BEFORE HIS LORDSHIP HON. JUSTICE CHIZOBA N. OJI PRESIDING JUDGE MOTION NO: M\9217\11 BETWEEN:

IN THE HIGH COURT OF THE FEDERAL CAPITALTERRITORY ABUJA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT WUSE ZONE 2 FCT ABUJA ON THE 28 TH DAY OF FEBRUARY, 2013 BEFORE HIS LORDSHIP HON. JUSTICE CHIZOBA N. OJI PRESIDING JUDGE MOTION NO: M\9217\11 BETWEEN: 1. CHIEF OBLA UBANA 2. CHIEF ETENG UBI 3. CHIEF UBI EFFIOM JUDGMENT CREDITORS\ 4. CHIEF IMON OKON APPLICANTS 5. CHIEF BASSEY UKPENETUS 6. MR. OTU EGEDE AND 1. ATTORNEY-GENERAL & COMMISSIONER OF JUSTICE, CROSS RIVER STATE 2. COMMISSIONER FOR WORKS, LANDS JUDGMENT DEBTORS\ & SURVEYS, CROSS RIVER STATE RESPONDENTS 3. YAKURR LOCAL GOVT. AREA AND CENTRAL BANK OF NIGERIA. GARNISHEE HADI JAZULI, ASSISTANT LEGAL OFFICER REPRESENTING THE GARNISHEE (NOT ROBED) O.C. OGAR FOR THE JUDGMENT CREDITOR HOLDING THE BRIEF OF J.O. OBONO OBLA (MRS.) PATRICK ABANG WITH SUABEN AUDU WATCHING THE BRIEF OF JUDGMENT DEBTORS/RESPONDENTS 1

CHIEF THEO NKIRE WITH OZICHI NKIRE FOR GARNISHEE RULING. The Judgment Creditors/Applicants as representatives of their people sued the 1 st and 2 nd Judgment Debtors and obtained judgment against the Government of Cross River State for the sum of N200, 010, 000 (Two Hundred Million, and Ten Thousand Naira) only at the High Court of Cross River State of Nigeria, Ugep Division. The 3 rd Respondent therein, Yakur Local Government Area was found not liable by the court and is not a part of this proceedings. The said judgment was registered in this court. Subsequently, on 1 st March 2012, the Judgment Creditors/Applicants obtained a garnishee order nisi garnisheeing the account of the Cross River State Government with the Central Bank of Nigeria (the Garnishee). The return date for the garnishee to show cause was 26 th April 2012. Upon being served with the order nisi the 1 st and 2 nd Judgment Debtors on 16 th April 2012 filed a counter affidavit and a preliminary objection to set aside or discharge the order nisi and to dismiss the garnishee proceedings. The garnishee also filed an affidavit to show cause on 13 th April 2012. The judgment creditors filed a further and better affidavit in response to the judgment debtors counter affidavit on 20 th April 2012, and a Reply to the judgment debtor s preliminary objection also on 20 th April 2012. In reaction to the garnishee s affidavit to show cause, the judgment creditors filed a further and better affidavit of 30 th April 2012. 2

The garnishee filed a further affidavit to show cause on 25 th June 2012 and filed nothing with regards to the notice of preliminary objection of the Judgment Debtors. The Judgment Creditor further raised a new issue, that a Judgment Debtor cannot challenge proceedings in a garnishee proceeding being a nominal party. The court directed that the new issue will be addressed after arguments on the preliminary objection. Mr. Bassey for the 1 st and 2 nd Judgment Debtors then argued their notice of preliminary objection which was brought pursuant to sections 6 (6) a, and b, 120 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections 83 and 84 of the Sheriffs and Civil Process Act, Cap S.6 LFN 2004 and under the inherent jurisdiction of this court. The objection was predicated on 5 grounds as follows: 1. All monies due to a state whether in a commercial bank or any other body forms part of the consolidated revenue fund and cannot be withdrawn without the authorization of the State House of Assembly 2. The Judgment Creditors/Applicants failed to obtain the authorization of the Cross River State House of Assembly before applying to garnish public funds in the Central Bank of Nigeria as provided under Section 120 (3) and (4) of the 1999 Constitution. 3. The Judgment Creditors/Applicants did not obtain the consent of the state Attorney-General before commencing the garnishee proceedings as required by Sections 83, 84 of the Sheriffs and Civil Process Act, Cap. S6 Laws of the Federation of Nigeria, 2004. 3

4. The garnishee order nisi as presently constituted is incompetent and difficult to be obeyed 5. The garnishee proceedings as presently constituted is incompetent and this Honourable court lacks the jurisdiction to entertain the proceedings Learned counsel raised 2 issues for determination thus: (i) Whether this Honourable Court has the jurisdiction to entertain this garnishee proceedings commenced without the authorization of the State House of Assembly pursuant to Section 120 (3) and (4) of the 1999 constitution; and (ii) Whether this Honourable Court has the jurisdiction to entertain this garnishee proceedings commenced without the consent of the state Attorney General pursuant to sections 83 and 84 of the Sheriffs and Civil process Act Cap. S6 LFN 2004 Taking both issues together, learned counsel emphasized on the fundamental nature of jurisdiction, submitting that any defect in the competence of a court is fatal, and any proceedings carried out without jurisdiction is a nullity, however well conducted and decided it may be. He relied on locus classicus of MADUKOLU V NKEMDILIM (1960) 1 ANLR 587 at 595 ATTORNEY GENERAL LAGOS STATE V DOSUMU (1989) 3 NWLR (Pt 111) 552 and UTIH & ORS V ONOYIUWE (1991) 1 NWLR (Pt 166) 166, were also called in aid. Placing further reliance on the mandatory provisions of S. 120 (1) of the Constitution of 1999 FRN (as amended) he submitted that these proceedings commenced without first obtaining the authorization of the Cross River State House of Assembly is a nullity. He further argued that under S. 84 of the Sheriff and Civil Process Act. Cap. S6. LFN 2004, which provision is an existing law by virtue of S. 315 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Judgment 4

Creditor\Applicant under the law are mandated to apply and secure the consent of the Attorney General before filing the application for grant of the order nisi before this court. He maintained that the Central Bank of Nigeria is a public officer and the failure of the Judgment Creditor\Applicant to obtain the consent of the state Attorney General or Attorney General of the Federation before the application for and grant of the garnishee order nisi renders the proceedings under S. 83 and S. 84 of the Sheriffs and Civil Process Act incompetent. Further reliance was placed on the authorities of CHRISTOPHER S. NJEKWU V KOGI STATE MINSITRY OF COMMERCE & INDUSTRIES (2003) 10 NWLR PART 827 AT 40, POWER COM. NIG LTD V COMMISSIONER FOR AGRIC, WATER RESOURCES & RURAL DEVELOPMENT (2005) ALL FWLR PT 246 AT 1353. He concluded that this court cannot make the order nisi absolute without complying with the law, more so, when there is a pending appeal against the judgment sought to be enforced. In reaction to the two issues raised in the preliminary objection, the learned counsel to the Judgment Creditor\Applicant Mrs. Obono Obla in their reply to the notice of preliminary objection argued that this court has jurisdiction to entertain these garnishee proceeding thus: that the provisions of S. 120(3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the submission by the judgment debtor that the judgment creditors cannot withdraw from the consolidated revenue fund of the Cross River State without the approval of the Cross River State House of Assembly, is a misapprehension of the tenor and purport of the said enactment 5

vis-à-vis Garnishee proceedings and is thus not a requirement or condition precedent to garnishee proceedings. She submitted that S. 120 (3) and (4) of the Constitution provides for Consolidated Revenue Fund for states but is not the only sources of monies derived by states such as Cross River State from the Federal Government of Nigeria, which is in the custody of the Garnishee. By virtue of the S. 163 of the Constitution, it is only monies derived from taxes or duties and accruing to a state from the Federal Government on behalf of such a state that qualifies to be lodged in the consolidated Revenue Fund of such a state. S. 162 (1)-(8) (10) and S. 164 of the Constitution, as amended show other sources through which monies are disbursed to states by the Federal Government. Learned counsel therefore maintained that it is a lost argument for the judgment debtors to refer to the judgment creditors not complying with S. 120 (3) and (4) of the Constitution before garnisheeing the account of the Cross River State, as if that is the only account of the Cross River State Government with the garnishee from which the monies belonging to the Cross River State Government can be garnisheed by the judgment creditors. She therefore urged the court to discountenance the submissions of the Judgment Debtor on this point. In the event that the court did not agree with her, learned counsel submitted that S. 120 (3) and (4) of the Constitution addresses the issue of withdrawal from any public fund of the state, which she argued must be distinguished from garnishee proceedings. The word withdraw meaning to to take money from account while garnish means to attach (property held by a third party) in order to satisfy a debt or to 6

notify (a person, bank, etc) that a garnishment proceedings has been undertaken and that the one may be liable as a stake holder or custodian of the Defendant s property. See Black s Law Dictionary (Ninth Edition) (Bryan A. Garner) West Publishing Co. at page 749. See also definition of Garnishee in Black s Law Dictionary and Encarta Dictionary. Learned counsel urged therefore that the Judgment Creditor is not asking the court to withdraw without authorization as claimed by the Judgment debtor but to attach or confiscate with the backing of law, for which the Judgment Creditor did not require consent of the Cross River State House of Assembly. Learned counsel further argued that the Attorney General and Commissioner for Justice Cross River State was a party and fully participated in the proceedings leading up to judgment at the trial court, having represented both the interest of the Cross River State Government and the 2 nd Defendant therein. Further the Attorney General Cross River State was on 20 th August 2010 by a letter informed of the judgment of the trial court by the counsel to the Judgment Creditor urging him to ensure compliance with the court s judgment not withstanding that he was represented in court on 18 th May 2010 when judgment was delivered. She urged that the drafters of S. 120 (3) and (4) of Constitution did not intend that the judgment creditors should obtain approval from the Cross River State House of Assembly before bringing their garnishee proceedings, as this would whittle down the effect of garnishee proceedings. And S. 6 of the CFRN makes a distinction between the courts and the legislature, and the court cannot be subjected to the whim and caprices of the legislature by the Judgment Creditors having to obtain the approval of the Cross River State 7

House of Assembly before enforcing their judgment through garnishee proceedings. She concluded this point by stating that the judgment debtors cited no decided case to back up their submission that monies attached by way of garnishee proceedings are public funds for which S. 120 (3) and (4) can apply to subject the judgment of a competent court to approval of the Cross River State House of Assembly before garnishee proceedings can be brought. She urged the court to discountenance the argument. On S. 84 of the Sheriff and Civil Process Act and the need for consent of the Attorney General of Cross River State before bringing these proceedings and the contention that the monies sought to be garnisheed are in the custody of public officer: Learned counsel commended to the court, the case of PURIFICATION TECH (NIG) LTD V AG LAGOS STATE (2004) 9 NWLR (Pt 879) 665 which she submitted appropriately interprets S. 84 of the Sheriffs & Civil Process Act and makes a clear cut distinction that monies in the hands of a garnishee banker are not in the custody or control of the Judgment debtor customer. Such monies remain the property in the custody and control of the banker; and payable to the Judgment debtor until a demand is made. In the instant case, the monies held by the Respondent in the garnishee banks were not under the custody or control of the Respondent or a public officer. Consequently, such monies are not subject to the provision of Section 84 of the Sheriffs and Civil Process Act as contended by the Respondent (see page 670-671 of the Report) She submitted that the case of NJEWU V KOGI STATE MINISTRY OF COMMERCE AND INDUSTRIES (supra) relied on by the judgment debtors is not on all fours 8

with this case and therefore irrelevant as the issue for determination in NJEWU s case was on the need to obtain the consent of the Attorney General pursuant to S. 84 Sheriffs and Civil Process Act in order to garnishee the account of a public officer but did not resolve the issue whether monies in the custody or control of a third party (such as a bank) qualified to be a public officer as specifically resolved in PURIFICATION TECH (NIG) LTD V AG LAGOS STATE where Central Bank Nigeria (CBN) was 32rd garnishee. Herein lies the distinction between the two cases. She urged that the Judgment/Debtors argument that the CBN is a public officer is an argument malafide as the CBN is not a Public officer for the purpose of S. 84 of the Sheriff and Civil Process Act. By virtue of the Public Officers (Special Provision) Act Cap 381 LFN 1990, a public officer is one who performs a public duty. She submitted that the CBN is neither governed by the Public Service Rules nor is it a parastatal or ministry of government rendering service to the public for the purpose of being a public officer under S. 84 of Sheriffs and Civil Process Act. By virtue of sections 26 (1) (c) and 34 of the Central Bank of Nigeria (Amendment) Decree No. 41 of 1999, CBN is a creation of statute and has a limited or defined operational scope. Aside from being a banker to the Federal Government of Nigeria the CBN also carries out banking services to the State governments, Ministries and Institutions. She submitted that (the garnishee) CBN being a banker of the Judgment Debtors (the Cross River State Government) is not a public officer. Further reliance was placed on S. 1(2) CBN Act. In addition, a combined reading of S. 26 (1) (c ); 30 (1) and (2), 34 and 36 of the CBN Act (supra) show that the CBN has general functions to act as a bank and for this purpose can act as a banker to state and Local 9

Government such as the Cross River State Government, meaning that it custodies monies of Cross River State Government alongside other state Governments in its control, which remains the property of the banker (CBN) and payable to the Judgment Debtors (Cross River State) until a demand is made. Thus for the purposes of rendering banking services to state governments such as Cross River State of Nigeria, the CBN cannot be regarded as a public officer as it is only on account of the services it renders on behalf of the Federal Government of Nigeria that the garnishee is estopped or excluded from collecting remuneration. See also TRENDTEX TRADING CORPORATION LTD V CENTRAL BANK OF NIGERIA (1977) 1 ALL ER 881. She urged the court to so hold. It was further submitted that the garnishee has in its custody monies of the Cross River State Government disbursed by the Federal Government through the CBN to the Cross River State from the Federation Account pursuant to S. 30 (2) of the CBN Act supra for which the garnishee is mandated to keep account thereof. See S. 162 (1)-(8) of the Constitution of Federal Republic of Nigeria 1999 as amended, particularly (3) and (4). See also S. 162 (10). It was submitted that these monies are quite distinct from monies forming the Consolidated Revenue Funds of the Cross River State covered by S. 120 (3) and (4) of the Constitution. See S. 163 of the 1999 Constitution. With regard to the 3 exhibits MOJ A, MOJB, MOJC annexed to the Judgment Debtors counter affidavit to the effect that there is a pending appeal against the judgment sought to be enforced. Learned counsel submitted that Exhibit MOJAthe supposed Notice of Appeal was filed on 23 rd August 2010, more than the 3 months constitutionally guaranteed period for an Appeal, considering that the 10

judgment sought to be appealed against was delivered on 18 th May 2010. See 24 (2)(a) of the Court of Appeal Act Cap C36 LFN 2004. By 19 th August 2010, the Judgment Debtors were already out of time and ought to have obtained leave of court before filing Exhibit MOJA Having not exhibited any process to show that leave was sought and obtained for MOJA to be filed out of time before the filing of Exhibit MOJA, the said exhibit is incompetent and is as good as non-existent. The Judgment Debtors cannot put something on nothing and expect it to stand. See also Order 7 rule 2 of the Court of Appeal Rules, 2011 On Exhibit MOJB, the supposed compilation of record of proceedings by Ministry of Justice, Cross River State and MOJC, the supposed motion for stay of Execution of judgment, it was submitted that assuming, but without conceding that there is a valid Notice of Appeal Exhibit MOJA, it took the ministry of justice 1 year and 3 months from when they supposedly filed Exhibit MOJA (23 rd August 2010) to compile and file records of which only a page is annexed as Exhibit MOJB (21 st November 2011). This violates the Rules of the Court of Appeal which allows for 60 days if records are to be transmitted by the registrar of the lower court to the Court of Appeal and 30 days where a party is complying its own records or departing from the rules. See Order 8 Rule (1) and (4) of the Court of Appeal Rules. Exhibit MOJA further shows that it is a Notice of Appeal in respect of both the interlocutory Ruling and the final judgment. By virtue of Section 24 (1) (a) of the Court of Appeal Act the Debtors have 14 days to appeal an interlocutory decision, which assuming, without conceding was delivered on 18 th of May or 24 th of May 2010, shows the debtors were out of time by 1 st June or 7 th June 2010 as the case 11

may be. Judgment Debtors did not seek leave to embody the interlocutory appeal in the final appeal of Exhibit MOJA. Again the Judgment Debtors would have needed to bring a motion on notice for leave to compile records out of time, which motion would have been served on the Judgment Creditors (where it in existence) which is not the case here. Again, the Debtors did not exhibit any court process to show they brought an application for extension of time to depart from the Rules before compiling their records, there is not in existence any motion for departure from the rules before the Court of Appeal Calabar Division. Exhibit MOJB, the one page uncertified and untitled document being brandished by the debtors as evidence of compiled records is suspect, incompetent and worthless. Learned counsel submitted that the Judgment Debtors have shown complete bad faith in filing and exhibiting legally nonexistent processes before the Court Appeal Calabar Division, in a bid to overreach the judgment creditors in this Garnishee proceeding. In furtherance of their malafide the judgment debtors after being served the Garnishee order nisi proceeded to file a motion on notice on 10 th April 2012 seeking stay of execution of the judgment which application is predicated on nothing, there being no appeal against the judgment of 18 th May 2010. This motion for stay was of course not in existence at the time the order nisi was made. It was further submitted that in PURIFICATION TECH NIG. LTD (supra) that the existence of an application for an order of stay of execution of judgment does not preclude a Judgment Creditor from seeking to use garnishee proceeding to enforce judgment. See also DENTON-WEST V MUOMA (2008) 6 NWLR (PT 1083) PAGE?(not supplied) 12

It was submitted that even if the judgment of High Court Ujep was delivered on 24 th May 2010 and not 18 th May 2010, the debtors were still a day out of time (91 days) She urged that the objection be dismissed. In his oral reply on point of law Mr. Bassey for the Judgment Debtor responded that by virtue of S. 83 (2) of the Sheriff and Civil Process Act a Judgment Debtor and the garnishee must be served the order nisi the essence of which is that the Judgment Debtor be heard in the proceedings. See WEMA BANK PLC V BRASTEM- STERR NIG. LTD (2011) 6 NWLR PART 124258 (SUPRA) AT PAGE 79 PARAGRAPHS EF; NIGERIAN AGIP OIL CO LTD (NAOC LTD) V PETER OGINI (2011) 2 NWLR PART 1230 AT 131 HOLDEN 9 AT 137. Hence the judgment debtor is not a meddlesome interloper but a proper party. He urged the court to give effect to S. 83 (2) and hear the Judgment Debtor. I have considered the submissions of both learned counsel. I shall first just treat the issue whether a Judgment Debtor is a proper party to be heard on garnishee proceedings. I have read the cases of WEMA BANK V BRASTEMM STERR AND NIGERIA AGIP OIL COMPANY LTD V PETER OGINI (supra) relied upon by Mr. Bassey for the Judgment Debtor. Neither of the 2 cases support his contention that a Judgment Debtor is to be heard in garnishee proceedings on the issues before the two courts in those cases. In WEMA BANK S case the court was called upon to decide whether the learned trial judge was right when she made an order absolute when there was no record of issuance and service of the order nisi on both the garnishee and the Judgment debtor. 13

The court held that the learned trial judge was wrong. Per Nwodo JCA at page 78 paragraphs F-G: In effect will the absence of any statutory role placed on the judgment debtor during the garnishee proceedings waive the requirement that he be served with the process which is original in nature as it relates to garnishee proceedings. The learned jurist proceeded further at page 79 paragraphs E-F to say it is undisputable from the nature of garnishee proceeding that the Judgment debtor is just a passive Respondent as the provision under S.83 (1) refers specifically to the garnishee appearing before the court to show cause. The garnishee is the main party under the statute and should be the one reacting to the proceedings; nevertheless the Judgment debtor must be put on notice of what happens to money due to him in the possession of the garnishee. This service is fundamental in the light of the principle of being heard in a matter touching on his right The issue was not whether the Judgment/Debtor was heard but whether he was served in accordance with S. 83 (1) Sheriff and Civil Process Act. I think Mr. Bassey with all due respect quoted Nwodo JCA out of context. Note also in that case that it was the garnishee that appealed, not the Judgment Debtor. In NIGERIA AGIP OIL COMPANY V PETER OGINI (2011) 2 NWLR PART 1230 PAGE 131 delivered on 5 th July 2010. Owoade JCA held that a judgment debtor is neither a party to a garnishee proceeding which led to an order nisi or an aggrieved party that can appeal against a garnishee order nisi. The court relied on HON. JUSTICE SOTONYE DENTON-WEST V CHIEF (ICHIE) CHUKS MUOMA SAN 14

(2008) 6 NWLR PART 1083 418 AT 442 Per Kekere Ekin JCA, which relied on PURIFICATION TECHNOLOGIES LTD V AG LAGOS STATE (supra) Ratio 9 relied on by Mr. Bassey was not in the lead judgment of the court and not a ratio decidendi on the decision of the court. Therefore these 2 cases do not support Mr. Bassey s contention that the Judgment Debtor can be heard in these garnishee proceedings. In NIGERIA MARITIME AND ADMINISTRATION AGENCY V STEPHEN ADI ODEY & ORS. DELIVERED ON 28 TH JUNE 2012, SUIT NO:CA\C\45\2009, The appellant had at the trial court upon service of an order nisi challenged the competence of the proceeding, hence the appeal. On the issue whether a Judgment Debtor is a necessary party that can appeal as of right in a garnishee proceeding. Uzo Ndukwe-Anyanwu JCA held that the Judgment Debtor indeed should not be a party in this proceeding. Though he is a party, he is not the party to show cause. The Judgment Debtor is not a necessary party in a garnishee proceeding and, therefore has no right of appeal in this proceeding A Judgment Debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the Judgment Creditor in satisfaction of the judgment debt he is owing to the Judgment Creditor. He is not required to appear before the court to show cause why the order nisi should be made absolute. It is the garnishee and only the garnishee that is expected to inform the court if there is any third party s interest in the said judgment debtor s money in his custody. So, to all ramifications, it is only the garnishee that is expected to react if the law was not properly followed or observed. 15

It has been held severally that the Judgment Debtor is not supposed to be a party in a garnishee proceeding. It therefore follows that the Appellant\Judgment debtor in this case does not have any right to question the jurisdiction of the court nor whether the hearing was fair or not. The only parties that may question the jurisdiction if the court on whether there was fair hearing are the garnishee banks. See the unreported case of UNIVERSITY OF UYO V EDU ANYAWANA UYE (supra) It therefore follows from the above authorities that the judgment debtor is indeed a meddlesome interloper in these proceedings and has no right to be heard. I therefore uphold the submission of the Judgment Creditors and hold that the Judgment Debtor has no right of audience in this proceeding. For this reason the notice of preliminary objection of Judgment debtor is accordingly struck out. However, for what it is worth let me quickly state that had the judgment debtor a right of audience in this proceedings, I would have held in favour of the Judgment Creditors and overruled the notice of preliminary objection on the superior arguments of Judgment Creditors. On the issues in contention particularly, there is nothing to convince this court there is a pending appeal against the judgment for which this garnishee proceeding is being heard. The Judgment Debtor had no response to the Judgment Creditors arguments that there is no valid appeal at the Court of Appeal Calabar. And of course the application for stay will not stop garnishee proceeding from proceeding assuming there was a valid appeal. On the garnishee proceedings: I now proceed to the affidavit of the garnishee to show cause. I shall restrict myself to the affidavit of the garnishee and the response by the Judgment creditor only they being the proper party to these proceedings. The 17 paragraph 16

counter affidavit of the Judgment/debtor filed with regard to this garnishee proceeding is hereby struck out. The 17 paragraph further and better affidavit of the Judgment creditors filed in response thereto is also stuck out. The garnishee filed an 8 paragraph affidavit to show cause deposed to by Olanrewaju Azeez Bello dated 13 th April 2012. The salient point of the affidavit is that the garnishee was unable to comply with the order nisi as none of the Judgment debtors maintains an account with the garnishee CBN. In response to this the judgment creditors filed a 7 paragraph further and better affidavit on 30 th April 2012. Same was sworn to by Ifeoma P. Chukwuemelie. Therein it was denied that the garnishee is unable to carry out the order nisi. It was deposed that the Garnishee carries out banking services to State Governments, Ministries and Institutions by its Establishment Act, and has operational powers of a bank, just like any other bank even though for restricted customers. That there is a Federation Account of the Federal Government with the garnishee out of which monies accrue and are disbursed on a monthly basis from the Federal Government of Nigeria to the 36 states of the Federation. In their written address in support of their further and better affidavit the Judgment creditors raised this sole issue for determination thus: Can the Garnishee in all good conscience state that the judgment debtors do not maintain accounts with the Bank. Mrs. Obono-Obla submitted that the account which the Judgment creditors seeks to garnishee is the account of the Cross River State Government with the garnishee (not the account of the Attorney General and Commissioner of Justice of Cross River State or the account of the Commissioner for Works, Lands and 17

Survey of Cross River State or the Account of Yakurr Local Government Area (which the judgment of the Ugep High Court of Cross River State exonerated and which is technically not a party to this proceeding). The motion Exparte pursuant to which the order nisi was granted is clear on this. She submitted that the combined provisions of the 1999 Constitution of Federal Republic of Nigeria as amended, particularly section 162 (1) (3) and (4) thereof and the Central Bank of Nigeria (amendment) Act Cap C4 2004 particularly sections 26 (1) (c); 30 (2); 34 and 36 thereof make adequate provisions to the effect that state governments of the federation maintain accounts with the Central Bank of Nigeria. It was submitted further that assuming without conceding that state government do not maintain accounts with the garnishee, by virtue of S. 30 (2) of the CBN Account (supra) the garnishee is to keep or maintain such accounts. It was therefore a matter of contempt for the Garnishee to trivialise the order nisi granted by this Honourable Court. She urged the court to make the garnishee order nisi absolute or in the alternative invoke the provisions of S. 87 of the Sheriffs and Civil Process Act, cap. 56 LFN 2004 and order that any issue or question necessary for the determination of the Garnishee s liability be tried or determined and or refer this matter to a referee. In response to this the garnishee filed a further and better affidavit to show cause repeating that neither Cross River Sate nor any of its 3 agencies against whom the Judgment/Creditor obtained judgment has an account with the garnishee, and Cross River State was not a party against whom the judgment creditor obtained a judgment. 18

In the accompanying written address it was argued that the Judgment creditors were unable to categorically show that the judgment debtors have an account with the Garnishee. It was submitted that where no debt is owing the garnishee and payable to the Judgment debtor, no garnishee order may issue. See Ss. 83 and 85 Sheriffs and civil Process Act. It was submitted that the Judgment creditors proceeded on an assumption that there is a federation account of which monies are shared to each state monthly including the Cross River State therefore at the end of each month, nothing is left to the states or any of them, so what is there to attach? Besides the Judgment creditor did not allege that the sharing is done by the Garnishee. It was further submitted that since no account with the garnishee stands in the name of the government of Cross River State, the garnishee has made no issue of the Judgment debtors presumption that a judgment obtained against the AG CROSS RIVER STATE is a judgment that can be executed against the Cross River State when Cross River State was not a party to that case. I have considered the affidavit and submissions of both learned counsel. It is clear that though there appears to be a conflict in affidavit to show cause and the further affidavit to show cause on one hand and the Judgment creditors further and better affidavit to Garnishee s affidavit to show cause on the other hand, a close scrutiny of both sets of affidavit shows that the garnishee does not dispute that a Federation account exists with the Garnishee out of which monthly disbursements are made to each state including Cross River State Government. I am therefore in agreement with the judgment creditor that the order nisi be 19

made absolute with regards to the monies in the said federation account which are accruing to the government of Cross River State. I think the garnishee is relying on a technicality that there is no account in the name of Cross River State in their argument that there is nothing on which the order nisi can be made absolute. Whatever is due to the Cross River State in the Federation Account in my humble view can be subject to a decree absolute. I therefore hold that the garnishee has not shown cause why the garnishee order nisi cannot be made absolute. I therefore make the garnishee order nisi absolute. This order is with regard to monies accruing to the Cross River State Government in the Federation Account kept by the Garnishee. All counsel: We are grateful Hon. Justice Chizoba N. Oji Hon. Judge 20