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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 9th February 2022                                  

SUIT NO: NICN/ABJ/362M/2020

 

Between:             

 

Mrs. Euphemia Agu                                               -                       Judgment Creditor

 

And

 

1. Federal Civil Service Commission              

2. Hon. Minister of Defence                                -                       Judgment Debtors

 

And

 

Central Bank of Nigeria                           -                       Garnishee

 

Representation:

P. I. N. Ikwuet SAN, with him, C. I. Onwuemelie and Alex Ukwueze for the Judgment Creditor

R. M. Olusona for the 1st Judgment Debtor

Balogun Moses Eveshofase for the Garnishee

 

RULING

These garnishee proceedings initiated by the Claimant/Judgment Creditor, is to enforce the payment of the sum of N8,240,511.28 which accrued to her from the judgment of this court delivered on 17th October 2019. Upon hearing the ex parte motion, this court made an Order Nisi on 23rd March 2021 and ordered the Garnishee to show cause why the Order Nisi should not be made Absolute.

 

The Garnishee filed an affidavit to show cause on 15th June 2021 and also filed a Notice of Preliminary Objection on the same date. The NPO is supported with a written address. The 1st Defendant/Judgment Debtor filed a Notice of Preliminary Objection on 29th June 2021. The NPO is supported with what is titled “affidavit to show cause” and a written address. The 2nd Defendant/Judgment Debtor equally filed a NPO on 18th June 2021. The Claimant filed a reply on points of law to the NPO of the garnishee on 30th June 2021 and also filed a counter affidavit and written address in response to the NPO of the 1st Defendant on 16th July 2021 and a further affidavit on 21st October 2021.

 

On 29th November 2021 when all applications came up for hearing, no counsel represented the 2nd Defendant/Judgment debtor in court to move the NPO filed by the 2nd Defendant/Judgment Debtor. For that reason, learned senior counsel for the Judgment Creditor applied that the NPO filed by the 2nd Defendant/Judgment Debtor be struck out. The failure of the counsel who filed the NPO on behalf of the 2nd Defendant/Judgment debtor to appear in court on 29th November 2021 to move the NPO means that the NPO was abandoned. It is accordingly struck out. That leaves on record the NPO of the Garnishee and that of the 1st Defendant/Judgment debtor both of which I will now consider.

 

NPO OF GARNISHEE

In the NPO of the garnishee, an order was sought to strike out the garnishee proceedings for want of jurisdiction. Two grounds were raised in the NPO which are that-

1.         By the combined effect of Sections 251[1]d] of the 1999 Constitution [as amended] and Order VIII Rule 2 of the Judgment [enforcement] Rules, this court lacks jurisdiction in respect of garnishee proceedings against the garnishee.

2.         By virtue of Section 84 of the Sheriffs and Civil Process Act, prior consent of the Attorney-General of the Federation is required for exercising jurisdiction in the attachment of money in custody of a public officer. The consent of the Attorney-General of the Federation not having been obtained before the order nisi was issued robs this court of jurisdiction to entertain the garnishee proceedings.

 

NPO OF 1ST DEFENDANT/JUDGMENT DEBTOR

In the NPO of the 1st Defendant/Judgment Debtor, it sought an order striking out or dismissing the motion for incompetence and lack of jurisdiction to adjudicate on garnishee proceeding against the account of the 1st Defendant/Judgment Debtor domiciled with Garnishee. The grounds for the prayer are these:

1.   The failure of the judgment creditor to obtain consent of the AG Fed as required in Section 83 and 84 [1], [2] and [3] of the SCPA before obtaining the order nisi renders the proceedings incompetent.

2.   The actual entitlement due to the judgment creditor has not been determined by the appropriate authority.

3.   The Federal Civil Service Commission, the 1st Judgment Debtor, is not a proper party to this suit and not a custodian of the funds sought to be attached.

 

Accompanying the NPO is a process titled “affidavit to show cause”. Let me straight away comment on the said “affidavit to show cause”. The 1st Defendant/Judgment Debtor is not a Garnishee in these proceedings. It is rather, one of the parties in the suit against whom the judgment in suit NICN/ABJ/355/2014 was given. There is no order made or directed to it in these proceedings to show cause in respect of the application of the Judgment Creditor for which it filed the affidavit to show cause. Thus, the 1st Defendant/Judgment Debtor is not required to file any affidavit in these proceedings to show cause.

 

I have read the affidavit however, and I observe that facts in respect of the NPO were deposed therein. It appears to me; the affidavit was filed in respect of the NPO and not for the purpose of showing cause. I will therefore deem the affidavit to have been filed in support of the NPO and consider it as such.

 

By the combined grounds of the NPO of the Garnishee and that of the 1st Judgment Debtor, 4 grounds were raised. They are:

1.         That this court lacks jurisdiction to entertain these garnishee proceedings against the Garnishee by virtue of Sections 251[1]d] of the 1999 Constitution [as amended] and Order VIII Rule 2 of the Judgment [Enforcement] Rules.

2.         That these garnishee proceedings is not competent because the judgment creditor failed to obtain the consent of the Attorney-General of the Federation as required in Section 83 and 84 [1], [2] and [3] of the SCPA.

3.         That the actual entitlement due to the Judgment Creditor under the judgment has not been determined.

4.         That the 1st Judgment Debtor is not a proper party to this suit.

 

I will consider these grounds of objection one after the other.

 

GROUND 1:

The summary of the submissions of the learned counsel for the garnishee, Babajide Babatunde Esq., in the written address in support of the NPO is that in view of the provisions of Section 251[1] d] of the 1999 Constitution [as amended] and Order VIII Rule 2 of the Judgment [Enforcement] Rules, this court lacks jurisdiction to entertain the garnishee proceedings against the garnishee. It was argued that by provisions of Order VIII Rule 2 of the Judgment [Enforcement] Rules, the JDs cannot sue the garnishee in this court. As such, the court which has jurisdiction to entertain this garnishee proceeding is the Federal High Court under its jurisdiction in Section 251[1] d] of the 1999 Constitution. The cases of CBN vs. AUTO IMPORT EXPORT [2013] 2 NWLR [Pt. 1337] 80; CBN vs. OKEB NIG. LTD [2014] LPELR-23162 [CA]; CBN vs. KAKURI [2016] LPELR-41468 [CA]; CBN vs. IGBADOO [2017] WRN/CA/MK/187, among others, were cited in support.

 

In response, it was submitted by learned counsel for the JC, Alex Ukwueze Esq., in the JCs reply address, that the judgment sought to be enforced arose from labour or employment matter which this court has jurisdiction to entertain in Section 254C [1] of the 1999 Constitution [as amended]. It was submitted that this proceeding is incidental or connected to the subject matter of the suit and it accordingly confers this court with jurisdiction to entertain these proceedings wherein the JC sought to recover her salaries as ordered by this court. Counsel went further to submit that the cases cited by the counsel for the Garnishee do not apply because they were determined on facts different from the facts of this instant proceedings.

 

These proceedings emanated from a judgment in a labour matter which this court has jurisdiction to entertain. This court which handed down the judgment is also competent to enforce the judgment by all means of enforcement, including garnishee proceeding. See Section 10 National Industrial Court Act 2006 and Order 51 Rule 1 of the Rules of this court. The provision of Order VIII R 2 of Judgment [Enforcement] Rules is to the effect that Garnishee proceeding may be taken in a court in which the judgment debtor could, under the civil procedure rules of the court, lawfully recover the debt. This provision means that if the debt is such that the judgment debtor is permitted to recover from the garnishee under the civil procedure rules of the court, then the garnishee proceedings can be taken in that court. By the provisions of Section 10 of the National Industrial Court Act 2006 and Order 51 of the Rules, this court has jurisdiction to entertain garnishee proceedings arising from the decision of this court on any of the subject matter which the court can entertain. Once the judgment sought to be enforced by garnishee proceedings was given by this court exercising due jurisdiction, the court also has jurisdiction to entertain the garnishee proceedings arising therefrom.

 

I have seen the authorities cited in support of the arguments of the counsel for the Garnishee where it was decided that it is the Federal High Court that has jurisdiction in respect of garnishee proceedings against the CBN. Let me point out that the subject matter of these garnishee proceedings is the recovery of a judgment sum or judgment debt being owed by the JD to the JC from monies of the JD in the custody of the Garnishee. This subject matter of these garnishee proceedings is not contained anywhere in Section 251 [1] of the CFRN 1999 as to confer jurisdiction on the FHC. It is also necessary to point out that this proceeding does not fall under Subsection 1 [d] of Section 251 CFRN as it is not a suit against the garnishee relating “banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures”. Therefore, it cannot be canvassed in these proceedings that it is the FHC that has jurisdiction over the proceedings.

 

Since the judgment from which the judgment debtors’ debt arose emanated from this court, garnishee proceedings can be commenced in this court against the Garnishee or any other person who is shown to be indebted to the JDs. In my view, ground 1 of the NPO is unmeritorious. I hold that this court has jurisdiction to entertain these garnishee proceedings against the Garnishee.

 

GROUND 2:

Another ground of objection is that by Section 84 of the SCPA, the consent of the Attorney-General of the Federation is required to attach money in the custody of the CBN, being a public officer, and not having obtained the consent of the Attorney-General of the Federation before the order nisi was made, renders these garnishee proceedings incompetent and robs this court of jurisdiction to entertain the garnishee proceedings. From the submissions of counsels for the Garnishee and the 1st JD, it was argued that the CBN, who is the Garnishee in these proceedings, is a public officer and the monies in its custody held on behalf of the Judgment Debtors cannot be attached vide garnishee proceedings unless the consent of the Attorney-General of the Federation is first sought and obtained. It was for this reason it was contended that since there was no such consent obtained, these garnishee proceeding is not competent. I have seen the authorities cited in support of the arguments of the Garnishee and the 1st JD. I have also considered the arguments of counsel for the JC and the authorities relied upon in response to this ground of objection.

 

By the provisions of Section 84 SCPA, where the fund to be garnished is in custody of a public officer, the Attorney-General’s prior consent must be obtained. The issue whether the CBN is a public officer within the context of Section 84 of the SCPA when holding monies for the government or government agencies and whether the consent of the Attorney-General of the Federation is required to attach monies in the custody the CBN has been settled by the Supreme Court in the case of CBN vs. INTERSTELLAR COMMUNICATIONS LTD [2018] 7 NWLR [Pt.1618] 294. The apex court cleared the air on the controversy when it held that the CBN is not a public officer in the context of the provisions of Section 84 of the SCPA, so the need to seek the consent of the Attorney General before attaching monies of the JD in its custody will not apply. This decision of the Supreme Court is the position of the law as at today, having not been overruled or departed from by the Supreme Court. Accordingly, the provisions of Section 84 SCPA is not applicable in these proceedings.  The consent of the Attorney-General of the Federation is therefore not required to attach monies of the JDs in the custody of the Garnishee.

 

GROUND 3:

This ground was raised by the 1st JD. The contention of the 1st JD is that the actual entitlement due to the judgment creditor has not been determined by the appropriate authority. It was averred in the affidavit in support of the NPO that the sum sought to be recovered by the JC is bloated, not accurate and not computed in accordance with the relevant laws and regulations. I have also considered the arguments made in the written address in support of the NPO by counsel for the 1st JD, R.M. Olusona Esq. In paragraphs 7, 8, 9 and 10 of the JCs counter affidavit to the NPO of the 1st JD, it was deposed that in the judgment of this court delivered on 17th October 2019, the court ordered the JDs to compute the salaries and entitlements of the JC. When the JDs refused to do the computation, the JC did her own computation, which is the document attached to the garnishee motion ex parte as Exhibit B, and served same on the JDs. The JDs did not respond to the letter and did not object to the computation which made the JC to believe that the 1st JD is not objecting to the computation.

 

In the judgment of this court delivered on 17th October 2019 in Suit NICN/ABJ/355/2014, the court ordered the Defendants, now judgment debtors, to “forthwith compute and pay to the claimant all her salaries, allowances and other entitlements from December 1995 to the date she retired lawfully from service. Her retirement benefits should also be computed and paid to her at once. Cost of N200,000 is also awarded to the claimant”. I have seen Exhibit B attached to the garnishee motion ex parte dated 4th March 2020. It shows it was received in the offices of the JDs on 6th March 2020. From the content of the letter, it was stated that as at the date of the letter, the JDs have not done the computation of the JCs salaries, allowances and other entitlements as ordered by this court. Accordingly, the JC did her own computation of her salaries and entitlements from August 1997 to April 2015 and attached the computation to the letter served on the JDs. By the JC’s computation, her unpaid salaries and entitlements rose to the total sum of N8,040,511.28 as at April 2015. It is the awarded cost of N200,000 that has increased the computed sum to the sum of N8,240,511.28 sought to be recovered in these garnishee proceedings. 

 

This proceeding was commenced on 3rd December 2020. Up to that day, the JDs have still not computed the JCs salaries, allowances and other entitlements as ordered by this court. It is now that the JC has instituted these garnishee proceedings on the basis of her own computation that the 1st JD is crying wolf. The JDs violated the order of this court and they expect the JC to wait forever for them to comply with the orders of this court. Of course, if it had taken the JDs this length of time and they had not done the computation, I wonder how long it will take them to pay her if the computation was eventually done.

 

The JC, having waited for more than 4 months after the judgment without the JDs complying with the order of this court, proceeded to do her own computation and forwarded same to the JDs. The JDs received it but did not respond, challenge or dispute the computation. The JDs should be taken to have accepted the JCs computation. Therefore, it is not in these proceedings the 1st JD will be heard to complain that the JCs computation is bloated or not accurate or not properly computed. Is there any other computation presented by the 1st JD that is different from the JCs computation? There is none. The Judgment Creditor’s computation is accordingly accepted by this court as the correct and actual entitlement due to her.

 

GROUND 4:

There is also the contention by the 1st Judgment Debtor that it is not a proper party to this suit and not a custodian of the funds sought to be attached. I have seen the reason given in the affidavit in support of the NPO of the 1st JD for this assertion. I have also considered the arguments made in support in the written address wherein it became clear to me that the contention of the 1st JD that it is not a proper party to this suit is with respect to these garnishee proceedings. The 1st JD appears to think it is a Garnishee in these proceedings; that is why it contends that it is not a proper party to the proceedings because it is not indebted to the JC.

 

The 1st JD is right. It is not a party to the garnishee proceedings, as it is not the Garnishee. The 1st JD is only reflected as a party because the garnishee proceedings originated from the judgment in the suit in which it was a party and a judgment debtor for that matter. A garnishee proceeding is basically a proceeding between the JC and the Garnishee. Although the Sheriffs and Civil Process Act require that JD be served the Order Nisi, it is not made a party to the proceedings thereby. It is for the interest of fair hearing and for the fact that a garnishee proceeding arose from a suit to which the JD was a party that the JD is allowed to be heard in garnishee proceedings. It was for this reason the 1st JD was permitted to be heard in its NPO. Thus, the 1st JD is not a Garnishee in these proceedings, as erroneously believed, but a nominal party by virtue of its being a Defendant/Judgment Debtor in the main suit. This ground of the NPO similarly fails.

 

Having considered all the grounds of the NPOs of both the Garnishee and the 1st JD together with the arguments made in support, I find that there is no merit in all the grounds of objection. The notice of preliminary objection filed by the Garnishee and the 1st JD are hereby dismissed.

 

GARNISHEE’S AFFIDAVIT TO SHOW CAUSE

The Garnishee’s affidavit to show cause was filed on 15th June 2021 and it was deposed to by one Omah Austin, a litigation secretary in the law office of the counsel for the garnishee. The entire substance of the affidavit is contained in paragraph 4 thereof and the facts deposed in the paragraph are as follows:

4.         That I am duly informed by Babajide Babatunde Esq of counsel at about 10.00 am on 6th April 2021 at our office of the following facts which I verily believe him that

a.         The garnishee Order Nisi was served on the garnishee on 30th March 2021.

b.         the garnishee is a public officer.

c.          The consent of the Attorney-General of the Federation is required to attach the funds in the custody of the garnishee in execution of the judgment.

d.         The judgment creditor did not obtain the consent of the Attorney-General of the Federation before the Order Nisi was granted.

e.         The honourable court possesses the vires to set aside the Order Nisi and discharge the garnishee.

 

Where a Garnishee is ordered to show cause, its duty in that respect is simple. The Garnishee is simply to file an affidavit and then appear in court to truthfully and honestly disclose the Judgment Debtor’s state of account, if any, in its custody. It is not the business of a Garnishee to attempt to defend the cause of the Judgment Debtor or create impediments in the process initiated by the Judgment Creditor to realise the judgment debt. Such attitude of a Garnishee is a deliberate attempt to shield the judgment debtor from its legal duty and it creates the impression that the Garnishee is out to mislead the court. In this instance, instead of the Garnishee to disclose whether the judgment debtors have account with it and the state of the account, if any, the affidavit it filed is rather to challenge the jurisdiction of this court.

 

The Garnishee failed to show cause; which implies one thing: that the Garnishee admits that it holds money belonging to the Judgment Debtors sufficient to satisfy the judgment debt. This fact was made clear by learned counsel for the Garnishee, Balogun Moses Esq., when he, in the proceedings of 29th November 2021, informed the court that “the garnishee has monies held on behalf of the 1st and 2nd judgment debtors”. It is thus clear to me that the Garnishee is in custody of monies belonging to the judgment debtors. The Garnishee is therefore obligated to pay the judgment debt owed by the judgment debtors from the monies held on behalf of the judgment debtors to satisfy the judgment. Accordingly, the garnishee Order Nisi is made Absolute. The Garnishee is ordered to pay the sum of N8,240,511.28 to this court for the benefit of the Judgment Creditor. This order must be performed by the Garnishee within 14 days from today.

 

No order as to cost.

 

Ruling is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge