Central Bank Of Nigeria V. Interstella Communications Limited & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

This is an appeal against the decision of the Court of Appeal sitting at Owerri contained in the judgment of the Court delivered on 9th May , 2014 affirming the decision of the Federal High Court Umuahia Judicial Division delivered on 13th June, 2012. The trial High Court dismissed the Appellant’s preliminary objection to the jurisdiction of the Court to entertain the Garnishee Proceedings instituted by the 1st and 2nd Respondents to enforce the judgment entered on 17th June, 2009 against 3rd and 4th Respondents and made the Garnishee order absolute.

The judgment creditors/1st and 2nd Respondents instituted a Garnishee proceeding at the trial Court on 12/10/2011 against the Appellant herein, as the Garnishee and the 3rd and 4th Respondents as judgment Debtors/Guarantors in the Garnishee Order Nisi FHC.UM/M/85/2011 for the following reliefs:

“1. AN ORDER Garnishee Nisi against the Garnishee i.e. CENTRAL BANK OF NIGERIA that sums of:

(i) the sum of $117,400,000.00 being the principal and interest on the judgment debt as of date now outstanding and

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unpaid, and

(ii) $57,895.90 (fifty seven thousand eight hundred and ninety five US dollar and ninety cents) per day, from the date of this application being 18 percent interest per annum on the outstanding sum of $117,400,000.00

(iii) OR IN THE ALTERNATIVE the naira equivalent of the above sums (i and ii above) based on the exchange rate of the naira to the US dollar on the date of settlement Be attached and deducted by the Garnishee from the monies accruing to the 1st Judgment Debtor’s/Guarantor’s account with the Garnishee and paid to the Judgment Creditors/Applicant Garnishors in satisfaction of the Judgment debt arising from the Judgment of the Honourable Court delivered on 17th June, 2009 being a novation and Consent Judgment varying the original judgment of this Honourable Court delivered on 6th November, 2007.

2. AN ORDER granting leave to the Applicant Garnishors to serve the Garnishee the Order Nisi and any other processes of this Honourable Court at the Garnishee’s headquarters at the Central Bank of Nigeria, Abubakar Tafawa Balewa Way, Central Business District, Garki, Abuja in the Federal Capital Territory of Nigeria.”

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The Background and facts of this case are:-

The 1st and 2nd Respondents sometimes in 2004 sued Nigerian Telecommunications Ltd. (NITEL) at the Federal High Court, Umuahia in Suit No. FH1/UM/CS/95/04 for breach of contract and damages there from and judgment was delivered in favour of the 1st and 2nd Respondents on 6/11/2001 by Hon. Justice H. T. Soba.

As of October 2008, the judgment Debt stood at over N23 Billion and $48 Million. Consequently, an Inter-ministerial committee was set up in intervention, by the Federal Government of Nigeria for the amicable settlement of the judgment debt with the 1st and 2nd Respondents. Resultantly, the said Respondents accepted the sum of N12 Billion (Twelve Billion Naira) in full and final settlement of the judgment debts of N23 Billion (Twenty three Billion Naira). This was vide a Report of settlement dated 11/6/2009 and subject to the 1st and 2nd Respondents’ terms of acceptance dated 20/3/2009. Eventually and with the consent of the 3rd and 4th Respondents, the said offer of $12 Billion was entered as consent judgment of the Federal High Court, Umuahia Judicial Division, on 17/6/2009.

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It is evident also that the 3rd and 4th Respondents commenced the payment of the said judgment debt, paid less than 30% but reneged to liquidate all. Because of the delay and frustration by the 3rd and 4th Respondents to defray the said judgment debt, the 1st and 2nd Respondents instituted a Garnishee Proceedings against them. The Garnishee/Appellant did not show cause why the order should not be made absolute. In other words, it neither stated that it had no money or account owned by the 3rd and 4th Respondents, nor did it state that whatever money it had in its custody was insufficient to satisfy the judgment debt.

Instead, both the Appellant and the 3rd and 4th Respondents elected to raise preliminary objection to the procedure adopted by 1st and 2nd Respondents in commencing the garnishee proceedings. After determination of same, the trial Court dismissed the preliminary objection and made the order Nisi absolute.

The appellant herein was aggrieved and hence lodged an appeal before the lower Court. On the 9th May, 2014 and by a unanimous decision of the Court of Appeal, the appeal therein was dismissed and the judgment of the trial Court was affirmed.

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It is pertinent to state at this juncture that the judgment Debtors having not appealed against the judgment of the lower Court is presumed to have conceded same.

The appellant who is however dissatisfied with the concurring findings on facts and law by the two lower Courts has now further appealed to this Court.

In accordance with the Rules of Court, Briefs were filed and exchanged by the parties. The Amended Appellant’s brief of argument was settled by Olanrewaju A. Osinaike Esq. and filed on the 9th April, 2015: it was however deemed properly filed on 30th June, 2015. A reply brief was also filed by the same appellant’s counsel on 7th July, 2015. The learned counsel further filed list of authorities/statutes cited, on 24th June, 2015. The 1st and 2nd Respondents joint brief of argument was settled by Ahmed Raji, SAN. It was filed on 3rd June, 2016 but deemed properly filed on 30th June, 2015. There was no brief of argument filed on behalf of the 3rd and 4th Respondents.

On the 3rd October, 2017 when the appeal came up for hearing, the counsel Messrs Osinaike and Adedipo represented the appellant and the 1st and 2nd Respondents respectively.

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Both counsel adopted and relied also on their said respective briefs of argument.

In total sum of his submission, the learned counsel representing the Appellant urged this Court in favour of allowing the appeal, set aside the decision of the Court below, which affirmed the judgment of the trial Court and strike out the Garnishee Proceedings for want of jurisdiction, based on the arguments canvassed in the appellant’s brief. In converse submission, the 1st and 2nd respondents’ counsel urged in favour of resolving all the issues argued in the favour of his clients, affirm the judgment of the two lower Courts and dismiss this appeal in its entirety.

Mr. Dayo Apata represented the 3rd and 4th respondents and informed the Court that no brief was filed on behalf of his clients in the main appeal. There is however a cross appeal filed on their behalf and attention will be drawn to it later in the course of this judgment.

From the 14 grounds of appeal and for the determination of this appeal, there are five issues formulated on behalf of the appellant as follows:

1. Whether in view of the provision of Order 31 of the Federal High Court (Civil

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Procedure) Rules , 2000, Section 97 of the Sheriffs and Civil Process Act is not applicable to the Federal High Court and as such; (1) the Garnishee order Summons (FORM 26) dated the 2nd day of December, 2011 issued and served on the Appellant without the mandatory endorsement provided by law was proper and competent and; (2) the entry of conditional appearance and participating in the proceeding constituted a waiver. (Grounds 1 , 2, 3 and 4 of the Notice of Appeal).

2. Whether the finding and decision of the Court below was right, proper and justified when the learned Justices upheld the reasoning of the trial Judge and his assumption of jurisdiction in the garnishee proceedings on the grounds that Section 83 of the Sheriffs and Civil Process Act is applicable only to the State High Courts and the High Court of the Federal Capital Territory. (Grounds 5 of the Notice of Appeal).
3. Whether, considering the facts and circumstances of this case, the garnishee proceeding was properly constituted and the Courts below had jurisdiction despite the 3rd and 4th Respondents not being parties either to Suit No, FHC/UM/CS/95/O4 or in the garnishee proceeding,

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without Nigerian Telecommunications Limited (NITEL) as a Proper party. (Grounds 6, 7, 8, 11 and 12 of the Notice of Appeal).

4. Whether the Court below was right when it held that the Appellant is not a Public officer and as such the consent of the attorney-General of the Federation was not required for attachment of funds in its custody in the garnishee proceeding. (Grounds 9, 10 and 13 of the Notice of Appeal).
5. Whether, in all the circumstances of this case, the Count below was right when it held that the Appellant’s constitutional right to fair hearing was not breached by reason of the Lower Court making the Garnishee Order absolute immediately after dismissing the Appellant’s preliminary objection in the ruling delivered on the 13th day of June, 2012. (Ground 14 of the Notice of Appeal).

The said appellant’s issues are also adopted in totality by the 1st and 2nd respondents.

The 1st issue raised by the appellant was distilled from grounds 1, 2, 3 and 4 of the amended Notice of appeal. The complaint of the appellant in the said grounds of appeal and hence the 1st issue is that the learned Justices of the Lower Court were wrong

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in law to hold that Section 97 of the Sheriffs and Civil Process Act (SCPA) does not apply to the Federal High Court by virtue of the provisions of Order 13 Rule 31 of the Federal High Court (Civil Procedure) Rules , 2000.

In other words, it is the learned counsel’s argument that the contention of the lower Court that service on the appellant of the Garnishee order summons (Form 26) dated 2nd December, 2011 without the mandatory endorsement as provided by Section 97 of the Sheriffs and Civil Process Act was proper and competent, and that the appellant having entered conditional appearance and participate in the proceeding waived its right.

It is the submission of Counsel again that neither Section 19 of the Federal High Court Act nor Order 13 Rule 31 of the Federal High Court (Civil Procedure) Rules , 2000 restricts the operation of Section 97 of the Sheriffs and Civil Process Act or any other part of the Act in the case of the Federal High Court.

By the provisions of Order VIII Rule 4(1) of the Judgments (Enforcement) Rules, Counsel submits, an order Nisi in form 26 must be served on the Garnishee in accordance with the rules of the service of

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an ordinary summons. Consequently, that the order nisi in form 26 is a Writ of Summons as defined in Section 95 of the Sheriffs and Civil Process Act, and which summons is mandatorily required to be endorsed as provided by Section 97.

On the competence of form 26, the learned counsel argued that same is fundamentally defective, incompetent, null and void as it was issued without the endorsement of the mandatory notice provided for in Section 97 of the Sheriffs and Civil Process Act and as given approval in the case of Owners of the MV Arabella vs. N. A. I. C (2008) II NWLR (Pt. 1097) 182.

In further reference, the learned counsel cites with approval the dictum of Oguntade, JSC in the case of Kida Vs. Ogunmola (2006) 13 NWLR (Pt.997) 377 at 398 – 399; that the defect in the form 26 is fatal and therefore has robbed the Federal High Court and the Court below of jurisdiction to entertain the Garnishee Proceedings; that non-compliance with the provision of Section 97 of SCPA is a fundamental defect and not a mere irregularity that can be compromised, waived or cured by alleged taking of steps by the appellant, and goes to the root of the competence of

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the lower Court. It is counsel’s submission also that it is of no moment that the appellant had taken any step in the proceedings: more so that the appellant only entered conditional appearance and challenged the jurisdiction of the lower Court by preliminary objection. Counsel cites the case of Bello v. National Bank of Nigeria Ltd (1992) 6 NWLR (Pt. 246) at 216 – 217. Another authority in support is the case of Odofin Vs. Agu (1992) 3 NWLR (299) 350 at 369, per Karibi-Whyte, JSC. The counsel urges that the issue be resolved in favour of the appellant.

In response to the submission by the appellant’s counsel on the 1st issue, the respondent’s counsel took a clinical examination of Section 97 SCPA which reveals that the endorsement for service outside jurisdiction applies only to an originating process in a suit. The learned counsel drew the Court’s attention to Order 37 Rule 2 of the Federal High Court (Civil Procedure) Rules 2009 on the mode of commencing Garnishee Proceedings which is by filing an ex-parte application and supported with an affidavit.

Counsel argues further that, with the Order Nisi having been made by the Court, any further

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inscription or an alteration made thereon as contemplated by the appellant’s counsel would be unlawful and ultra vires. See Agip Oil Corp Vs. Peter Ogini & 3 Ors. (2011) 2 NWLR (Pt.1230) 131 at 137. Counsel reiterates that the provisions of Sections 95 and 97 of the SCPA and Order VIII Rule 4(1) of the Judgment (Enforcement) Rules do not apply and are inapplicable; that the cases of Kida V. Ogunmola & Odofin V. Agu under reference by the appellant’s counsel (supra) were cited out of con and therefore inapplicable.

As an alternative submission, the learned counsel re-asserts a Poser that assuming but not conceding that the order Nisi is a Writ which ought to have been endorsed pursuant to Section 97 of the SCPA for service outside jurisdiction, that the appellant in the case at hand had waived his right and cannot now be heard to complain.

The issue of an irregular service, counsel argues, is such that can be waived where a party takes fresh steps without timeously objecting to it. Counsel cites in support the case of Mako V. Umoh (2010) 8 NWLR (Pt. 1195) 82. Hence that the appellant is now estopped: that the right under Section 97 of

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the SCPA which ought to have enured in favour of the appellant is a personal right which can be waived and has been waived.

Therefore the learned counsel on this alternative argument is urging this Court to hold that the appellant cannot be heard to complain that Section 97 of the SCPA was not complied with, having waived its right of the trial Court.

On this issue, the learned counsel is urging before us that the appellant has not made out a good case worthy of disturbing the concurrent findings made by the two lower Courts; that the issue should be resolved in favour of the 1st and 2nd Respondents.

In response to the arguments put forth by the 1st and 2nd respondents’ counsel, the learned counsel Mr. Osinaike on behalf of the appellant submits again that the argument is both misconceived and untenable. Counsel relates copiously to the provisions of Sections 95 and also 97 of the Act which defines Writ of Summons as well as the service of same respectively: that the process that is required to be served on the Garnishee by virtue of Section 83 of the Act is not the motion Exparte but the order Nisi.

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It is the counsel’s further submission that the cases of Kida V. Ogunmola & Odofin V. Agu under reference by the appellant’s counsel are very much relevant and to the point, contrary to the submission by the respondents’ counsel; that Garnishee Order Nisi is not just an ordinary Court order but has all the characteristics of a Writ of Summons.

On the question of waiver, counsel submits emphatically that the argument put forward by the 1st and 2nd respondents’ counsel is not in accord with the position of the law and is indeed mischievous; so also is the argument that it was a personal right which had been waived and forfeited by the appellant; that the Court of Appeal case of Mako V. Umoh under reference supra, and relied on by the 1st and 2nd Respondents on this point cannot supersede the decision of this Court in Odofin V. Agu also under reference supra and relied upon by the appellant in his brief of argument.

Counsel relies extensively on the decision of this Court in the case of Owners of the MV Arabella V. N. A. I. C (2008) 11 NWLR (Pt. 1097) 182, 207, whereby Section 97 of the Sheriffs and Civil Process Act are held as having been couched in mandatory terms. <br< p=””

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The Court is urged to discountenance the 1st and 2nd respondents’ argument under this issue and to resolve same in favour of the appellant.

RESOLUTION OF ISSUE 1

In summary, the appellant’s complaint in this issue borders on the Order Nisi which was served on it by the 1st and 2nd Respondents. It is its contention that same did not comply with the mandatory provision of Section 97 of the Sheriffs and Civil Process Act.

Put differently, the contention of the appellant is that the Writ is defective and incompetent having been issued without the endorsement of the mandatory notice in Section 97 of the SCPA.

To my mind, the mandatory nature, effect and Purpose of Section 97 SCPA is not in question or at stake. Various judicial authorities are well pronounced that the provision must be invoked where it is applicable and appropriate.

Rather, the crucial point in issue is whether the said Section 97 is applicable in law and fact to the case at hand

It is pertinent to restate that the Garnishee order summons form 26 was issued by the Federal High Court, holden at Umuahia, in Suit No: FHC/UM/M/85/2011 as contained at pages 53 and 54

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of the records of proceedings. It is not in doubt therefore that the suit originated from the Federal High Court.

The learned counsel for the appellant made a heavy weather in submitting that the defect in the form 26 is fatal and has robbed the Federal High Court and hence the Court below of jurisdiction to entertain the Garnishee Proceedings. Counsel cites with approval the case of Owners of the MV Arabella Vs. N. A. I. C. (supra).

The order Nisi at pages 55 – 59 of the record was consequent upon the motion exparte wherein the trial Court made the following order among others: ………………………………………………………….

“AN ORDER granting leave to the Applicant Garnishors to serve the Garnishee the order Nisi and any other processes of this Honourable Court at the Garnishees’ headquarters at Central Bank of Nigeria, Abubakar Tafawa Balewa Way, Central Business District, Garki Abuja in the Federal Capital Territory of Nigeria.”

At page 444 of the record, the lower Court had this to say on the foregoing order Nisi made by the trial Court:-

“….though the 1st and 2nd Respondents obtained leave to

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serve the order nisi on the appellant at its Headquarters at Abubakar Tafawa Balewa way, Central Business District Abuja (purported to be outside the jurisdiction of the Federal High Court) does not mean that the necessary notice in Section 97 of the Sheriffs and Civil Process Act applies nor does rob the Federal High Court of its jurisdiction.”

In other words, the leave obtained by the 1st and 2nd Respondents did not serve any purpose and it did not incur any damage to the case as rightly concluded by the lower Court, supra.

The learned counsel for appellant relies heavily on the cases of Kida V. Ogunmola and Odofin V. Agu (both decisions of this Court), supra. Without having to belabor the point, it is instructive to say that the authorities are not relevant to the issue in contention, raised by the appellant. This is because both cases were initiated by Writ of Summons and therefore come appropriately within Section 97 of the Act.

A critical look of Section 97 will reveal that the endorsement for service outside jurisdiction applies only to an originating process in a suit. The reproduction of the section states as follows:

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“Every Writ of Summons for service under this Act out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say)-

“This summons (or as the case may be) is to be served out of the —– State (or as the case may be) —– and in the State (or as the case may be).”

The mode of commencing a Garnishee proceeding as provided by Order 37 Rule 2 of the Federal High Court Rules 2009, is by filing an Ex-parte application and supported by an affidavit.

As rightly submitted by the appellant’s counsel therefore, there is no question that the endorsement per Section 97 of SCPA is mandatory where the Writ is to be served out of jurisdiction. To that extent, the authorities cited on behalf of the appellant are apt and obvious. A Critical analysis of Section 97 will reveal that the endorsement for service outside jurisdiction applies only to an originating process in a suit. In respect of Garnishee Proceeding of the trial Court however the originating process is the exparte Application filed on

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11/10/2011. This process was duly endorsed as required by law and this was admitted in Paragraph 3.1.16 of the Appellant’s Brief of Argument where it states:

“It is also necessary to observe that it was the Motion Exparte which was heard and granted by the Court that was endorsed with the notice in Section 97 of the Sheriffs and Civil Process Act (See pages 1 and 2 of the Record.”

It is expedient to say that the appellant from the foregoing paragraph is not complaining about the competence of the Exparte application. I seek to add also that if there is any Process to be endorsed in compliance with Section 97 of the SCPA, it should have been the Exparte application, being an originating Process in Garnishee Proceeding. The two Sections 95 and 97 of the Act are not relevant to this case.

I have said earlier in the course of this judgment that the cases of Kida V. Ogunmolaas well as Odofin V. Agu were cited out of con by the appellant.

Therefore, the elaborate submission advanced by the learned counsel for the appellant on their amended brief and reply brief of argument relating the provisions of Section 95 and 97 of the SCPA as well as Order

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VIII Rule 4(1) of the judgment (Enforcement) Rules do not apply to this case. Rather the argument by the 1st and 2nd respondents’ counsel was apt on the point.

Furthermore, and in addition to the foregoing conclusion, I seek to say that the motion exparte of 11/10/2011 which was endorsed with the notice as provided by Section 97 of the SCPA. Pages 1 and 2 of the record of appeal are evident and it was heard and granted. The said order made there from was duly served on the appellant who entered conditional appearance and subsequently took steps.

The entire grouse by the appellant is that the absence of endorsement as provided by Section 97 on the order Nisi in form 26 had rendered the process as incompetent. It is on record that the order Nisi is a result of the exparte application which is the originating process. The expectation by the appellant that Section 97 should apply to the order Nisi is in my view grossly misplaced. This I say because the order Nisi is not an originating process needing an endorsement.

Further still and as rightly submitted by the 1st and 2nd respondents’ counsel, assuming that the order Nisi is a Writ in the

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con as contemplated by the appellant’s counsel, the failure of his client to challenge timeously the purported irregularity of the trial Court amount to a waiver. This is not withstanding the appellant’s submission that the respondents, argument is unsustainable in law.

At pages 59 to 71 of the record, it is evident on the face of the preliminary objection filed by the appellant at the trial Court that non-compliance with Section 97 was not raised therein.

In support of the principle of waiver, the authority in the case of Mako V. Umoh (supra) is relevant in a situation where a party takes fresh steps without timeously objecting to it.

In the case under reference it was held at pages 110 – 111 that:

“Non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rules of Court requiring leave of the Court or a judge for a Writ to be served out of jurisdiction renders the writ and/or service voidable and the defendant who complains of such non-compliance is entitled ex debito justitiae to have the writ set aside provided he has not taken steps in the matter which will amount to a waiver of the irregularity

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complained of where the latter is the case, his application to set aside must be refused.”

The alleged issue of non-compliance with the SCPA was not raised at the trial Court. As rightly submitted by the 1st and 2nd respondents’ counsel, it is too late in the day for the appellant to seek a respite where it waived and forfeited it.

The appellant is also estopped by operation of law from raising this objection on appeal after it failed to raise it at the trial Court and took fresh steps in arguing other points of law which were totally irrelevant to an objection under Section 97 of the SCPA.

It is clear as provided by the doctrine of waiver that a person who is entitled to a benefit or who has the choice of two benefits and is fully aware of his right to such benefits, is also entitled to voluntarily neglect to exercise his right.

It follows therefore that every person has the right to renounce or waive his personal right under a statute. There is no compulsion in exercising such right. This is more so especially where the right is not for the public benefit. See Uzodinma V. Udenwa (2004) I NWLR (Pt. 854) 303 at 332. The right under

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Section 97 of the SCPA which ought to have enured in favour of the appellant is a personal right which can be waived. See the pronouncement by this Court in Mobil Producing (Nig) Unltd V. Lasepa (2002) 18 NWLR (Pt. 798) 7 at 36 – 37.

“If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the condition prescribed by the statute are not considered indispensable. The rule is expressed in the maxim quilibet potest renunciare juri prose introducto. This although as a general rule the conditions imposed by statutes which authorize legal proceedings are treated as being indispensable to giving the Court jurisdiction, if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such condition will not be considered indispensable, and either party may waive them without affecting the jurisdiction of the Court.”

The same principle was reiterated again conclusively also by this Court in the case of Aliu Bello V.

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Attorney-General of Oyo State (1986) LPELR SC.104/1985 per Karibi -Whyte, JSC.

For all intents and purposes, I hereby resolve issue 1 herein against the appellant and in favour of the 1st and 2nd respondents.

In other words, suffice it to say that Section 97 of SCPA is applicable to the Federal High Court, in general: however it is not applicable in the particular situation in the case at hand.

ISSUE 2

The complaint by the appellant herein is that the learned Justices of the Court below were wrong in law to hold that Section 83 of the Sheriffs and Civil Process Act is not applicable to the Federal High Court, and to that extent, the reasoning was perverse and a miscarriage of justice has been occasioned to the appellant thereby.

It is argued by the counsel to the appellant that Section 83 of the SCPA laid down the conditions to be satisfied by a Judgment Creditor who intends to attach debts by a Garnishee order. One of the conditions is that the Garnishee must be within the state where the Court to which the application is made exercises jurisdiction and the debt owed by the Garnishee must be recoverable within the jurisdiction of the Court.

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Counsel submits further that from the depositions in paragraphs 5 and 50 of the affidavit of the 2nd Respondent in support of the garnishee application, that the debt sought to be attached are in the Consolidated Revenue Funds account of the appellant’s Head office in Abuja and not in Abia. Hence that the debt cannot be made the subject of garnishee order in Abia State; that the appellant’s headquarters at Abuja is the place of its central management and control and not its office in Abia State; that the Federal High Court lacked the jurisdiction to entertain the Garnishee Proceedings since the appellant does not reside in Abia State; also that the money to be attached is in the Consolidated Revenue Funds of the Appellant’s Head office in Abuja.

In further submission, the learned counsel emphasized the perverse findings arrived at by the two lower Courts which had occasioned a miscarriage of justice.

Counsel relates copiously to plethora of decided case laws on what amounts to a perverse finding.

In response to the appellant’s counsel, it was submitted on behalf of the 1st and 2nd respondents that the submission by the appellant’s

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counsel on this issue is academic and purely hypothetical. This, learned counsel argues especially in view of the prevailing common knowledge that the appellant has branch offices all over the Federation including Abia State by virtue of Section 3 of the CBN Act Cap.C4, 2010. Also that the appellant has misconceived totally the intention of Section 83(1) of the SCPA and that the issue should be resolved against the appellant.

RESOLUTION OF ISSUE 2

As rightly submitted by the learned counsel representing the 1st and 2nd respondents, by this issue, the appellant seeks to move this Court to believe that Section 83 of the SCPA was not complied with by the 1st and 2nd respondents in commencing this case.

The purport of Section 83 of the SCPA simply revolves around the essence of commencing a Garnishee Proceedings in the High Court of that State where the Garnishee resides.

As rightly captured by the 1st and 2nd respondents’ counsel, the philosophy behind the said foregoing provision with regards to a debtor residing within the State is basically for convenience and effective enforcement by the Court. In other words, where the action is not

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commenced in the jurisdiction or High Court wherein the Garnishee is resident, it will be difficult to enforce the judgment of the Court obtained from another jurisdiction on him.

This proposition of law was considered by this Court in the case of Ben Obi Nwabueze & Anon V. Justice Obi Okoye (1988) 4 NWLR (Pt 91) page 64 at 681 wherein it was held thus:

“The principle of effectiveness means that a Judge has no right to pronounce a judgment if he cannot enforce it within his own territory.”

No Court should therefore make an order to operate in an abstract. Relevant to the following consideration is the case of Abiola V. FRN (1995) 3 NWLR (Pt 382) 203 wherein the principle of enforcement will differ in cases commenced at the Federal High Court vis-a-vis the State High Courts and the High Court of the Federal Capital Territory. This distinction is very much applicable because the Federal High Court across the country has one jurisdiction only.

In the case of Abiola V. FRN supra at page 234, the Court had this to say:

“The Federal High Court in this Country irrespective of where it sits in Lagos, Abuja or even Maiduguri in

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Borno State, the jurisdiction of the Court is not restricted to any particular judicial Division of the Court but cuts across the entire country. To this extent therefore, it would be wrong in my view to talk of the jurisdiction of a Federal High Court in Lagos as distinct from the jurisdiction of the same Court in Abuja since it is one and the same Court.”

By the provision of Section 3 of the Central Bank of Nigeria Act, Cap C4, 2010, it is not in dispute that the Garnishee (CBN) has branch offices in virtually all the States of the Federation, including Abia State. It is also evident and judicially noticed on the record of Appeal before us that this case was commenced of the Federal High Court Umuahia per Suit No. FHC/UM/M/85/2011. Judicial authorities are well established further that the territory of the Federal High Court traverses all the States in Nigeria, and it can enforce its judgment regardless of the judicial division. Again see Abiola V. FRN under reference (supra).

The learned counsel for the appellant in their reply brief at paragraph 3.0 hinges on the application of Section 83 SCPA and relates extensively to the case of Owners of

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the M. V. Arabella Vs N. A. I. C. (supra) at pages 220-221 per Akintan, Jsc. For purpose of clear understanding, I shall deem it very necessary to reproduce in extensor what his Lordship had to say:

“It is not in doubt that the provisions of the said Section 97 of the Act are applicable in all High Courts, including the Federal High Court. The said provisions, in my view have nothing to do with the coverage of the jurisdiction of the Federal High Court, which is nationwide. It is therefore a total misconception to believe that the provisions of the section are inapplicable to the Federal High Court because the jurisdiction of that Court covers the entire nation.”

I wish to point out emphatically that the reference point in that case was the provision of Section 97 of the Act which has to do with the mandatory endorsement of every Writ of Summons for service outside the State of the Court issuing same. The Federal High Court is not exempted from the provision. That case does not support the appellant’s situation in the consideration of hand.

I must say also that the appellant’s counsel is totally misconceived in the different situational

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interpretations given to Sections 83 and 97 of the Act as understood by him.

Further still and as rightly submitted by the 1st and 2nd respondents’ counsel, the case of Sokoto State Government V. Kamdax (Nig) Ltd (2004) 9 NWLR (Pt. 878) 345 at 379 cited in support of the appellant’s case is not applicable. This is because unlike the case under consideration, which emanated from the Federal High Court, that case was decided at the Lagos High Court.

It is relevant to subscribe in confirmation also that by Order 37 Rule 2(c) of the Federal High Court (Civil Procedure) Rules 2009, same imposes an obligation on the 1st and 2nd respondents to show that the Garnishee is within jurisdiction of the Federal High Court: (which same is held as uniform across the country).

The said Order 37 Rule 2(c) provides thus:

“37 An application for an order under rule 1 of this order shall be made exparte supported by an affidavit.

2(c) stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent’s information or

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the grounds for his belief : —-”

As rightly submitted by the counsel to the 1st and 2nd respondents, it is in point to say that the appellant is within the jurisdiction of the Federal High Court, (trial Court) in terms of Section 83 of the Sheriffs and Civil Process Act. The case of the appellant on this issue is without merit and the concurrent decisions by the two lower Courts are unassailable. The issue is resolved against he appellant in favour of the 1st and 2nd respondents.

ISSUE 3

Whether considering the facts and circumstances of this case, the garnishee proceeding was properly constituted and the Courts below had jurisdiction despite the 3rd and 4th Respondents not being parties either to suit No. FHC/UM/CS/95/04 or in the Garnishee proceeding, without Nigerian Telecommunications Limited (NITEL) as a proper party.

The complaints of the appellant in sum total are twofold: (1) that in view of the facts and circumstances of the instant case, the garnishee proceeding was improperly constituted and (2) that the Courts below had no jurisdiction, because proper parties were not before the Court and the fact that the Federal Government

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of Nigeria and the Attorney-General of the Federation were not Guarantors of NITEL and NITEL is not an agent of the Federal Government, as such the appellant was competent to hinge its case on jurisdiction of issues.

It is the submission by the appellant’s counsel that the action constituted as Suit No. FHC/UM/CS/90/04 was instituted by the 1st and 2nd respondents against Nigerian Telecommunications Ltd and that there was no alteration of parties at any stage of the proceedings, hence the consent judgment pronounced in that suit on 17th June, 2009 is binding only on the parties to the suit.

For the definition of who are parties to the suit, the learned counsel cites the case of Green V. Green (1987) 3 NWLR (Pt. 61) 480 per Oputa, JSC wherein this Court restates the law in the case of Fawehinmi V. N. B. A. (No 1) 1989 2 NWLR (Pt. 105) 494 at 550.

The learned counsel submits in strong terms that the Federal Government of Nigeria and the Attorney-General of the Federation were not parties to the consent judgment in Suit No. FHC/CS/95/04, which is a contract between Interstella Communications Ltd (Judgment Creditor) and Nigeria

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Telecommunications Ltd (Judgment Debtor) notwithstanding the participation of the committee set up by the Federal Government of Nigeria in the forum which facilitated the amicable resolution of the matter. Counsel cites the authority of U.B.A. Plc V. Jargaba (2007) 11 NWLR (Pt 1045) 247 at 266-267, a decision of this Court to highlight the doctrine of privity of contract.

The Justices of the lower Court, counsel informs were in great error when they affirmed the decision of the trial Court that the 3rd and 4th respondents were necessary parties to the action and were properly styled as Judgment Debtors. Counsel cites in support the case of Ndulue V. Ibezim (2002) 12 NWLR (Pt. 780) 139 where a clear distinction was drawn between an action instituted against a party in a personal capacity as against one sued in a representative capacity. Further reference was made in that case to the dictum of Iguh, JSC at page 164.

The learned counsel drew the Court’s attention further to the case of Coker V. Sanyaolu (1976) 9-10 SC 203 wherein this Court classified privies into three classes. The decision reached by the lower Court, counsel re-echoes, is not only

33

erroneous but perverse as it is based on speculation and not on any evidence before the Court. See also the cases of Ivienagbor V. Bazuaye (1999) 9 NWLR (Pt 620) 552 at 561 and Ekwunife V. Wayne (W/A) Ltd (1989) 5 NWLR (Pt.I22) 422 at 446 per Nnaemeka-Agu, JSC; that the entire garnishee proceedings was constituted and proceeded upon on a false premise as there is no basis for it whatsoever: that the judgment purportedly obtained by the Judgment Creditor against the 3rd and 4th respondents was not placed before the Court and this is understandable in that such judgment does not exist anywhere but in the realm of imagination.

The only judgment placed before the Court by the 1st and 2nd Respondents, counsel argues, is the consent judgment made in suit No. FHC/UM/CS 95/04 which was between the 1st and 2nd respondents and Nigeria Telecommunications Ltd in the sum of N12 Billion. Counsel cites the case of Alh. I. Y. Ent. Ltd v. Omolaboje (2006) 3 NWLR (Pt. 966) 195 at 203 – 204 per Onnoghen, JSC (as he then was) on the binding nature of judgment on the Court and parties.

More importantly, Counsel argues that the consent judgment can only be enforced against

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Nigeria Telecommunications Ltd as the 1st and 2nd Respondents did not place any evidence before the Court that the appellant is indebted to Nigeria Telecommunications Ltd or that the company has money in the custody of the appellant to justify the garnishee proceedings initiated by the 1st and 2nd respondents against it; that there is no evidence before the Court that the judgment debtor was served with the order nisi as provided by Section 83(2) of SCPA which is mandatory. Therefore, the order absolute, which subsequently followed, counsel argues, was made without jurisdiction.

From the totality of the materials placed before the Court, the Garnishee proceedings, learned counsel opines is grossly incompetent and ought to have been struck out; that the learned Judge of the trial Court exercised his judicial powers arbitrarily when he made the order absolute in spite of the glaring defects in the case put forward by the 1st and 2nd respondents. The Court below, learned counsel submits, fell also into the same error; that the Court should in the circumstance resolve the said issue in favour of the appellant.

In response to the foregoing issue

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raised on behalf of the appellant, the 1st and 2nd respondents’ counsel relates copiously to the record wherein the 3rd and 4th respondents put themselves out for negotiation and satisfaction of the debt owed by NITEL. Reference was drawn to pages 31, 35 and 42 as well as 190 of the record of appeal.

The counsel proceeded to highlight certain salient points which are critical to the determination of this issue. The important main factors will be considered later in the course of this judgment.

It is the submission of counsel emphatically that the 3rd respondent agreed, promised and represented to the 1st and 2nd respondents that it would pay a sum as novation for the amount owed by NITEL, and by doing so induced the 1st and 2nd respondents to alter their position by accepting much lower sum than what they were actually owed by NITEL; that the 3rd and 4th respondents paid part of the agreed sum via the account with the Garnishee/Appellant herein. It will be inequitable in the circumstance, counsel submits, if the promise was simply resiled from the promisor. Reference was made to the authorities in the case of Temco Engineering Co Ltd V. Savannah

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Bank of Nigeria Ltd (1995) 5 NWLR (Pt 397) 607, Fortune International Bank Plc V. City Express Bank Ltd (2012) 14 NWLR (Pt 1319) 86 and Ezenwa v. Ekong (1999) 11 NWLR (Pt 625) 55.

It is the contention of the respondents’ counsel further that the judgment (Garnishee order Absolute) given on 13th June, 2012 at pages 262 – 297 of the record determined that by the stipulations in the consent judgment same had terminated all hostilities between Interstella Communications Limited & Anor V. NITEL. Hence the 3rd and 4th Respondents herein become liable to pay the novation of the Judgment debts of NITEL stipulated in the judgment delivered on 6th November, 2007 in FH2/UM/C5/95/04 which sums are replaced by the said consent judgment. The affirmation, counsel argues is that the 3rd and 4th Respondents are proper parties on whom the service was properly executed and who are liable to pay the said debts per stipulation in order 1 of the consent judgment.

The various exhibits tendered in Court were analyzed critically by the learned counsel and the effect, counsel concluded is to release NITEL of all obligations, while the 3rd and 4th Respondents conceded

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to pay the debt owed by (NITEL); that the 1st and 2nd Respondents were in order to have sued the 3rd and 4th respondents in the Garnishee Proceedings as the Judgment Debtors in lieu of NITEL. Counsel to buttress his submission further cites the case of Mucas Hospital Ltd V. Fasuyi (2004) 8 NWLR (Pt 874) 67: also the provision of Order II Rule 20 of the Judgment (Enforcement) Rules, Cap 56, LFN, 2004 is highly relevant. See further the case of Auto Import v. J. A. A. Adebayo & Ors (2005) 19 NWLR (pr 959) 44 at 126 per Ogbuagu , JSC.

The purpose of the foregoing authorities, counsel argues, is to discredit the entire submission made on behalf of the appellant wherein its learned counsel argues that the 3rd and 4th Respondents are not proper parties to the Garnishee Proceedings; that the 3rd and 4th Respondents by subrogation have assumed the role of NITEL, in that they have volunteered to pay the debt of NITEL and have even gone ahead to pay over Billion Naira therein.

It is the contention of Counsel on the settled law that a garnishee proceeding is strictly between the judgment creditor and the garnishee, who is indebted to the judgment debtor:

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that even when the judgment debtor is made a party to the suit, he can be seen only but not be heard: that any Court Process filed by the judgment debtor will be an abuse of Court process bringing him in the light of a meddlesome interloper. Reliance was made on the case of UBA Plc V. Ekanem (2010) 6 NWLR (Pt 1 190) 207 at 226; that the argument on proper parties to the Garnishee proceedings erroneously presented by the Appellant is a non-starter.

Further to the foregoing, the respondents’ counsel also drew the attention of the Court to Page 32 of the record for the judgment Creditors’ Letter of 20th March 2009 written to the 3rd and 4th Respondents/Judgment Debtors, whereby they failed to comply with the terms of the Consent Judgment in consequence of which the Garnishee Proceedings was commenced.

On whether or not there is nexus between the N12 Billion endorsed in the consent judgment and the reliefs sought in the Garnishee Proceedings, counsel sought to reproduce the facts contained in paragraphs 39 and 47 of the uncontroverted Exparte Application for Garnishee Affidavit supporting the Proceedings.

Counsel submits at great extent that

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there is no evidence before this Court that the appellant is not in custody of the Consolidated Revenue Fund belonging to the 3rd and 4th Respondents, from which deductions of the Judgment sum can be attached. This is more so especially where the appellant did not file a counter -affidavit to the 52 paragraph Affidavit deposed to by the 2nd Respondent in support of the Exparte application for the Garnishee Proceedings. Reference was made to paragraph 5 on page 107 of the Record which said facts deposed were not denied and are therefore deemed admitted.

The counsel urges that the issue be resolved against the appellant.

In reply to the 1st and 2nd respondents’ submission, it is the appellant’s contention that they have not shown any justification in law for the institution of Garnishee proceedings against the 3rd and 4th Respondents while removing NITEL, the actual judgment debt, from the matter completely. The law, counsel argues. is that the three parties to a Garnishee proceeding are the Judgment Creditor, the Judgment Debtor and the Garnishee and that this position is in consonance with the provisions of Section 83(1)

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and (2) of the SCPA. Counsel, while posing a question sought to know if the 3rd and 4th Respondents really wanted to and consented to take the place of NITEL whether by Guarantee or by Novation or Subrogation as argued by 1st and 2nd Respondents, why were they not made parties, by due process, in the consent judgment which followed the alleged negotiations

Counsel in response to the foregoing question, said with emphasis that none of the principles of Guaranteeship Novation, Attribution and Subrogation put forward by them is applicable to the circumstances of the instant case. The Court is therefore urged to discountenance the whole argument and the legal authorities cited in support thereof; that unlike in the cases cited by the 1st and 2nd respondents, it is clear in the instant case that the 3rd and 4th respondents cannot take the position of any of the guarantors as the facts and circumstances are not the same of all; that the Court should discard all the authorities therefore; that the argument on the issue of estoppel is also untenable in the circumstance of this case and should be discountenanced also.

Contrary to the argument by the 1st

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and 2nd Respondents, it is opined further by the appellant’s counsel that the position of the law is that 3rd and 4th Respondents were not proper Parties in the Garnishee Proceeding; that they, 1st and 2nd respondents have not shown by which Process or procedure they became parties to a case in which they were not named from its inception till judgment in the High Court .

The learned counsel to buttress his argument further, cites the authority of this Court in the case of Shining Star Nig. Ltd. & Anor V. AKS Steel Nig. Ltd & Ors (2011) 4 NWLR (Pt 1238) 596, 620 per Mukhtar, JSC on who a proper party is.

The Court, learned counsel argues, should on the totality discountenance the argument of the 1st and 2nd respondents in its entirety and uphold the appellant’s submission by resolving the appeal in its favour thereof.

RESOLUTION OF ISSUE 3

The thrust of appellant’s submission in this issue is that the Garnishee proceedings were improperly constituted, as proper parties were not before the Court. The case of Plateau State of Nigeria V. A-G. Federation (2006) 3 NWLR (Pt 967) 346 cited by the appellants counsel is very apt on the

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importance of proper parties before a Court. At Page 423 of that report Tobi, JSC (of blessed memory) said thus:-

‘Where proper parties are not before a Court, the Court is without jurisdiction to adjudicate.’

As rightly submitted and argued by the appellant’s counsel, the parties to the judgment delivered by the Federal High Court Umuahia in suit No. FHC/UM/C5/95/04 on the 6th day of November, 2007 were Interstella Communications Limited and Obi Barth Thompson (as Plaintiffs) V. Nigeria Telecommunications Ltd (as Defendant) at Pages 18- 20 of the record. When the said judgment was also subsequently compromised, the consent judgment of the same Court delivered on the 17th day of June, 2011 had the same parties as above; pages 41 – 42 of the record refers.

There is also no record of any application for, or any Court order authorizing change of any of the parties and or addition of the 3rd and 4th respondents in this appeal, as parties to the case of any stage of the proceedings up till judgment.

The appellant’s case herein, therefore is built on the foundation that the 3rd and 4th respondents were not parties to suit No. FHC/UM/C5/95/04 that

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crystallized into a consent judgment, which the 1st and 2nd respondents seek to enforce. A cursory reference made to the record of appeal before us will certainly throw a green light and expose the entire situation of this case for purpose of determination thereof.

At page 31 of the record of appeal, Exhibit 1 was a letter by the 3rd and 4th respondents in respect of Re: Judgment Debt in Suit No. FHC/UM/CS/95/04, Interstella Communications Limited V. Nigerian Telecommunication Limited written to the Chairman, Interstella Communications Limited on 19th March, 2009 and Ref . MJ/LIT/ABJ/NSA/128/08/64 wherein paragraph 2 says:

“2. I am to inform you that the committee after consideration of the matter has directed that an offer of the sum of N12 billion (Twelve Billion Naira) be made to Interstellar Communications Limited in full and final settlement of the judgment debt and in total discharge of the Nigerian Telecommunications Limited and the Federal Government of Nigeria from all further liability arising from the said judgment.”

At page 35 also of the record, the 3rd and 4th respondents further went to state as follows:-

“I am directed

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to refer to our earlier letter Ref. No. MJ/LIT/ABJ/NSA/128/08/64 dated 19th March, 2009 and your reply thereto dated 20th March and to affirm that the Federal Government shall pay Interstella Communications Limited, the sum of N12,000,000,000,00 (Twelve Billion Naira) only in full and final settlement of the judgment debt.”

In consequence of this representation, and the 1st and 2nd respondents’ terms of acceptance of pages 32 – 34 of the record (Exhibits J and K) which the 1st and 2nd respondents never denied having agreed to, the Court entered judgment by virtue of the Terms of Settlement in suit No. FHC/UM/CS/95/04 at page 42 of the record as follows:-

“AN ORDER of the Court adopting the offer of N12 Billion made to the Judgment Creditor by the Federal Government of Nigeria via its Judgment Debt Verification Committee vide the Federal Ministry of Justice letter Ref. No. MJ/LIT/ABJ/NSA/128/OB/64 of 19th March, ZOO7 and the terms of acceptance of the said offer by the Judgment Creditors vide their letter of 2Oth March, 2007 as the terms of settlement of the Judgment Debt arising from the judgment of this Honourable Court dated 6th November, 2007 in this suit.”

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On a further reference made at page 192 of the Record, the 3rd and 4th respondents by a follow up exercise wrote to the Federal Ministry of Finance in the following terms:

…………………………

2. The committee deliberated on the matter during many of its sessions — during which the debt was negotiated down to N12 billion in full and final settlement.
3. The purpose of this letter therefore is to seek your indulgence to include the sum of N12 billion in the year 2009 supplementary budget to enable the Federal Government pay off the judgment Debt during the fiscal year.”

It is instructive to state and bear in mind that Suit No. FHC/UM/M/85/72011 giving rise to Appeal No. CA/OW/1999/2012 is a Garnishee Proceeding which comes under Judgment (Enforcement) Rules LFN which under Order II General Rule 16 states:

“Where a person not being a party in a proceeding obtains an order or has an order made in his favour, he shall be entitled to enforce obedience to such order by the same Process as if he were a party in the proceeding; and any person not being a party in a proceeding against whom obedience to any

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judgment may be enforced, shall be liable to the same process for enforcing obedience to such judgment as if he were a party to the proceeding.”

It is instructive further to bring to fore also that the parties in suit No. FHC/UM/CS/95/04, the terminated suit, were the judgment Creditors herein and NITEL. NITEL was discharged without paying the sums against it because Federal Government voluntarily offered to pay NITEL’s debt.

I have had a careful analytical perusal of the entire proceedings of this case in the appeal herein and arrived of the conclusion that there are certain salient points which are very crucial and also critical to the determination of the issue raised herein, as rightly submitted on behalf of the 1st and 2nd respondents.

1. The instant order which binds the 3rd and 4th respondents is a consent judgment made by a Court of competent jurisdiction in Suit No. FHC/UM/C5/95/04. Respondents who are bound by the Judgment have not applied to set it aside. It therefore remains a valid judgment of the Court until set aside.
2. It can be inferred from the order that 3rd and 4th respondents negotiated to defray to the tune of 12

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Billion Naira the money owed by NITEL through the Judgment Debt Verification Committee of (Federal Ministry of Justice) in a letter with Ref. No. MJ/LIT/ABJ/NSA/128/08/64 on 19th March 2009 (supra).

3. This proposition for settlement was accepted by the 1st and 2nd respondents subject to their terms of acceptance as contained in their letter of 20th March 2009 and the Court adopted same as its consent Judgment.
4. The Consent Judgment released NITEL from the dispute with the 1st and 2nd respondents and all obligations arising from Suit FHC/UM/C5/95/04, with the 3rd respondent having voluntarily subrogated itself in the place of NITEL.
5. The Judgment Debtors themselves (3rd and 4th respondents herein) averred to this in their affidavit evidence at pages 77 (paragraphs 13 and 14) of the Record of Appeal wherein at paragraph 14, they stated:

“That since the said Agreement with the judgment Creditor, the Federal Government had made payments to the Judgment Creditors with every allocation made available for payment of Judgment debts over and above the competing interest of other judgment creditors.”

6. Even as their Appeal was pending at

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the Court below, the Federal Government continued to make payment on its debts to the 1st and 2nd respondents herein whereupon the 3rd and 4th respondents lost interest in pursuing their Appeal.

On the cumulative summary of the foregoing, and as rightly submitted by the 1st and 2nd respondents’ Counsel, it is very strange that the Garnishee (the debtor’s Banker) should argue that its customer (the debtor herein) is not the judgment debtor.

This is notwithstanding the fact that the customer (the debtor) admitted the debt and consequently has not appealed against the judgment of the Court of Appeal Owerri delivered almost a year ago.

It is pertinent and well evidenced on the record that the 3rd respondent agreed, promised and represented to the 1st and 2nd respondents that it would pay a sum as novation for the amount owed by NITEL, and hence did induce the said 1st and 2nd respondents’ to alter their position by accepting much lower sum than what they were actually owed by NITEL. It is also on record that the 3rd and 4th respondents paid part of the agreed sum via its account with the Garnishee Appellant herein. “It would therefore be

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inequitable if the promise was simply resiled from by the promisor.” see Temco Engineering Co. Ltd V. Savannah Bank of Nigeria Ltd (1995) 5 NWLR (Pt 397) 607.

The foregoing position of the law was also restated and amplified in the case of Fortune International Bank Plc V. City Express Bank Ltd (2012) 14 NWLR (Pt 1319) 86 and said:

“Estoppel is intended to preclude a party from saying that the representation it made to the other party was untrue after the other party had acted on the said representation to his detriment.”

Instructively also is the decision in the matter of Ezenwa V. Ekong (reference supra) where it was held:

“And the law does not permit to blow hot and cold with reference to the same transaction or insist at different times on the truth of each two conflicting allegations according to the promptings of his private interest.”

The judgment (Garnishee order absolute) given by His Lordship M. G. Umar on 13th June 20I2 at pages 262 – 297 of the Record determined that by the stipulations in the consent judgment terminating all hostilities between Interstella Communications Limited & Anor V. NITEL, the 3rd and 4th

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Respondents herein became liable to pay the novation of the judgment debt of NITEL stipulated in the judgment delivered on 6th November 2007 in FHC/UM/C5/95/04 which sums are replaced by the said consent judgment. The consequential effect is that the 3rd and 4th respondents are proper parties on whom the service was properly executed and who are now liable to pay the said debts per stipulation in Order 1 of the Consent judgment. The 3rd and 4th Respondents have held out themselves having agreed to absorb the debt of NITEL and pay the 1st and 2nd Respondents contained in Exhibits I and J.

Therefore by the doctrine of attribution and subrogation, the 3rd and 4th Respondents are estopped from denying that they were not parties.

A careful examination of Exhibit “Q” of pages 42 and 285 respectively of the records of appeal before us reveal that only the 1st respondent (Judgment Creditor/Applicant) and Nigeria Telecommunications Limited (Judgment Debtor/Respondent were parties technically so called on the face of the proceedings/order. However, the 1st order amongst other things had this to say:

“1. That the offer of N12 Billion made to the

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Judgment Creditor by the Federal Government of Nigeria via its judgment debt verification Committee vide the Federal Ministry of Justice letter Ref. No. MJ/LIT/ABJ/NSA/128/08/64 of 19th March 2009 and terms of acceptance of the said offer by the Judgment Creditors vide their letter of 20th March, 2009 as the terms of settlement of the judgment debt arising from the judgment of this Honourable Court, dated 6th November, 2007 in this suit is hereby adopted as the judgment of this Court.”

With reference to pages 21 – 40 of the record, it is evident that the 3rd and 4th Respondents have been actively and necessarily involved in the settlement and negotiation of the judgment debt, the subject of this appeal herein. Exhibits “C”, “D”, “E”, “F”, “G”, “H”, “I”, “J”, “K”, “L”, “M”, “N”, “O”, “P”, and “Q” which are now before us are all in proof thereof.

Specifically, by exhibits “I” and “L” at pages 31 and 35 respectively of the records, the 3rd and 4th Respondents conceded to pay and defray the debts owed by NITEL and the confirmation of the binding effect is where at page 35 of the record, it says thus at paragraph I :

“…. and to affirm that the Federal Government shall pay

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Interstella Communications Limited, the sum of N12,000,000,000.00 (Twelve Billion Naira) only in full and final settlement of the judgment debt.” (Emphasis is mine).

In the case of Mucas Hospital Ltd v. Fasuyi (2004) 8 NWLR (Pt. 874) 67, it was held thus

“Where the payment of judgment debt obtained against a judgment debtor is guaranteed, once the original debtor fails to pay the judgment debt, the guarantor or as many as there are, become judgment debtors and the judgment creditor has a discretion to proceed against any of them to execute judgment without having to proceed against the judgment debtor.”

For further confirmation in defeat of the contention held by the appellant’s counsel, I seek to refer to the case of Re: Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120 where it was said as follows:

“Garnishee proceeding is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment debtor, although it follows from the judgment that pronounced the debt owing. Thus, a successful party in his quest to move fast against the assets of the judgment debtor usually makes an

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application exparte for a “garnishee order nisi” …….. the debt due or accruing to the judgment debtor from such person or body that from the moment of making the order is called the garnishee.”

I seek to re-iterate further that it was the 3rd and 4th Respondents that chose and elected to be the Guarantors of the debts of its agency NITEL. Therefore, the 1st and 2nd Respondents having elected or opted to join and sue the 3rd and 4th Respondents did it within legal parameters as held in West African Shipping Agency & Anor. V. Kalla (1978) NSCC 114.

It is equally good law that non-joinder of all interested parties in a suit does not defeat the claim. The onus rests rather with the defendant to raise, as early as possible, the point that not all interested parties are before the Court; the Court may then direct the plaintiff to give them notice and have everybody concerned as a party of the trial . See the dictum of per Bairamian, JSC in Onayemi V . Okunubi & Anor (1966) NMLR 50 at 53.

Neither the appellant nor the 3rd and 4th Respondents applied for the joinder of all the necessary and interested parties. There is no evidence of such

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on the record. They cannot now be heard to complain at this stage. The 3rd and 4th respondents, although they were not headed as parties in Suit No. FHC/UM/CS/95/04, they are necessary parties for the purpose of the garnishee proceedings and for the purpose of the settlement and liquidation of the judgment debt which they have acceded and conceded to defray.

Without having to belabor the point, it follows legally also logically that the appropriate persons to proceed against for the enforcement of the judgment sum are the 3rd and 4th respondents herein.

The question I would pose at this juncture is, with the 3rd and 4th respondents having held out themselves and defected to guarantee the debts owed by NITEL, how reasonable would it be for the 1st and 2nd respondents to again turn around and proceed against NITEL (the agency of the Federal Government) for the recovery of the same debt owed. It will be unethical, inappropriate and against all legal principles.

The 1st and 2nd respondents could not have done better but were in proper order in suing the 3rd and 4th respondents as they did in the Garnishee Proceedings since they are the Judgment

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Debtors in lieu of NITEL. Again see Mucas Hospital Ltd V. Fasuyi supra.

Also Order II Rule 20 of the Judgment (Enforcement) Rules Cap 56, LFN 2004 which provides as follows:

“Whenever a person has become liable as security for the performance of a judgment or of any part thereof, the judgment may be executed against such person to the extent to which he has rendered himself liable, in the same manner as a judgment may be enforced against a judgment debtor.”

See also the decision of this Court in Auto Import V. J. A. A. Adebayo & Ors (2005) 19 NWLR (Pt 959) 44 at 126 per Ogbuagu, JSC wherein his Lordship ruled that a guarantor is technically a debtor because where the principal debtor fails to pay a debt, the guarantor will be called upon to pay the money owed. Furthermore and in the same authority, his Lordship also held that a creditor is now entitled to proceed against the guarantor, without or independent of the incident of the principal debtor.

Ayoola, JSC on the same principle had re-iterated thus in the case of African Insurance Dev. Corporation V. Nigeria Liquifield Natural Gas Ltd (2000) 4 NWLR (Pt 653) 494 at 505 – 506 and

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said:

“The fact that the obligations of the guarantor arise only when the principal has defaulted in his obligations to the creditor does not mean that the Creditor has to demand payment from the principal or from the surety or give notice to the surety before the creditor can proceed against the surety Nor does he have to commence proceedings against the principal whether criminal or civil, unless there is an express term in the contract requiring him to do so.”

Contrary to the submission made by the appellant’s counsel, there cannot be a better and proper parties in the Garnishee Proceedings at hand than the 3rd and 4th Respondents herein. There was no denial by the said respondents anywhere that they held themselves out to subrogate NITEL and pay off its debts to the 1st and 2nd respondents. The 3rd and 4th respondents are necessary parties within the con of this Court’s decision in Babayeju V. Ashamu (1998) 9 NWLR (Pt 567) 546 at 555 per Ogwuegbu, JSC. See also the case of Okonta V. Philips (2010) 18 NWLR part 1225 page 320 per Adekeye, JSC wherein his Lordship said:

“The fundamental reason which makes it necessary to make a person a

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party to an action is to make him bound by the result of the action.”

It is argued further on behalf of the appellant that the 1st and 2nd judgment creditors did not place the original judgment before the Court and that the Order Nisi is not a true reflection of the consent judgment.

It is important to state that the initial money owed by the 3rd and 4th Respondents was in the region of N22 Billion Naira before it was negotiated drastically down to N12 Billion Naira by a committee known as Judgment Debt Committee. See Exhibits D, F, H and I on pages 22, 25, 27 and 31 of the record.

The terms of settlement were endorsed by the Court vide its consent judgment in Exhibit ‘Q’ contained at pages 41 and 42 of the record. For all intents and purposes therefore, it is the consent judgment of the trial Court that is relevant to the Garnishee Proceedings and not the first judgment that was overtaken/replaced by the consent judgment. In other words, it is the consent judgment only that is extant by operation of law and under the doctrine of accord and satisfaction. The submission on behalf of the appellant on the contention relating the Garnishee Order

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Nisi wherein his learned counsel argues has no nexus with the consent judgment, is a complete misconception when regard is had to the record of appeal before us.

The case of Alh. I. Y. Ent. Ltd. V. Omolaboje (2006) 3 NWLR (Pt 966) 195 at 203 – 204 a decision of this Court cited by the appellant’s counsel has no relevance to his case herein, whatsoever.

With specific reference made to Exhibit ‘J’ of page 32 of the record of appeal, same reveals an inextricable nexus between the consent judgment, (which incorporates the judgment creditor’s letter of 20th March, 2008 which contemplates computation of interest should the money not be paid within an allocated period of time), and the reliefs sought in the Garnishee Proceedings. Hence, the argument of the appellant holds no water because the judgment creditors reserve the right under the consent judgment to compute interest on the total sum of N12 Billion. This is in view of the conditions contained in the letter of 20th March 2009 which was incorporated by reference and endorsed in the consent judgment.

It is pertinent to restate emphatically again even at the risk of repeating myself that there is

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no appeal against “Exhibit J” by the 3rd and 4th Respondents/Judgment Debtors. Therefore, it is binding on them by operation of law.

In the circumstance, the appellant’s counsel cannot be correct on his argument at paragraph 3.3.40 of their brief of argument that there was no evidence that the Attorney-General of the Federation guaranteed the payment of NITEL’s debt. The joinder of NITEL will serve no practical utilitarian value as it would not be bound by the Garnishee order neither is it needed for the effectual determination of the case.

The law is long settled that a Garnishee proceeding is strictly between the judgment creditor and the Garnishee who is indebted to the judgment debtor. See the persuasive decision of UBA Plc V. Ekanem (2010) 6 NWLR (Pt 1190) 207 of 226. The proper parties herein are those present in the Garnishee Proceedings which seek to enforce the consent judgment of the trial Court wherein the 3rd and 4th Defendants before that Court had subrogated NITEL and held themselves out as guarantors to off set the debt of NITEL. They cannot now be heard to get out of their commitment.

On the submission put forward by

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appellant’s counsel that the 1st and 2nd Respondents failed to place any judgment before the Court whereupon a Garnishee proceedings can be successfully litigated, paragraph 3.3.24 of their brief of argument is a contradiction. There in the paragraph, it admitted the existence of a consent judgment but that the parties styled on the face of it are different from the parties in the Garnishee proceedings. I agree with the learned counsel for the 1st and 2nd respondents that the argument on behalf of the appellant in that behalf is a non-starter.

It is on record that the judgment creditors largely forfeited very substantial amount of the judgment debt on the representation made by the 3rd and 4th respondents on the understanding that the N12 Billion settlement would be paid immediately. This was under the doctrine of accord and satisfaction. Exhibit ‘Q’ is very clear and was expatiated upon earlier in the course of this judgment.

There is no evidence on the record before us that the appellant is not in custody of the Consolidated Revenue Fund belonging to the 3rd and 4th Respondents from which deductions of the judgment sum can be attached. It is

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pertinent to add also that the appellant did not file a counter-affidavit to the 52 paragraph affidavit deposed to by the 2nd Respondent in support of the Exparte application for the Garnishee Proceedings.

With reference to Paragraph 5 of page 107 of the Record, it provides:

“….. that the global revenues accruable to the 1st Judgment Debtor/Guarantor (account receivables of the Federal Republic of Nigeria) are held by the Garnishee in favour of the 1st Judgment Debtor/Guarantor under the name: CONSOLIDATED REVENUE FUNDS or under any other name whatsoever called at the head office of the Garnishee; and that the said account at any given time has funds far in excess of the judgment debt sum in this application.”

The law is well settled that facts not denied are deemed admitted.

On the said issue, same I hold is resolved against the appellant in the circumstance.

ISSUE 4

Whether the Court below was right when it held that the appellant is not a Public officer and as such the consent of the Attorney-General of the Federation was not required for attachment of funds in its custody in a Garnishee proceeding.

The appellant’s

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counsel hinges his submission on the authority of CBN V. Adedeji 2004 13 NWLR (Pt. 890) 226 at 245 wherein Court of Appeal followed the decision of this Court in Ibrahim V. JSC (1998) 14 NWLR (Pt. 584) 1 at 11 and held that the appellant qualifies as a “Public officer.” The counsel submits also that the appellant is an agency of the Federal Government created by the Central Bank of Nigeria Act, 2007. Again see Ibrahim V. JSC (supra). It is the submission of counsel further that this Court in interpreting the words “Public officer”, went to hold that the term has by law been extended to include a “Public department”, and therefore, an artificial person: a public office or a public body.

By the definition of public service of the Federation in Section 318(1) of the Constitution of FRN 1999 and the provision of Section 84 of SCPA, counsel opines that funds in the coffers of the Central Bank of Nigeria are in the custody and under the control of a public officer in his official capacity. This, the learned counsel argues, because the Central Bank of Nigeria is an artificial entity and it is the officials of the body that control the money or funds in

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its coffers.

Counsel relates copiously to the cases of CBN V. Ekong (2006) 13 NWLR (Pt 998) 555 at 571 a Court of Appeal decision; also the decision of this Court in the case of Inakoju V. Adeleke (2007) 4 NWLR (Pt 1025) 423 at 697 – 698 Per Ogbuagu, JSC; that the two lower Courts adopted a wrong interpretation of Section 84(1) of SCPA.

In further submission, and assuming without conceding, that the participation of the Attorney-General in the negotiation leading to the compromised sum and part-payment thereof amounted to consent, counsel submits that the circumstances under which the negotiations were done and part-payment made was not in a Garnishee proceedings.

Section 84 SCPA, counsel re-iterates, mandatorily requires the consent of the Attorney-General of the Federation, which must first be sought and obtained before the same can be competent, that Section 84 has not made room for any exception and it is not permissible for the Court to read into the statute what is not contained therein. Counsel cites the case of Araka V. Egbue (2003) 17 NWLR (Pt 848) 1 at 21 also Adewumi V. A. G. Ekiti State (2002) 2 NWLR (Part 751) 474 at 512; that

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in the absence of any evidence obtained by the 1st and 2nd Respondents of the requisite consent of the Attorney-General of the Federation prior to the commencement of the Garnishee proceedings, such failure, counsel submits, renders the entire proceeding a nullity and liable to be set aside.

The learned counsel, to buttress his submission further relies on the decision of this Court in the case of Nwokoro V. Onuma (1990) 3 NWLR (Pt 136) 22 at 32 per Karibi -Whyte, JSC. This authority counsel argues is consistent with the principle of law laid down in the case of Madukolu V. Nkemdilim (1962) SC NLR 342; that a Court will have jurisdiction to entertain an action only where the condition precedent to the institution of such an action has been fulfilled. This is because, where a jurisdiction is wrongly assumed, the decision will amount to a nullity.

The appellant’s counsel urges that the issue should be resolved in favour of his client by allowing the appeal herein.

In response to the foregoing submission, the counsel for the 1st and 2nd respondents gave a very thorough and vivid review of the background history that necessitated the

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commencement of the Garnishee Proceedings, which was a product of suit No. FHC/UM/CS/95/2004 and hence the consent judgment entered by the Federal High Court Umuahia on 17th June 2009. The judgment adopted the 3rd and 4th respondents’ offer of N12 Billion, and the 1st and 2nd respondents’ terms of acceptance. The payment of the said offer sum was to replace the judgment debt against NITEL, whereby it was discharged from all obligations to the 1st and 2nd Respondents, arising from the aforesaid Suit No. FHC/UM/CS/95/04 against it. Reference was made to Exhibit ‘Q’ at pages 41 to 42 of the Record; that despite the foregoing conclusions by the parties, the 4th Respondent did not obey the consent judgment orders. Hence the 1st and 2nd Respondents’ instituting a Garnishee Proceeding before the two lower Courts and the subject now before this Court in the appeal herein.

The 1st and 2nd Respondents’ counsel in presenting their submission further on this issue, sought to adopt their argument canvassed in Issue 3 also as an integral part of this argument. The learned counsel relates copiously to the record of appeal before us especially where the revelation is

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obvious that the 3rd and 4th Respondents conceded the debt of N12 Billion to the 1st and 2nd Respondents on behalf of NTTEL. The 4th respondent, counsel argues, is part and parcel of the transaction herein.

The learned counsel in his observation therefore re-asserts that the AGF is not a neutral/nominal party whose consent is needful and necessary: that the contention held by the appellant’s counsel would defeat the doctrine of the Rule of Law which is the hallmark of our democracy.

Submitting further on the premise and assuming without conceding that consent of the 4th respondent is necessary, counsel asserts that the relationship between the appellant and the 3rd and 4th respondents was that of Banker and customer relationship. The appellant, counsel submits, is not a public officer in the con of Section 84 SCPA with respect to the facts and history of this appeal. Reference was made to Sections 2(e) and 36 of the CBN Act. Counsel relies copiously on the case of Purification Tech (Nig) Ltd V. A.G. Lagos State (2004) 9 NWLR (Pt 879) 665 – A Court of Appeal decision per Galadima JCA (as he then was).

The learned counsel urges us to resolve

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the issue in favour of 1st and 2nd respondents and finally relies on Sections 39, 40 and 52 of the CBN Act.

In further reply to the submission by 1st and 2nd respondents counsel, the learned counsel on behalf of the appellant contends that the legal requirement under Section 84 SCPA cannot be explained away in such a simplistic manner and sentimental approach as the 1st and 2nd Respondents have done: that the absent of consent renders the Garnishee Proceeding as incompetent. The learned counsel moves the Court to resolve the said issue in favour of the appellant therefore.

RESOLUTION OF ISSUE 4

The appellant’s contention herein centres on the provision of Section 84(1) of the Sheriffs and Civil Process Act which counsel submits was not complied with in that the consent of the Attorney-General of the Federation was not first sought and obtained before the order Nisi was made.

The historical background of the Garnishee Proceeding, in the trial Court and lower Court, which took its root from Suit No. FHC/UM/CS/95/2004 has been explicitly outlined earlier in the course of this judgment.

The outcome of the said suit gave reason for the 3rd

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Respondent, herein, to constitute an inter-ministerial Committee which included the Attorney-General of the Federation as one of the members to negotiate with the 1st and 2nd Respondents on the terms, with a view to settling and paying NITELS’s debts owed the 1st and 2nd Respondents. In other words, to negotiate on the terms of the 3rd Respondent taking over and paying NITEL’s debt owed 1st and 2nd Respondents. The Federal Government of Nigeria therein offered to pay 1st and 2nd Respondents a novation sum of N24.666 billion (see Paragraph 7 of 2nd Respondent’s uncontested deposition at pages 47 and 48 of the Record and Report of the Inter Ministerial Committee at pages 180 to 189 of the Record of Appeal).

Exhibit ‘D’ of page 125 of the Record was the President’s Instruction to the AGF that the Judgment Debt Verification Committee should deal with the said recommendation by the Inter-Ministerial Committee with a view to dispose of the matter “in national interest.”

It is intriguing to say that the Judgment Debt Verification committee, instead of verifying the debt and paying the offer of N24.666 billion already made and accepted, informed the 1st

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and 2nd Respondents that the said offer sum of N24.666 billion could not be paid in 2009 because the Budget for that year for such payment had been exhausted. They therefore made an offer of N12 billion to be paid immediately (see paragraphs 21, 22, 23, 24 and 25 of 2nd Respondent’s uncontested affidavit contained at pages 7 and 8 of the Record).

I seek to restate further that by the new agreement per exhibit ‘J’ at page 32 of the record it was agreed by 1st and 2nd respondents on these term:

“The earlier agreed equivalent value of $47,735,042.00 replaces the first tranch of N5 billion, out of the present total debt sum of N12 billion. This is to be paid to us within 30 days from today. The balance of N7 billion or $51,851,852.00 (which ever we prefer or is greater on the date of payment) is to be paid to us within 180 days from today; and where the said balance cannot be paid in full within 180 days, the outstanding sum shall attract interest at a rate of 18 percent per annum from today.” (Emphasis nine)

Exhibit ‘K’ at pages 33 and 34 of the record being a demand note for the 1st payment of $47,735,042.00 per the foregoing agreement is

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relevant in confirmation.

At pages 41 and 42 of the record and with the consent of the 3rd and 4th respondents, a consent judgment, Exhibit ‘Q’ was entered by the Federal High Court, Umuahia on 17th June, 2009 by which the Court adopted the offer of N12 billion made by the 3rd and 4th respondents, and the 1st and 2nd respondents terms of acceptance. I will reproduce the 1st order made by the Federal High Court thereof as follows:

“1. An order of the Honourable Court adopting the offer of N12 Billion made to the judgment creditor by the Federal Government of Nigeria via its Judgment Debt Verification Committee vide the Federal Ministry of Justice letter Ref. No. MJ/LIT/ABJ/NSA/128/08/64 of 19th March, 2009 and the terms of acceptance of the said offer by the Judgment Creditors vide their letter of 20th March, 2009 as the Terms of Settlement of the Judgment Debt arising from the Judgment of this Honourable Court dated 6th November, 2007 in this suit.”

With the total default of the AGF to obey the consent judgment orders, the 1st and 2nd Respondents resorted to the Court vide a Garnishee Proceeding. An order Nisi was made by the Court on 16th

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November, 2011 and the judgment debtors and Garnishee/Appellant were summoned to appear before it to show cause why the order Nisi should not be made absolute. The Order Nisi was thereafter made absolute. An appeal before the lower Court by the Appellant/Garnishee and 3rd and 4th Respondents was dismissed and the Judgment by the trial Court was affirmed.

The crux of issue 4 is whether the lower Court was right when it held that the appellant herein is not a public officer and hence the AGF’s consent as required under Section 84(1) of SCPA does not apply to the case herein.

It is the submission by appellant’s counsel that by Section 84(1) it is mandatory that the consent of the Attorney-General of the Federation, be sought and obtained first before the Garnishee proceedings herein can be competent.

In addition to the foregoing peculiar situation of circumstance of this case it would be pertinent to draw attention to page 73 of the record before us where the 3rd and 4th Respondents filed a motion for an order setting aside the order Nisi made by the Federal High Court on 16th November, 2011. Specifically at page 77 of the record, the said

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respondents in their paragraph 13 of the affidavit in support of the application deposed to this fact and said;

“That the Judgment Creditor had so far been paid the sum of Two billion, seven hundred million Naira in fulfillment of the agreement and towards the discharge of the compromised sum of Twelve billion Naira (N12,000,000,000.00).”

As rightly submitted by the learned counsel for the 1st and 2nd Respondents, the said foregoing deposition is an admission against interest made by the 3rd and 4th respondents from whom the Appellant wants the 1st and 2nd respondents to obtain consent. It is a fact admitted which need no further proof. See Rauph Bello Oseni V. Chief Lasisi Bajulu & 2 Ors (2010) All FWLR (Pt 511) 813 at 831 – 832 and also Section 123 of the Evidence Act 2011.

In further confirmation of the 3rd and 4th Respondents’ commitment, are Exhibits ‘I’ and ‘L’ contained at pages 31 and 35 of the record which are very instructive. The documents are very unambiguous that the 3rd and 4th respondents conceded the debt of N12 Billion to the 1st and 2nd Respondents on behalf of NITEL. Exhibit ‘L’ specifically affirms thus in part:<br< p=””

</br<

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“that the Federal Government shall pay Interstella Communications Limited, the sum of N12,000,000,000.00 (Twelve Billion Naira) only, in full and final settlement of the Judgment debt. I am to inform you that the Federal Government will commence payments to discharge the negotiated sum as soon as practicable ——–.”

Following from the foregoing explicit and clear cut concession, will it now be just and proper that the 3rd and 4th Respondents should recede on their commitment to the 1st and 2nd Respondents on behalf of NITEL The answer in my view is certainly in the negative.

Rather and as rightly argued and submitted by the learned counsel for the 1st and 2nd Respondents , the peculiar facts of this case herein removes it from the purview of the general interpretation of Section 84 of the Sheriffs and Civil Process Act in that the consent of the 4th Respondent by virtue of Exhibits ‘I’ and ‘L’ has already been obtained and the Appellant (CBN) was acting as a Banker only, to the 3rd Respondent (FGN).

It should be noted clearly that the principle underlying securing the AGF’s consent as prescribed in Section 84 SCPA is to avoid

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embarrassment on him of not having the prior knowledge that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt, which the government may not know anything about. See the persuasive authority of the case of Onjewu V. KSMCI (2003) 10 NWLR (Pt 827) 40 at 89.

The learned counsel for the appellant made reference exhaustively to Section 84(1) of the SCPA and submitted emphatically that the Attorney-General of the Federation is the appropriate officer from whom consent must be obtained in respect of money in the custody of a public officer in the public service of the Federation. Counsel submits further that the appellant as well as its officials have been held to be public officers and relied on the case of CBN V. Adedeji (supra) wherein the lower Court followed the decision of this Court in Ibrahim V. JSC under reference. For purpose of clear understanding, it is expedient that the provision of Section 84(1) of the SCPA is hereby reproduced as follows:

“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 custodio

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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.”

I have indicated earlier in the course of this judgment that the case under consideration herein is very peculiar and the circumstance cannot be fitted within the general interpretation of Section 84 of SCPA. Again the case of Onjewu V. KSMCI (supra) is well under reference.

Furthermore and as rightly submitted on behalf of the 1st and 2nd Respondents, certain qualifying conditions must be met for a case to come under the purview of Section 84 of SCPA. In other words, justice would demand that the AGF must be a neutral/nominal party in the transactions and proceedings giving rise to the application for order nisi and not him being the debtor. It is well and explicit on the facts of this case that the AGF has all along held out himself to be an active participant in the several stages of negotiations, transactions and even part payment of

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the debt owed. Paragraph 13 of the affidavit in support of the AGF’s application of page 76 of the record is under reference as admission against interest. In the circumstance, the AGF cannot be a neutral /nominal party in this case.

It is right to say that by implication Section 84 of the SCPA which stipulates “consent” had already been fully complied with as the government itself negotiated the terms, and took steps to settle the debts, before it later reneged on full satisfaction thereof. The most potent factor which makes Section 84(1) of the SCPA inapplicable herein is because the Attorney-General is the debtor and has been sued in that capacity.

With the AGF being the Judgment Debtor therefore, will it not be absurd to require that his consent should be sought especially having admitted that he had taken the move by paying part of the debt in question The appellant’s contention, understanding and interpretation of Section 84(1) of SCPA is a total misconception, I hold. The interpretation in my view would run against the application of natural justice, which could not have been the intendment of the legislature.

In the present

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transaction, and as rightly submitted by the 1st and 2nd Respondents’ counsel, the appellant is only a Banker to the 3rd and 4th respondents and has in that capacity made Payments to the 1st and 2nd respondents based on the consent of the 4th respondent. It could not have been the intention of the legislature that Section 84(1) of the SCPA should be used as an umbrella for the 3rd and 4th respondents to evade a debt owed, by simply putting its funds in the hands of the appellant; it is not also the intention that a judgment creditor should first obtain the consent of the debtor before proceeding against the debtor to recover his money.

The submission by the learned counsel for the appellant would certainly be counter-productive. It will also defeat the doctrine of the Rule of law which, as rightly argued by 1st & 2nd respondents counsel, is the hallmark of our democracy. This Court in NPA V. CGFC SPA (1971) NLR (P.11) 463 held that a section of a statute should not be given an undue emphasis, that it did not possess, and that a statute cannot be applied in a situation where its effect is clearly contrary to the intendment of the Legislature

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in passing that Law.

Again and contrary to the submission advanced by the learned counsel for the appellant, the consent of the AGF had all along been obtained. Consequently, the Garnishee Proceedings against the Appellant was rightly commenced and I so hold.

The other leg of the argument is where the appellant’s counsel holds out the CBN as a public officer and relied on the case of Ibrahim V. JSC (supra) in particular.

In the case under consideration, I have ruled that the relationship between the appellant and the 3rd and 4th Respondents is that of Banker and customer relationship. In other words and as rightly argued by 1st and 2nd respondents’ counsel, the appellant is not a public officer in the con of Section 84 SCPA, when regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment.

It is apparent herein, on the facts of this case that the CBN acts as a Banker to the Federal Government Funds with respect to government funds in its custody. Section 2(e) of the CBN Actprovides thus:

“act as a banker and provide economic and financial advice to the Federal

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Government.”

Section 36 of the CBN Act also provides:

“The Bank shall receive and disburse Federal Government moneys and keep accounts thereof .”

The appellant does not stand as public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney-General of the Federation does not arise. Relevant to this conclusion is again the persuasive authority of CBN V. Ekong (supra) cited also by the appellant’s counsel wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the CBN:

“Generally, it is for overall control and administration of the monetary and banking policies of the Federal Government —-It is not established for commercial or profit making purpose …..”

The case of Purification Tech. (Nig) Ltd. v . AG Lagos State (supra) is also on all fours with the facts of the case under consideration herein. Again the persuasive judgment of the Court of Appeal at pages 679-680 is relevant and said

“………………………….. There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other

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juristic personality or customers…………”

In resolving the 4th issue against the appellant, I hold the strong view that the consent of the 3rd and 4th Respondents was adequately obtained by the 1st and 2nd Respondents, and the Garnishee Proceedings was competently commenced. Further still on the relationship between the 3rd Respondent and the appellant in this case, same is purely that of a Banker to a customer. Therefore, the question of whether the Appellant is a public officer, who cannot release funds except the consent of the AGF is obtained, does not apply to the facts and circumstances of this case.

The 4th issue herein is resolved also against the appellant.

ISSUE 5

Whether in all the circumstances of this case the Court below was right when it held that the appellant’s constitutional right to fair hearing was not breached by reason of the lower Court making the Garnishee order absolute, immediately after dismissing the appellant’s preliminary objection, in the ruling delivered on 13th day of June, 2012.

The complaint of the appellant is that the learned Justices of the Court below were wrong in law to hold that the

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appellant’s constitutional right to fair hearing had not been breached when the trial judge went ahead to immediately make the garnishee order nisi absolute after dismissing the preliminary objection raised by the Appellant, challenging the jurisdiction of the Court, without affording the Appellant the opportunity to contest the garnishee proceeding on the merit.

The learned counsel submits that the lower Court, having dismissed the appellant’s objection to the competence of the garnishee proceedings and jurisdiction of the Court, ought to have afforded the appellant the opportunity to be heard before making the Garnishee order absolute.

Several authorities cited by the counsel to buttress his submission are:- Mercantile Bank of Nigeria Plc V. Nwobodo (2000) 3 NWLR (Pt 648) 297 or 316 also A-G Anambra State v. Okeke (2002) 12 NWLR (pt 782) 575 at 620 per Iguh, JSC; that the appellant, whose objection to the competence of the garnishee proceedings, vide notice of Preliminary objection was dismissed by the Court, was still entitled to be heard fully on whether the Garnishee order should be made absolute. Counsel cites further authorities on fair

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hearing which are trite in law.

The learned trial Judge, counsel argues had therefore denied the appellant its right to fair hearing by making the order absolute after dismissing the appellant’s application and without affording the appellant the opportunity to be heard. Counsel cites the case of A-G Rivers State V. Ude (2006) 17 NWLR (Pt 1008) 436 at 456 per Musdapher, JSC (as he then was).

The said issue, the learned counsel submits should be resolved in favour of the appellant.

In response to the appellant’s counsel, the 1st and 2nd respondents’ learned counsel submits that the contention held on behalf of the appellant is a non-starter. The appellant, counsel submits had more than 6 months to file the relevant Processes of counter affidavit to the application for Garnishee proceedings but it did not; that the appellant rather than show cause with the limits of a Garnishee, elected to act in bad faith in order to deny the judgment creditors, the fruit of their labour.

The counsel submits further that after a judgment creditor had gone through the rigours to establish his rights through the legal system, it is not open for the

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garnishee, in possession of judgment Debtor’s money, to engage the judgment creditors in another bout of legal battle. Reference was made to Order VIII Part II of the Judgment (Enforcement) Rules.

It is inequitable counsel argues, for a Garnishee to continue to latch on to the money that does not belong to it when the Judgment Debtor has conceded the judgment. on the totality, the counsel submits that the Judgment Creditors have shown that they are entitled to the judgment sum. Therefore, this Court should in the interest of justice disregard all the unsustainable technical clogs employed by the appellant to see that justice of this matter is not met.

RESOLUTION OF ISSUE 5

The issue of whether the garnishee order should be made absolute is material and consequent upon which the appellant argues it ought to have been heard by the trial Court Judge before making the garnishee order absolute against the appellant. Appellant contends further that Nigerian Telecommunications Ltd, which was the Judgment Debtor in Suit No. FHC/UM/CS/95/04 was not served with the order nisi as statutorily required before the same was made absolute by the Court. As a

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consequence, that the appellant was denied its fundamental right of fair hearing in that, it was not afforded on opportunity to be heard before the order nisi was made absolute.

The gravamen of this issue is that in the Ruling of 13th June, 2012, the learned trial Judge after dismissing the appellant’s preliminary objection went ahead to make absolute the order nisi; whereas, the appellant did not avail itself the opportunity to respond/join issues with the substantive application.

The trial Court on the 16th November, 2011 made an order Nisi contained at pages 55-59 of the record of appeal vide Order 2 at page 58. The Garnishee (Appellant) was ordered to show cause within 30 days from the date hereof why the order shall not be made absolute.

It is intriguing to say that the appellant did not file any Process in Court in response to the order nisi until the 15th day of December, 2011 which was a month later. The process filed eventually was a preliminary objection challenging the competence of the Garnishee Proceeding, pages 60 – 72 of the record are in reference. The order nisi was also made absolute only on the 13th June, 2012, well over 6

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months after the order nisi was made on 16th November, 2011.

For all intents and purposes, can it be said rightly as claimed by the appellant’s counsel that his client was not given ample time to show cause why the order nisi should not be made absolute

The answer to the question certainly must be negative. Relevant to the case at hand is the decision of this Court in Omnia (Nig) Ltd V. Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576. In that case, the Defendant filed a preliminary objection to the substantive suit but failed to file his defence, he was held to have conceded all the facts in the statement of claim. At page 628 of the report, Chukwuma-Eneh, JSC had this to say:

“The more fundamental objection to raising this issue is that the defendant once it has decided to challenge the action by way of a preliminary objection before filing its defence is taken as having conceded all questions of facts as contained in the statement of claim, as correct …….”

By analogy and in applying the principle enunciated in the foregoing decision to the appeal herein, the appellant having had ample opportunity to show cause within 30 days,

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deliberately decided not to join issues on the substantive application; rather it filed a preliminary objection. The deductive outcome is that the appellant had conceded all the facts in the application. Consequently, with the preliminary objection having failed therefore, the order Nisi was ripe to be made absolute and I so hold.

Notwithstanding the above settled principle of law, I have gone through the entire record of appeal with specific reference to the ruling of the trial Court in respect of the preliminary objection raised. The proceedings are contained at pages 262 to 297 of the record of appeal herein. I seek to say without any reservation and hesitation that the trial Court proceeded and took pains to consider exhaustively all other documentary and vital evidence contained in the 3rd and 4th Respondents/Judgment Debtor’s application even when they had no right of audience in the proceedings.

The trial Court, I hold was in the circumstance right in making absolute the order nisi of 15th December, 2011. I cannot also fault the lower Court in affirming the decision that the appellant was adequately afforded the opportunity to be

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heard. I seek reliance copiously on the view held by this Court in the case of Newswatch comm. Ltd. V. Atta (2006) 12 NWLR (Pt 993) 144 at 175 wherein Kalgo, JSC had this to say:

“In our adversary system, it is incumbent upon the parties in a case to put their respective cases across the table before the Judge, who as an impartial arbiter and umpire, will adjudicate on the issues in controversy. That is the epitome of fair trial. But where as in the instant case, a party deliberately refused or neglected to lay his case across the table despite all the opportunities granted to him by the Court to do so, up to the time Judgment was delivered, that party cannot be heard to complain about the trial being unfair to him.” (Emphasis is provided).

It is unfortunate to say that the appellant has allowed itself to be trapped in the web of the foregoing authority of Newswatch Comm. Ltd. V. Atta (supra). The law at this stage cannot be compromised or bent backwards in favour of the appellant, who had refused deliberately to avail itself of the opportunities open to it. In other words, it chose to abandon vital issues in the Garnishee order summons (FORM 26)

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whereupon it was required to “show cause. ”

The Court in deprecating the malingering attitude of a Garnishee has this to say in the case of Oceanic Bank Plc V. Oladepo & Anor (2012) LPELR – 19670 when it said thus:

“—— of course, by playing games of hide and seek with the Court by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst. It can therefore be made to pay the debt of the judgment debt, if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law to disclose the true state of account of the judgment debtor in its custody …..”

From the totality of Exhibits ‘F’ and ‘I’ at pages 25 and 31 of the record respectively, it is obvious that it was the office of the AGF that initiated the negotiation by inviting the 1st respondent to a meeting in September, 2009 with a view of amicable resolution of the Judgment against NITEL. It was the same AGF also that sent a recommendation to President Yar’Adua that a sum of

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N24.66 Billion be paid by the Federal Government in the stead of NITEL. Lastly it was the AGF further who, upon the response of the then president to his earlier recommendation, summoned the Judgment Debt Verification Committee and chaired its deliberations that culminated in the N12 Billion offer.

For purpose of recapitulation, I seek to re-emphasize that it is on record herein that the Judgment Debtors did not appeal against the Consent Judgment contained on pages 42 and 43 of the Record. The said judgment also contemplates interest charges in the event that the judgment sum is not paid within the prescribed period of time. See Exhibit ‘J’ on page 32 of the record.

It is on record further by the Judgment Debtor’s deposition on oath at pages 76 and 77 vide paragraphs 9 and 13 of their Affidavit that they have commenced payment of the money owed to the tune of two billion, seven hundred million Naira. I seek to reiterate what I said earlier in this judgment that the depositions on the foregoing paragraphs by the Judgment Debtors are admission against interest.

I must say that the Garnishee has taken so much interest in this case and appear

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to have forgotten its role as a banker to the Federal Government. The role of a Garnishee in any Garnishee Proceeding is delimited. As rightly argued by the counsel for the 1st and 2nd respondents, it is not envisaged that after a judgment creditor has gone through the rigours to establish his rights through the legal system, that the garnishee, who is asked to surrender the Judgment Debtor’s money in its Possession should engage the Judgment Creditor in another bout of Legal battle. See Order VIII Part II of the Judgments (Enforcement) Rules.

Basically, the restrictive role and legal duty of a Garnishee in a Judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the Judgment Debtor’s state of account in its custody. It is no wonder therefore that the lower Court while quoting the Court of Appeal case of Oceanic Bank Plc v. Oladepo & Another (2012) LPELR- 19670 held that the view that “it is not the business of a Garnishee to undertake to play the role of an advocate for a Judgment Debtor by trying to shield and protect the money of the Judgment Debtor” page 470 of the record of Appeal.<br< p=””

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There is no cogent reason advanced by the appellant that the concurring findings of facts by the two lower Courts were wrongly arrived at such that will cause this Court to disturb same. See Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt 93) 225: Nneji v. Chukwu (1996) 10 NWLR (pt 378) 265; BFI Groups Corp. V. Bureau of Public Enterprises (2012) LPELR – SC. 12/2008. By the rule of jurisprudence, no injustice will be done to a Garnishee, neither will it be denied any legal right when made to give up the judgment Debtor’s money in its custody. It is also inequitable for a Garnishee to continue to latch on to the money that does not belong to it when the judgment Debtor has conceded the Judgment.

The appellant in the appeal herein, was in no way denied fair hearing before the Order Nisi was made absolute. Rather and as rightly submitted by 1st and 2nd Respondents counsel, it abandoned its statutory role to take over the conduct of the Judgment Debtors’ case.

The said issue herein is resolved also against the appellant and in favour of the Judgment creditors/1st and 2nd Respondents.

With all the five issues resolved against the

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appellant, I hold in summary that the Judgment Creditors have shown that they are entitled to the judgment sum. In the case of Bello V. AG Oyo State (1986) 5 NWLR (Pt 45) 828 at 837 his Lordship Karibi-Whyte, JSC held and:

‘………………………………..enjoins the Courts to provide a remedy whenever the plaintiff has established a right. The Court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes. See State V. Gwonto & Ors (1983) 1 SCNLR 142 at P.160. The substance of the action rather than the form should be predominating consideration- —-”

In the result and the totality of this appeal, the justice of the case demands that all the unsustainable technical clogs employed by the appellant are hereby discountenanced and the appeal is dismissed. The concurrent findings and judgments of the two lower Courts are also affirmed by me. Appeal is hereby dismissed and I make no order as to costs.

CROSS APPEAL BY THE 3RD AND 4TH RESPONDENTS/CROSS- APPELLANTS

The cross appeal herein stems from the substantive Appeal in SC 500/2014. An abridged history

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of the substantive Appeal is traceable to the 3rd Cross-Respondents appeal (appellant in the substantive appeal) against the Ruling of the Federal High Court, Umuahia delivered on the 13th day of June, 2012.

Therein the Court made an order absolute in the garnishee proceedings brought by the Judgment creditors/1st and 2nd Cross-Respondents to enforce the judgment of that Court entered on 17th June, 2009 against the Cross- Appellants.

The Cross -Appellants had their brief of argument settled by Dayo Apata Esq. and filed same on the 31st March, 2017.

The 1st and 2nd Cross-Respondents joint brief of argument was settled by Ahmed Raji, SAN and filed on the 19th April, 2017. There was no brief filed on behalf of the 3rd Cross Respondent.

On the 3rd October, 2017 the Cross-Appellants and 1st and 2nd Cross- Respondents counsel adopted and relied on their respective briefs of arguments.

Without having to belabor the Cross-appeal herein, I seek to state that I have thoroughly and closely perused the Briefs filed by Counsel and come to the conclusion that the issues raised therein are not different from those canvassed in the main appeal. <br< p=””

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The cross appeal is a replica of the main thereof and it will amount to a sheer academic exercise to dwell therein. In other words, this Court would not engage itself in an exercise of futility.

In the result, I hold therefore that the cross-appeal should and is hereby struck out. I also make no order as to costs.

On totality therefore, I make an order that while the main appeal lacks merit and is hereby dismissed, the cross appeal is academic and hereby struck out.

There shall be no order as to costs.

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SC.500/2014