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Court Of Appeal Reaffirms That Consent Of AGF Is A Condition Precedent For The Grant A Garnishee Order

A Court of Appeal sitting in Port Harcourt, on Monday, 30th of May, 2022 in Suit no. CA/PH/144/2022, gave fundamental rulings as regards the determination and hearing of appeal – what must be fulfilled thus, the jurisdiction and other procedures of court in determining the merit of a Garnishee Order Nisi.

The judgement which was delivered in the case between MR ALHAJI AMINU IBRAHIM v MAJOR GENERAL JAMIL & ORS. was delivered by Honourable Justice JOSEPH SHAGBABOR IKYEGH, JCA.

The case was an appeal from a decision of the Federal High Court in FHC/PH/22/2018 wherein the court set aside its prior ruling of an order of nisi in the garnishee proceedings on the grounds that it had no jurisdiction to grant such other in line with Section 84 of the Sherriff and Civil Processes Act. The case was filed on the 18th February, 2020 on three Grounds, which include;

GROUND ONE: The learned trial Judge erred in law when he set aside the Garnishee order nisi he made on the 31% day of October, 2019, the subject matter of this Appeal by relying on the preliminary objection of the 3 Respondent.

GROUND TWO: The learned trial Judge erred in law when he set aside the Garnishee order nisi he made on the 31% day of October, 2019 by holding that section 86 of the Sheriff and Civil Processes Act was applicable and the Attorney general consent was required.

GROUND THREE: The learned trial Judge erred in law when he held that the 3rd respondent had locus standi to file a preliminary objection in a garnishing proceeding.

In determining the appeal, three issues were raised thus;

  1. Whether or not the Court below became functus Officio as at on the 31 day of October, 2019 when the Garnishee Order Nisi was made against the 3 Respondent in an open court directing it to disclose the account of the 1st and 21 Respondents? (Distilled from grounds 1).
  2. Whether or not the consent of the Attorney General of the Federation was required by virtue of Section 84(1) of the Sheriff and Civil Process Act to garnishee the account of the 2nd Respondent in the hands of the 3M Respondent in view of the Treasury Single Account (TSA) Policy of the Federal Government? (Distilled from grounds 2).
  3. Whether or not the Court below was right in countenancing the preliminary objection of the 3° Respondent which lack the locus to file such an application in garnishee proceeding? (Distilled from grounds 3).

After considering the argument of the counsels, the Court of Appeal deciding if it will let the appeal per JOSEPH SHAGBABOR IKYEGH, JCA. first expressed their displeasure in the counsel for the appellant filing irregular dates in the notice of appeal as to when the ruling of the lower court was delivered, stating that such acts has not present the court with certainty the ruling it is directed to and which jurisdiction of the court is being excited, and this causes distraction or fatality to the appellate journey. According to the court;

On the first issue, the court held that the issue and argument on the issue was a far cry from the ground (ground 1) relied upon by the Appellant and as such they resolved the issue in favour of the respondents. According to the court;

An issue for determination that does not arise from judgment appealed against is incompetent. In the instant case, the respondent’s first issue did not arise from ground 1 in the notice of appeal, as alleged by the appellant. Consequently, the first issue is incompetent and is liable to be disregarded.

Moving unto issue two, the court held that seeing that the 3rd respondent whom the order was to be made against was a public officer and held money on behalf of the federal government, section 84 of the sheriff and civil processes act – which stipulated that in such situations, the consent of the Attorney General before the order was made was a must – was applicable. In the words of the court;

this court further remarked that by virtue of section 84 of the Sheriffs and Civil Process Act, a judgment-creditor who chooses to recover a judgment debt by means of garnishee proceedings, if the funds sought to be obtained by garnishee order is in the custody or control of a public officer in his official capacity, must first obtain the consent of the relevant Attorney-General to attach such funds by garnishee before commencing the proceedings. Garnishee proceedings cannot validly commence and/or the court would lack the jurisdiction to entertain it or make the order sought, without the consent of the relevant Attorney-General to such attachment having been first sought and obtained. The consent of the Attorney-General to the attachment of such funds is a pre-condition to a competent garnishee process and a valid exercise of jurisdiction to entertain it and issue the relevant orders. Any application for order nisi filed in such instance is incompetent and the court lacks the jurisdiction to make the order nisi. Such an order nisi will be a nullity. No competent or valid garnishee proceedings can be based on a vold garnishee order nisi. Once the order nisl is void or invalid, the court would lack the jurisdiction to proceed to make the order absolute. 

Then deciding the third issue, the Court held that the 3rd respondent had every right to raise a preliminary objection as he acted in line with Section 87 of the Sherriff and Civil Processes Act by challenging its liability, and since the preliminary objection was on the jurisdiction of the court, the court had to countenance the preliminary objection. According to the court;

 garnishee is enabled by law to dispute liability where appropriate, when served with the order nisi. Section 87 of the Sheriff and Civil Process Act provides: 

Also; A garnishee challenging the jurisdiction of a court to determine the garnishee suit before it, is, in a way, disputing his or her or its liability. Such is provided, under the law

Thus, the three issues were resolved in favor of the respondents, nevertheless, the court in conclusion held that the appeal was struck out for being incompetent.

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