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Following the order of garnishee nisi granted by the court on 23/5/2017 upon the Judgment Creditors’ application filed on 11/4/2017; the garnishee absolute hearing was heard on 23/6/2017. With regard to the affidavits to show cause filed on 23/6/2017, 21/6/2017 and 22/6/2017 respectively; learned senior counsel for the judgment creditors applied for the discharge of the 4th, 8th and 11th Garnishees. On 22/6/2017, the 12th Garnishee filed an affidavit of 4 paragraphs to show cause, as deposed to by Onyema Val-Obiajulu, a manager employed by the 12th Garnishee. Chinaka Enyi, the Principal Solicitor of the 14th Garnishee also deposed to an affidavit of 10 paragraphs to show cause. The 15th Garnishee filed an affidavit to show cause, and a motion on notice pursuant to order 17(1) of the NICN Rules on 21/6/2017; seeking an order of court discharging the 15th Garnishee from further liabilities in these proceedings. The motion was supported by a 10-paragraph affidavit deposed to by Mrs. E. C. Diala. In the accompanying written address, counsel argued that a garnishee order is designed to pay the garnishor the amount standing to the credit of the judgment debtor with the garnishee in satisfaction of the judgment debt. See the case of UBN vs. BONEY MARCUS LTD (2005) 48 WRN 55 at 68-9. Counsel cited the case of ZENITH BANK vs. OMENAKA (2016) LPELR-40322(CA), where it was held that a right of set-off accrues when the debt has matured for payment and money standing to the credit of a judgment debtor would be able to satisfy a judgment creditor. Counsel argued further that there is a right of set-off between the 15th Garnishee and the judgment debtors, and that the set-off between all the accounts of the judgment debtors with the 15th Garnishee still leaves the judgment debtors indebted to the 15th Garnishee. It is counsel’s view relying on FIDELITY BANK vs. OKWUOWULU (2012) 28 WRN 150 at 167 that no order for garnishee can be made because there is no debt in favour of the judgment debtor and nothing can be attached. According to Counsel, in the present case, the 1st judgment debtor maintains an account with the 15th Garnishee, and has a debit balance of N19,702,460,166,96 (Nineteen Billion, Seven Hundred and Two million, Four Hundred and Sixty Thousand, One Hundred and Sixty-Six Naira, Ninety-Six Kobo. Counsel urged the court to hold that there is no amount found in the custody of the 15th Garnishee in favour of the judgment debtors; and urged the court to make an order discharging the 15th garnishee. The 13th Garnishee on 19/6/2017 filed a 15-paragraph affidavit to show cause, deposed to by Joseph Ibekwe, a relationship manager. In the accompanying written address, counsel adopted an issue for determination, as follows: Whether this garnishee proceedings ought to co-exist with the earlier pending ones over the same accounts of the judgment debtors. Counsel submitted that the essence of garnishee proceedings is to attach a debt accruing to a judgment debtor in the custody of a garnishor, and in compliance with fair hearing, the court makes an order nisi that gives the garnishee an opportunity to disclose any special circumstance relating to the debt, that will make it impracticable for the judgment creditor to take the money. Counsel argued further that in this present case, the garnishee filed an affidavit disclosing competing equities and attached exhibits disclosing subsisting orders of this court and the High Court of Imo State in respect of the judgment debtors’ accounts with the 13th Garnishee. In light of these facts, counsel relied on the case of PEREMOBOWEI EBEBI vs. DENWIGWE (2011) LPELR-4909 (CA) 57-60, and submitted that no steps can be taken in respect of the accounts disclosed in the 13th Garnishee’s affidavit. See also SAFEJO vs. OGUNLEYE (2008) All FWLR (Pt. 409) 550 at 551-2. Similarly, counsel contended that the only way the court can preserve the res (judgment debtors’ account sought to be attached) of the case before other courts is by discharging the 13th garnishee to go and await the decision of other courts. Further, counsel submitted that while the three orders exhibited in the 13th Garnishee’s affidavit are competing interests of equal status, other orders take precedence over the decree nisi in this case, owing to the reasoning in PATE vs. MUHAMMAD (2016) LPELR-41175(CA) 41-3, that the interest that comes before another in time takes precedence. In conclusion, counsel urged the court to grant this application and discharge the 13th Garnishee in these proceedings. The 2nd Garnishee filed an affidavit to show cause, and a motion on notice pursuant to order 17(1) of the NICN Rules on 19/6/2017; seeking an order of court discharging the 2nd Garnishee from these proceedings. The motion was supported by a 7-paragraph affidavit deposed to by Ifeoma Nwuke, a Manager of the 2nd Garnishee’s Owerri branch. In the accompanying written address, counsel identified one issue for determination as follows: Whether this garnishee proceeding ought to co-exist with the earlier pending ones over the same accounts of the judgment debtors. With the fact that same counsel represents the 2nd and 13th Garnishee, counsel’s argument in this address is completely identical with the submissions in the 13th Garnishee’s and do not need to be reiterated again. On 22/6/2017 the judgment debtors filed an application pursuant to Sections 83 and 84 of the Sheriff and Civil Process Act, and sought for the following relief: An order of the Honourable Court setting aside the garnishee proceedings conducted and the garnishee order nisi made by the Honourable Court in this suit on the 23rd day of May 2017. The application was supported by a 5-paragraph affidavit deposed to by Bruno Nwachukwu. In the accompanying written address, counsel adopted one issue for determination as follows: Whether the defendants/judgment debtors have made out a case to justify the grant of this application. In arguing this issue, counsel stated that the judgment creditors have not satisfied the requirements of the law for the grant of the garnishee order made in this proceedings; thereby giving the judgment debtors the entitlement to apply for the setting aside of the grant. Counsel submitted that the provisions of Section 83 of the Sheriff and Civil Process Act and Order VIII, Rule 3(2) of the Judgment Enforcement Rules provide for a mandatory statutory requirement that the Garnishee Order nisi must conform with; that is Form 26 of the Sheriff and Civil Process Act which must be served on the Judgment Debtor. It is counsel’s submission that flowing from the averment pertaining to the non-service of the Garnishee Order Nisi in Form 26 on the judgment debtors, the garnishee proceedings are a nullity. Counsel relied on the case of NIGERIAN BREWERIES vs. DUMUJE (2016) 8 NWLR (Pt. 1515) 536 at 598-9. Furthermore, counsel contended that in the extant case, where the monies sought to be attached by the garnishee proceedings are in a public officer’s custody, in official capacity; the consent of the Attorney General must be obtained before a garnishee order nisi is made, in line with Section 84 of the Sheriff sand Civil Process Act. The cases of ONJEWU vs. KOGI MINISTRY OF COMMERCE AND INDUSTRY (2003) 10 NWLR (Pt. 827) 40 and CBN vs. HYDRO AIR PTY LTD (2014) 16 NWLR (Pt. 1434) 482 were relied on by counsel for his contention that the failure of the judgment creditors to obtain the prior consent of the Attorney General under Section 84 of the Sheriffs and Civil Process Act makes the garnishee order nisi and subsequent proceedings void. Counsel urged the court to hold that the judgement debtors have made a case for the grant of the reliefs in this application. In reply, counsel for the judgment creditors sought and obtained the leave of court to reply orally on points of law. To begin, K. C. O. Njemanze SAN of Counsel for the judgment creditors submitted that the arguments of the judgment debtor’s counsel relating to an application pending before the Court of Appeal is misplaced. Counsel argued further that the judgment debtors did not depose to facts in their affidavit that support their counsel’s submission. Similarly, counsel contended that in the event that such application for leave to appeal exists, same cannot operate as a stay. Again, he submitted that a garnishee proceeding is different from an application for leave to appeal or motion for stay of execution, and it is late in the course of this present case for the garnishee proceeding to be stopped. It is counsel’s submission that all the records of proceedings show all the processes in the court file, and that the court cannot speculate by relying on documents that were not tendered before it. Counsel at this point cited the cases of HOPE UZODINMA vs. IZUNASO (NO. 2) (2011) 17 NWLR (Pt. 1275) 30 and UMEZINNE vs. FRN (2013) 13 NWLR (Pt. 1371) 267. Speaking from the Bar, Counsel added that the court is entitled to consider its records to ascertain whether the judgment debtors were served before they appeared in knowledge of and the present case’s existence. Counsel referred the court to Order 7 (14) and (15) of the NICN Rules 2017, and submitted that the existence of the proof or affidavit of service in the court’s file settles the issue of service in this case. Furthermore, learned senior counsel contended that the monies sought to be attached are in the custody of private banks, and not in the hands of any Imo State Establishment, so the Attorney General’s consent is not needed in line with the decision in CBN vs. BOB NJEMANZE (2015) 4 NWLR (Pt. 1449) 276. Counsel urged the court to discountenance the submissions of the judgment debtors’ counsel. It is counsel’s contention that to the extent Section 84 of the Sheriff and Civil Process Act prevents a party from accessing the court, the provision becomes unconstitutional in view of Section 6(6)(b) of the 1999 Constitution (as amended). Counsel urged the court to declare the said Section 84 unconstitutional. In the same vein, counsel argued that DUMUJE’s case (supra) cited by the judgment debtors’ counsel is inapplicable to this case. Counsel urged the court to dismiss the application for setting aside. In response, on points of law, the learned Attorney General as counsel for the judgment debtors, submitted that counsel for the judgment creditors did not rebut his assertion on non-service. The A.G. submitted further that the issue raised about the monies sought to be attached being in private banks was overruled in ONJEWU’s case (supra), adding that the court will observe that there is a pending application for stay of execution, Counsel urged the court to hold that CBN vs. NJEMANZE (supra) cited by counsel is inappropriate and should be discountenanced. COURT’S DECISION I will first consider the motion filed by the judgment debtors. The judgment debtors are seeking in their motion an order of this Court setting aside the garnishee proceedings and garnishee order nisi made by the Court on the 23rd May 2017. The basis for the application, as can be seen in the affidavit in support of the motion deposed to by Bruno Nwachukwu, is the following: 1. The Judgment debtors were not served with the Garnishee Order Nisi in form 26 as stipulated in the Sheriffs and Civil Processes Act. 2. The monies standing to the credit of the Imo State Government in the Garnishee banks are monies in the custody and control of the Accountant-General of Imo State in his capacity as a public officer. The consent of the Attorney-General of Imo State has not been sought or obtained to attach the monies held by the Garnishees. 3. The monies held by the Garnishees have not been appropriated by the Imo State House of Assembly for payment of the subject matter of the judgment. The judgment debtors have alleged that they were not served the Garnishee Order Nisi. The learned Attorney General as Counsel for the judgment debtors argued that the provisions of Section 83 of the Sheriffs and Civil Process Act and Order VIII, Rule 3(2) require that the garnishee order nisi must confirm with Form 26 of the Sheriff and Civil Process Act and it must be served on the judgment debtors. According to counsel, non-service of the garnishee order nisi in Form 26 on the judgment debtors renders the garnishee proceedings a nullity. Section 83 (2) of the of the Sheriffs and Civil Process Act provides that a copy of the order nisi shall be served upon the garnishee and on the judgment debtor at least fourteen days before the day of hearing. The judgment debtors have now claimed that they were not served the Order Nisi. I have seen a document from this court in the record of this matter addressed to the Hon. Attorney-General of Imo State, a judgment debtor, whose address is stated to be at the Ministry of Justice, Owerri, Imo State. That document show that a copy of the enrolled order Nisi dated 23rd May 2017 was forwarded to the Hon. A.Gs office. There is a stamp of the Ministry of Justice on the document indicating that it was received by one Ozokwere on 14/6/2017. There is also the bailiff’s affidavit of service deposed to on 19th June 2017 stating that on 14/6/2017, a copy of the enrolled order Nisi dated 23/5/2017 was served on the judgment debtors through the Hon. Attorney-General Imo State at the Ministry of Justice Owerri and was received by one Ozokwere. During the substantive suit, the judgment debtors were represented by counsels from the office of the Attorney-General of Imo State. Besides the fact that the A.G. is a party to the suit, he is also the counsel to the judgment debtors in the suit and in these proceedings. It is trite that service of a process in a proceeding on counsel for a party is deemed as service on the party. Therefore, service of the order Nisi on the A.G. is service on the judgment debtors. In view of the affidavit of service deposed by the bailiff of this court, I hold that the judgment debtors were duly served with the Order Nisi made on 23/5/2017. The order served on the judgment debtors is an enrolled order signed by me and impressed with the seal of this court. The Learned Counsel for the judgment debtors argued that the order is not in the like of Form 26 of the Sheriffs and Civil Process Act and that is fatal. I do not imagine that it can, with all sense of responsibility, be canvassed that a duly enrolled order of this court is a nullity because it is not in the form of Form 26 of the Sheriffs and Civil Process Act. Let me state that strict compliance with the forms prescribed in the schedule to Acts or rules of court are not required. The forms may be modified to suit particular use. In any case, the usual form of an order of court enrolled for service is in the form of the Order Nisi served on the judgment debtors. Now there is the question whether the order nisi was served on the judgment debtors at least 14 days before the hearing of the garnishee proceedings. The judgment debtors were served the garnishee order nisi on 14/6/2017 while the garnishee proceeding was heard on 23/6/2017. This dates reveal that the date the garnishee proceeding was heard was the 14th day after the judgment debtors were served the order nisi. The provision of Section 83 (2) of the Sheriffs and Civil Process Act had been duly complied with by the judgment creditors. The judgment debtors also contended that the consent of the Attorney-General of Imo State was not sought or obtained to attach the monies held by the Garnishees as the monies are in the custody and control of the Accountant-General of Imo State in his capacity as a public officer. The learned counsel for the judgment debtors cited Section 84 of the Sheriffs and Civil Process Act and the cases of ONJEWU vs. KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY and CBN vs. HYDRO AIR PTY LTD. to support his arguments that the monies in the Garnishee banks sought to be attached by the judgment creditors are in a the custody of a public officer and the consent of the Attorney General must be obtained before a garnishee order nisi is made. In his oral response, the learned Senior Advocate for the judgment creditors submitted that the consent of the Attorney General is not needed to attach the monies in the custody of private banks as such monies are not in the custody of a public officer. The provisions of Section 84 of the Sheriffs and Civil Process Act stipulate that the consent of the Attorney General is mandatory before an order nisi can be made in a garnishee proceeding where the money sought to be attached is in the custody or under the control of a public officer and such public officer must have custody or control of the money in his official capacity. That is to say, where the money to be attached by garnishee proceedings is not in the custody or control of a public officer, or the public officer who has custody of the money held it in his private capacity, the consent of the Attorney General will not be required to be obtained before an order nisi is made in a garnishee proceeding. Now, what I should consider in view of this provision is: who has the custody and control of the money sought to be garnisheed in these proceedings, and whether the said person is a public officer. This will determine whether the consent of the Attorney General ought to have been obtained by the judgment creditors before this court made the order nisi. The key words in the section are “custody” and “control”. In my view, money is in the custody and control of the person in whose hands or possession the money is kept. Monies kept in bank accounts, whether they belong to private individuals or government, it is the bank that is in custody and control of the money. This view has support in PURIFICATION TECHNIQUES (NIG) LTD vs. A. G. LAGOS STATE (2004) 9 NWLR (Pt. 879) 665 at 681, where it was held thus: “Giving 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 my respectful view, I can say that 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.” See also the Court of Appeal decision in ZENITH BANK PLC vs. URASHI PHARM. LTD (APPEAL NO. CA/J/248/2014) where it was held that the provision of Section 84(1) of the Sheriffs and Civil Process Act is inapplicable when the money to be garnished is in the custody or control of a commercial bank. In this case, the monies sought to be garnisheed are being held in the accounts kept by the garnishees. Notwithstanding that the monies belong to the Imo State Government, it is not in doubt that the monies are in the control and under the custody of the garnishee banks. These are commercial banks and not public officers in Imo State Public Service. It is also obvious that the garnishees do not have custody of the money in any official capacity. The case of CBN vs. Hydro Air Pty Ltd cited by counsel for the judgment debtors is not applicable to the circumstances of these proceedings. The garnishee in that case, the CBN, who had custody of the money to be garnished, was held to be a statutory corporation and the monies to be attached were in her custody and control as a public officer. I hold, in the circumstance of these garnishee proceedings, that the judgment creditors do not need the consent of the Attorney General of Imo State before the order nisi could be made. The 3rd reason given in the affidavit of the judgment debtors for seeking to set aside the garnishee proceedings is that the monies held by the Garnishees have not been appropriated by the Imo State House of Assembly for payment of the subject matter of the judgment, which is the allowances and entitlements of the judgment creditors. Section 84 of the Sheriffs and Civil Process Act which recommend enforcement of judgment by garnishee proceeding did not exclude un-appropriated sums belonging to State Government from being garnisheed. Let me conclude that when it comes to enforcement of judgment of court by garnishee proceedings, monies of the judgment debtor which can be found anywhere are liable to be garnisheed in satisfaction of the judgment sum. In his oral submission during the hearing of the motion, the learned A.G. submitted that this court had no jurisdiction to make the order nisi at the time it was made because of the pending applications for leave to appeal and for stay of execution. Let me observe that an application for stay of execution is a different proceeding from a garnishee proceeding. See PURIFICATION TECHNIQUE NIG. LTD vs. ATTORNEY GENERAL, LAGOS STATE (SUPRA) at 679. Therefore, notwithstanding the pendency of the motion for stay of execution, garnishee proceedings can still be brought and heard. In DENTON-WEST vs. MUOMA (2008) All FWLR (Pt.433) 1423 at 1445 GALADIMA JCA (as then was) stated thus- “With regards to the applicant’s prayer to set aside the garnishee proceedings, I must observe this. The garnishee proceedings are legitimate exercise of his right to employ auxiliary methods to enforce the judgment obtained in his favour and they are competent notwithstanding the pendency of a motion for stay of execution.” In effect, the pendency of an application for stay of execution of the judgment of this court does not prevent the judgment creditors from instituting garnishee proceedings. Similarly, garnishee proceeding is a different proceeding from the suit appealed and the proceeding is also a sui generis mode of execution of judgment. That there is an appeal against the judgment does not preclude the judgment creditors from instituting a garnishee proceeding. See SOKOTO STATE GOVERNMENT vs. KANDAX NIG. LTD (2004) 9 NWLR (Pt. 878) 345. In view of the foregoing, I find no merit in the application of the judgment debtors. They have not shown any serious or cogent reason to warrant this court to set aside the garnishee proceeding or the order Nisi made on 23/5/2017. The motion is hereby dismissed. The judgment sum which the judgment creditors wish to recover in this garnishee proceeding is the sum of N255,588,382.82k and 10% interest per annum thereon awarded to them by this court on 14/12/2016. The 10% interest which has accrued on the judgment sum from 14/1/2017 prorated to 14/9/2017 is the sum of N17,039,225.52. Added to the principal makes a total of N272,627,608.34 judgment sum. The garnishee Order Nisi was served on 15 garnishee banks. Upon the application of the learned senior counsel for the judgment creditors, the 1st, 4th, 5th, 6th, 8th and 11th garnishees were discharged from the proceeding. The 2nd, 7th, 12th, 13th, 14th and 15th garnishees filed their respective affidavits to show cause while the 3rd, 9th and 10th garnishees did not show cause. In the affidavit of the 14th garnishee, Union Bank, two accounts with account numbers 00451778633 and 0029095895 are disclosed to belong to the judgment debtors and they have credit balances of N98,082,776.98 and N63,951,385.83 respectively. The 14th garnishee did not give any reason why these sums should not be attached. These sums are hereby garnisheed. With respect to the 13th garnishee, UBA, the affidavit to show cause discloses some accounts of the judgment debtors with credit balances. Some of these accounts are said to have some liens or encumbrances on them. However, account number 1016187279 in the name “Oth Imo State Government Collection Account” with a credit balance of N149,553,964.24 is not shown to have any lien or encumbrance. The sum of N110,593,445.53 in that account is hereby garnisheed. The total sum garnisheed from the above mentioned accounts of the judgment debtors in the 13th and 14th garnishee banks is the sum of N272,627,608.34. This sum satisfies the judgment sum. It will be inequitable to attach more sums than the judgment creditors are entitled. Consequently, all the other garnishees are discharged from these proceedings. The garnishee order nisi is hereby made absolute with respect to the sum disclosed in the stated accounts in the 13th and 14th garnishee banks and as ordered herein. The sums must be released to the judgment creditors within 14 days from today. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge