CBN v. EKPO & ANOR (2021)LCN/15155(CA)
(CALABAR JUDICIAL DIVISION)
On Wednesday, May 05, 2021
CA/C/224/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
CENTRAL BANK OF NIGERIA APPELANT(S)
And
1. DR. BASSEY EFFIONG EKPO 2. UNITED BANK FOR AFRICA PLC. RESPONDENT(S)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court sitting in Calabar, delivered by Hon. Justice I. E. Ekwo on 2nd March, 2018 wherein Garnishee Order Nisi was made absolute against the account of the judgment debtor (United Bank for Africa Plc) with the Garnishee (Central Bank of Nigeria).
The 1st respondent/judgment creditor commenced garnishee proceedings at the lower Court against the 2nd respondent as judgment debtor and appellant as the Garnishee. In response to the Order nisi, the appellant filed a notice of preliminary objection for an order seeking to set aside the order nisi for want of jurisdiction. The same was supported by an affidavit and Exhibits attached. The judgment creditor (hereinafter referred to as the 1st respondent) filed a counter affidavit in reaction to same.
The trial Court after hearing counsel for the appellant and the 1st respondent found no merit in the preliminary objection and accordingly dismissed same. It thereafter proceeded to make the order nisi absolute.
Aggrieved by the decision, the appellant appealed to this Court through a notice of appeal filed on 26/4/2018 which incorporates three grounds of appeal.
Pursuant to the rules of this Court, the appellant filed its brief of argument on 31/8/2020 but deemed as properly filed on 7/9/2020 as well as the reply brief to the 1st respondent’s brief on 6/10/2020. The 1st respondent’s brief was filed on 13/10/2020 and deemed duly filed on 1/3/2020. The 2nd respondent’s brief was filed on 6/10/2020.
At the hearing of the appeal on 1/3/2021, Terkaa J. Aondoo Esq. for the appellant adopted the briefs of argument filed on behalf of the appellant in urging this Court to allow the appeal and set aside the decision of the trial Court. C. A. C. Efifie, Esq. for the 1st respondent adopted and relied on his brief of argument in urging the Court to dismiss the appeal. The 2nd respondent’s brief was deemed argued pursuant to the provisions of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
In the appellant’s brief of argument, the following issues are formulated for the determination of the appeal:-
1. Whether the notice of preliminary objection, affidavit to show cause and memorandum of appearance was not competent the appellant’s counsel having affixed it to an expired seal of the Nigerian Bar Association.
2. Whether the prior consent of the Attorney General of the Federation is required where money to be attached in Garnishee proceedings is held by a public officer.
In the 1st respondent’s brief of argument, the following issues are formulated for determination of the appeal:-
1. Whether counsel to the Garnishee/applicant had valid license to practice law in Nigeria at the time he filed his preliminary objection and other processes in the matter and if the learned trial judge was right in setting aside the said processes?
2. Whether the learned trial judge was right in assuming jurisdiction and entertaining the matter?
In addition, the 1st respondent filed a motion on notice seeking for an order to strike out ground 1 together with issue No.1 distilled therefrom.
On behalf of the 2nd respondent, the following issues are for determination of the appeal:-
1. Whether the learned trial judge was wrong in law when he held that the appellant’s counsel had no valid license to practice law in Nigeria and accordingly dismissed the preliminary objection filed by him because the appellant counsel’s license expired on 31st March, 2016?
2. Whether the learned trial judge was right in law when he went on to make the Garnishee Order Nisi absolute despite the fact the 1st respondent did not first obtain the consent of the Attorney General of the Federation as required under Section 84 (1) of the Sheriff and Civil process Act before filing the Garnishee matter?
A careful perusal of the record of appeal vis-à-vis the submissions of learned counsel on both sides on the above formulations reveals some similarities but the two issues formulated by the appellant are preferred for being quite apposite. I shall therefore utilize the said issues in determining this appeal. It is however pertinent to state that the 1st respondent has incorporated argument in his brief on his motion on notice filed on 7/2/2019 for an order striking out ground 1 and issue No.1 formulated therefrom.
The said motion on notice is merely complaining about ground 1 as against the hearing of the appeal. The law is settled that a preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. Whereas in the instant case, the complaint is against one or more grounds or defect in such a case a motion on notice would suffice. See NWAOLISA V NWABUFOH (2011) 14 NWLR (prt 1260) 600, DAKOLO V REWANE DAKOLO (2011) 16 NWLR (prt. 1266) 1.
Arguing issue No.1, learned counsel for the appellant contended that what Rule 10(1) – (3) of the Rules of Professional Conduct penalizes is the failure of counsel to affix on a legal document a seal and stamp approved by the Nigerian Bar Association and not affixing an expired stamp and seal. Thus, the safeguard imposes by Rule 10 of the Rules of Professional Conduct 2007 does not stipulate an expired stamp and seal as a precondition to deprive a lawyer the right to practice law in Nigeria. Counsel submits that the right to practice law by a legal practitioner is subject to enactments such as the Legal Practitioners Act and Rules of Professional Conduct for Legal Practitioners, 2007. He referred to OKAFOR V NWEKE (2007)10 NWLR (prt 1443) SC 521 and F.B.N V MAIWADA & ORS (2013) 5 NWLR (prt 1348) 444.
In response to the above, the learned counsel to the 1st respondent while alluding to the motion on notice seeking for an order to strike out ground 1 and issue No.1 of the appellant, contend that same issue was properly raised and argued by him at the lower Court in opposition to the motion to set aside the Garnishee order nisi but the appellant ignored, failed and refused to join issue on it and as such the appellant is deemed to have admitted the issue and therefore estopped from raising the said issue on appeal. He thus submits that where a party fails to react to an issue raised, and which is in contention between the parties, then the defaulting party is deemed to have conceded the point to the opponent. He referred to ONMEJI V ODUMU (2011) ALL FWLR (prt.600) 1328 at 1352, GUINNESS NIGERIA PLC. V NWOKE (2001) FWLR (prt 36) 981 at 996 and F.M.C.T. V EZE (2006) ALL FWLR (prt 323) 1704 at 1717.
In the unlikely event that the application is refused, counsel submits that being or qualifying as a legal practitioner is distinct from qualifying to have a right of audience in a Court of law or practice law in any particular legal year. Thus, the failure to pay practicing fee for a particular year precludes a lawyer from being heard in Court of law which equally affects every processes filed by him in Court. In aid, counsel relied on Section 2(1) and (2) of the Legal Practitioners Act, Cap 11 LFN, 2004 and the case of SARKIN YAKI V BAGUDU & ORS (2015) LPELR – 25721 (SC) to the effect the provisions of the Rules of Professional Conduct 2007 are directed at a legal practitioner to provide evidence of his qualification to practice law in Nigeria in addition to his name being on the Roll at the Supreme Court of Nigeria.
In further contention, counsel submits that stamps are akin to license and are evidence of payment of the yearly practicing fees as it is issued only on payment of the practicing fee for a particular year. A process with an expired stamp according to counsel is as good as a process without a stamp.
On behalf of the 2nd respondent, learned counsel conceded that by virtue of Rule 10 (3) of the Rules of Professional Conduct for Legal Practitioners, 2007, any document signed or filed without affixing the seal and stamp of the counsel shall be deemed not to have been properly signed and filed. He strangely leaves the resolution of issue No.1 to the Court as he has not come across a decision as regards fixing of an expired seal of a legal practitioner on legal documents.
In his reply brief to 1st respondent’s brief of argument, learned appellant’s counsel submits that ground 1 and issue No.1 properly arose from the judgment of the lower Court and this Court should not sacrifice justice on the altar of mere technicality. He submits in the alternative that the said ground and the issue distilled from it being a challenge to jurisdiction can be raised as a fresh issue without the leave of Court.
The crux of the 1st respondent’s complaint in his motion on notice of 7/2/2019 is that having failed and or neglected to join issue on the subject matter in ground 1 and issue No.1, the appellant cannot take it up on appeal.
There are legions of cases in support of the preposition that where the respondent did not join issues with the appellant the issues involved are deemed admitted as there is no need for the appellant to prove them again. See BUA V DAUDA (2003) LPELR – 810, LEWISAND PEAT (NRT) V AKHIMIEN (1976) 7 SC and ATOLAGBE V SHORUN (1985) 1 NWLR (prt.2) 360.
The pertinent question is when parties can be said to have joined issues? Parties are said to join issues when they take up the opposite side of a case or when they jointly submit an issue for decision. The 8th Edition of Black’s Law Dictionary at page 854 defines joinder of issues as
(1) The submission of an issue joined for decision
(2) The acceptance or adoption of a disputed point as the basis of argument in a controversy. Also termed joinder in issue, simpliciter.
(3) The taking up of the opposite side of a case or of the contrary view on a question. See CHIDI V CONSOLIDATED HALLMARK INSURANCE PLC. (2018) LPELR – 44384 at 16 – 17 and JULIUS BANKOLE & ANOR V ALFA JIMOH SEVEHO DENAPO & ANOR (2019) LPELR – 4644 (CA).
The issue in contention at the lower Court and which is also raised here is that the stamp affixed by S. M. Onekutu Esq. was invalid as at the material time of filing his documents at the lower Court. The learned trial judge at page 504 of the record of appeal held that:-
“I am unable to see the response of S. M. Onekutu Esq. of counsel for the Garnishee/Applicant on this issue. My simple conclusion is that the said S. M. Onekutu, Esq. of counsel for the Garnishee/applicant by not responding or countering the position of the learned counsel for the judgment creditor/Garnishor, he is deemed to have admitted the issue.”
The law is trite that parties need not join issues on a statutory provision which once found applicable the Court would readily apply it. See GUINNESS (NIG) LTD V AGOMA (1992) 7 NWLR (prt 256) 728 at 741 and ABALAKA V MINISTER OF HEALTH & ORS. (2005) LPELR – 5572 (CA).
It is thus my view that Rule 10 of the Rules of Professional Conduct, 2007 made pursuant to the Legal Practitioners Act, LFN, 2004 have stipulated the requirement of endorsement of legal documents by a legal practitioner and it is not open for a party to dispute same without clear evidence to the contrary, the stipulations of that said Rule.
Apart from that, a party can raise on appeal, a new line of argument or even authority in support of the same issue he argued in the trial Court because there is difference between arguing new issue and pursuing a new line of argument on an existing issue on appeal. See UBN PLC V MICHEAL (2019) 6 NWLR (prt.1667) 58. That being the position ground 1 and issue No.1 distilled therefrom by the appellant are competent and I so hold.
Now turning back to the main issue that is, the competence of the documents filed by the appellant at the lower Court.
By virtue of Rule 10(3) of the Rules of Professional Conduct, 2007, if a lawyer signs or files any document as defined by Rule 10 (2) thereof, without affixing a seal and stamp approved by the Nigerian Bar Association, the document so signed or filed shall be deemed not to have been properly signed or filed. See YAKI V BAGUDU (supra) and WAYO V NDUUL (2019) 4 NWLR (prt 1661) 60 at 69 and 73.
Parties are ad idem that as at the material time of filing the document by S. M. Onekutu, Esq. at the lower Court, the NBA stamp affixed thereto has expired. The contention of the learned appellant’s counsel is that Rules 10 (1) and (3) of the Rules of Professional Conduct for Legal Practitioners merely addresses the back end of administrative implementation of the stamp and seal requirement in the registry. Thus, it does not purport to make a legal document with an expired seal void or prohibit a legal practitioner from practicing law in Nigeria.
It needs to be stressed that a process filed in breach of Rule 10 can be saved and its signing and filing regularized by affixing the seal and stamp/seal since it is only a legal document improperly filed. Thus, the effect of the failure to affix the stamp/seal does not invalidate the process filed without seal. It remains a mere irregularity that should not void the appellant’s processes at the Court below. See YAKI V BAGUDU (supra) and SURU V GOMA (2018) LPELR – 44650 (CA).
The learned trial judge was therefore wrong to have set aside the appellant’s preliminary objection and other processes filed by S.M. Onekutu, Esq. This issue is resolved in favour of the appellant.
On issue No.2, the contention of the appellant is that the demand for the consent of the Attorney General of the Federation is mandatory before the judgment obtained against public officer can be properly enforced. Counsel submits that the Central Bank of Nigeria is a public office and that prior consent of the Attorney General under Section 84 of the Sheriffs and Civil Process Act is necessary and mandatory before the judgment of a Court can be enforced. He referred to C.B.N. V HYDRO AIRPTY LTD (2014) 16 NWLR (prt. 1434), C.B.N. V S.C.S.B.V. (2015) 11 NWLR (prt 1469), C.B.N. V INTERSTELLA COMM. LTD (2018) 7 NWLR (prt.1618) SC 294 and hosts of other cases to the effect that the failure to obtain the prior consent to the Attorney General robs the Court of its jurisdiction over the judgment enforcement proceedings and renders such proceedings a nullity.
On the part of the 1st respondent, learned counsel contends that with the coming into being of the 1999 Constitution (as amended), the provision of Section 84 of the Sheriffs and Civil Process Act has become unconstitutional same being inconsistent with Section 36 (1), 287 (3) and 6 (6) thereof. Assuming without conceding the fact that Section 84 of the Sheriffs and Civil Process is constitutional, counsel contend that the case at hand does not fall within the ambit of Section 84 of the Sheriffs and Civil Process Act because the money being the subject of the Garnishee proceeding is the account of a private entity, United Bank for Africa (UBA). He referred to C.B.N V NJEMANZE (2015) 15 NWLR (prt.1449) 276.
The 2nd respondent after reiterating the necessity of obtaining the consent of the Attorney General before a Garnishee enforces judgment against public officer but also chose to maintain its neutrality.
Section 84(1) and (3) of the Sheriffs and Civil Process Act provides as follows:-
“(1) Where money liable to be attached by garnishee proceedings is in custody or under the control of a public officer in his official capacity or in custodial legis, the order nisi should not be made under the provision of the last proceeding section unless the 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 custodial legis, as the case may be.”
“(3) In this Section, appropriate officer means:-
(a) In relation to money which is in the custody of a public officer in the public service of the Federation, the Attorney General of the Federation.
(b) In relation to money which is in the custody of a public officer who holds a public office in the public service of the state, the Attorney-General of the state.”
It has been held in plethora of cases coming under Section 84 of the Sheriffs and Civil Process Act that the requirement of the prior consent of the Attorney-General for a Garnishee order nisi is mandatory and that when such consent is not obtained, the Court has no jurisdiction. See ONJEWU V KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY (2003) 10 NWLR (prt.827) 40, C.B.N. V HYDRO AIR PTY LTD (supra) and GOVERNMENT OF AKWA IBOM STATE V POWERCOM (NIG) LTD (2004) 6 NWLR (prt. 868) 202.
The Supreme Court has held in IBRAHIM V JUDICIAL SERVICE COMMISSION (1998) 4 NWLR (prt 584)1 that the term “Public officer” applies to both natural and artificial persons or department invested with the performance of public duties. This has been the position of Courts in a number of cases including ANOZIE V ATTORNEY-GENERAL OF FEDERATION (2008) 10 NWLR (prt.1095) 278, NWAKA V HEAD OF SERVICE, EBONYI STATE (2008) 3 NWLR (prt.1073) 156, OFILI V CIVIL SERVICE COMMISSION (2008) 2 NWLR (prt 1071) 238 and AJAYI V ADEBIYI (2012) 11 NWLR (prt 1310) 132.
Learned counsel for the 1st respondent has submitted and I agree with his submission that the Constitution is the grund norm and that if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void. Section 1 (1) and (3) of the 1999 Constitution (as amended).However, by virtue of Section 4 (2) of the said Constitution, the National Assembly is empowered to make laws for peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in part 1 of the second schedule to the Constitution. It is to be noted that Item 35 of the Exclusive Legislative List deals with legal proceedings between Governments of states or between the Government of the Federation and Government of any state or any other authority or person. It was thus in pursuant of these powers that the National Assembly enacted the Sheriffs and Civil Process Act amongst other laws. Consequently, the Sheriffs and Civil Process Act is in tandem with the Constitution and therefore not unconstitutional.
As to whether the Sheriffs and Civil Process Act applies to the present case, I have already held the view that Central Bank of Nigeria falls squarely within the status of a public officer, and this Court in C.B.N V HYDRO AIR PTY LTD (supra) 521 per IYIZOBA, JCA reason as follows:-
“Section 318 of the 1999 Constitution on which the cross-appellant has placed reliance to contend that reference to public officer in Section 84 of the Sheriffs and Civil Process Act cannot include the cross-respondent defines “public servant of the Federation” to include staff of any statutory corporation established by an Act of the National Assembly. There is in fact no doubt that this definition includes officials of the Central Bank of Nigeria.
When this provision is examined critically vis-a-vis the provision of Section 84 of the Sheriffs and Civil Process Act, it will be seen that fund in the coffers of the Central Bank of Nigeria are actually funds in the custody or under the control of a public officer in his official capacity. This is because the Central Bank of Nigeria is an artificial entity and it is the officials of the body that control the money or funds in the coffers of the entity. Based on this fact, I am unable to accept the contention of the cross-appellant that the provision of Section 84 of the Sheriffs and civil process Act are not applicable to the facts of the case.”In the instant case, like the C.B.N, HYDRO AIR PTY case (supra), the money involved is in the custody and control of the Central Bank of Nigeria and as such Section 84 of the Sheriffs and Civil Process Act aptly applies to the fact and circumstances of the case. I resolve issue No.2 also in favour of the appellant.
In conclusion, the appeal is meritorious and is hereby allowed. Parties shall bear their respective costs.
The Ruling of the trial Court is accordingly set aside while the entire suit is struck out for lack of jurisdiction.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in advance the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA.
I agree with the reasoning and conclusion reached in the judgment.
I also agree that the appeal is meritorious and ought to be allowed.
I abide with the consequential order and the order as to costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, M. L. Shuaibu, JCA and I agree that the appeal has merit and should allowed.
For the reasons set out in detail in the judgment, I too allow the appeal.
I abide by the orders in the judgment including the order as to costs.
Appearances:
Terkaa J. Aondoo For Appellant(s)
A. C. Efifie – for 1st Respondent For Respondent(s)
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