IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

 

DATE: OCTOBER 29, 2024                                          

SUIT NO: NICN/ABJ/109M/2023

 

BETWEEN                                 

1.     IDUMU OLATANWA ADEOTI                                JUDGMENT CREDITORS/

2.      AKPA IKECHUKWU OGBU                                     RESPONDENTS

3.      ALIYU NASIRU                                -                                

4.      YUSUF LATEEF OLANREWAJU                              

(For themselves and on behalf of other 32

Employees whose contract of employment

Was terminated by the Defendant on the 25^th day January, 2021)

 

AND

 

NATIONAL EMERGENCY MANAGEMENT                  JUDGMENT DEBTORS/ APPLICANT

AGENCY                                                                              

 

 

AND

 

CENTRAL BANK OF NIGERIA                                      GARNISHEE/APPLICANT

 

 

REPRESENTATION:  

C. O. Egbodo for the Judgment Creditors, with S.A. Haruna, N.D. Longi, E. Galumje.

Olajide Owonla for the Garnishee, with O. Ojoluko.

Muhammed Lukman for the Judgment Debtor, with Obalowu Abdulhafeez, Blessing Adeji, Zainab Mustafa.

 

                                                          JUDGMENT

 

Introduction

[1] This Court had on February 14, 2023 entered Judgment in favour of the claimants/judgment creditors in Suit No: NICN/ABJ/109/2021 ordering the defendant judgment/debtor to pay the claimants all their salaries and allowances from the date of their appointment 24th December 2019 until 25^th January 2021, one month’s gross salary in lieu of notice; N100,000,000.00 (One Hundred Million Naira) as general damages; and N500,000.00 (Five Hundred Thousand Naira) as costs. The judgment sum was to be paid within 30 days and thereafter any sum outstanding to attract interest at the rate of 10% per annum. The judgment debtor neglected to pay the judgment sum. This has led to this garnishee proceeding which on the authority of Heritage Bank Ltd v. Inyerlagos Oil Ltd [2018] LPELR-44801 (CA) and Polaris Bank v. Gumau & ors [2019] LPELR-47066 (CA), is separate and distinct from the main action that yielded the Judgment sought to be enforced.

[2] On 23^rd February 2024, the judgment creditors filed a motion ex parte pursuant to Order 51 Rules 1 of the National Industrial Court (Civil Procedure) Rules 2017 praying for the following reliefs:

 

a)     A Garnishee Order Nisi attaching the sum of N100,000,000.00 (One Hundred Million Naira) only, in the debtor’s account domiciled with the garnishee being general damages awarded to the Judgement Creditors/Applicants.

 

b)     A Garnishee Order Nisi attaching the sum of N10,000,000.00 (Ten Million Naira) only, in the debtor’s account domiciled with the garnishee being 10% (Ten percent) interest on the judgement sum having accrued over the period of (1) one year.

 

c)     A Garnishee Order Nisi attaching the sum of N500,000.00 (Five Hundred Thousand Naira) only, in the debtor’s account domiciled with the garnishee being cost awarded in favour of the Judgement Creditors/Applicants.

 

d)    A Garnishee Order Nisi attaching the sum of N1,000,000.00 (One Million Naira) only, in the debtor’s account domiciled with the garnishee as cost of Garnishee Proceedings.

 

e)     An Order Nisi directing the Garnishee to appear before this Honourable Court to show cause why it should not pay over to the Judgment Creditor the moneys in the account of the Judgment Debtor with it for the purpose of satisfying the judgement debt in this case.

 

f)      And For Such Further Order(s) as this Honourable Court may deem fit to make in the circumstances.

 

 [3] This Court being satisfied that the ex parte application had merit, on December 2, 2021 granted the order nisi against the Central Bank of Nigeria (CBN) as the garnishee asking it to at the next adjourned date show cause by an affidavit why the order nisi should not be made absolute. The garnishee on 28 March 2024 filed an affidavit of cause, and a Notice of Preliminary Objection (NPO) opposing the garnishee order nisi. The judgment debtor on 3^rd April 2024 filed a Motion on Notice their counter affidavit in opposition to the garnishees affidavit to show cause and a written address. In both processes, they asked that the order nisi be set aside on grounds of jurisdiction. The judgment creditors opposed both processes by filing a reply on point of law to the NPO on 3^rd April 2024, and a counter affidavit and written address filed on 5^th April 2024 in opposition to the judgment debtors motion. I will take the arguments of the parties in respect of these two processes one after the other.

 

 Garnishee’s Preliminary Objection

[4] The Central Bank of Nigeria (CBN), the garnishee bank, filed a Notice of Preliminary Objection pursuant to section 84 of the Sheriffs and Civil Process Act Cap S6 LFN 2004, section 251(1) (d) of the 1999 Constitution (as amended) and the inherent jurisdiction of the Court. The grounds upon which the Objection is brought are as follows:

 

1. The Honourable Court cannot, respectfully, exercise jurisdiction over the Garnishee by virtue of Section 251(1) (d) of the 1999 Constitution of the Federal Republic of Nigeria and by virtue of Order VIII Rule 2 of the Judgment (Enforcement) Rules made pursuant to Sheriffs and Civil Process Act.

Particulars

 

(i) By virtue of section 251 (1) (d) of the 1999 Constitution of the Federal Republic of Nigeria, the Federal High Court shall to the exclusion of any other Courts exercise jurisdiction in civil causes and maters connected with or pertaining to Banking, banks, other Financial Institutions including any action by or against the Central Bank of Nigeria arising from Banking, Foreign Exchange, Coinage, Legal Tender, Bill of exchange, Letters of Credit, Promissory Notes and other Fiscal measures.

 

(ii) The judgment creditor can only maintain an action against the Garnishee before a Court that has jurisdiction to entertain matters involving the Garnishee, which is the Federal High Court.

 

(iii) Actions and matters relating to the statutorily protected banking function of the garnishee can only lie and be maintained exclusively before the Federal High Court by virtue of Section 251(1) (d) of the Constitution of the Federal Republic of Nigeria 1999 (as altered).

 

2. The garnishee order nisi issued against the garnishee by the Honourable Court on the 5^th March 2024 consequent upon the judgment creditor’s application ex-parte, was made without jurisdiction because a condition precedent was not fulfilled.

 

Particulars

(i) By virtue of Section 84 of the Sheriffs and Civil Process Act, Cap S6, the Revised Edition (Laws of the Federation of Nigeria), 2004 (hereinafter referred to simply as “SCPA”) where money liable to be attached by garnishee proceedings is in the custody or control of a Public Officer in his official capacity, the order nisi shall not be made unless consent to such attachment is first obtained from the appropriate officer (in this instance, the Attorney General of the Federation).

 

(ii) The consent of the Attorney General of the Federation was not sought and obtained before the application for a garnishee order nisi was made by the judgment creditor to this Honourable Court.

 

Reliefs sought

1. An order setting aside the order nisi issued by this Honourable Court on 5^th March, 2024.

2. An order discharging the garnishee order nisi made against the Garnishee (Central Bank of Nigeria).

3. An order striking out the name of the Garnishee (Central Bank of Nigeria) from the proceedings.

4. And such order or further orders as the Honourable Court may deem fit to make in the circumstances of this case.

 

Submissions of the Garnishee

 

[5] The garnishee submitted one issue for determination as follows:

Considering the provisions of the 1999 Constitution (as amended) and the non-compliance with the provisions of section 84 (1-3) of the Sheriffs and Civil Process Act CAP S16 Law Of Federal Republic Of Nigeria, 2004, whether the garnishee proceedings does not amount to an abuse of court process and consequently affects fundamentally, the jurisdiction of this Honourable Court.

[6] Learned counsel submitted that only a Court with competence to entertain a suit by the judgment debtor against the garnishee in respect of a debt can assume jurisdiction over the matter, hence the NICN does not have jurisdiction over the garnishee and he cited Central Bank of Nigeria v Igbadoo (2017) LPELR-44591 (CA) page 38-45. He submitted that garnishee proceedings are separate and distinct proceedings from the earlier suit leading to the present garnishee proceedings where the debt owed by the judgment debtor was determined. It was his contention that assuming without conceding that the judgment debtor maintains an account with the garnishee and such account is specified and captured in the order nisi, the judgment debtor would have sued for recovery of such debt before a Federal High Court. He submitted that a suit like the instant garnishee proceeding involving the Garnishee as Federal Government Agency can only be filed or maintained by virtue of Section 251 of the CFRN 1999 (as amended) before the Federal High Court and no other Court; and that this is the intention of the lawmakers of the Sheriffs and Civil Process Act (S&CPA) in determining the venue for garnishee proceedings under Order VIII Rule 2 (a) and (b).

 

[7] Learned counsel submitted that garnishee proceedings can only be taken before a court where the judgment debtor can sue the garnishee for debt owed to the judgment debtor and nowhere else. He argued that Order VIII Rule 2 (a) and (b) of the S&CPA shows that a particular suit can be entertained in this Court NICN, while the garnishee proceedings will be filed before the Federal High Court as the appropriate venue for the garnishee proceedings citing Central Bank of Nigeria v Igbadoo supra, Diamond Bank Ltd v Ndubusi (2002) FWLR (Pt 105) 727, Denton West v Muoma (2008) 6 NWLR (Pt 1083) 418 at 442. He argued that the judgment creditors have options open to them to enforce the judgment but that if they proceed by way of garnishee all conditions precedent have to be met. The Court must consider the nature of the parties before it, the subject matter of the garnishee and in this case the banking services of the garnishee, the preconditions for bringing of the garnishee proceedings against the CBN a Federal Agency and a public officer sued by virtue of its banking services to the Federation and the appropriate court to exercise jurisdiction on a garnishee proceeding of this nature is the Federal High Court.

 

[8] Learned counsel submitted that apart from matters of dispute between individual customers and their banks in respect of banking transactions, any matter that falls under section 251(1) (d) of the Constitution falls exclusively under the jurisdiction of the Federal High Court citing CBN v Kakuri (2016) LPELR-41468 (CA) at 25-26, CBN v Igbadoo supra, CBN v Joseph Azoro & Ors (2018) LPELR-44389 (CA). He submitted that this Court the National Industrial Court has no jurisdiction over the garnishee matter relying on section 251(1)(d) of the 1999 Constitution as amended, Order III Rule 2 of the Judgment (Enforcement) Rules made pursuant to the Sheriffs and Civil Process Act.

 

[9] Learned Counsel submitted that the law provides that before the commencement of garnishee proceedings against a public officer the consent of the Attorney General of the Federation must be first sought and obtained relying on section 84 of the Sheriffs and Civil Process Act. He submitted that the garnishee is a public officer citing Ibrahim v JSC (1998) 14 NWLR (Pt. 584) at 38, paragraph D, CBN v Hydro Air Pty (2014) 16 NWLR (Pt 1434) 482, CBN v Alhaji Mohammed Kakuri (2016) LPELR-41468 (CA), CBN v James Ejembi Okefe (2015) LPELR-24825 (CA). He submitted that obtaining the consent of the Attorney-General of the Federation is a condition precedent to the commencement of garnishee proceedings against the Central Bank citing CBN V Yusuf Jay Jay (Joseph) & Anor (2020) LPELR-52290 (CA). He argued that the effect of non- compliance with the mandatory statutory provisions of section 84 of the Sheriffs and Civil Processes Act is that such purported act done is a nullity citing CBN v Engr. Cliff Ezeobika & ors (2021)LPELR-54148 (CA).

 

[10] Learned counsel submitted that the purpose of section 84 of the S&CPA is to avoid the embarrassment of the Attorney General of not having prior knowledge that funds earmarked for some purposes have been used to satisfy judgment debts citing CBN V Interstella Comm Ltd (2018) 7 NWLR (Pt 1618) 294 at 344. He submitted that the judgment debtor falls within the definition of an artificial person and is an agency of the Federal Fovernment by the very nature of its dutuies. That by implication, whatever fund of hers with the garnishee is deemed to be public fund; and if under the control of a public officer and the public money belongs to Federal Government but in control of a Federal Government Agency, it is right to say the fund belongs to the Federal Government. He further submitted that the judgment debtor is a public officer, the fund sought to be garnished constitutes public fund, and such cannot be garnished unless the consent of the Attorney-General of the Federation has been sought and obtained. He submitted that the condition precedent for the court to assume jurisdiction has not been fulfilled as there is nothing to show the consent of the Attorney-General was obtained citing Tukur v Government of Taraba State (1997) 6 NWLR (Pt 510) 549, Madukolu v Nkemdilim, Unity Bank Plc v Igala Construction Ltd (2020) LPELR-49878 (CA). He then urged the Court to set aside the order nisi made on the 5^th March, 2024.

 

Submissions of the Judgment Creditor

 

[11] Learned counsel in the judgment creditors reply on points of law adopted the issue submitted by the garnishee. He submitted that the National Industrial Court of Nigeria (NICN) has been vested with the exclusive jurisdiction by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to entertain cases relating to labor disputes and any incidental matters which may arise thereto referring to section 254C (1) (a) & (k) of the 1999 Constitution (as amended). He submitted that the Court is properly clothed with jurisdiction to entertain this garnishee proceedings which is incidental to the labour dispute between judgment creditor and the judgment debtor. He referred to the Court of Appeal decision in CBN v Oodo (2021) 18 NWLR (Pt. 1809) 461 at 516, paras B-F where the Court held that the Federal High Court does not have jurisdiction over labour and employment related matters and the NICN which has jurisdiction and handed down a judgment is also competent to determine garnishee proceedings, make an order nisi and an order absolute.

 

[12] Learned counsel submitted that the NICN having been granted the exclusive jurisdiction over labour and employment matters and not the Federal Hugh Court, section 254C(1) excludes the Federal High Court from entertaining labour and employment disputes. He submitted that the jurisdiction of the Courts is derived from statutes and therefore confined, limited and circumscribed by statutes citing SCC Nig Ltd v Sedi (2013) 1 NWLR (Pt 1335) 230 at 244 Para E.  He submitted that the definition of judgment by the Sheriffs & Civil Process Act would generally include the NICN and therefore garnishee proceedings can commence in the NICN because the judgment in which the debt arose is from the Court, and the it has powers to enforce its judgment citing CBN v Oodo supra.  Counsel submitted that the purport of section 254C(1) (a) & (k) of the 1999 Constitution are clear and unambiguous citing Ezeani v Onyeyeri (2023) 9 NWLR (Pt 1889) 315 at 325 Para A-C.

 

[13] Learned counsel stated that the judgment creditors took concrete steps to apply for the consent of the Attorney General via a letter dated 14^th June, 2023 and a reply was received from the Ministry of Justice on 21^st August, 2023 stating that they were in receipt of their request and were conferring with the judgment debtor in order to take an informed decision. Counsel stated that there was no further response from the Office of the Attorney-General. That estoppel by silence means estoppel that arises when a party is under a duty to speak but fails to do so citing Tukur v UBA (2013) 4 NWLR (Pt 1343) 90 at 137 Para A-C. He argued that non-response from the A-G Federation can be construed as consent given the fact that they were aware of the judgment as stated in their letter of 21^st August 2023 citing Oteikwu v AG Federation (2011) LPELR-56288. He then urged the Court to dismiss the preliminary objection.

 

 

 

JUDGMENT DEBTORS MOTION ON NOTICE

 [14] The judgment debtor’s Motion on Notice is brought pursuant to pursuant to Section 251 (d) of the 1999 Constitution (as altered), Order VIII Rule 2 of the Judgment Enforcement Procedure Rule, Order 17 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the inherent jurisdiction of the Court. It is supported by an affidavit sworn to by Zainab Mustafa Legal Practitioner. The judgment debtor is  praying for:

 

1. An Order of this Honourable court setting aside the Order Nisi dated 5^th March, 2024 and Dismissing this suit for want of jurisdiction

2. And for such other or further Order as this Honourable Court may deem fit to make in the circumstance of this case.

[15] The grounds upon which this application is made are:

1. The National Industrial Court lacks jurisdiction to entertain Garnishee Proceeding pursuant to Order VIII Rule 2 of the JUDGMENT ENFORCEMENT RULE as well as Section 251(d) of the 1999 Constitution as amended.

2. An action for Garnishee proceeding against the judgment Creditor/Applicant can only maintained at the Federal High Court of Nigeria.

3. The application for stay of execution of the judgment of this Honourable Court is already pending before the Court of Appeal in Appeal No. CA/ABJ/ROA/CV/49MI/2024 dated January 2024.

4. The National Industrial Court lacks jurisdiction to determine and proceed with a Garnishee proceeding when a substantive Application for stay of Execution is pending before the Court of Appeal.

5. This Honourable Court has the unfettered discretion to grant this application as the grant of same will serve the interest of justice.

Submissions of the Judgment Debtor

[16] The judgment debtor submitted one issue for determination as follows:

 

Whether or not this Honourable Court has jurisdiction to entertain the garnishee proceedings brought by the respondent in this suit.

 

[17] He submitted that the jurisdictional perspective as to the competence, proprietary and jurisdiction  of this Court to entertain this garnishee proceedings against the Central Bank of Nigeria has been settled in the case of CBN v Kakuri 2016 LPELR 41468 (CA). He further submitted that this case is in tandem with Order VIII Rule 2 of the Judgment Enforcement Procedure Rule and that the National Industrial Court lacks jurisdiction to entertain any garnishee proceedings brought by the judgment creditor. He further submitted that with respect to the pendency of its application in the Court of Appeal for stay of execution of the judgment of this Court, the question is whether or not this Court will foist s fait  accompli on the Court of Appeal should this garnishee proceeding be allowed to succeed. He submitted that this Court is to exercise restraint in determining this garnishee proceeding to prevent the decision of the Court of Appeal being rendered nugatory and an academic exercise citing Nigerian Breweries v Dumuje (2015) All FWLR (Pt 807) 513 CA.

 

Submissions of the Judgment Creditors

 

[18] The judgment creditors in opposition to the motion filed a counter affidavit accompanied by a written address. Learned counsel adopted the issue submitted by the judgment creditor. He submitted that section 254C of the 1999 Constitution confers exclusive jurisdiction on this Court to entertain matters relating to or connected with any labour, employment, trade union, industrial relations and matters arising from the workplace and incidental thereto citing CBN v Dinneh (2021) 15 NWLR (Pt 1798) 91, CBN v Odoo supra, SCC Nig Ltd v Sedi supra.

 

[19] Learned counsel submitted that an application or motion for stay of execution does not operate as an order of stay of execution; and that it is trite law that a stay of execution will take effect only when the application has been granted.  He stated that in the instant case, the application for stay of execution by the judgment debtor has not been granted, therefore, there exists no order to stay execution in this garnishee proceedings citing Alioke v Oye (2018) 18 NWLR (Pt.1651) 247 at 264 Para G-H where the Supreme Court held that an appeal does not operate as a stay of proceedings. He submitted that an appeal, where lodged does not operate as a stay of execution, and that until a prayer for stay of execution is made and obtained, the judgment creditor is entitled to enforce the judgment and cited  Zenith Int’l Bank Ltd v Alobu (2017) 4 NWLR (PT. 1554) 135. He submitted that the Court has the jurisdiction to entertain this garnishee proceeding, and that there currently exists no appeal against the judgment of this Court at the Court of Appeal, as the appeal being referred to by the judgment debtor does not exist as same has not been entered. He further submitted that by Order 4 Rule 10m of the Court of Appeal Rules 2023, an appeal is only deemed to be entered when the record of appeal has been transmitted from the trial Court to the Court of Appeal citing Refuge Home Savings & Loans v Garkuwa (2023) 12 NWLR (Pt. 1897) 175 at 198-199 Para H-B. He then urged the Court to dismiss the application.

Decision

[20] I have carefully considered all the processes and submissions of the parties. I will now consider the garnishee’s preliminary objection, before considering the judgment debtor’s motion on notice; and then conclude with the application for garnishee order absolute.

 

 Decision on the Garnishee’s Preliminary Objection

 

[21] Order 51 of the Rules of this Court 2017 makes provision for garnishee proceedings. The judgment creditors motion ex parte was brought under the provisions of Order 51 Rules 1 and not under the Sheriff and Civil Process Act (SCPA). Section 10 & 12 of the National Industrial Court Act (NICA) 2006 gives the Court power to enforce its judgment, and Section 54 provides that reference to a High Court in an enactment shall include the National Industrial Court (NIC). See Central Bank of Nigeria v Mr Jerome Eze (2021) LPELR-55554 (CA) 66-78 paras D-B. There is no doubt that this Court can enforce its judgment in the manner specified by the NICA 2006 and the Rules made pursuant to the Act without recourse to the Sheriff and Civil Process Act. However, the Sheriff and Civil Process Act (SCPA) being an enactment of general application with regard to enforcement proceedings, a litigant/party is not precluded from recourse to the Sheriffs and Civil Process Act in enforcement proceedings in this Court.

 

[22] Section 87 of the SCPA permits a garnishee to contest the liability imposed by a garnishee order. It provides thus:

If the garnishee appears and disputes his liability, the court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.

The garnishee’s preliminary objection must be seen as disputing liability imposed by the garnishee order nisi of 5^th March 2024 and the possible garnishee order absolute.

 

[23] The garnishee’s preliminary objection is premised on two main grounds, both stemming from the fact that it is an agency of the Federal Government: as an agency of government, only the Federal High Court can entertain actions against it given section 251(1)(d) of the 1999 Constitution and Order VIII Rule 2(a) and (b) of the Judgment (Enforcement) Rules; and as an agency of government, Central Bank Of Nigeria (CBN) is a Public Officer within the meaning of section 84 of the Sheriffs and Civil Process Act (SCPA) Cap S6 LFN 2004 and so requires the consent of the Attorney-General  Federation (AGF). The issue whether this Court can set aside the order nisi it made is simply an ancillary one.

 

[24] On the issue of the Federal High Court being the Court with jurisdiction over this matter, and not this Court the National Industrial Court (NIC); Section 251(1)(d) of the 1999 Constitution relied upon by the garnishee provides:

…the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters…connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.

 

[25] The garnishee has submitted that it is a Federal Government agency and so only the Federal High Court has jurisdiction over this matter, relying in particular on section 251(1)(d) of the 1999 Constitution; and Order VIII Rule 2 (a) and (b) of the Judgment (Enforcement) Rules. The garnishee then gave CBN v. Igbadoo (2017) LPELR-44591 (CA), and CBN v Joseph Azoro & Ors (2018) LPELR-44389 as its case law authorities.

 

[26] It is pertinent in the determination of this application not to loose sight of the following points and facts that relate to the application:

•     First, what is before this Court is the enforcement of its judgment, not the judgment of the Federal High Court.

•     Secondly, both this Court and the Federal High Court are courts of coordinate status and power (often held out as courts of coordinate jurisdiction).

•     Thirdly, this Court has all the powers of a High Court — see section 254D(1) of the 1999 Constitution and Skye Bank v. Iwu [2017] LPELR-42595(SC) — just as the Federal High Court too has (section 252 of the 1999 Constitution).

•     Fourthly, section 251(1) of the 1999 Constitution is subject to section 245C(1) of the same 1999 Constitution.

•     Fifthly, the Judgment (Enforcement) Rules is made pursuant to the Sheriff and Civil Process Act Cap. S6 LRN 2004. Both the Rules and the Act cannot supersede section 254C(1) of 1999 Constitution.

•     Sixthly, the proviso to section 251(1)(d) of the 1999 Constitution is very specific “that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank”. The Supreme Court in Central Bank of Nigeria v Interstella Communications Ltd & 3 ors [2017] LPELR-43940 (SC); [2018] 7 NWLR (Pt. 1618) 294 was very specific that in garnishee proceedings the CBN is sued because of its relationship as banker to the judgment debtor. As such its relationship is one of banker-customer. Section 251(1)(d) is automatically inapplicable in the manner canvassed by the garnishee here.

•     Lastly, by section 287(3) of the 1999 Constitution, this Court is amongst the courts (including the Federal High Court) whose decisions can be enforced in any part of the country by all authorities and persons, and by other courts with subordinate jurisdiction. The garnishee itself admits that it is an agency of government.

 

[27] The garnishee’s submission that the right venue for instituting any garnishee proceedings against the instant garnishee/applicant is the Court where the garnishee/applicant can be sued for any matter relating to it in the course of discharging its statutorily conferred banking duties as provided for in section 251(l)(d) of the 1999 Constitution is that this Court has no jurisdiction over the garnishee in employment or labour matters? The fact that the garnishee is an agency of government, does that mean that this Court lacks jurisdiction over it if the cause of action is an employment, labour matter, or a matter arising from non of salaries and allowances as in this case given the clear provisions of section 254C(1) and (k) of the 1999 Constitution?

 

[28] The judgment creditor quoted Order VIII Rule 2(a) and (b) of the Judgment (Enforcement) Rules in terms of the venue of instituting garnishee proceedings:

(a) In any court in which the judgment debtor could, under the High Court (Civil Procedure) Rules or under the appropriate section or rule governing civil procedure in magistrates’ courts, as the case may be, sue the garnishee in respect of the debt.

(b) Where the debt is not yet payable, or is for an amount exceeding the jurisdiction of such court, in any court in which the judgment debtor could have sued the garnishee as aforesaid if the debt had been immediately payable or had not exceeded the jurisdiction.

A careful reading of this Order does not suggest that the enforcement of a judgment of this Court (NICN) cannot be made in this Court. If Rules of Magistrate Courts are accommodated, how can the Rules of this Court not be accommodated?

 

[29] Accordingly, it is my considered view that learned counsel to the garnishee is in error in his arguments and submissions that this Court’s decision can only be enforced at the Federal High Court (a Court of coordinate jurisdiction with this Court), when the subject matter has nothing to do with the Federal High Court. By section 254D(1) of the 1999 Constitution, “for the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the National Industrial Court shall have all the powers of a High Court”. By Section 318(1) of the 1999 Constitution, “power” includes function and duty. The Supreme Court in Skye Bank v. Iwu (supra) relied on section 254D(1) and the powers of the High Court it granted the NICN to justify doing away with the limited right of appeal that the decisions of the NICN enjoyed prior to Skye Bank v. Iwu (supra). The Supreme Court held that since the NICN now had all the powers of the High Court, and appeals lie to the Court of Appeal from the decisions of the High Courts, appeal with leave of the Court of Appeal must lie from the decisions of the NIC to the Court of Appeal. This is the reasoning of the Supreme Court. How then can enforcement of the judgments of the NICN be done in the Federal High Court simply because the Garnishee is an agency of the Federal Government?

 

[30] In any event, section 54(2) of the NIC Act 2006 provides as follows:

(2) For enabling full effect to be given to the provisions of this Act -

(a) any reference (whether express or by necessary implication) in any enactment (other than the Constitution of the Federal Republic of Nigeria 1999) to “the Federal High Court” “High Court of the Federal Capital Territory, Abuja” “High Court”, “court of law” or a “court of record” -

(i) in so far as the reference relates to or is connected with the jurisdiction, powers practice and procedure of a High Court, and

(ii) except in so far as it is inconsistent with the provisions of this Act, shall include a reference to the Court established by this Act; and

(b) all references (whether express or by necessary implication) in any enactment (other than the Constitution of the Federal Republic of Nigeria) to the High Court of a State in so far as the enactment - (i) is of general application throughout the Federation, and (ii) relates to a matter as respects which jurisdiction is conferred upon the Court by or under this Act, shall be construed as references to the Court, notwithstanding that in an appropriate case, the enactment is, or has become, by operation of law, a law of a State.

 

[31] By this provision therefore, in any enactment other than the Constitution, references to the High Court in terms of jurisdiction, powers, practice and procedure must be read as including the NICN. Additionally, section 10 of the NIC Act 2006 (an Act of equivalent status with, but later in time to, the Sheriff and Civil Process Act Cap S6 LRN 2004 pursuant to which the Judgment (Enforcement) Rules were made) grants the NIC the power to enforce its judgment. The recent decision of the Court of Appeal in Central Bank of Nigeria v. Mr Jerome A. Eze & ors supra which is later in time than CBN v. Igbadoo and CBN v Joseph Azoro & Ors, Hon. Justice Olabode Abimbola Adegbehingbe, JCA delivering the lead judgment, supports this position. CBN, which was the appellant in that case raised the same argument regarding section 251(1) of the 1999 Constitution, arguing that it is the Federal High Court and not this Court (NICN) that has the jurisdiction over garnishee proceedings involving the CBN.

 

[32] In rejecting this argument, the Court of Appeal first acknowledged that “while Rule 2(a) and (b) of Order VIII…[of the Judgment (Enforcement) Rules] mentioned, specifically Magistrate’s Court Civil Procedure Rules and the High Court Procedure Rules, which suggest that the Rules is only applicable in those named courts, such understanding will be denying itself the benefit of specific provisions of the statute, which established the National Industrial Court of Nigeria, which provides for powers of that court, from its inception”. The Court of Appeal referred to and applied sections 10, 12, 19 and 54(2) of the NIC Act 2006. In particular, that section 54(2) of the NIC Act 2006 provides that in any statute where the “High Court” is mentioned, such reference shall be interpreted to mean that the NICN is mentioned. Accordingly, where High Court is mentioned in Rule 2 of Order VIII of the Judgment (Enforcement) Rules, the NICN must be read to be included.

 

[33] The Court of Appeal relying on section 10(2) of the Interpretation Act upheld Section 10 of the NICA 2006, which gives this Court the power to enforce its judgment; holding also that, after considering all the cases cited by CBN in its arguments, “the NICN has power and jurisdiction to enforce monetary judgment, through the process of garnishee proceedings”. The Court of Appeal further held thus:

Assuming that the jurisdiction of the National Industrial Court to entertain the Garnishee proceeding is properly challenged, I have no doubt that on a proper interpretation of Section 251(1)(d) and Section 254C(1) - (6) of the Constitution of Nigeria, 1999 (as amended), the National Industrial Court (the lower Court) is the proper Court vested with jurisdiction to entertain the action instituted by the Respondent/Judgement Creditor against the Judgement/Debtor (the Police Service Commission and Inspector General of Police). This is because this suit falls within the employer-employee relationship, and therefore falls within the purview of Section 254C(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)…

 

[34] On the question whether the NICN can adjudicate over garnishee proceedings where the CBN is a party, the Court of Appeal, relying on Central Bank of Nigeria v. Odoo [2020] LPELR-50290 (CA);  (2021) 18 NWLR (Pt 1089) 461 at 516 held that the NIC is empowered to do so. Consequently, the argument of the garnishee that in this instant case the Federal High Court is the Court with jurisdiction over garnishee proceedings involving CBN is totally rejected. See the earlier decision of President of this Court in Suit No: NICN/ABJ/304M/2020 Captain Benedict Olusoji v The Nigerian Army & 3 Ors, Judgment delivered on October 5, 2021.

 

[35] I rule that this Court has the jurisdiction to hear this matter and issue garnishee order(s) against the garnishee as the case may warrant.

 

[36] The issue of the prior consent of the AGF being required before any garnishee order can issue against the CBN, is the same as the question whether the CBN is a Public Officer within the meaning of Section 84 of the Sheriffs and Civil Process Act (SCPA). The Court of Appeal has answered this question differently even after the Supreme Court decision in Central Bank of Nigeria v. Interstella Communications Ltd & 3 ors (supra). The garnishee in its submissions in this case chose to only refer the Court to the Court of Appeal decisions that held that the CBN is a Public Officer and so consent of the AGF is needed before any garnishee order can issue, leaving out those cases that did not go its way. The following cases Central Bank of Nigeria v Zenith Bank Plc & Anor [2019] LPELR-48383 (CA) 1, Central Bank of Nigeria v. Kimi Appah Esq [2020] LPELR-51214 (CA) and Central Bank of Nigeria v Lidan Engineering Ltd & ors [2021] LPELR-52622 (CA) held that CBN is not a Public Officer, and so the consent of the AGF is not needed before any garnishee order can issue. Others like Unity Bank Plc v. Igala Construction Co. Ltd [2018] LPELR-49878 (CA) and CBN v. Aminu Lawal Atana [2019] LPELR-49194 (CA) held that CBN is a Public Officer, and so the consent of the AGF is needed.

 

[37] The Supreme Court in Central Bank of Nigeria v. Interstella Communications Ltd  (supra) decided that the CBN is not a Public Officer in the context of Section 84 of the SCPA. The garnishee in its submission at paragraph 4.38 of its written address did not expatiate further and proceeded to quote only from pages 344 (Paras H) of Central Bank of Nigeria v. Interstella Communications Ltd supra leaving out the rest of the decision of the Supreme Court.

 

[38] In answering the question whether CBN is a Public Officer for which the consent of the AGF is needed, a look at Section 84 of the SCPA provides:

(1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the court in the case of money in custodia legis, as the case may be.

(2) In such cases the order of notice must be served on such public officer or on the registrar of the court, as the case may be.

(3) In this section, “appropriate officer” means —

(a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation;

(b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.

 

[39] It is important to state that the words “money…in the custody or under the control of a public officer in his official capacity” is a reference to a human male. As section 14(a) of the Interpretation Act Cap. I23 LFN 2004 states that in an enactment words importing the masculine gender include females, we must read the “his” in section 84(1) of the SCPA as including “her” i.e. the human female. Section 14(a) of the Interpretation Act did not include the neuter gender in stating that words importing the masculine gender include females. (Section 14(a) is accordingly not gender neutral.) And since the word “person” is not even used in section 84 of the SCPA, we cannot import the definition of the word “person” under section 18(1) of the Interpretation Act as to include artificial persons. This means that artificial persons cannot be said to have been referred to in, or contemplated under, Section 84(1) of the SCPA. The CBN, being an artificial person, cannot be “a Public Officer” as to have the custody of money “in his official capacity”. The CBN cannot lay claim to what has not been specifically provided for it in section 84(1) of the SCPA.

 

[40] It is my humble view that artificial entities are not envisaged under Section 84(1) of the SCPA. This is reinforced by the definition of “public officer” in Section 18(1) of the Interpretation Act as follows:

“public officer” means a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or of the public service of a State.

The phrase “public service of the Federation” is defined in Section 318(1) of the 1999 Constitution as follows:

“public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as:

(a)  Clerk or other staff of the National Assembly or of each House of the National Assembly;

(a)  member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other courts established for the Federation by this Constitution and by an Act of National Assembly;

(b)  member or staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly;

(c)  staff of any area council;

(d)  staff of any statutory corporation established by an Act of the National Assembly;

(e)  staff of any educational institution established or financed principally by a Government of the Federation;

(f)    staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and

(g)  members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.

 

[41] A member of the public service of the Federation means being a staff in the service of the Federation in any capacity in any of the bodies enumerated above. The CBN is an agency of the Federal Government established by an Act of the National Assembly, the CBN Act. It is its staff/personnel that qualify as members of the public service of the Federation, not the CBN itself as an institution or agency. The Supreme Court in CBN v Interstella supra emphatically held that the CBN is not a Public Officer within the meaning of Section 84(1) of the SCPA.

 

[42] Section 287 of the 1999 Constitution provides as follows:

(1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court.

(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Court of Appeal.

(3) The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other courts, respectively.

 

[43] By this provision, the decisions of the Courts (including the NIC) “shall be enforced in any part of the Federation by all authorities and persons”. “All authorities and persons”  include the CBN. Section 287 of the 1999 Constitution did not impose any condition before enforcement by “all authorities and persons”. Section 1 of the 1999 Constitution is clear as to the supremacy of the Constitution over all authorities and persons, and over all other laws, see Mr Selekowei Robert Yelebe & ors v A-G of Bayelsa State & Anor [2020] LPELR-51039 (CA). The SCPA, is an Act inferior to the 1999 Constitution, and therefore Section 84 of the SCPA cannot override constitutional provisions of Section 287.

 

[44] On the whole, I am bound to follow the Supreme Court decision in Interstella supra, the Court of Appeal in CBN v. Aminu Umar & ors; and the recent decision in CBN v. Mr Jerome A. Eze & ors. I accordingly hold that the CBN, the garnishee in the instant case, is not a Public Officer within the context of section 84 of the SCPA. As such, the consent of the AGF is not needed before a garnishee order can issue against the CBN. This Court was not robbed of jurisdiction when it issued the garnishee order nisi. The preliminary objection of the garnishee accordingly fails and is hereby dismissed.

 

Decision on the Judgment Debtor’s Motion on Notice

 

[45] The issues raised by the judgment debtors in their motion and written address are essentially the same issues raised by the garnishee; and the same arguments and submissions. I have already decided all of the issues in the preliminary objection above and there is therefore no need to embark on a repetitive exercise. The judgment debtor is bound by the decisions reached above on the preliminary objection. The other issue raised by the judgment debtor in its motion is that it has an application for extension of time to seek leave to appeal, and that an application for stay of execution of the judgment is pending before the Court of Appeal. An application for extension of time to seek leave to appeal is not an appeal. By Order 4 Rule 10m of the Court of Appeal Rules 2023, an appeal is only deemed to be entered when the record of appeal has been transmitted from the trial Court to the Court of Appeal, also see Refuge Home Savings & Loans v Garkuwa (2023) 12 NWLR (Pt. 1897) 175 at 198-199 Para. H-B.

[46] An appeal does not operate as a stay of proceedings, see Alioke v Oye (2018) 18 NWLR (PT.1651) 247 at 264 Para. G-H; neither does an appeal operate as a stay of execution, see section 47 National Industrial Court Act 2006. Until a prayer for stay of execution is made and obtained, the judgment creditor is entitled to enforce the judgment, see Zenith Int’l Bank Ltd v Alobu (2017) 4 NWLR (PT. 1554) 135. This motion is an attempt by the judgment debtor to delay and frustrate these proceedings. I find no merit in the application of the  judgment debtor. It is hereby dismissed. Costs of N500,000.00 awarded against the judgment debtor.

 

Decision on Whether to Make the Garnishee Order Nisi Absolute

 

[47] I now proceed to the question whether this Court can make absolute the garnishee order nisi it made on 5^th March 2024 as both the judgment debtors’ motion and the garnishee’s preliminary objection have been dismissed. The garnishee in its affidavit of cause merely reiterated the arguments it advanced in its preliminary objection that has just been dismissed. This means that the garnishee has not succeeded in showing any cause why the garnishee order nisi should not be made absolute.

 

[48] In the three cases of Polaris Bank v. Gumau & ors [2019] LPELR-47066 (CA) 1 at 34-37, Sterling Bank Plc v. Gumau & ors [2019] LPELR-47067 (CA) 1 at 19-35 and Fidelity Bank Plc v. Gumau & Anor [2019] LPELR-47068 (CA), His Lordship, Abiru JCA provided when a garnishee order nisi can be made absolute. In his words:

…where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability fails to condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, the trial Court can proceed to make an order of garnishee absolute, notwithstanding the affidavit to show cause - Skye Bank Plc v. Colombara & Anor [2014] LPELR-22641(CA), Governor of Imo State v. Ogoh [2015] LPELR-25949(CA), Access Bank Plc v. Adewusi [2017] LPELR-43495(CA), First Bank of Nigeria Plc v. Okon [2017] LPELR-43530(CA), Heritage Bank Ltd v. Interlagos Oil Ltd [2018] LPELR-44801(CA), First Bank of Nigeria Plc v. Yegwa [2018] LPELR-45997(CA).

 

[49] The judgment creditors in their motion ex parte have stated that the judgment debtor has an account domiciled in the garnishee. The garnishee has not denied this but rather has contended that the judgment debtor is a public officer and that the funds to be garnished are public funds (paragraphs 4.43) that require the consent of the Attorney-General. It is without doubt, and clear that the garnishee has in its custody and is holding money belonging to the judgment debtor. The position taken by the garnishee in the entire proceedings is unfounded by law; and the garnishee should not have engaged the judgment creditors in this legal contest particularly after being reprimanded by the Supreme Court for taking this same position in Central Bank of Nigeria v Interstella Communications Ltd supra at 529 to 530 per Ogunbiyi JSC. The Supreme Court in GTB v Innoson Nigeria Ltd (2017) LPELR- 42368 (SC) per Eko, JSC succinctly stated the position:

That it is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight errant, to fight the cause of the judgment debtor who is his customer…

 

[50] The garnishee being a creation of Law has a duty to comply with the Laws of the land and decisions of the Courts. There is no impediment to making the garnishee order nisi of 5^th March 2024 absolute. The garnishee order nisi is hereby made absolute. The judgment debt shall be paid by the garnishee to the judgment creditors immediately.

 

 Judgment is entered accordingly.

 

                                                __________________________

                                                Hon Justice O.A. Obaseki-Osaghae