working of the doctrine, namely, the detachment of each arm of government in relation to the power vested in the other arm. In the ferment of the changes that took place in this country in the course of its political evolution the fusion of functions of the legislative and the executive arms of government that followed in the wake of the changes used as a springboard by the duo to launch into encroachment on the adjudicatory field considered to be the traditional sphere of the judiciary which thereby became hamstrung. The fusion of functions betokens the fusion of powers. Such a development does not portray in a sanguine light the argument of learned counsel for the appellant about the doctrine of separation of powers that thrives on the independence of the three arms of government where encroachment by one on the field belonging to the other of the trio is regarded as anathema. The incongruity renders the hypothesis of the learned counsel about separation of power a mere platitude and the exposition based thereon a farcical allegory.
In the final analysis, I find the argument of learned counsel for the appellant about the validity of section 84 of the Sheriffs and Civil Process Act to be myopic and self-serving; it is tendentious as calculated to draw by sophistry a veil over failure by the appellant to fulfill the vital and decisive condition precedent to execution of judgment by garnishee order. Indeed, the discursive analysis is vacuous as indicative of the level of the vision of one who cannot see the forest for the trees. I am satisfied that section 84 of the Act is not only in harmony with the Constitution but it is also an indispensable complaint designed to lubricate the application of section 83 of the Act so as to clear the operational hazards besetting execution of judgment by garnishee order.
That concludes the deliberations on the various points canvassed in issue 2 in the appellant’s brief of argument adopted by the 1st garnishee/respondent as issue 2 in her brief. I resolve both issues against the appellant.
The points being controverted by the learned counsel in issue one in both briefs of argument shade into each other so glaringly that even though the issues formulated in both briefs are couched differently the nuances between the points being agitated are more apparent than real. The two issues will, therefore, be taken together.
Learned counsel for the appellant attacked the ruling by the learned trial Judge that he had no jurisdiction to entertain the appellant ‘s ex parte motion as erroneous, firstly, because what was before the learned trial Judge was summons and not an ex parte motion contending that the only ex parte motion originating in the proceedings filed by the appellant had been disposed of with the grant of order nisi by the learned trial Judge. Secondly, that since what was before the court was the appellant’s motion on notice asking the court to make absolute the order nisi earlier granted following failure of the garnishees/respondents to react to the summons within the time stipulated there is no reason under the applicable law for the learned trial Judge to decline jurisdiction. Thirdly, that declining jurisdiction by the learned trial Judge was self-made as by delaying giving ruling on the appellant’s motion the proceedings got caught up with two other motions by the 1st garnishee/respondent and the judgment debtor/respondents challenging the garnishee proceedings copies of which were not served on the appellant, neither of which was moved by the applicant and in none of which the jurisdiction of the court was challenged.
The long and short of the argument of the learned counsel is that the learned trial Judge having lost the track of the procedure to be followed after granting an order nisi he fought shy of making the order absolute and veered off to seek an escape in the issue of jurisdiction which was not part of the case before him. He concluded that the learned trial Judge having fallen into the error that there was still an ex parte motion before the court the error snow – balled leading him to shirk the responsibility under sub-sections 6(2) and 287(3) of the Constitution which vested him with ‘absolute inherent powers’ to enforce judgments and orders of his court and of the courts superior to it. He submitted that the dereliction of duty has occasioned a miscarriage of justice to the judgment creditor/appellant and urged this court to set aside the ruling on the precedent of the decisions in Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386, and Chime v. Chime (2001) 9 WRN 113; (2001) FWLR (Pt. 39) 1457, 1463.
In his reply to only part of the submissions of learned counsel for the appellant, learned counsel for the 1st garnishee/respondent who tacitly conceded that at the time of the ruling there was no motion ex parte pending before the trial court, nonetheless, argued that it is not every mistake or error in proceedings that will result in an appeal against a judgment being allowed contending further that a judgment will not be set aside if the error complained of has not occasioned a miscarriage of justice in buttress of which he cited Agbaje v. Ajibola (2002) 2 NWLR (Pt. 750) 127, 145. He urged the court to discountenance the appellant’s submission that the mistake by the learned trial Judge had occasioned a miscarriage of justice.
Sliding slightly to an angle that is predisposed to his version of the issues formulated and anticipating issue 3 the learned counsel submitted that it is settled law that where a tatute prescribed a condition precedent for commencing an action or before taking any step in proceedings failure to comply with that condition will affect the jurisdiction of the court in aid of which he relied on Shomolu Local Government Council v. Agbede (1996) 4 NWLR (Pt. 441) 174, NNPC v. Fawehinmi supra at page 617 and Shugaba v. Union Bank of Nigeria Plc. (1999) 11 NWLR (Pt. 627) 459, 478. He concluded that the learned trial Judge rightly declined jurisdiction to continue with the application when he realized that the action is incompetent and urged this court to resolve issue one in favour of the 1st garnishee /respondent.
The pros and cons of the spiral arguments of the learned counsel which are centred on the procedure regulating execution of judgment by garnishee order is ample on fault finding but lean on the comprehension of the controlling law to the mechanics of which the learned counsel did not address their arguments that skirted with astonishing bungling around the periphery of the law on the subject matter. To underscore the gravity of the lacklusture arguments of both learned counsel it will be helpful to give, against the background of the controlling legislation, an overview of the correct procedure by juxtaposing it with the procedure adopted at the trial to which both learned counsel subscribed as dramatic personae at the court below.
True enough, as contended by learned counsel for the appellant the learned trial Judge ‘lost the tract of the procedure to be followed during the proceedings. Yet he was lured into a cul de sac by the first wrong step taken in initiating the proceedings whereby the self same learned counsel filed a motion ex parte instead of following the procedure laid down by rule 3 of order viii of Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Act, hereinafter called ‘the rules, which reads:
“3. (1)A judgment creditor who desires to take garnishee proceedings shall file in court registry:
(a) an affidavit in form 25, and
(b) if the garnishee proceedings are taken in a court other than the court in which the judgment was given or made, a certified copy of the judgment.
(2) The registrar shall thereupon enter the proceedings in the books of the court and fix a day for the hearing and issue an order nisi in form 26 and make all necessary copies thereof.”
From the provisions of the above rule, there was no need for the order nisi made by the learned trial Judge on 28/6/2000 as that is the duty of the Registrar of the court which is discharged by completing form 26 and which by operating of sub-rule 4(1) of order VIII takes the character of a ‘summons’ by the rules of which the order nisi is served. Nor was there any need for the motion on notice filed by learned counsel for the judgment creditor/appellant asking the order nisi to be made absolute. That is not part of the procedure as the next step is prescribed by rule 5 of the same order which stipulated what step is to be taken by the garnishee upon being served with the summons, i.e. the order nisi, in addition to the command embodied in summons to the garnishee to appear in court on a given date. Rule 5 order VIII of the rules reads:-
“5. (1)The garnishee may within eight days of the service of the summons on him inclusive of the day of service, pay into court.
(a) the amount alleged to be due from him to the judgment debtors, or
(b) if that amount is more than sufficient to satisfy the amount due under the judgment and the costs entered on the garnishee order, a sum sufficient to satisfy the last mentioned amount and costs.
(2) Upon payment into court as aforesaid, the proceedings against the garnishee shall be stayed.”
There follows the consequence of the failure of the garnishee to take either of the steps enjoined by the summons or outlined in rule 5 of order VIII which is spelt out by section 86 in unequivocal terms as follows:
“If the garnishee does not within the prescribed time pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the costs of the garnishee proceedings, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear upon summons, the court upon proof of service may order, execution to issue, and it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee, of so much thereof as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.”
The portrayal of the anomaly between the procedure laid down and the one adopted by the court below sketched out in a rough outline above becomes accentuated by a summary of the procedure stipulated by the Sheriffs and Civil Process Act and Judgment (Enforcement) Rules made thereunder that brings out quite clearly the degree of laxity in the procedure adopted by the court below which is a pole apart from the procedure prescribed by the law.
By way of summary, under the Act and the rules made thereunder, a judgment creditor initiates garnishee proceedings by filing an affidavit as in form 25 to the Act. In response to the application, the Registrar of the court issues an ‘order nisi’ as in form 26 which metamorphoses into ‘summons’ upon an order nisi being duly issued (see sub-rule 4 (1) of order VIII of the Rules) for service upon the garnishee fixing a date for hearing of the summons. Two options are available to the garnishee upon being served with the summons. If the garnishee elects not to contest the judgment creditor’s claims he is enjoined to pay the amount claimed or the judgment debt and costs into court within 8 days from the service of the summons on him. Upon fulfillment of that condition the proceedings against him are stayed and by operation of section 91 of the Act the payment is a valid discharge of the garnishee against the judgment debtor for the amount paid.
If, however, the garnishee is contesting the claims he must appear before the court on the hearing date when as directed by section 87 of the Act and elucidated by rule 8 of order VIII of the Rules the issue of liability of the garnishee is set to be tried. But if the garnishee exercised none of the two options, that is to say, if he neither paid the judgment debt into court nor appeared on the hearing date fixed by the summons to contest the claims, such inaction or indifference vests the court with the power, by operation of section 86 of the Act, to levy execution against the garnishee without further ado.
Against this background and judging by the summary of the proceedings of the trial court rendered in the early part of this judgment which I do not need to repeat, the deviation from the laid down procedure by the court below is grotesque. Nay, the contrast brings out in bold relief the difference between law and fiction; between legal prescriptions and conjectures. The high points of the aberrations show convincingly that what passes for garnishee proceedings at the trial court is a complete departure from what is enjoined by the law; a farce; a naive sham that renders the entire proceedings a travesty.
One may wonder what was the point in making an order nisi by the learned trial Judge or an application by learned counsel for the judgment creditor to make the order absolute both of which are uncalled for? It may further be wondered what is the point for the unnecessary adjournments which afforded the garnishees and the judgment debtors a leeway to file belated motions when the law is clear about what the court should do where a garnishee who is contesting the judgment creditor’s claim fails to appear before the court on the hearing date? To compound the muddle it may also be wondered what is the point giving a ruling by the court on an application by the judgment creditor without first ruling on the objection to the application by the 1st garnishee and the judgment debtors in circumstances where striking out the objectors’ motions where they failed to appear in court on the appointed date is one form of such ruling? One other adjunct of the muddle. Getting mixed up about the dates of proceedings as noted earlier in this judgment is an error of lesser order but it does not enhance the image of an orderly mind as a requisite of judicial deliberations.
In any case, being left to ramble over the full length of the oasis of nescience unchecked the learned trial Judge ultimately came up with a ruling seeking an escape in lack of jurisdiction by the court. Thus in a circuitous procedure that paid no heed to the law or the rules the learned trial Judge completed a parody of garnishee proceedings that decided nothing.
And one final point that borders on morals from which the law cannot remain aloof. Can the juridical charade to which the parties were treated at the court below excuse the spectacle of circus at that court by the learned counsel who at the appellate court are quick to assume the posture of an underdog. In this regard, it is an unsavory irony to watch learned counsel for the judgment creditor/appellant using as a sword the law to which he paid no attention at the trial court to launch in this court a vicious attack on the decision of the learned trial Judge who goaded on by the wrong steps taken by the same learned counsel got enmeshed in colossal errors about law. Does it lie in the mouth of the learned counsel to make the learned trial Judge a scapegoat of the errors of which he was the architect? Or is justification before this court by learned counsel for the 1st garnishees/respondent who bent over backwards to defend the procedure adopted by the learned trial Judge in support of his victorious client of any solace to the justice of the matter when the garnishee/respondents had spurned the summons by the trial court and when their counsel turned a blind eye to the applicable law?
From the adjudicatory standpoint generally, it may be wondered into what legal slot does one place the ruling on a motion that (a) failed to address the inconsistency in the order nisi issued on 28/6/2000 to execute a judgment that was, according to the self-same order, to be delivered in futuro, i.e. on 24/9/2000, and (b) shoved away all written objections against the application thereby denying the opposite parties the right of fair hearing as enunciated by the Supreme Court in Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637, 644, and Onyemeh v. Egbuchulum (1996) 5 NWLR (Pt. 448) 255, 266, and by this court in Ikeazor v. Ikeazor (1994) 5 NWLR (Pt. 346) 609, 623, and Ndika v. Chiejina (2003) 1 NWLR (Pt. 802) 451, 480-481? This probing scepticism may in a way verge on rhetorical questions. But the answer to the last question strongly suggests that ‘escapism’ would seem to be a ready slot conceived to provide excuse for non-performance of an important deliberative function which had in the procedural pantomine followed by the court below got entwined in a web of gross misconception about the law and the ready tool to facilitate face-saving maneuver is lack of jurisdiction by the court as a prosaic fall-back.
Therefore, in my view, the composite answer to all the questions posed is that the learned trial Judge who as the custodian of the law was inept at finding out what the law is on garnishee proceedings must carry the can for coming to a decision that did not settle the dispute before him. Accordingly, I must resolve issue one against both parties that the ruling by the learned trial Judge on garnishee proceedings that were conducted in breach of the law and the laid down procedure decided nothing being an irresolute judicial burlesque that flew off at a tangent.
Lastly, in issue three the question canvassed is whether the learned trial Judge was right in declining jurisdiction because the judgment creditor/appellant did not obtain the consent of the Attorney-General before commencing the garnishee proceedings a point taken by the learned trial Judge suo motu without affording the parties an opportunity to address the court on the point. The question of obtaining consent as a precondition for commencing garnishee proceedings for attachment of money in custody of a public officer or in custodia legis is a live issue which is not open on proceedings that have been found to be intrinsically a nullity on other grounds. Having found that the proceedings conducted by the trial court are in breach of the law and not in conformity with the laid down procedure which rendered the entire proceedings manifestly a nullity the question of whether jurisdiction of the court to entertain the action is occasioned by failure to obtain consent as a condition precedent to commencing the action is subsumed in the general finding that the decision is void and as such it does not offer any scope for further examination of the merits of the action. In other words, having found that the decision of the trial court is void it will be sheer pedantry and futile to embark on a voyage of discovery to ascertain whether a particular finding by the learned trial Judge is right.
However that may be, the ruling of Odu, J., delivered on 12/3/2001 is a nullity as one rendered in total disregard of the applicable law and I so declare. I set it aside and I allow the appeal. But without prejudice to the right of the judgment creditor/appellant to take any step which he may consider appropriate to enforce the judgment against the judgment debtors. I make no order as to costs. Appeal allowed.
SIMEON OSUJI EKPE, JCA. I had a preview of the leading judgment just delivered by my learned brother, Olagunju, JCA. He no doubt in the judgment exhaustively and painstakingly dealt with all the issues in the appeal.
I entirely agree with his reasoning and conclusions for allowing the appeal.
I too hereby allow the appeal and abide by the consequential orders made in the leading judgment.
ISTIFANUS THOMAS, JCA. I have had the privilege of reading the draft copy of the judgment just delivered by my learned brother, Olagunju, JCA. I agree entirely with his conclusions that the appeal should be allowed because the ruling of Honourable Odu, J., delivered on 12th March, 2001, is a nullity. It is so because, the learned trial Judge applied the wrong law and procedure on garnishee proceedings.
Appeal allowed. I make no order as to costs.
Cases referred to in the judgment
A-G., Bendel State v. A-G., Federation (1981) 10 S.C 1; (1981) 1 All NLR (Pt. 2) 1.
Abacha v. Fawehinmi (2001) 51 WRN 29; (2000) 6 NWLR (Pt. 660) 228.
Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417.
Adesanya v. President, Federal Republic of Nigeria (2002) 44 WRN 80; (1981) 2 NCLR 358.
Adeyemi v. A-G., Oyo State (1984) 1 SCNLR 525; (1984) 15 NSCC 397.
Agbaje v. Ajibola (2002) 2 NWLR (Pt. 750) 127.
Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16.
Anya v. A-G., Borno State (1984) 5 NCLR 225.
Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386.
Anzewu v. Rini (1983) 4 NCLR 422.
Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C 158; (1983) 14 NSCC 226.
Buremoh v. Akande (2000) 15 WRN 42 ; (2000) 15 NWLR (Pt. 690) 260.
Chime v. Chime (2001) 9 WRN 113; (2001) FWLR (Pt. 39) 1457.
Doherty v. Balewa (1961) 1 All NLR 604.
Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263.
Gov., Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592; (1989) 20 NSCC (Pt. 111) 214.
House of Assembly, Bendel State v. A-G., Borno State (1984) 5 NCLR 161.
Ifakwo v. Madu (2001) 38 FWLR 1252.
Ikeazor v. Ikeazor (1994) 5 NWLR (Pt. 346) 609.
Iweka v. Scoa (Nig) Ltd. (2000) 15 WRN 106; (2000) 7 NWLR (Pt. 664) 325.
Jallo v. Mil. Gov., Kano State (1991) 5 NWLR (Pt. 194) 754.
Lakanmi v. A-G.,Western Nigeria (1970) 6 NSCC 143.
Ndika v. Chiejina (2003) 1 NWLR (Pt. 802) 451.
Ndili v. Akinsunmade (2000) 8 NWLR (Pt. 668) 293.
Nigerian Oil Seeds & Chemical Products Ltd. v. A-G.,Imo State (1984) 5 NCLR 487.
N.N.P.C v. Fawehinmi (1998) 7 NWLR (Pt. 559) 598.
N.N.P.C v. Okwor (1998) 7 NWLR (Pt. 559) 637.
Obomhense v. Erhahon (1993) 7 SCNJ 479.
Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439) 637.
Onyemeh v. Egbuchulum (1996) 5 NWLR (Pt. 448) 255.
Ransome Kuti v. A-G., Federation (1985) 2 NWLR (Pt. 6) 211.
Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C 40.
Shomolu L.G.C. v. Agbede (1996) 4 NWLR (Pt. 441) 174.
Shugaba v. U. B.N. Plc. (1999) 11 NWLR (Pt. 627) 459.
Unongo v. Aku (1983) 2 SCNLR 332; (1983) 14 NSCC 563.
Statutes referred to in the judgment
Constitution of the Federal Republic of Nigeria 1999 Ss. 6(6)(b), 17(2), 33(1), 36(1), 251(1), 272(1) & 287(3)
Constitution of the Federal Republic of Nigeria 1963 s. 22(1)
Sheriffs and Civil Process Act, Cap. 407 Laws of the Federation of Nigeria 1990 Ss. 83, 84, 86, 87 & 91.
Rules of court referred to in the judgment
Court of Appeal Rules Or. VIII rr. 4(1) & 8.
Judgment (Enforcement) Rules Or. VIII rr. 3, 4(1) 5 & 8.
