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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA.

 

DATE: 22ND OF JULY, 2024                                          SUIT NO: NICN/UY/20/2023

 

BETWEEN

MR. KENNETH JUMBO UDO                JUDGMENT CREDITOR/RESPONDENT

 

AND

AKWA IBOM STATE UNIVERSITY     JUDGMENT DEBTOR/APPLICANT

 

REPRESENTATION:

ANIETIE INYANG ESQ for the Judgment Creditor/Respondent

EKEMINI UDIM for the Judgment Debtor/Applicant

 

RULING

 

This is a ruling in respect of two Notices of Preliminary Objection filed separately by the Judgment Debtor against a Garnishee Order Nisi granted by the court on 11/7/2023. The Notices of Preliminary Objection were consolidated on 15/5/2024. The first Notice of Preliminary Objection (NPO1) is dated 12/10/2023 but filed on 13/10/2023 while the 2nd Notice of Preliminary Objection (NPO2) is dated and filed on 21/2/2024. 

 

The Judgment Creditor in response to the 1st objection filed a counter affidavit and a written address on 18/1/2024 and filed a response to the 2nd objection on 23/4/2024, meanwhile the Judgment debtor filed a further affidavit and reply address on 21/2/2024.

 

The Judgment Debtor's reliefs as contained in its (NPO1) are as follows:-

 

"1.      That in the suit which gave birth to the judgment sought to be enforced, counsel did not plead any amount of money and there being no amount of money stated in the judgment of the Court, the judgment in issue is not in the category of judgments that can be enforced by garnishee proceedings and this being the case, the garnishee order ex-parte of this court issued on the application of the Applicant, ought to be set aside for want of jurisdiction.

 

2.        That the judgment which has given rise to this suit is already before the Court of Appeal sitting in Calabar, Cross River State and the Record of Appeal having been transmitted and the appeal entered in the Cause book of the Court of Appeal (with an appeal number allotted by the appellate court), this Honourable Court has no jurisdiction to continue to entertain the present suit.

 

TAKE FURTHER NOTICE that at the hearing of this application, counsel shall urge the Court to strike out this suit for want of jurisdiction."

 

The 1st objection also contains 5 grounds upon which it was filed and is supported by 8 paragraph affidavit with Exhibits A and B attached. A Written Address was also filed to accompany the objection.

 

It was averred in the affidavit in support of the (NOP1) that the Judgment Creditor filed a suit in this Honourable Court in 2017 and got judgment in his favour. But the Judgment Creditor did not mention any amount of money in the entire gamut of his suit. That a garnishee proceeding is only for the enforcement of a judgment having a judgment sum. That where there is no sum of money mentioned in a judgment, such Judgment cannot be enforced via garnishee proceeding.

 

Judgment debtor also averred that the money attached to the application seeking for the order nisi is the unilateral calculation of the Judgment Creditor's counsel and such amount is not stated anywhere in the judgment sought to be enforced.

 

That that there is currently before the Court of Appeal, Calabar Division, an appeal against the judgment of this Honourable court in respect of the substantive matter.

Ekemini Udim Esq, counsel for the Judgment Debtor submitted two issues for determination in his written address to wit;

 

"1.      Whether a garnishee proceeding is not incompetent if the amount sought to be attached cannot be found or located in the judgment sought to be enforced?

 

2.        Whether this court has the jurisdiction to proceed to make the order nisi absolute or to take any other step whatsoever in the garnishee proceeding, appeal against the judgment in the substantive suit having been entered in the Court of Appeal, Calabar?"

 

Counsel submitted that Garnishee proceeding being sui generis belongs to a class of its own and so the amount sought to be attached in a garnishee proceeding must be specific and situated in the judgment or ruling sought to be enforced. That it must be the judgment sum as pronounced upon by the court in its judgment or ruling. Therefore, where no amount of money is mentioned in a judgment, such judgment could perhaps be enforced through other means, but not through garnishee proceeding. Counsel relied on the case of Gwede V. Delta State House of Assembly (2019) LPELR-47441(SC).

 

Counsel also submitted that garnishee proceedings are intended to attach judgment sums and not calculations unilaterally made by a party as done by the Judgment Creditor in the instant case.

 

Counsel maintained that the judgment sum must be incapable of disputation, same being the valid judgment of a court of law, and must be located or situated in the judgment. That there should be no speculation or guess work. But what the Judgment Creditor presented was his personal calculation without the sanction of the court. Counsel reiterated that such unilateral computation is incompetent in a garnishee proceeding and ought to be refused by this Honourable Court.

 

It was similarly restated by counsel while relying on the case of Nigerian Breweries Plc V Chief Dumuje (2016) 8 NWLR (Pt.1515) at page 601, that a garnishee order can only be given upon liquidated amount.

Counsel made reference to Section 83(1) of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004 and contended that a garnishee application whose judgment sum cannot be located in the judgment sought to be enforced is incompetent and ought to be struck out.

 

It is the submission of the Judgment Debtor on issue 2 that the appeal against the substantive suit having been entered at the Registry of the Court of Appeal, with an appeal number duly allocated to the appeal, this Honourable Court has no jurisdiction to make the order nisi absolute, neither does it have jurisdiction to proceed to make any further step whatsoever in the matter. Counsel quoted Order 4 Rule 11 of the Court of Appeal Rules, 2021 and relied on the Supreme Court case of Barigha V. PDP (2013) 6 NWLR (Pt.1349) 108 that once an appellate court is seized of an appeal, it has the sole jurisdiction to deal with the matter interlocutory or otherwise.

 

Counsel argued that since there is an application for stay of execution pending before the Court of Appeal, then it will be absurd for the Judgment Creditor to execute the same judgment by way of garnishee. Citing the case of Dumuje V. Nigerian Breweries Plc (2016) 8 NWLR (Pt.1515) at page 608, paras D-E per Ogunwumiju JCA (now JSC).

 

Counsel urged the court to set aside the order nisi earlier granted and strike out this suit for want of jurisdiction.

 

JUDGMENT CREDITOR’S COUNTER AFFIDAVIT TO THE FIRST NOTICE OF PRELIMINARY OBJECTION

 

In reaction to the (NP01), Judgment Creditor's counsel filed a  7 paragraph Counter Affidavit on the 18/01/2024 and attached therewith 6 Exhibits(Exhibits KJU 1-KJU 6), wherein it was stated by the Judgment Creditor that he computed his outstanding salaries and entitlements amounting to ?19,197, 140.85 as he is fully conversant with the details of his outstanding salaries and entitlements after taking several steps to get the Judgment debtor comply with the judgment including writing a letter to the Judgment debtor. That the Judgment debtor only filed a motion seeking leave to appeal four months after the judgment was delivered.

A written Address was also filed wherein four issues were raised for determination to wit;

 

"1.      Whether this Honourable Court lacks jurisdiction to continue with the hearing of the Garnishee Proceedings by reason of the fact that the Judgment sum in the Garnishee Proceedings was not included in the Judgment of the court.

 

2.        Whether this Honourable Court has been deprived of jurisdiction to continue with the hearing of this Garnishee Proceedings by the subsequent and precipitate steps taken by the Judgment Debtor after the commencement of this Garnishee Proceedings.

 

3.        Whether the Judgment Debtor’s Preliminary Objection is an abuse of Court process.

 

4.        Whether the Judgment Debtor is liable to pay costs of N520,000.00 to the Judgment Creditor in the circumstances of this case?"

 

ISSUE 1

 

Counsel for the Judgment Creditor, Anietie Inyang Esq argued that the Judgment Debtor’s assertion that this court lacks jurisdiction because the Judgment sum attached to the Garnishee Proceedings was not contained in the substantive judgment is unfounded because of the misconception of the Judgment debtor of the nature of the instant Garnishee Proceedings and the applicability of the Sheriffs and Civil Process Act 2004 to the instant proceedings.

 

Counsel contended that Section 83(1) of the Sheriffs and Civil Process Act and the cases of Gwede V. Delta State House of Assembly (2019) LPELR 47441 (SC) and Nigeria Breweries Plc V. Chief Dumeje (2016) 8 NWLR (Pt.1515) 601 as well as the principles used by the Judgment Debtor for her arguments are alien and inapplicable to the instant Garnishee Proceedings. That the Judgment Debtor is oblivious of the applicable law in respect of this Garnishee Proceeding.

Counsel referred the court to the Originating process of the Garnishee proceeding and contended that the instant Garnishee Proceeding is a Judgment Enforcement Proceeding commenced exclusively under Section 10 of National Industrial Court Act 2006, Order 49 and Order 51 of the National Industrial Court (Civil Procedure) Rules 2017 which is similar but distinct from the Garnishee Proceeding under Sheriffs and Civil Process Act 2004.

 

Counsel opined that in a garnishee proceeding under this court, a Judgment Creditor is required to obtain a judgment or order by another party in the matter and a judgment sum being within the four walls of the judgment is not a condition precedent before such judgment can be enforced, unlike the garnishee proceedings under the Sheriffs and Civil Process Act where a judgment has to be for a certain and definite sum before it can be enforced.

 

Counsel referred the court to the  previous Garnishee cases decided in this Court in Suit No NICN/ABJ/362M/2020-Mrs Euphemia Abu V. Federal Civil  Service Commission (decided on 09/02/2022) and Suit No NICN/OW/59/2014 - Chief Ikedi Ohakim V. Imo State Government & 2 Ors (decided on 23/02/2018) supporting his position, which as it stands is a common practice of the National Industrial Court to grant judgment in similar terms as the instant case, without necessarily making a precise computation of the judgment sum due to the successful party.

 

It is counsel's opinion that it is not an attribute of Garnishee Proceedings conducted before this Honourable Court nor a condition precedent to Garnishee Proceedings in this Court that a judgment sum must be contained and affixed.

 

Counsel urged the Court to maintain the very stance of the previous decisions of this Court and to adopt same as they are consistent, enduring, equitable, just and fair.

Counsel also urged the Court to discountenance the entire authorities cited and relied upon by the Judgment Debtor as they are not applicable and binding on this Court.

 

 

 

 

ISSUE TWO

 

Counsel posited that a litigant cannot by his own unlawful act deprive a Court of law of its substantive jurisdiction in a matter pending before the Court. Counsel cited the Supreme Court case of Amaechi V. INEC (No.1) 2007 18 NWLR (Pt.1065) 42.

 

Counsel also posited that the Judgment debtor filed its appeal out of time and that failure to appeal a Judgment by filling a Notice of Appeal within the specified time renders any Notice of Appeal filed thereafter null and void and such Notice of Appeal cannot be regularised by any court of law as it is a nullity in fact and in law. Counsel referred to Section 24(2)(a) of the Court of Appeal Act and the cases of F.R.N V. Dario & Ors (2015) LPELR-24303(SC) @ Pg.24-25; (2015) 6 NWLR (Pt.1454) 141; Nwaigwe & Ors V. Okere & Anor (2008) LPELR-2095 (SC) @ Pg.23-24; (2008) 13 NWLR (Pt.1105) 445.

 

Counsel submitted that the court is entitled in the course of exercising its obligation to zealously and jealousy protect its jurisdiction. Citing the case of Attorney General of Lagos State V. The Hon Justice I J Dosunmu (1989) 3 NWLR (Pt.111) Per Oputa JSC.

 

Counsel urged the court to discountenance the existence of the purported appeal as it was commenced in flagrant breach of the 1999 Constitution, the Court of Appeal Act and Rules.

 

ISSUES 3 AND 4

 

Counsel submitted that the Preliminary Objection of the Judgment debtor is an abuse of court process aimed at perverting the legal system with a view to overreaching the Judgment creditor. Counsel placed reliance on African Reinsurance Corporation V. J.D.P Construction Nig. Ltd (2001)13 NWLR (Pt.838) 608 @Pg.615 para F-H.

 

Counsel urged the Court to dismiss the Judgment Debtor’s Preliminary Objection with punitive costs and an additional cost of N520,000.00 against the Judgment Debtor in favour of the Judgment Creditor.

JUDGMENT DEBTOR'S FURTHER AFFIDAVIT AND WRITTEN ADDRESS IN SUPPORT OF THE (NPO1)

 

The Judgment debtor filed a 9 paragraph further affidavit in support of its (NPO1) and accompanied same with a written address wherein its counsel contended that there is no provision in the Rules of this court which underplays the trite position that garnishee proceeding is for the attachment of a “judgment sum”.

 

That garnishee proceeding is for enforcement of a judgment sum stricto senso and is regulated by Sheriffs and Civil Process Act being the substantive legislation on the subject, and the provisions of the Rules of Court are merely procedural and made to serve as handmaids to the Act but not to supplant or supersede the Act. It was argued that the attempt by counsel to elevate the Rules of court above the substantive Act is highly misconceived and should be discountenanced.

 

On the issue of appeal, it is the submission of counsel that matters of appeal are best argued at the Court of Appeal and the trial court should not be burdened with the issues of competency or otherwise of an appeal pending before the Court of Appeal. Counsel referred the court to Order 4 Rule 11 of the Court of Appeal Rules 2004.

Counsel finally urged the court to discharge the order nisi earlier issued and strike out the suit for lack of jurisdiction.

 

SECOND NOTICE OF PRELIMINARY OBJECTION

 

The second Notice of Preliminary Objection (NPO2) is dated and filed on the 21/02/2024 and seeks for the following reliefs:-

 

"1.      That there is no evidence that the judgment creditor sought for and obtained the consent of the Attorney-General of Akwa Ibom State before proceeding to file a motion ex-parte for the grant of an order nisi and this being the case, garnishee process commenced by the judgment creditor is grossly incompetent, having not fulfilled a condition precedent, and this Honourable Court does not have the jurisdiction to continue with the hearing of the suit.

 

TAKE FURTHER NOTICE that at the hearing of this application, counsel shall urge the Court to strike out this suit for want of jurisdiction."

 

The grounds of the objection are also as follows:

 

"1.      Akwa Ibom State University is a public institution established by the Akwa Ibom State University Establishment Law, 2009.

 

2.        By the Constitution of the Federal Republic of Nigeria, Akwa Ibom State University is a public officer and the custodian and signatory to the accounts of the institution domiciled in financial institutions.

 

3.        It is the law that before the attachment of funds in the custody of a public officer, the consent of the Attorney-General must be sought and obtained.

 

4.        In this case, the judgment creditor did not obtain the consent of the Attorney-General of Akwa Ibom State before his commencement of garnishee proceedings against the University.

 

5.        That being the case, the entire process is a nullity and the order nisi earlier issued ought to be struck out for want of jurisdiction."

 

The (NPO2) is accompanied by a written address where a lone issue was submitted for determination to wit:-

 

“Whether the failure of the Judgment Creditor to obtain the consent of the Attorney- General of Akwa Ibom State before the commencement of this suit does not render the suit incompetent and liable to be struck out”

 

Counsel submitted that the consent of the Attorney General of Akwa Ibom State is required before a garnishee proceeding can validly be commenced and prosecuted against a public institution/public officer in the mould of Akwa Ibom State University. Counsel referred to the cases of Central Bank of Nigeria V. Barr. Williams Anwan (2021) LPELR-56075(CA)  per Bola, JCA (Pg. 14-16, paras F), Christopher Onyewu V. Kogi State Ministry of Commerce and Industry & Ors (2002) LPELR-5507 (CA) and urged the court to strike out this suit for want of jurisdiction.

 

JUDGMENT CREDITOR'S RESPONSE TO THE 2ND N0TICE OF PRELIMINARY OBJECTION

 

Counsel for the Judgment creditor in response to the (NPO2) filed a written address on 23/4/2024 and reiterated his earlier argument in the (NPO1) that the instant Garnishee proceeding is one being prosecuted under the National Industrial Court Act, 2006 and the Rules of this court but not under the Sheriffs and Civil Process Act. That the Sheriffs and Civil Process Act does not apply in Garnishee proceedings before this Court hence consent of the Attorney General under section 84 of the Act is not required. Counsel cited Sections 2 and 19 of the said Act.

 

COURT'S DECISION

 

I have painstakingly perused the two Notices of Preliminary Objection filed by the Judgment Debtor and the counter affidavit as well as all other processes filed and the Exhibits attached. I have also thoroughly examined the written addresses of counsel for the parties and the issues contained therein and in light of that, I will address 3 issues in the determination of the two Notices of Preliminary Objection as follows:-

 

1.        Whether a judgment sum sought to be enforced by way of garnishee proceeding must be certain and ascertainable?

 

2.        Whether this Court can entertain this case after the record of appeal has been compiled and transmitted to the Court of Appeal?

 

3.        Whether the consent of the Attorney General of Akwa Ibom State is required in the instant case before the Judgment Creditor should commence his garnishee proceedings?

 

It needs to be recalled that this court delivered its judgment in this matter on 24/10/2022 in favor of the judgment creditor. And the judgment creditor then initiated the enforcement of the said judgment through a garnishee proceedings on 01/06/2023 which led to the grant of a garnishee order nisi against the garnishees on 11/07/ 2024. However, at the instance of the Judgment debtor, all the garnishees were discharged except Zenith bank Plc which has sufficient funds to satisfy the judgment sum. The pronouncement of the court which has given birth to the instant garnishee proceeding states thus:-

 

"It is also hereby granted as follows:

 

(a)     An Order reinstating the Claimant to his position as Lecturer II in the service of the Defendant;

 

(b)     An Order compelling the Defendant to pay the Claimant all salaries, entitlements, emoluments and benefits as due to him as Lecturer II from the 5/7/2017.

 

(c)      An order for the enforcement of this judgment within 30 days from today with no order as to cost."

 

According to the Judgment Creditor, his garnishee proceedings are initiated under the Rules of this Court but not under the Sheriffs and Civil Process Act which is not applicable in this Court.

 

Let me for the sake of clarity reproduce the provisions of Order 51(1) of the 2017 Rules of this Court which states as follows:-

 

“Where a party in a matter before the court (in this order referred to as “the judgment creditor”) has obtained a judgment or order for the payment by another party in the matter(in this Order referred to as “the judgment debtor”) of the sum of money not being a judgment or order for the payment of money into court and any other person within the jurisdiction is indebted to the judgment debtor (in this Order referred to as the “garnishee”), subject to the provisions of this Order and of any enactment, the court may order the garnishee to pay the judgment creditor from the amount of the debt due or according to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings”

 

Meanwhile Section 83(1) of the Sheriffs and Civil Process Act also provides as follows:-

 

"The Court may upon ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the state, order that debts owing from such third person hereinafter being called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the cost of garnishee proceedings and by the same or any subsequent order, it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof, as may be sufficient to satisfy the judgment or order, together with the costs aforesaid."

 

Generally the procedure stipulated for proceeding a garnishee proceeding is that, it must be satisfied that judgment has been delivered; it must be satisfied that the judgment is still unsatisfied; an applicant must satisfy the court as to the amount that is still unsatisfied; and the applicant must satisfy the court that a debt owes from the third party. See Scoa Nigeria Plc & Anor V. Registered Trustees of Methodist Church of Nig. & Anor (2016) LPELR-40192(CA).

 

Eventhough garnishee proceeding is sui generis, but it should be noted that parties and the court are bound by the judgment of the court including the award therein. See ALHAJI ISIYAKU YAKUBU ENTERPRISES LTD & ANOR. V. MR. S. B. OMOBOLAJE & ORS (2006) 1 SCNJ 86.

 

It needs to be observed that in both the provisions of the Sheriffs and Civil Process Act and the 20017 Rules of this Court, the above requirements in the case of Scoa (supra) have to be satisfied.

Essentially, by its very nature, garnishee proceeding requires that the ex-parte application commencing the proceeding be confined to the judgment and/or pronouncement of the Honourable court. In essence, the garnishee is called upon to satisfy the debt of judgment debtor as determined by court, in the same exact terms as pronounced. The debt claimed has to be precise and accurately represented and shall not be irregular.

 

It is the law that an order for the enforcement of a valid judgment of a court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined. See Igbomoyi V. Lawal (2013) LPELR – 22006 (CA). See also Alpha prop; Int. Ltd. V NDIC (2006) NWLR (Pt.962) 624.

 

The Court of Appeal in Igbadoo V. Keystone Bank Ltd (2021) LPELR – 52577 (CA) had this to say “Where a Court is called upon to enforce its judgment or the judgment of another Court, the enforcing Court cannot blindly and sheepishly follow the dictates and interpretation of the Judgment Creditor or its Counsel and enforce the judgment based on the dictates. Rather, it is the duty of the enforcing Court to enforce the terms of the judgment as expressed by the Court in its judgment”.

 

It is therefore my respectful opinion that there ought not to be any uncertainty or controversy as to the Judgment sum to be enforced in a garnishee Proceeding.

 

It is important to state that in the cases of Mrs Euphemia Abu V Federal Civil  Service and Chief Ikedi Ohakim V. Imo State Govt. (supra) cited by the learned Counsel for the Judgment Creditor, there is nothing that suggests that Sheriffs and Civil Process Act does not apply in this Court in garnishee proceeding.

 

By the doctrine of stare decisis, or judicial precedent, which is a fundamental principle in our legal system. Lower courts are required to follow the decisions of higher courts and cannot refuse to be bound by those decisions, even if they were made in error. It is a well established principle of judicial policy which must be strictly adhered to by all lower courts. The doctrine is the foundation on which the consistency of our judicial decision is based. See Dalhatu V. Turaki (2023) LPELR-917(SC).

 

The Supreme Court in Gwede V. Delta State House of Assembly (supra) has spoken in a very clear voice on the fact the judgment sum must be certain and be located in the judgment and not to be left to conjecture.

 

There is therefore, nothing left to ponder on or agitate my mind on this issue than to simply bow to the wisdom of the Supreme Court expressed in its resolution of the issue in Gwede's case and I so bow! See also Nigeria Breweries Plc V Chief Dumeje (2016) 8 NWLR (Pt.1515) 601. See another decision of this Court in Suit No. NICN/MKD/34M/2019, Between MR. APKAM CEPHAS V. BENUE STATE GOVT. & 2ORS, judgment of which was delivered on 16/10/2020.

Issue one is accordingly resolved in favour of the Judgment debtor.

 

On the issue of appeal, it is settled that an appeal is said to be entered when the Record of Appeal has been transmitted to the Court of Appeal and entered on its causelist. And at that point, this Court will cease to have jurisdiction to hear any application, rather it is the appellate court now seized of the matter that has the sole jurisdiction to deal with the matter. Since it is evident that the Record of appeal has been compiled and transmitted to the Court of Appeal, the issue of competence or otherwise of the application filed by the Judgment Debtor at the Court of Appeal for leave to appeal is not for this Court to determine. See Order 4 Rule 11 of the Court of Appeal Rules, 2021 and Barigha V. PDP (2013) 6 NWLR (Pt.1349) 108.

 

Issue two is therefore resolved in favour of the Judgment Debtor.

 

On issue 3, it appears that the provision of Section 84 of the Sheriffs and Civil Process Act which says that the consent of the Attorney General is mandatory before an order nisi can be made in a garnishee proceeding is clear. Section 84(1) provides 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 cusodia legis, the order 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 custodia legis, as the case may be."

 

It can be observed that the money sought to be attached has to be in the custody or under the control of a public officer and such public officer must have custody and control of the money in his official capacity. That is to say, where the money to be attached by garnishee proceeding is not in the custody or control of a public officer, or the public officer who has custody of the money held is in his private capacity, the consent of the Attorney General will not be required before an order nisi is made in a garnishee proceeding.

 

In my view, money is said to be in the custody and control of the person in whose hands or possession the money is kept. Therefore when monies belonging to private individuals or government are kept in bank accounts, it is the bank that is in custody and control of the monies. In Purification techniques Nig Ltd v A.G Lagos state (2004) NWLR (Pt. 879) 665 at 681, it was held that given the nature of the relationship between banker and customer and of the contract that exists between them, the customer has neither the custody nor the control of monies standing in his credit with the banker. What the customer possesses is a contractual right to demand repayment of such monies.

 

In other words, monies in the hands of a garnishee banker are not “in custody or under the control” of the Judgment Debtor customer. Such monies remain the property in the custody and control of the banker and payable to the judgment debtor until a demand is made.

 

Also the court of appeal in Zenith Bank Plc v Urashi Pharm Ltd (Appeal No CA/J/248/2014, held that the provision of Section 84(1) of the Sheriffs and Civil Process Act is inapplicable when the money to be garnisheed is in the custody or control of a commercial bank.

 

In the instant case, the monies sought to be garnisheed are being held in the account kept by Zenith Bank Plc which is a commercial Bank. Notwithstanding that the monies belong to Akwa Ibom State University, it is not in doubt that the monies are in the control and under the custody of a garnishee commercial bank and not a public officer in Akwa Ibom state public service. It is also clear that the garnishee does not have custody of the money in any official capacity.

 

See also CBN V. Interstellar communication Ltd (2018) 7 NWLR (Pt. 1618)294, where the garnishee in that case, (the CBN) who had custody of the money to be garnisheed, was a statutory corporation and the monies to be attached were in her custody and control as a public officer. 

 

Accordingly, I hold the view that the Judgment Creditor in the instant case does not need the consent of the Attorney- General of Akwa Ibom State before the commencement of the garnishee proceeding. Issue three is therefore resolved against the Judgment debtor. Consequently, Judgment Debtor's 2nd Notice of Preliminary is overruled and dismissed for being misconceived. However, the 1st Notice of Preliminary Objection has merit and is accordingly sustained.

 

In light of the foregoing therefore, I find no justification for sustaining the Garnishee Order Nisi made on 11/7/2023. Consequently, the order nisi is vacated and the garnishee (Zenith Bank Plc) is hereby discharged. However the Judgment Creditor can deploy other methods and or strategies to proceed against the Judgment Debtor to enforce his judgment.

 

Ruling is entered accordingly with no as to cost.

 

 

 

HON. JUSTICE SALISU H. DANJIDDA

(PRESIDING JUDGE)