CENTRAL BANK OF NIGERIA v HYDRO AIR PROPERTY LIMITED (CA/L/235/2012) [2014] NGCA 31 (26 March 2014)

 

MAIN JUDGMENT

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):

The Respondent herein obtained a judgment for the sum of USD 6,000,000.00 (Six Million United States Dollars) against the Nigerian Airspace Management Agency, (NAMA); the Nigerian Civil Aviation Authority, (NCAA) and the ATTORNEY-GENERAL OF THE FEDERATION by virtue of an alleged compromise agreement.

Thereafter, by Motion Ex-parte dated 13th May, 2011 filed at the Federal High Court, Lagos, the Respondent obtained a garnishee order nisi against the Appellant and 12 commercials banks on the 18th of May, 2011 in the following terms:
 

"(i)   That an Order Nisi is hereby made attaching all debts due or sums accruing from the Garnishees to the Judgment Debtors to satisfy a Judgment secured by the Judgment Creditor in the Federal High Court Lagos on the 23rd day of July, 2010, in the sum of USD 6,000,000.00 (Six Million United States Dollars) plus the accrued post Judgment interest of 10% together with the costs of the garnishee proceedings.

 

(ii)   That an Order Nisi is hereby made attaching the 2nd Judgment Debtor's, the Nigerian Civil Aviation Authority's Bilateral Air Services Agreement Fund (BASA ACCOUNT) with the Central Bank of Nigeria, the 1st Garnishee herein, to satisfy the Judgment secured against the Judgment Debtors by the Judgment Creditor in the Federal High Court Lagos on the 23rd day of July, 2010, in the sum of USD 6,000,000.00 (Six Million United States Dollars) plus the accrued post Judgment interest of 10% together with the costs of the garnishee proceedings.

 

(iii)  That the Garnishees shall disclose forthwith on oath the sum(s) outstanding to the credit of the Judgment Debtors' account with each of the Garnishees however described within 14 days upon service of the instant Order.
 

(iv)   That the Garnishees shall appear before this Court on 8th day of June, 2011 to show cause why the Order Nisi should not be made absolute."

 

Upon service of the order nisi on it, the Appellant's counsel on 7th June, 2011 filed an undated Memorandum of Appearance and an affidavit to show cause. In the said affidavit, the Appellant, without disclosing the amount of money in the account, stated that only the Nigerian Airspace Management Agency, (NAMA) has an account with it but had insufficient funds to meet the said judgment debt. In a Further and Better Affidavit to Show Cause filed on the 13th day of June, 2011, the Appellant through its employee Mr. Emmanuel Olusegun Malomo, deposed as follows in paragraphs 5, 6, 7, 8 and 9 thereof as follows:

 

5.     "That I had earlier deposed to an Affidavit on 7th June, 2011 stating that only the 1st Judgment Debtor Nigerian Airspace Management Agency, (NAMA) has an account with the CBN and that the Bank is unable to comply with the Order of the Hon. Court to set aside the sum of $6 million estimated at N918,540,000 at the current exchange rate of N153,090.00 per dollar, plus the accrued post judgment interest of 10% and the cost of the garnishee proceedings from the account of the said Judgment Debtor, NAMA, due to insufficient funds in its account.

 

6.     That I hereby further state that the Bank is unable to set aside the judgment sum from the other named account, that is, the Bilateral Air Services Agreement Fund (BASA) account as directed by the Court due to the fact that Bilateral Air Services Agreement Fund (BASA) account is an account of the Federal Government of Nigeria which does not belong to Nigeria Civil Aviation Authority (NCAA) alone.

 

7.     That NCAA is not the operator of Bilateral Air Services Agreement Fund (BASA) account.

 

8.     That Bilateral Air Services Agreement Fund (BASA) account is domiciled in foreign currency offshore.

 

9.     That as a result of the reasons stated in paragraph 6 above, the Bank is not in a position to determine the amount belonging to the Judgment debtor from the BASA account."

 

From the facts set out under paragraph 4.19 of the Respondent's Brief of Argument, which facts are not reflected on the records, it appears that on the 12th of June, 2011 the judgment debtors undertook to pay the judgment debt within 60 days as a result of which the trial court suspended the garnishee order nisi for that period. Eventually, the judgment debtors failed to pay the judgment sum upon which the trial court ordered the parties to file fresh affidavits to show cause.

Based on the said fresh order, the Appellant through its employee, Augustine Asemota filed another affidavit to show cause on the 17th of November, 2011. In this new affidavit, it was disclosed that the 1st Judgment Debtor, NAMA has in its account with the Appellant the sum of N350,204,445.79. With respect to the NCM, the Appellant deposed as follows in paragraphs 5, 6 and 7 of the Affidavit:
 

"5.   That the 1st Garnishee is unable to set aside the judgment sum from or present the Statement of Account of the Bilateral Air Services Agreement Fund (BASA) Account for the following reasons:

 

(a)     The (BASA) account does not belong solely to the 2nd Judgment Debtor (NCAA);

 

(b)     The 2nd Judgment Debtor is not the sole operator of the account.
 

(c)     The BASA account is not with the 1st Garnishee and is domiciled in foreign currency offshore.

 

6.     That as a result of the foregoing, the 1st Garnishee is not in a position to determine that part of the account which belongs to the 2nd Judgment Debtor.
 

7.       That the 1st Garnishee is also not in a position to present the Statement of Account. "

 

Following this fresh affidavit to show cause by the Appellant disputing liability, the Respondent filed a Counter-Affidavit to it on the 24th of November, 2011. The Respondent referred to newspaper publications which it had attached to the originating Motion Ex-Parte wherein it was stated that the Director General of the NCAA said to the Senate Committee on aviation that BASA account is domiciled with the CBN and that it is in credit to the tune of $76 million and he and the permanent secretary of the Ministry of Aviation are signatories to the account. It was therefore asserted in the said affidavit that BASA account is with the Appellant. The Appellant filed a Reply Affidavit to this. Both sides filed their written addresses in support of their respective positions and addressed the court. In its ruling delivered on 24th February, 2012, the trial Judge considered these affidavit evidence and found that the BASA account is domiciled with the Appellant. He frowned at the failure of the Appellant to disclose the amount of money in the said BASA account which he described as contemptuous. He then summed up all the monies disclosed by the other Garnishees including the sum of N350,204,445.79 the Appellant disclosed to be in the account of NAMA with CBN and it totalled the N508,913,172.63. After making the order nisi absolute with respect to this sum, the trial court also said at page 95 of the record:

 

"Having regard to the overwhelming evidence that 'BASA account' is domiciled in CBN and the account is in the names of NCAA and Federal Government of Nigeria represented by Attorney-General of the Federation which is a party in this suit and the account is properly funded, the Order Nisi made by this Court on 18/5/2011 is hereby made absolute to cover the outstanding balance of N603,086,827.37k from the BASA account, CBN is hereby ordered to release forthwith the attached sum to the Judgment Creditor through his counsel on record. I so hold. For avoidance of doubt the sum total of funds attached in Nigeria Airspace Management Agency's Account in CBN is N350,204,445.79. Funds attached in 'BASA account' maintained by Nigeria Civil Aviation Authority is N603,086,827.37k."

 

It must be noted that the Appellant had contended in its written address that it is not liable to pay over to the Respondent the sum of N350,204,445.79 which it had disclosed to be in the account of NAMA because section 84 of the Sheriffs and Civil Process Act which required prior consent of the Attorney-General before attachment of funds in the hands of a public officer is made was not complied with by the Respondent. This contention was overruled on the ground that section 84 of the Sheriffs and Civil Process Act is in conflict with section 287(3) of the 1999 Constitution and therefore null and void.

Being dissatisfied with the decision of the trial Court the Appellant appealed to this Court by Notice of Appeal containing six grounds of appeal which was filed on 29th February, 2012. The Appellant's counsel subsequently amended this Notice of Appeal with leave of Court granted on 22/5/13 by deleting the names of the other parties save the Appellant and the Respondent as at present. Parties filed their briefs of argument in which they each formulated 4 similar issues although differently worded. The issues formulated by the Appellant are as follows:
 

1.    Whether in the circumstances of this case the trial Judge was right to have attached the funds in the custody of the 1st Garnishee even after it found that section 84 of the Sheriffs and Civil Process Act was not complied with, and whether the court was right to have nullified section 84 of the Sheriffs and Civil Process Act for being in conflict with section 287(3) of the 1999 Constitution.
 

2.     Whether the onus is on the Appellant (Central Bank of Nigeria) to prove that the BASA Account is not in its custody.

 

3.     Whether the trial Judge was right to come to the conclusion that the BASA account is with the Appellant and well funded when no evidence towards this end has been proffered before it.

 

4.     Whether the 1st Garnishee flouted the orders of the trial court by filing an affidavit to show cause in which (CBN) explained its inability to set aside the judgment sum from the BASA account and file the statement of account."

 

The issues formulated by the Respondent, though differently worded, are substantially the same with the Appellants' issues. I will therefore proceed to determine the appeal with the issues as formulated by the Appellant.

ISSUE ONE:

Whether in the circumstances of this case the trial Judge was right to have attached the funds in the custody of the 1st Garnishee even after it found that section 84 of the Sheriffs and Civil Process Act was not complied with, and whether the court was right to have nullified section 84 of the Sheriffs and Civil Process Act for being in conflict with section 287(3) of the 1999 Constitution.

APPELLANT'S ARGUMENTS:

Addressing the first issue, learned counsel for the appellant submitted that the trial Judge erred in holding that section 84 is unconstitutional after having earlier held that section 84 of the Sheriffs and Civil Process Act was not complied with by the Respondent and that the Appellant was a public officer by virtue of the decision of the Supreme Court in Ibrahim v. JSC Kaduna State (1998) 14 NWLR (Pt 584) 1.

He submitted that the trial Judge had no choice in the circumstances but to apply section 84 of the Sheriffs and Civil Process Act. He contended in summary that the trial judge failed in his interpretative duty. According to him, the words of section 84 of the Sheriffs and Civil Process Act are clear and unambiguous and must be given their ordinary meaning and the section is mandatory. He contended further that the view of the trial Judge that the section subjects the judgment of court to review by the Attorney-General is erroneous as nothing in the section requires that the judgment of court must be submitted to the Attorney-General for review. He relied on Fidelity Bank Plc. V. E.A.I. Ltd (2007) 39 WRN 28 ratio 1 and 2. Counsel argued that the section cannot be reasonably construed as giving power to the Attorney-General to review decisions of courts. He submitted that there is no conflict between section 287(3) and section 84 of the Sheriffs and Civil Process Act as the section does not prevent any person from enforcing the judgment of the Federal High Court. He submitted that the section is only applicable to Garnishee proceedings when consent of the Attorney-General will be required before funds in the custody of public officer can be attached.

He finally submitted that the court was wrong to have raised and determined the issue of constitutionality of section 84 of the Sheriffs and Civil Process Act and determined same suo motu. He cited Def-Lam Co. Ltd v. Osun State Government (2005) 18 WRN 191 at 197 and Araka v. Ejeagwu (2000) 12 SC (Pt.1) 99 at 107. He urged the Court to find that the trial court acted ultra vires in nullifying section 84 of the Sheriffs and Civil Process Act and was wrong to have ordered attachment of funds in the Appellant's hands in the circumstances.

RESPONDENTS ARGUMENTS

The Respondent argued this issue as its issue number three. Learned counsel submitted that the distinguishing feature in this case is that the Attorney-General of the Federation was a party to the compromise agreement where the parties agreed that the judgment sum would be paid by the Federal Government but could not keep to the agreement. He submitted that the Attorney-General who could not keep the compromise agreement would not give consent to levy execution. He further submitted that seeking the consent of the Attorney-General will amount to subjection of the judgment of court to his approval which will offend one of the twin pillars of justice - Nemo judex in causa sua. He cited Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. He argued that once a Court established by the Constitution has determined the legal right of a citizen, the Attorney-General has no role to play in the enforcement of that judgment hence the provisions of section 84 of the Sheriffs and Civil Process Act which makes consent of the Attorney-General a condition precedent to the enforcement of the judgment contrary to section 36 of the 1999 Constitution and therefore null and void. He further argued that the court has the power to declare an existing law null and void on ground of inconsistency with the constitution. He referred to Inoma- Biriya v. Omoni (1985) 5 NWLR (Pt.119) 60; Anoh v. Hirnyam (1997) 2 NWLR (Pt 486) 174 @ 187. He contended that section 84 of the Sheriffs and Civil Process Act does not relate to garnishee proceedings only. He submitted that in appropriate cases, courts have a duty to give effect to constitutional provisions whether or not they are pleaded or relied upon by parties to the proceedings and that a failure to give parties opportunity to be heard on issue raised suo motu does not necessarily lead to a reversal of the decision. He submitted that the Appellant must show that the failure resulted in some miscarriage of justice. He cited Ogembe v. Usman (2011) 17 NWLR (Pt.1277) 638; Olubode v. Salami (1985) 2 NWLR (Pt.7) 282; Imah v. Okogbue (1993) NWLR (Pt.315) 159; Effiom v. CRSIEC (2010) 14 NWLR (Pt.1213) 106. He submitted that the Appellant has suffered no prejudice. The Court must always act in protection of the constitution, he submitted, relying on Onagoruwa v. IGP (1997) 5 NWLR (Pt.193) 593 @ 611; African Petroleum Plc v. Akinnawo (2012) 4 NWLR (Pt.1289) 100 @ 116 G-H and 117D. He urged this court to uphold the view of the trial court relying on the reasoning in Bakare v. AG Federation (1990) 5 NWLR (Pt 152) 516 @ 540 C-F. He also urged the court to sustain the decision of the trial court because it was not reached only on the ground that section 84 was unconstitutional but because of the circumstances of the case in which the Attorney-General was a party both to the main suit and to the compromise agreement.

RESOLUTION OF ISSUE ONE:

The contention of the Appellant under this issue is that the learned trial Judge having found that the provisions of section 84 of the Sheriffs and Civil Process Act was not complied with by the Respondent ought not to have attached the sum in its possession since it is a public officer.

 

Section 84 provides:

 

"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."

 

No doubt this provision relates to garnishee proceedings.

The Respondent on the other hand is contending that the trial Judge was right in declaring the section unconstitutional for being in conflict with section 287(3) of the 1999 Constitution which states:

 

"The decisions of the Federal High 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, a High Court and those other courts, respectively."

 

The phrase "all authorities and persons" in section 287(3) of the 1999 Constitution must be construed to include the Attorney-General. So it is the clear intention of the Constitution that the Attorney-General ensure that judgments of courts of the land given against the Government and its department are enforced. Thus by this provision the Attorney-General has a role to play in seeing that the decisions of courts are obeyed and ensure that the execution of such judgments is not frustrated. In Jallo v. Military Governor of Kano State (1991) 5 NWLR (Pt.194) 754 @ 764, this court said:

 

"Under the dispensation which has also been enshrined in the 1989 Constitution it ought to be the duty of the Attorney-General, Federal or State to consult quickly with the Minister/Commissioner of Finance or Budget, to provide funds to satisfy judgment debts lawfully obtained against the State. No Attorney-General worth his salt should fold his arms and do nothing when the State is a judgment debtor."

 

Before the trial court, learned counsel for the Appellant raised the issue of failure of the Respondent to obtain prior consent of the Attorney-General before order nisi was made in this case. The Respondent contended that such consent was not necessary given the fact that the Attorney-General was a party. The trial Judge in his ruling over the issue raised suo motu the issue of constitutionality of section 84 of the Sheriffs and Civil Process Act and without calling for address from the parties declared it unconstitutional. I think that approach is very wrong. The trial Judge ought to have called on the parties to address him on such issue of legal importance in order to ensure that his decision is well reasoned. Constitutional questions are very important when such issues arise in this court or at the Supreme Court a full Court is usually constituted to resolve same. In the light of this a trial court ought not to have raised and resolved such issue the way he did in this case.

The issue of constitutionality of requiring prior consent of the Attorney-General before issuance of garnishee order nisi under section 84 of the Sheriffs and Civil Process Act is not new and has been raised and decided in some previous decisions of this court. These include:

 

1.       Onjewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 827) 40;

 

2.       Government of Akwa Ibom State v. Powercom Nig Ltd (2004) 6 NWLR (Pt. 868) 202.

 

These two cases were not considered by the trial Judge. In the two cases, this Court held that obtaining prior consent of the Attorney-General under section 84 of the Sheriffs and Civil Process Act is mandatory. In the case of Onjewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 827) 40 @ 79 A-D, Muntaka-Coomassie, JCA (as he then was) after considering section 287(3) of the 1999 Constitution and all the points canvassed as to the unconstitutionality of the provisions of section 84 of the Sheriffs and Civil Process Act and tracing its origin to the common law principle that the king can do no wrong, said:
 

"I hold that since the demand for the consent of the Attorney-General of the State is sort of procedural and administrative in nature and it has not made any violence to the Constitution it can be tolerated and accepted. I hold that the requirement of the consent or authorisation/permission of the Attorney-General of a State is necessary before judgment of a High Court can be properly enforced. The provisions of section 8(3) of the State Proceedings Edict, 1988 of Kogi State and section 8(4) of the Sheriffs and Civil Process Law could not be said to be inconsistent with the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria. That being the case this court will have no reason to disturb the position taken by the trial court that failure of the judgment creditor to comply with the condition precedent, obtaining the consent of the Hon. Attorney-General, deprived that court of the jurisdiction to hear the application. The two legislations supra are not contrary to any of the provisions of the 1999 Constitution and I so hold."
 

In Government of Akwa Ibom State case, Opene, JCA said at page 224 G-H:
 

"Obtaining such a fiat from the Attorney-General is a condition precedent which must be complied with before the respondent commenced his proceedings and the failure of the respondent to obtain the necessary fiat from the Attorney-General robs the court of the jurisdiction to entertain the action and renders the whole proceedings a nullity."

In these decisions, this Court has accepted the provision of section 84 of the Sheriffs and Civil Process Act as necessary procedural safeguards needed by Government to avoid embarrassment and specifically held that it does not do violence to the provisions of section 287(3) of the 1999 Constitution. These decisions of the Court of Appeal are binding on the trial High Court and lower court has no discretion about it. See Ogunsola v. NICON (2010) 13 NWLR (Pt.1211) 225 @ 236 G-H. I am of the firm view that in the light of the above decisions, the learned trial Judge ought not to have held that the provisions of section 84 of the Sheriffs and Civil Process Act is in conflict with section 287(3) of the 1999 Constitution and therefore null and void. He may express his reservations about the correctness of these decisions but he must follow them in consonance with the doctrine of stare decisis. Also, he should have availed himself of the benefit of counsel's argument on the issue before deciding it in order not to fall into the avoidable error he has made in this case in the process of raising and deciding the issue suo motu. Even this Court is bound by its previous decisions. It can only depart from same in the following circumstances:

 

(a)     Where two decisions of the Court are in conflict and the court must choose between them;

 

(b)   Where the Court of Appeal comes to a conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;

 

(c)    Where the Court of Appeal comes to the conclusion that a previous decision was given per incuriam i.e. in ignorance of a statute or other binding authority, the court is not bound by it and

 

(d)    Where the previous decision was decided without jurisdiction.
See Ibaku v. Ebini (2010) 17 NWLR (Pt.1222) 286 @ 319 E - H.

 

In the light of the above I hold that the decision of the trial High Court that section 84 of the Sheriffs and Civil Process Act is unconstitutional was reached per incuriam and must therefore be reversed.

The Respondent has contended that mere failure to afford parties of the opportunity to address it on an issue will not per se lead to reversal of the decision of the trial court except such failure has led to miscarriage of justice. That was the decision of this court in Ogembe v. Usman (2011) 17 NWLR (Pt.1277) 638 @ 656 F-G. However, based on my conclusion that the decision of the trial court was reached per incuriam, I am not able to hold that it has not occasioned any miscarriage of justice. In the light of what I have said above, I hold that the trial Court was wrong in attaching the funds in the hands of the appellant notwithstanding the fact that it had held that the Respondent failed to comply with section 84 of the Sheriffs and Civil Process Act. The court was also wrong in raising the issue of constitutionality of section 84 of the Sheriffs and Civil Process Act and deciding same suo motu.

The Respondent has also contended that in the light of the fact that the Attorney-General is a party to the proceedings, his consent ought not to have been sought before garnishee proceedings in this case is commenced. If the draftsmen of the relevant provision had wanted to create that exemption they would have said so specifically. The Court is as usual bound to give the statute its literal ordinary meaning. In Nwakire v. C.O.P. (1992) NWLR (Pt.241) 289 Nnaemeka Agu JSC (of blessed memory) observed:

 

"After all the primary rule of construction is the literal construction which requires that we give the words used in the statute, and only those words, their ordinary and natural meaning, omitting no words and adding none, in the construction we arrive at, save in accordance with the recognized rules of construction."
 

In the case of Onjewu v. Kogi State Ministry of Commerce & Industry (supra) the Attorney-General was a party to the case yet the court arrived at the said decision. Clearly, the fact that the Attorney-General is a party to this case should make no difference to the conclusions arrived at above. The issue is resolved in favour of the Appellant.

ISSUES 2 AND 3 OF THE APPELLANT:

 

"Whether the onus is on the Appellant (Central Bank of Nigeria) to prove that the BASA Account is not in its custody; and

 

Whether the trial Judge was right to come to the conclusion that the BASA account is with the Appellant and well funded when no evidence towards this end has been proffered before it."

 

These two issues can be conveniently treated jointly.

APPELLANT'S ARGUMENTS:

Arguing issue two, the Appellant referred to the decision of the trial court that in order for the Appellant to prove that BASA account does not belong to the NCAA or that the account is offshore, it should have exhibited the account holder's mandate card as well with the deposition made on behalf of the Appellant in paragraph 5 of its affidavit to Show Cause made on the 17th November, 2011 and contended that the trial court wrongly put the onus of proof on the Appellant. Learned counsel for the Appellant submitted that onus of proof is on him who asserts and consequently the onus of proof is on the Respondent to prove that BASA account is with the Appellant, the Appellant having denied the allegation. He submitted that what the Appellant made was a negative assertion which is akin to denial. He relied on the following cases. Asuquo v. Asuquo (2010) AFWLR (Pt. 548) 952. Obi v. Ojukwu (2010) AFWLR (Pt. 533) 1941 and BON v. ONIYO (2002) WRN 83.

On Issue 3 he submitted that the finding of the trial court that the BASA account is with the Appellant and well funded was based on speculation, probability and conjecture. He submitted that court of law ought not to make findings based on conjecture referring to Nkwo Market Comm Bank v. Obi (2010) AFWLR (Pt 529) 1094 @ 1107. He referred to the reasoning of the trial court on page 86 of the record and submitted that the finding of the trial court that the BASA account was well funded in the absence of the statement of account showing the credit or debit balance is based on assumption and not on empirical facts. With reference to the Affidavit to Show Cause, he submitted that the words used in that document should be given their ordinary grammatical meaning, citing Ogbonna v. AG Imo (1992) 1 NWLR (Pt.220) 647; Uzamere v. Urhoghide (2011) AFWLR (Pt 558) 839; Fidelity Bank Plc. v. E.A.I. Ltd (2007) 39 WRN 28.

He submitted that the proper appreciation of the words used in paragraph 5 of the Affidavit to Show Cause can only lead to a conclusion that the account is not with the 1st Garnishee and that it is offshore. He faulted the reliance placed by the trial court on the Appellant's Affidavit to Show Cause earlier filed on 13th June, 2011 and the compromise agreement between the parties to the main suit which he said are extraneous. He also submitted that the trial court was wrong to have placed reliance on newspaper publications which according to him are prone to inaccuracies and are consequently unreliable. He argued that for the trial court to have attached the funds in BASA account without knowing the quantum or amount of funds in the account or the whereabouts of the account is speculative.

Counsel submit