Justice Akintayo Aluko of a Lagos Federal High Court has dismissed Central Bank of Nigeria’s preliminary objection to an ordered for the payment of the sum of N150 million as a judgment debt against Nigerian police force.
The judge while also make Order Nisi of July 19, 2021 against CBN absolute, also awarded the sum of N100,000 against CBN in favour of the judgment creditors.
Justice Aluko’s judgment is an offshoot of judgment delivered by Justice Chukwujekwu Aneke, in a fundamental rights enforcement suit number FHC/L/CS/698/2019, between Mrs. Chidinma Uchenwoke; Miss Chikanyima Uchenwoke and Mr. Callitus Uchenwoke against Corporal Juliet Ada Ekwueme; Corporal Ugochukwu Obiakor; Corporal Raphael Choke; Inspector-General of Police (IGP) Commissioner of Police, Anambra State and The Nigeria Police Force (NPF).
CBN was made a Garnishee in the suit.
Dissatisfied with the order, CBN through its counsel, T. O. Ajayi, filed a notice of preliminary objection to the order in a suit marked FHC/L/CS/612/2021, challenging the Court’s jurisdisction to make such order, while added that the judgment creditors obtained the Order’ Nisi dated July 19, 2021, without obtaining the requisite consent of the Attorney-General of the Federation (AGF) as provided in Section 84 of the Sheriffs and Civil Process Act, as a condition precedent to be fulfilled before Seeking or making such order absolute.
CBN consequently asked the court for an Order of the court setting aside the Garnishee Order made on July 19, 2021, for lack of compliance with the condition precedent to the grant thereof.
It also asked for an order of the Court dismissing and/or striking out the entire Garnishee proceedings initiated by the Judgment Creditors pursuant to their exparte application dated June 16, 2021.
CBN had supported it’s request with six grounds.
Responding, the Judgment Creditors through their Counsel, B. L. Ucholor, described the preliminary objection as abusive and urged the court to dismiss same.
Ucholor reiterated that by the Order of this court made by Justice Aneke, on March 8, 2021, the provision of section 84 Sheriffs and Civil Process Act has been complied with following an Order compelling the AGF to grant the consent within 14 days, from the date of the Order and an Order compelling the CBN, (the Garnishee herein) to deem the consent of the AGF prescribed under 84 of SCPA as having-been duly granted for the purpose of this garnishee proceedings.
Ucholor contended that both the AGF and Garnishee who are parties in the suit in suit No: FHC/L/CS/698/2019 did not appeal against the decision of the court.
He therefore urged the court to dismiss CBN’s Preliminary objections with a punitive cost.
Delivering judgment on the issued raised by the parties on April 7, 2022, Justice Aluko while raising the issue of “Whether the judgment creditors complied with the conditions precedent for the commencement of this Garnishee as proceedings” held that; “The substratum of the objection of the Garnishee is that the CBN is a public officer and that the Judgment
Creditors failed to obtain the express consent of the AGF in compliance with section 84(1) of the Sheriffs and Civil Process Act before commencing the Garnishee proceedings and obtaining the Order Nisi.
“However the Judgment Creditors submitted that the provisions of section 84(1) SCPA had been complied with going by the Order of his lordship C.J. Aneke J. in FHC/L/CS/698/2019 wherein the Garnishee and the AGF were sued as first and second Respondents.
“In the CTC of the ruling of his lordship attached to the affidavit of record filed by the Judgment Creditors as exhibit A1, this court directed and compelled the AGF sued as the first respondent to grant the consent prescribed under section 84 of the SCPA to the Judgment Creditors within 14 days from the date of the Order.
“Upon failure to comply with the court order, the court mandated and compelled the CBN, to deem the consent as having been duly granted for the purpose of garnishee proceedings that may be commenced by the Judgment Creditors against the CBN.
“The court directed the CBN to promptly and expeditiously act on the express or deemed consent of the AGF for the purpose of Garnishee proceedings.
“Both the CBN and AGF were parties in the suit and court proceedings that produced the ruling and orders of C.J. Aneke J. made on March 8, 2021.
“By the ruling and order of the court, the AGF and CBN are aware and in the know that the consent of the AGF was sought and required for the Judgment Creditors to commence garnishee proceedings.
“If the AGF would not be able to grant the consent for whatever reason he may have, he should have used the opportunity provided by the suit in FHC/L/CS/698/2019 which he participated in, to inform the court why he would not be able to grant the statutory consent prescribed under section 84 SCPA which the law require him to grant.
“The AGF flouted the Order of court with reckless abandon and without any justification or any reason given. The CBN (the Objector herein) who was a party in suit No: FHC/L/CS/698/2019 and participated in the court proceedings that culminated in the orders made on March 8, 2021 and who was ordered to deem the consent of the AGF as having been duly granted and directed to promptly and expeditiously act on the express or deemed consent of the AGF has no legal basis to file the instant objection against the Garnishee proceedings……..”
“In the instant case, the Judgment Creditors are not relying on any acknowledgment of their letter to the AGF but on an Order of court validly made after a full litigation process in which both the AGF and CBN participated with their respective lawyers taken part in the proceedings culminating in the ruling and order of court.
“As shown in the court proceedings leading to the ruling and order made on March 8, 2021 in FHC/L/CS/698/2019, the AGF knew his statutory consent was required. He had the opportunity of informing the court of his detision on whether or not to grant the consent and adduce his reason for his decision.
“He failed to give any reason to the court why he would not grant or be able to grant the consent. The court ordered him to give the consent within 14 days from the date of the order.
“The court then mandated the Garnishee to deem the consent as having been granted if the AGF fail to comply with the Order of court within 14 days and to promptly act on the express or deemed consent of the AGF.
“The deemed consent invalidated and discountenanced by the ‘appellate court in CBN V. Ezeobika & Ors (supra) was based on mere acknowledgment of the existence of the letter seeking consent. The deemed consent referred to and relied upon by the Judgment Creditors in the instant case was a product ofa valid order of court of competent jurisdiction made after a full course of court proceedings in which both the AGF and Garnishee participated and which they did not appeal against or seek to set aside.
“Going by the reason of the AGF’s full participation in the court proceedings leading to the order of court made on March 8, 2021 directing him to give his consent within 14 days and directing the CBN to deem the consent as having been granted if the AGF fail to grant same, the AGF cannot claim ignorance of the fact. that his consent was required to commence garnishee proceedings.
“He obviously had the prior knowledge that the Paka the Judgment Debtors in care or custody of the CBN were sought to be attached to satisfy the Judgment debt……”
“it should be noted clearly that the principle underlying securing the AGF’s consent as prescribed in section 84 SCPA is to avoid embarrassment on him of not having the prior knowledge that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt, which the ‘ government may not know anything about”. It is not the case of the Garnishee/Objector that the AGF is not aware that his consent was being sought or that he had no prior knowledge that the funds of the Judgment Debtors in its hands were sought to be attached.
“The Garnishee/Objector has no justification to disobey the Order of Court compelling and directing the apex Bank to deem the consent of the AGF as having been granted and to act on the deemed consent in the instant case.”
“I have examined the Garnishee’s affidavit to show cause filed on October 20, 2021, of particular significance is paragraph 3 (d) of the affidavit where the Objector said none of the names listed in number 1, 2 and 3 in the Order Nisi maintain any account with the CBN in the period running from 1st November 2020 till date.
“The Judgment Creditors called the attention of the court to the affidavit to show cause earlier filed by the Garnishee/Objector on the 28/7/2019 attached as exhibit UCH A, where the CBN admitted that the Commissioner of Police named as the 5th ‘Respondent in the affidavit maintain an account with the Garnishee to the tune of N3.9 Million.
“The Commissioner of Police, Anambra State is the 5% Judgment Debtor in this proceedings whose name was listed among the names mentioned in numbers 1, 2 and 3 of the Order Nisi dated July 19, 2021.
“The Garnishee/Objector did not explain to the court what happened to the account it admitted that the 5% Judgment Debtor maintained with it between July 2019 to November 2020.
“The deliberate failure of the Garnishee/Objector to obey the order of this made on July 19, 2021, directing it to file statements of the various accounts mentioned or referred to in numbers 1, 2 and 3 of the said order which include the statement of account of the 5th Judgment Debtor is a pointer to the inference that the Garnishee is hiding something with respect to the true state of accounts of the Debtors from the court.
“Garnishee to show cause why the Order Nisi should not be “made absolute. Unless there is sufficient reason given by the Garnishee on why the Order Nisi should not be made absolute and if no sufficient reason is given, the Garnishee Order Nisi is then made absolute. See Oceanic Bank Plc V Oladepo & Anor (supra). What the Garnishee/Objector has done in the instant case is tantamount to shielding and protecting the Judgment Debtors. The appellate court in Oceanic Bank Plc V Oladepo & Anor (supra) pp 21-22, paras C-E warned thus:
“It is not the business of a Garnishee to undertake to play the role of an advocate for a Judgment Debtor by trying to shield and protect the money of the Judgment Debtor. Of course, by playing games of hide and seek with the court, by failing or refusing to depose fo affidavit to show cause, disclosing the true account status of the Judgment Debtor, the Garnishee only exposes itself to trouble, during the court to do its worst. It can therefore. be made to pay the debt of the debtor, if the court has the cause to believe that failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law to disclose the true state of account of the Judgment Debtor in its custody.
“In that situation, the court will have no other option than to order the Garnishee to settle the Judgment Debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the Judgment Creditor/Applicant, that the Garnishee holds the Judgment Debtor’s money sufficient to satisfy the Judgment debt”.
“The failure of the Garnishee to comply with the Order of this court made on the July 19, 2021 directing the Garnishee to file statements of accounts mentioned or referred to in prayers 1, 2, and 3 which include that the fifth Judgment Debtor create an impression that Garnishee is hiding something and deliberately shielding the Judgment Debtors.
“The option and the choice adopted by the Garnishee to disregard the order of court with reckless abandon and ‘elected to frustrate the Judgment Creditors by filing the instant preliminary objection has the effect and is capable of convincing the court that the Garnishee is deliberately shielding the Judgment Debtors using the machinery and process of the court to the irritation and vexation of the opposing party. Coming from the foregoing, I hold the considered view that the Judgment Creditors did all required of them and complied with the condition precedent for the enforcement of Garnishee proceedings.
“The lone issue in this ruling is resolved in favour of the Judgment Creditors against the Garnishee/Objector.
“The notice of preliminary objection of the Garnishee/Objector dated October 20, 2021 lacks merit and substance.
“The Garnishee proceedings commenced by the originating ex-parte application culminating in the Order Nisi made on July 19, 2021 is competent and validly commenced before this Honourable Court.
“Consequently, I order as follows: “That the notice of preliminary objection initiated by the Garnishee/Objector (CBN) on October 20, 2021 against the Garnishee proceedings is hereby overruled and dismissed.
“That the Order Nisi made on July 19, 2021 is hereby made absolute.
“That the Garnishee is hereby ordered to satisfy the Judgment debt. And that the cost of N100,000 is hereby awarded in favour of the Judgment Creditors against the Garnishee (CBN).