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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: January 11, 2016 SUIT NO. NICN/LA/16M/2014 BETWEEN FOLAKE O. OLAIFA - Judgment Creditor/Respondent AND 1. THE LAGOS STATE UNIVERSITY 2. THE PRO-CHANCELLOR & CHAIRMAN GOVERNING COUNCIL LAGOS STATE Judgment Debtors/Appellants/ UNIVERSITY Applicants 3. THE VICE-CHANCELLOR LAGOS STATE UNIVERSITY AND 1. FIRST BANK OF NIGERIA PLC 2. UNITED BANK FOR AFRICA PLC 3. GUARANTY TRUST BANK PLC Garnishees/Respondents 4. STERLING BANK PLC 5. SPRING BANK PLC 6. ZENITH INTERNATIONAL BANK PLC REPRESENTATION Oluyemi Adetiba (Miss) for Judgement/Creditor/Respondent L.B.Shopeyin for Judgement/Debtors/Applicants. Chinedu Nwogu for 1st Garnishee. Emmanuel Uzokwe for 2nd Garnishee. A.G.Otohagwa for 6th Garnishee. Funmi Orotola (Miss) for 4th Garnishee. RULING This is a Notice of Preliminary objection filed on the 2nd July 2015 by the judgement debtors/applicants pursuant to Order 11 Rule 1 (1) & (2), of the National Industrial Court Rules 2007, Sections 83 (2) & 84 (1) & (3) (b) Sheriffs and Civil Process Act (S&CPA) CAP, S6 LFN 2004, Sections 6(6) (b), & 36 of the 1999 Constitution and the Inherent Jurisdiction of the Court. It is praying for the following: 1. An order granting leave to the Judgment Debtors/Appellants/Applicants to be heard during the Ex-parte application dated 9th September, 2014 and/or the Garnishee proceedings initiated by the Judgment Creditor/Respondent for the purpose of the determination of this application. 2. An order striking out the ex-parte application dated 9th September, 2014 and the garnishee proceedings thereon as being incompetent as the Honourable Court lacks jurisdiction to hear and determine the same. 3. An order staying further proceedings in the Garnishee proceedings and/or further enforcement of the Judgment delivered by the Honourable Court Suit No. NICN/LA/389/2012 dated 24th October, 2013 the subject matter of this garnishee proceedings pending the determination of this application. 4. An Order for stay of the enforcement of the Judgment in Suit No. NICN/LA/389/2012 FOLAKE O. OLAIFA V LAGOS STATE UNIVERSITY & 2 ORS delivered by the Honourable Court dated 24th October, 2013 and/or the Garnishee proceedings pending the final determination of the Appeal filed against the said judgment now sought to be enforced in this proceedings. The grounds upon which this application is brought are as follows: 1. The Motion Ex-parte dated 9/9/2014 and the proceedings thereon by which this Garnishee proceedings action was commenced is defective and incurably bad in that the money liable to be attached is under the control of a public officer in his official capacity and the consent of the Attorney-General of the State was not sought and obtained hence same be struck out for lack of jurisdiction. 2. The Order nisi made pursuant to the Motion Ex-Parte dated 9th September, 2014 was not served on the Judgment Debtors within the mandatory period before hearing of the Garnishee. 3. The Motion Ex-parte dated 9th September, 2014 and/or the Garnishee proceedings is in clear violation of the Sheriffs and Civil Processes Act CAP. 86 LFN 2004 and the Judgment (Enforcement) Rules made thereunder. 4. The conditions precedent to invoking the jurisdiction and exercise of the power of the Honourable Court as regards the Ex-parte Application and/or the Garnishee proceedings have not been fulfilled or complied with. 5. The Judgment of the Honourable Court in Suit No. NICN/LA/389/2012 delivered by the Honourable Court dated 24th October, 2013 against the Judgment Debtors/Appellants/Applicants is the subject of an Appeal before the Court of Appeal Lagos which has been entered after the compilation and transmission of the record in Appeal No. CA/L/688/2014 Lagos State University & 2 Ors v Folake Olaifa. 6. The Judgment Debtors/Appellants/Applicants also have pending at the Court of Appeal Lagos in Appeal No. CA/L/688/2014 Lagos State University & 2 Ors v Folake Olaifa. Motion on Notice to the Judgment Creditor and the Deputy Sheriff of the Honourable Court dated 27th March, 2015 for stay of proceedings and enforcement of Judgment of the Honourable Court in Suit No. NICN/LA/389/2012 which is sought to be enforced by the Motion Ex-Parte dated 9/9/2014 and/or this Garnishee Proceedings pending the determination of the Appeal filed against the said Judgment. 7. The Appeal in Suit CA/L/688/2014 Lagos State University & 2 Ors v Folake Olaifa and the Motion on Notice to the Judgment Creditor and the Deputy Sheriff of the Honourable Court dated 27th March, 2015 for stay of proceedings and enforcement of Judgment of the Honourable Court in Suit No. NICN/LA/389/2012 which is sought to be enforced by the Motion Ex-¬Parte dated 9/9/2014 and/or this Garnishee Proceedings will be rendered nugatory if further proceedings and/or this Garnishee proceedings or further the enforcement of the said Judgment of the Honourable Court dated 24th October, 2013 are not stayed pending the final determination of the said Appeal. The objection is supported by an affidavit sworn to by Moses Ogunde an accountant and a written address. In opposing the objection, the judgement creditor filed a counter affidavit which was sworn to by Olalekan Adekayode litigation clerk on the 30th July 2015 and a written addresss. The judgement debtors/applicants filed a further affidavit and a reply on point of law on the 7th August 2015. The parties adopted their written addresses. Learned counsel to the judgement debtors/applicants submitted the following issue for determination: Whether the motion ex-parte by which the Garnishee proceedings is commenced and the order thereon is competent? He began by urging the court to hear the judgement/debtors on this objection as refusal to do this will amount to a denial of fair hearing. He then submitted that the judgement debtor is challenging the jurisdiction of the Court specifically the issue of the competency by which the Garnishee proceedings was commenced. He submitted that the conditions precedent for bringing the Motion Ex-parte or the Garnishee proceedings not having been complied with court lacks jurisdiction to entertain the same citing Madukolu V Nkemdilim [1963] 2 ANLR 581. He further submitted that the conditions precedent which is the consent of the Attorney-General has not been sought as the 1st applicants money sought to be attached is under the control of its Bursar who is a Public Officer. That the respondent having failed to obtain the consent of the Attorney-General before the issuance of the Motion Ex-Parte and the commencement of the Garnishee proceedings, the order nisi was not properly issued. He submitted that the Order nisi must be served on the applicants at least 14 days before the hearing of the Garnishee proceedings pursuant to Sections 84 (1) (3) (b) and 83(2) of the Sheriff and Civil Process Act Chap. S6 Laws of the Federation of Nigeria 2004. Counsel then submitted that the Motion Ex-Parte by which the Garnishee proceedings was commenced and the Order Nisi are a nullity and ought to struck out and set aside respectively. It was his further submission that there is an appeal, a Motion for stay of proceedings and stay of enforcement of the judgment pending in the Court of Appeal. He submitted that the Court of Appeal is seized of the matter having assumed jurisdiction and this court must await the decision of the Court of Appeal stay all actions on this matter including the Motion ex-parte and the Garnishee proceedings. He referred to See Ogunremi V Dada [1962] ANLR (Pt 4) 663 AT 668, NWLR (Pt.287) 368 AT 369, Mohammed V Olawunmi NWLR (527), Alims Nigeria Limited V U.B.A. [2007] FWLR (Pt. 348) 971. Learned counsel to the judgement /creditor submitted the following issues for determination: (i) Whether the service of the notice of preliminary objection conforms with the provisions of the rules of this Honourable Court and if not whether such service should not be struck out. (ii) Whether a judgment debtor has a right of audience in garnishee proceedings such as to ask for striking out, stop or stay execution of the proceedings and if not, whether it amounts to a denial of fair hearing. (iii) Whether there is any appeal pending before the Court of Appeal and if there is any; whether such appeal is not void abinitio and in law a nullity. (iv) Whether the garnishee proceedings is in any way a nullity by reason of not serving the Judgment debtor within 14 days to the date of hearing and whether leave and consent of the Attorney General of Lagos State is required in the circumstances of this case before the Judgment creditor can attach monies in banks holding the assets/monies belonging to the 1st Judgment debtor. (v) Whether this preliminary objection is not an abuse of court process. He referred to Order 11 Rule 1 and submitted that the Objection was served about 21 days after filing which is a violation of the rule that stipulates that an application be served within 5 days. He urged the court to strike out the process or at best set aside the service of the process. It was his further submission that a garnishee proceeding is between the judgment creditor and the garnishees i.e. the banks. It is not a proceeding between the judgment creditor on one hand and the judgment debtor and the garnishees on the other hand. He argued that the judgment debtors have no business in the proceedings and are only given notice of what is legitimately happening to their interest in the garnishee proceeding which does not by any stretch of imagination make him a party in the proceedings citing WEMA Bank Plc V. Brastem Sterr (Nig) Ltd [2012] ALL FWLR Pt. 642 Pg. 107 at 123 Paragraphs D-E, Denton-West V Mouma [2008] ALL FWLR (Pt 433) 1423 at 1441. Counsel submitted that the judgement debtors are not parties to the proceedings but meddlesome interlopers who ought not to be heard as this has nothing to do with fair hearing. That if their prayer to be heard is refused and rightly so, then there is no need to consider the other reliefs. He further submitted that there is no valid appeal pending in the Court of Appeal as the leave of the Court of Appeal has not been obtained by the judgement debtors in compliance with Section 243 (2) & (3) of the 1999 Constitution (Third alteration) Act 2010; and therefore there cannot be a motion for stay of execution. On the issue of 14 days service on the judgment debtor before the hearing of the proceedings, he submitted that this contention is no longer relevant because the proceedings was adjourned to 16th September 2015 and the judgment debtor was served on the 30lh of June 2015. So they have more than 14 days’ notice now. Counsel submitted that Section 84 which seeks the leave/consent of the Attorney General is a violation of one of the twin pillars of fair hearing as you cannot be a judge in your own cause and is in conflict with section 36 of the Constitution and it is trite that any law which is in conflict with the Constitution must give way to Constitutional provisions. He further submitted therefore that section 84 does not apply to garnishee proceedings. He finally submitted that the applicants have no business with the garnishee proceedings and that this preliminary objection is an abuse of court process because it is an improper use of legal process. He urged the court to dismiss same. The reply on point of law was simply a repetition of the address in support of the Objection. Having considered the processes, submissions and authorities, I will begin by restating the position of the law that Garnishee proceedings are sui generis and principally between the judgement creditor and the garnishee. The principle of law is that the judgement debtor/applicant is insignificant in a garnishee proceeding and not expected or required to respond to garnishee order nisi or absolute. The judgment debtor has more or less no role to play and is merely a nominal party whose money in custody of the garnishee is being recovered by the judgement creditor in satisfaction of the judgement debt owed the judgement creditor. In UBA Plc v Hon Iboro Ekanem [2010] 6 NWLR (Pt 1190) 207 at 214, the court stated as follows: A judgement debtor is merely a nominal party whose money in custody of the garnishee is being recovered by the judgement creditor in satisfaction of the judgement debt he owes the judgement creditor. The judgement debtor is not the one requested to appear before the court to show cause why the order nisi should not be made absolute. It is only the garnishee, and only the garnishee is expected to inform the court if there is any third party’s interest in the said judgement debtor’ money in its custody. So in all ramifications, it is only the garnishee that is expected to react if the law was not properly followed. This application is therefore being heard in the overall interest of justice because the applicants sought leave of court. The judgement/debtors/applicants allege that the order nisi was not served on them at least 14 days before the hearing as provided by Section 83 (2) of the S&CPA. They have not deposed to the date they were served. The order nisi was made on the 19th May 2015. This objection was filed on the 2nd July 2015. The hearing came up on the 16th October 2015. I find that there has been compliance with Section 83 (2) of the S&CPA. The judgement/debtors/applicants have stated that the money liable to be attached is under the control of the Bursar of the 1st Applicant who is a Public Officer. That the consent of the Attorney-General was not obtained before the ‘issuance of the Motion Ex-Parte and commencement of Garnishee proceedings’ which is a violation of Section 84 (1) of the S&CPA reproduced below: 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. It is common knowledge that monies paid into a bank by a judgement debtor are held by the bank in its capacity as a Banker and not as a public officer even if the money is that of a public body. Banks hold monies on behalf of their customers in a commercial capacity and not as public officers. The relationship of a banker to customer is contractual. It is essentially that of a debtor to a creditor in the case of credit balances. The customer has neither the “custody” nor the “control” of monies standing in his credit in an account with the banker. See Purification Tech (Nig) Ltd v A-G Lagos State [2004] 9 NWLR (Pt 879) 665 at 680 – 681. A bank can be bound by a garnishee order because money standing to the credit of the judgement debtor at the bank is attachable. See CBN v Auto Import Export [2013] NWLR (Pt 1337) 80. I hold that the banks are not public officers and therefore the consent of the Attorney-General would not be necessary before an ex-parte application for garnishee order nisi to attach the funds of the Lagos State University in their custody. Furthermore, I agree with the submissions of learned counsel to the judgement creditor that Section 84 (1) of the S&CPA is inconsistent with the provisions of Section 36 (1) of the 1999 Constitution which guarantees every citizen the right to a fair hearing. The consent of the Attorney-General would mean that he becomes a Judge in his own cause which is a violation of the principles of natural justice and an impediment on the right of a citizen to execute judgement against the Government. By the doctrine of supremacy of the constitution, the Sheriffs and Civil Process Act being a subordinate legislation is inferior to the Constitution which is the supreme law of the land. Section 1 (3) of the 1999 Constitution as amended provides that if any law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law is void to the extent of the inconsistency. Consequently, any attempt by Section 84 (1) of the S&CPA or any other law or subordinate legislation to rob this court of its powers as provided in Section 6 (6) (b) of the 1999 Constitution and the guaranteed right of a citizen to a fair hearing provided in Section 36 (1) of the Constitution 1999 must be regarded as inconsistent and is void to the extent of the inconsistency. I therefore hold that Section 84 (1) of the S&CPA is void to the extent of the inconsistency. See Ibidokun v Adaralode [2000] 12 NWLR (Pt 727) 268, Nkwocha v Gov Anambra State [1984] 1SCNLR 634. The judgement /detors/applicants have made heavy weather of the application for stay of proceedings/execution and notice of appeal pending in the court of appeal. One of the preconditions for a grant is that there must be a valid Notice of Appeal, see APKG Ltd v BSWC (2009) 17 NWLR (Pt. 1171) 429. On the authority of Coca-Cola Nigeria Ltd & Ors v Akinsanya (2013) 18 NWLR (Pt. 1386) 225 appeal does lie by way of leave to the Court of Appeal from the National Industrial Court by virtue of Section 243 of the Constitution 1999 as amended. The inference of the judgement/debtors/applicant’s Notice of Appeal is that there is no appeal known to law not having arisen from breach of fundamental rights upon which appeal lies as of right. From the affidavit evidence before me, the judgement/debtors/applicants have not shown that they have complied with Section 243 (2) & (3) of the 1999 Constitution (Third alteration) Act 2010 and obtained the leave of the Court of Appeal. In any event, the pendency of an application for stay of execution does not preclude the judgement creditor from commencing garnishee proceedings for the purpose of recovering a judgement debt. Purification Tech (Nig) Ltd v A-G Lagos State supra 665 at 678 Para E. The judgement/debtors/applicants have no role to play in these proceedings and simply filed this objection to further delay the judgement/creditor from reaping the fruits of her victory, thwart the garnishee proceedings and waste the time of the court. The judgement debtors/applicants are meddlesome interlopers; busy bodies meddling in affairs that do not concern it. See Fidelity Bank Plc v Okwuowulu [2013] 6 NWLR (Pt 1349) 197, UBA Plc V. Ekanem (2010) 6 NWLR (Pt. 1190) 207 at 213-214. This objection is devoid of any merit and is hereby dismissed in its entirety. Costs of N50,000.00 (Fifty Thousand Naira) to be paid by the judgment debtors/applicants to the judgment creditor/respondent. Ruling is entered accordingly. ______________________________ Hon. Justice O.A Obaseki-Osaghae