(2018) LPELR-44058(CA)

Transcription

1 UBA PLC v. ACCESS BANK & ANOR CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON FRIDAY, 2ND FEBRUARY, 2018 Suit No: CA/S/21/2017 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO UNITED BANK FOR AFRICA PLC 1. ACCESS BANK PLC 2. BAKURA L.G. COUNCIL Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Effect of failure to obtain the consent of the Attorney- General before obtaining a garnishee order over public funds "In the instant case, the 1st respondent filed a motion ex-parte to commence the garnishee proceedings at the Court below, praying as follows:(a) "An order nisi attaching the judgment debt plus the cost of the garnishee proceedings from the funds of the judgment debtor/respondent's account with the First Bank of Nigeria PIc, Talata Mafara Branch and the Zamfara State Joint Local Government Account (JAC) with United Bank for Africa PIc, Old Park Road Gusau in order (sic) to satisfy the judgment sum of N17,588, plus the cost of the garnishee proceedings." It is clear from the relief being claimed by the 1st respondent in the originating process as reproduced above that the account which the 1st respondent sought to be attached at the Court below is the Joint Local Government Account of Zamfara State one out of which Bakura Local Government Council (the judgment debtor and 2nd respondent herein). The funds which the 1st respondent sought to be attached are public funds standing to the credit of the Joint Local Government Councils in Zamfara State and domiciled with the appellant, out of which the 2nd respondent owns nothing until the money is shared and its allocation severed from it. The 1st respondent failed or neglected to apply for consent of the Attorney General of Zamfara State when the money in the Joint Local Government Account of Zamfara State was sought to be attached by the garnishee order nisi. The Joint Local Government Account for the 14 Local Government Councils of Zamfara State is created by Section 162(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows:- "Each state shall maintain a special account to be called "State Joint Local Government account" into which shall be paid all allocations to the Local Government Councils of the state from the Federation Account and from the Government of the State." See, also the provision of Sections 1 and 4 of the Allocation of Revenue (Federation Account, etc) Act Cap. A15, Laws of the Federation of Nigeria I have no doubt in my mind that the said account is a public account and the monies kept therein are public funds belonging jointly to all the 14 Local Government Councils in Zamfara State as listed in Part 1, First Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). Unless the funds are appropriated or shared and transferred to the individual bank accounts of each of the said 14 Local Government Councils of Zamfara State, it does not belong to Bakura Local Government Council. It therefore, qualifies as public funds in Public Officer's custody that requires the consent of the Attorney General of Zamfara State first sought for and obtained before obtaining the garnishee order nisi, provided that an Attorney General worth his salt must not arbitrarily withhold such consent. He should as the chief law officer of the State rather promote the course of justice to settle the judgment debt. However, in the instant case no such consent was ever sought for much less being obtained as required by law. The provisions of Sections 84(i) and (ii) of the Sheriffs and Civil Process Act clearly makes it a mandatory requirement to seek the consent of the Attorney General of Zamfara State before attaching the public funds in the said Joint Account. The fact that the attached funds are not in the 2nd respondent's account coupled with the failure to seek for and obtain the consent of the Attorney General of Zamfara State renders the order nisi otiose. The same virus hits the order absolute thereby rendering it totally insignificant and audaciously overreaching. See the cases of ONJEWU V. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY (2003) 10 NWLR (PT 827). 40, ODE & ORS V. BENUE STATE GOVT (2011) LPELR In the case of JAIZ BANK PLC V. UNITY BANK PLC & ORS (unreported) Appeal No. CA/S/58/2015 decided by this Court in this Division on 01/07/2016 on a similar issue which arose from Zamfara State where my learned brother M.L. Shuaibu JCA observed thus:- "The facts in the instant case, are in all four with the facts in the unreported Appeal No. CA/S/59/2015, SKYE BANK PLC V. UNITY BANK PLC & ORS delivered on 12/05/2016 wherein I held the view that any fund standing to the credit of the state Government whether in a bank or in a shelf of a public officer is attachable only with the consent of the Attorney General in accordance with the provision of Section 84(1) of Sheriff and Civil Process Act. The absence of prior consent of the Attorney General of Zamfara Sate before granting the order nisi as in Appeal No. CA/S/59/2015, SKYE BANK PLC V. UNITY BANKPLC & ORS above has rendered the entire garnishee proceedings a nullity as the lower Court lacked the requisite jurisdiction to entertain same. Consequently, the appeal is meritorious and is hereby allowed." As I earlier observed, the Local Government Joint Account in issue contain funds jointly owned by all the 14 Local Government Councils of Zamfara State. The said account is certainly a public account and the sums of money standing therein are public funds under the custody and control of public officers of Zamfara State. The failure to apply for and obtain the consent of the Attorney General of Zamfara State by the 1st respondent before garnisheeing the said account which is domiciled with the appellant renders both the order nisi and the order absolute obtained against the appellant unsustainable. Moreover attachment money in an account other than that of the judgment debtor is a clear misdirection in law and in fact. See the case of LAFFERI NIGERIA LTD & ANOR V. NAL MERCHANT BANK PLC 8 ANOR (2015) ALL FWLR (PT 802) 1578 AT 1612, Galadima JSC held thus:- "Where a Court lacks jurisdiction or competence to make an order, whatever order that is made in such circumstance is of no moment: it is a nullity ab initio, as if no order was made at all. It is no longer in the eye of the law, an effective adjudication on the right of the parties." In the circumstances, the lone issue is resolved in favour of the appellant and against the respondents. The appeal has merit and is hereby allowed. Consequently, the garnishee orders nisi and absolute made against the appellant on 13th October, 2016 and 8th November, 2016 respectively are hereby set aside."per MUKHTAR, J.C.A. (Pp , Paras. A-C) - read in context

3 2. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Principles governing garnishee proceedings "It is pertinent to observe that money in a bank account is in the custody of the account holder thereof. In other words, it need not be in the pockets of the public officer. It suffices if the public officer has physical or constructive possession of the money. The bank merely keeps cashless records of accounts of its customers but the control of such account, which in the instant case lies with a public officer, is what constitutes custody. The physical cash, if any, belongs to the bank unless it is paid out. It is the order nisi granted exparte and based on affidavit evidence that the Court makes absolute if no sufficient cause is shown by the garnishee bank why the order nisi should not be made absolute. It is pertinent to note that garnishee order nisi is binding from the date of service and creates a perfect security against the sum garnisheed, the fact that the order, at that stage, has not been made absolute notwithstanding. An order nisi is meant to give the garnishee bank an opportunity to show cause, at a specified time and place for further consideration of the matter, why the temporary order nisi should not be made absolute. The nisi order attaches such debt as is owed by the judgment debtor, including costs of the garnishee proceedings, to the applicant who being the judgment creditor must therefore show prima facie that he obtained judgment against the judgment debtor. He must also depose to the fact that the judgment still remains unsatisfied and that the judgment debtors money, as would satisfy the debt in part or in full, is in the hands of the garnishee. The law provides for the steps to be taken by the garnishee and the judgment debtor during the proceedings subsequent to the service of the order nisi on them and the consequences that must follow failure of both or either of them to appear in Court during post-service of the order nisi proceedings or failure to re-act to the order nisi. The record shows that no steps in the proceedings by the garnishee appellant after issuing the order nisi and service of the order. The only business before the Court below was to make the order absolute in those circumstances if the order nisi was properly issued. The law and even common sense dictate that the Court, before granting an order nisi, must be satisfied that the following conditions have been prima facie established by affidavit evidence: 1. That there is a subsisting monetary judgment; 2. That the judgment debt or part thereof remains unpaid; and 3. That the judgment debtor's money, as would settle the whole or part of the judgment debt, is in possession of the garnishee; in other words the money sought to be garnisheed must belong to the judgment debtor."per MUKHTAR, J.C.A. (Pp. 7-10, Paras. E-A) - read in context

4 HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court Gusau in Suit No, FHC/GS/CS/5/2015 delivered on 8th November, 2016 by Hon. Justice Fadima Murtala Aminu, wherein the Court below made a garnishee order absolute against the appellant in favour of the 1st respondent in respect of a judgment debt of N17,588, with interest that was obtained by the said 1st respondent against the 2nd respondent before the same Court in the judgment delivered on 20th April The brief facts are that the 1st respondent sued the 2nd respondent in Court below claiming the sum of N17,588, with interest. On 20th April 2015, the Court below delivered judgment and awarded the sum of N17,588, in favour of the 1st respondent against the 2nd respondent. (See pages 3 and 4 of the record of appeal). In a bid to enforce that judgment, the 1st respondent on 6th September 2016 commenced garnishee proceedings against the the First Bank of Nigeria Plc and the United Bank for Africa Plc (see pages 1-9 of the record of appeal). On the 13th October, 2015, the Court 1

5 below granted an order nisi in respect of the said garnishee proceedings and directed the named garnishee banks to appear in Court and show cause why the order nisi should not be made absolute (see - pages 12 and 13 of the record of appeal). The appellant (United Bank For Africa Plc) did not appear before the Court below to show cause why the order nisi made against it should not be made absolute. On the 8th November 2016, the Court below proceeded to make the garnishee order against the appellant absolute and discharged First Bank of Nigeria Plc from the proceedings (see pages of the record of appeal). The appellant was disgruntled with garnishee order made against it and therefore brought this appeal predicated upon the following twin grounds: GROUND ONE The Court below had no jurisdiction to have granted an order of garnishee absolute against the appellant in favour of the 1st respondent respecting the funds of the 2nd respondent domiciled with the appellant as the prior consent of the Attorney General of Zamfara State was not sought for and obtained by the 1st respondent before the initiation of the said garnishee proceedings 2

6 contrary to the express provisions of Section 84 of the Sheriffs and Civil Process Act Cap. S6 Laws of the Federation of Nigeria GROUND TWO : The decision of the Court below is unreasonable, unwarranted and cannot be supported having regard to the weight of the evidence before it. The appellant raised a lone issue for determination from ground 1 and abandoned the omnibus ground 2 as follows: Whether the Court below was vested with the requisite jurisdiction to have adjudicated upon the garnishee proceedings without the prior consent of the Attorney General of Zamfara State as required by Section 84 of the Sheriffs and Civil Process Act Cap, 56 Laws of the Federation of Nigeria Arguing the lone issue, the learned counsel for the appellant Chief J. E. Ochidi submitted that the Court below lacks jurisdiction to adjudicate upon the garnishee proceedings without the prior consent of the Attorney General of Zamfara State, as required by Section 84 of the Sheriffs and Civil Process Act Cap. 56 Laws of the Federation of Nigeria 2004, which provides as follows:- "Where money liable to be attached by garnishee proceedings 3

7 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 provision 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 of a public officer or of the Court in case of money in custodia legis, as the case may be." Section 84 (3) of the Sheriffs and Civil Act further provides as follows: "In this section, appropriate officer means:- (a) In relation to money which is in the custody of a public officer in 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 of the State." It was submitted for the appellant that in the instant case, the judgment debtor is the 2nd respondent Bakura Local Government Council and money in the joint Local Government account for the entire Zamfara State could not have been attached without the prior consent of Zamfara State Attorney General having been sought 4

8 and obtained. The appellant s counsel further relied on Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which defines public service of a state as the service of the state in any capacity in respect of the government of the State and includes service of Local Government Council. It was submitted for the appellant that the preconditions for making an order absolute were not established to warrant such an order by the Court below. The Court was urged to resolve the issue in favour of the appellant, allow the appeal and set aside the garnishee order absolute. The learned counsel for the respondent, however, argued that money in the custody of the appellant does not qualify as money in custody of a public officer. He referred to the definition of the term public officer as interpreted by the Courts to include both natural and artificial persons. See AIYELABEGAN V. L.G. SER. COMM. ILORIN, KWARA STATE (2009) 22 WRN 108. It was submitted for the Respondent that a commercial bank fully owned by its individual shareholders cannot be said to be a public officer. See ABUBAKAR & ANOR V. 5

9 GOVERNOR OF GOMBE STATE & ORS (2002) 17 NWLR (part 797) at 533 where it was held thus: "... Section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation. 1990, defines Public Officer as meaning a member of the public services of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or public service of a State. Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 defines the public service of a State as meaning the service of the State in any capacity in respect of the government of the State and includes service as:- (a) Public service of the federation means the service of the federation in any capacity in respect of the government of the federation and includes service as in clerk or other staff of National Assembly or of each House of the National Assembly. (b) Member of staff Supreme Court, Court of Appeal, Federal High Court, High Court of Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, the CCA of Federal Capital Territory Abuja or other Courts established of the Federation by this 6

10 Constitution and by Act of the National Assembly. From the above definition, a public officer is a member of the public service, either of the federation or of the state in any capacity in respect of the Government of the Federation or the State as the case may be." It was submitted for the respondent that the proper interpretation of money in custody and control of public officer are monies being held by such officers in their official capacity. For instance, were judgment is obtained against government of a State or Federal Government. Any garnishee proceedings against such fund would require the consent of the Attorney General. The Court was urged to resolve the issue in favour of the 1st respondent and against the appellant and dismiss this appeal. It is pertinent to observe that money in a bank account is in the custody of the account holder thereof. In other words, it need not be in the pockets of the public officer. It suffices if the public officer has physical or constructive possession of the money. The bank merely keeps cashless records of accounts of its customers but the control of such account, which in the instant case 7

11 lies with a public officer, is what constitutes custody. The physical cash, if any, belongs to the bank unless it is paid out. It is the order nisi granted exparte and based on affidavit evidence that the Court makes absolute if no sufficient cause is shown by the garnishee bank why the order nisi should not be made absolute. It is pertinent to note that garnishee order nisi is binding from the date of service and creates a perfect security against the sum garnisheed, the fact that the order, at that stage, has not been made absolute notwithstanding. An order nisi is meant to give the garnishee bank an opportunity to show cause, at a specified time and place for further consideration of the matter, why the temporary order nisi should not be made absolute. The nisi order attaches such debt as is owed by the judgment debtor, including costs of the garnishee proceedings, to the applicant who being the judgment creditor must therefore show prima facie that he obtained judgment against the judgment debtor. He must also depose to the fact that the judgment still remains unsatisfied and that the judgment debtors money, as would satisfy the debt in part or 8

12 in full, is in the hands of the garnishee. The law provides for the steps to be taken by the garnishee and the judgment debtor during the proceedings subsequent to the service of the order nisi on them and the consequences that must follow failure of both or either of them to appear in Court during post-service of the order nisi proceedings or failure to re-act to the order nisi. The record shows that no steps in the proceedings by the garnishee appellant after issuing the order nisi and service of the order. The only business before the Court below was to make the order absolute in those circumstances if the order nisi was properly issued. The law and even common sense dictate that the Court, before granting an order nisi, must be satisfied that the following conditions have been prima facie established by affidavit evidence: 1. That there is a subsisting monetary judgment; 2. That the judgment debt or part thereof remains unpaid; and 3. That the judgment debtor s money, as would settle the whole or part of the judgment debt, is in possession of the garnishee; in other words the money sought to be garnisheed must belong to the 9

13 judgment debtor. In the instant case, the 1st respondent filed a motion exparte to commence the garnishee proceedings at the Court below, praying as follows:(a) "An order nisi attaching the judgment debt plus the cost of the garnishee proceedings from the funds of the judgment debtor/respondent's account with the First Bank of Nigeria PIc, Talata Mafara Branch and the Zamfara State Joint Local Government Account (JAC) with United Bank for Africa PIc, Old Park Road Gusau in order (sic) to satisfy the judgment sum of N17,588, plus the cost of the garnishee proceedings." It is clear from the relief being claimed by the 1st respondent in the originating process as reproduced above that the account which the 1st respondent sought to be attached at the Court below is the Joint Local Government Account of Zamfara State one out of which Bakura Local Government Council (the judgment debtor and 2nd respondent herein). The funds which the 1st respondent sought to be attached are public funds standing to the credit of the Joint Local Government Councils in Zamfara State and domiciled with the appellant, out of which the 2nd respondent owns 10

14 nothing until the money is shared and its allocation severed from it. The 1st respondent failed or neglected to apply for consent of the Attorney General of Zamfara State when the money in the Joint Local Government Account of Zamfara State was sought to be attached by the garnishee order nisi. The Joint Local Government Account for the 14 Local Government Councils of Zamfara State is created by Section 162(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows:- "Each state shall maintain a special account to be called "State Joint Local Government account" into which shall be paid all allocations to the Local Government Councils of the state from the Federation Account and from the Government of the State." See, also the provision of Sections 1 and 4 of the Allocation of Revenue (Federation Account, etc) Act Cap. A15, Laws of the Federation of Nigeria I have no doubt in my mind that the said account is a public account and the monies kept therein are public funds belonging jointly to all the 14 Local Government Councils in Zamfara State as listed in Part 1, First Schedule to the 11

15 Constitution of the Federal Republic of Nigeria 1999 (as amended). Unless the funds are appropriated or shared and transferred to the individual bank accounts of each of the said 14 Local Government Councils of Zamfara State, it does not belong to Bakura Local Government Council. It therefore, qualifies as public funds in Public Officer s custody that requires the consent of the Attorney General of Zamfara State first sought for and obtained before obtaining the garnishee order nisi, provided that an Attorney General worth his salt must not arbitrarily withhold such consent. He should as the chief law officer of the State rather promote the course of justice to settle the judgment debt. However, in the instant case no such consent was ever sought for much less being obtained as required by law. The provisions of Sections 84(i) and (ii) of the Sheriffs and Civil Process Act clearly makes it a mandatory requirement to seek the consent of the Attorney General of Zamfara State before attaching the public funds in the said Joint Account. The fact that the attached funds are not in the 2nd respondent s account coupled with the failure to seek for 12

16 and obtain the consent of the Attorney General of Zamfara State renders the order nisi otiose. The same virus hits the order absolute thereby rendering it totally insignificant and audaciously overreaching. See the cases of ONJEWU V. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY (2003) 10 NWLR (PT 827). 40, ODE & ORS V. BENUE STATE GOVT (2011) LPELR In the case of JAIZ BANK PLC V. UNITY BANK PLC & ORS (unreported) Appeal No. CA/S/58/2015 decided by this Court in this Division on 01/07/2016 on a similar issue which arose from Zamfara State where my learned brother M.L. Shuaibu JCA observed thus:- "The facts in the instant case, are in all four with the facts in the unreported Appeal No. CA/S/59/2015, SKYE BANK PLC V. UNITY BANK PLC & ORS delivered on 12/05/2016 wherein I held the view that any fund standing to the credit of the state Government whether in a bank or in a shelf of a public officer is attachable only with the consent of the Attorney General in accordance with the provision of Section 84(1) of Sheriff and Civil Process Act. The absence of prior consent of the Attorney General of Zamfara Sate before granting the order nisi 13

17 as in Appeal No. CA/S/59/2015, SKYE BANK PLC V. UNITY BANKPLC & ORS above has rendered the entire garnishee proceedings a nullity as the lower Court lacked the requisite jurisdiction to entertain same. Consequently, the appeal is meritorious and is hereby allowed." As I earlier observed, the Local Government Joint Account in issue contain funds jointly owned by all the 14 Local Government Councils of Zamfara State. The said account is certainly a public account and the sums of money standing therein are public funds under the custody and control of public officers of Zamfara State. The failure to apply for and obtain the consent of the Attorney General of Zamfara State by the 1st respondent before garnisheeing the said account which is domiciled with the appellant renders both the order nisi and the order absolute obtained against the appellant unsustainable. Moreover attachment money in an account other than that of the judgment debtor is a clear misdirection in law and in fact. See the case of LAFFERI NIGERIA LTD & ANOR V. NAL MERCHANT BANK PLC 8 ANOR (2015) ALL FWLR (PT 802) 1578 AT 1612, Galadima JSC held thus:- Where 14

18 a Court lacks jurisdiction or competence to make an order, whatever order that is made in such circumstance is of no moment: it is a nullity ab initio, as if no order was made at all. It is no longer in the eye of the law, an effective adjudication on the right of the parties. In the circumstances, the lone issue is resolved in favour of the appellant and against the respondents. The appeal has merit and is hereby allowed. Consequently, the garnishee orders nisi and absolute made against the appellant on 13th October, 2016 and 8th November, 2016 respectively are hereby set aside. The parties shall bear their respective costs. MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother, Hussein Mukhtar, JCA has afforded me with the privilege of reading before now the lead judgment just delivered, and I entirely agree that the appeal is meritorious and should be allowed. I allow the appeal and abide by the consequential orders. FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned brother HUSSEIN MUKHTAR, JCA just delivered and I am in 15

19 agreement with his reasoning and conclusions in allowing the Appeal as meritorious. Consequently, both Garnishee Orders nisi and absolute made against the appellant on the and respectively is hereby set aside. I abide by the other consequential orders made thereto. There shall be no order as to costs. 16

20 Appearances: Chief J.E Ochidi, Esq. with him, Umar Dahiru, Esq. For Appellant(s) Chief S.U Nwoke, Esq. for 1st Respondent. A. Abdullahi, Esq. for 2nd Respondent For Respondent(s)