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 submitted that the funds to be attached must be such as the judgment debtor can deal with as of right but in this case, the BASA account is not operated solely by the 2nd Judgment debtor. He contended that the trial judge ought not to have found that the BASA account is domiciled with the Appellant.

RESPONDENTS' ARGUMENTS:

These issues were argued as Issues 1 and 2 by the Respondent. Learned Counsel for the Respondent referred to paragraph 6 of the Further and Better Affidavit to Show Cause filed by the Appellant on 13th day of June, 2011 and paragraph 5 of the Affidavit to Show Cause of 17th November, 2011 and submitted that the Appellant did not put anything before the court to support its bare assertions therein, referring to section 140 of the Evidence Act 2011. He submitted that the assertions of the Appellant are not negative as claimed but are positive assertions which it was bound to prove by credible evidence. He asked the question, how could the Appellant make the positive assertions that "the BASA account does not belong solely to the 2nd Judgment Debtor (NCAA)" and that "the 2nd Judgment Debtor is not the sole operator of the account" if these facts were not within the Appellant's personal knowledge. He contended that the BASA account belonged to the 2nd Judgment Debtor and the Federal Government who deposited the money with the Appellant. He then submitted that wherever the Appellant in turn decided to invest the money (outside the shores of Nigeria) did not mean that the BASA account was not domiciled with the Appellant. He urged the Court to uphold the decision of the trial court.

On the other issue of whether the account was domiciled with the Appellant and well funded, he referred to the compromise agreement entered between the judgment creditor and the judgment debtors, on the basis of which the judgment of the trial court now being enforced was given and stated that the parties agreed in the said compromise agreement that the compromise sum of USD 6,000,000.00 would be settled from the BASA account. This he submitted shows that the BASA account is with the Appellant despite its denials. Counsel referred to Exhibits A and B (newspaper publications) in support of the Motion Ex-parte that resulted in the order to show cause and submitted that there were enough material evidence on which the trial court relied to find that BASA account was domiciled with the Appellant. He contended that though the Appellant had argued that newspaper reports are unreliable, the Appellant itself placed reliance on Exhibit B to contend that the Director General of the 2nd Judgment Debtor is not the sole signatory to the BASA account. He contended that the chief executive of the 2nd judgment Debtor had stated in the publication that the BASA account is with the Appellant. He submitted that the Affidavits of the Appellant can be construed on the whole to mean that there is BASA account but that it does not belong to the NCAA alone but to it and the Federal Government and this constitutes an admission that the account is in the CBN. If the account belongs jointly to the 2nd Judgment Debtor and the Federal Government represented by the Attorney-general, then it is attachable. He submitted that debt owed to any two or more Defendants jointly liable to the judgment creditor is attachable, referring to Miller v. Mynn (1859) 28 LJQB 324.

He referred to section 75 of the Civil Aviation Act, Cap. C13 which stipulates that all funds accruing from air services agreements should be paid into a separate account and submits that this makes sense when considered along with the statement of Dr. Demuren, the Director General of the 2nd Judgment Debtor in Exhibit B that the account is with the CBN. He submitted that there is inherent power in the court to look at documents in its file in arriving at its decision, citing Salami v. Oke (1987) 4 NWLR (Pt 63) 1; Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 187; NNPC v. Tijani (2006) 17 NWLR (Pt.1007) 41 and Fumudoh v. Aboro (1991) NWLR (Pt 214) 210. He then submitted that the trial court did not look only at the deposition of the Appellant in its affidavit to Show Cause but looked at the totality of its record as regards this matter and made findings of fact which said findings were not appealed against. He referred to the judgment of the court delivered on 23/7/10 and the joint Affidavit of Intention to Defend action filed by the Judgment Debtors which all confirm that it was parties agreement that the judgment sum would be paid out of the BASA fund and the undertaking signed by the Judgment Creditor herein and the Judgment debtor to pay the compromise sum within 60 days and submitted that it was based on these that the trial court held that it had overwhelming evidence that the NCAA and the Federal Government operates BASA account which is domiciled with the Appellant. He submitted that arguments of the Appellant in paragraph 3.7 of its brief that these documents are extraneous the garnishee proceedings were misplaced as the same case file is being used for the main case and the Garnishee proceedings and the Court is bound to make use of document in its file. He urged the Court to discountenance the Appellants submission.

The Appellant filed a Reply Brief on 31st July, 2012. Going through the Reply brief I found it to be a re-argument of his case. The Reply brief is hereby discountenanced.

RESOLUTION OF ISSUES 2 & 3:

The first point to be decided is whether the onus is on the Appellant to establish that the controversial BASA account is domiciled with it. Either side is contending that the onus of proof is on the opposite side. The fact remains that it was the case of the Respondent from inception of the garnishee proceedings that the BASA account is domiciled with the Appellant. The Appellant strenuously denied this fact. I think that in the circumstance the trial Judge erred in trying to resolve this issue based on the affidavit evidence and as contended by the Respondent, other documents which were not part of the garnishee proceedings.

For instance, the Respondent agreed that the trial Judge in resolution of the issue did not look only at the deposition of the Appellant in its affidavit to Show Cause but also looked at the totality of its record as regards this matter. The trial court referred to the judgment of the court delivered on 23/7/10; the joint Affidavit of Intention to Defend action filed by the Judgment Debtors at trial; the compromise agreement signed between the parties to the main suit; and the undertaking signed between the Judgment Creditor and the Judgment debtor to pay the compromise sum within 60 days. All these documents do not form part of the record of the garnishee proceedings and by extension the record of appeal in this case. It is definitely wrong and constitutes a breach of the right to fair hearing for the trial court to rely on these documents which did not form part of the garnishee proceedings and which were not served on the garnishees to determine their liability in the garnishee proceedings.

Apart from this, the trial Judge relied on the Appellants Affidavit To Show Cause in deciding that there was overwhelming evidence that BASA account is with the Appellant, that it is operated by the 2nd Judgment Debtor and the Federal Government and that it is in funds. In paragraphs 5, 6 and 7 of the Affidavit, it was deposed as follows:

"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. "

I have stated above that substantial part of the evidence relied upon by the trial Judge in concluding that the BASA account is with the Appellant and that it is in funds were not made available to the Appellant. The trial court ought not to have decided that issue with such evidence. At page 86 of the record of appeal, the trial court said:

"Though there is no express admission by the Central Bank of Nigeria in its Affidavit to Show Cause dated 17/11/2011 that NCAA maintains 'BASA Account' with it, but where there are depositions in the Affidavit to Show Cause disputing liability dated 17/11/2011 and other affidavits filed by the same Central Bank of Nigeria though not referred to or relied upon by its learned Counsel in the course of his argument but those depositions will lead to an irresistible inference or conclusion that NCAA the 2nd Judgment Debtor maintains 'BASA Account' with the Central Bank of Nigeria and the account is properly funded to satisfy the outstanding judgment sum, the Court will not shear (sic) away from making a definitive pronouncement that NCAA operates 'BASA Account' in CBN and the account is well funded to satisfy the judgment sum." (emphasis mine)

I have gone through the Affidavits to show Cause sworn on behalf of the Appellant but I do not see the admissions and those depositions that will lead to irresistible inference or conclusion that NCAA the 2nd Judgment Debtor maintains 'BASA Account' with the Central Bank of Nigeria and the account is properly funded to satisfy the outstanding judgment sum. There is no clear evidence of the amount in the BASA account at the material time to this Garnishee proceeding at the trial court or as to where the account is domiciled.

I think the findings of the trial Judge in this regard based solely on the said Affidavits to show Cause are perverse. These findings are not based on credible and admissible evidence before the court. They ought to be set aside.

Garnishee proceeding is a unique procedure which provides a clear and fair procedure to be followed in resolution of disputed liability. Section 87 of the Sheriffs and Civil Process Act provides:

"If the garnishee appears and disputes his liability, the court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee."

Instead of trying to resolve the disputed liability based on conflicting affidavit evidence made by the parties herein and placing reliance on materials not put before the court in the garnishee proceedings, the trial court should have adopted the procedure provided in section 87 above to determine the liability of the Appellant. To this end, he should have either allowed the parties to call oral evidence to resolve the disputed areas or allowed them to cross-examine the deponents of the respective affidavits of the parties confronting them with whatever documentary evidence that are available which will reveal the true state of facts and enable him make up his mind on the liability or otherwise of the Appellant. The parties could also summon or subpoena the Director General of the 2nd Judgment debtor with a view to ascertaining where the BASA account is domiciled. I therefore resolve these two issues against the Respondent.

ISSUE FOUR:

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

APPELLANT'S ARGUMENTS:

The Appellant arguing this issue referred to the comment of the trial Judge at page 95 of the record of appeal to the effect that it disobeyed its order by failing to file statement of BASA account with the court and submitted that finding of the trial court according to him cannot be correct. He submitted that section 83(1) of the Sheriffs and Civil Process Act allows a Garnishee to show cause why he cannot comply with the order nisi and that section 87 provides for procedure for determining liability and that until the procedure is exhausted, it cannot be said that the Appellant is in contempt. He submitted that a party complying with a procedure provided by law cannot be said to be in contempt relying on Adelakun v. Adelakun (1993) 7 NWLR (Pt 308) 746. He urged the court to find that the Appellant was never in contempt of the order of the lower court.

RESPONDENT'S ARGUMENTS:

The learned counsel to the Respondent in his argument made reference to the said statement of the trial Judge and contended that it was a statement made obiter which is not appealable. He submitted that the reasons the Appellant gave for the BASA account cannot justify the reliance placed on sections 83(1) and 87 of the Sheriffs and Civil Process Act. He submitted that the Appellant in utter contempt refused to comply with the trial court's order to file statement of BASA account. The Appellant according to him is raising red herring which cannot justify the flagrant disobedience of the court order. He urged the Court to answer the issue in the negative.

RESOLUTION OF ISSUE FOUR:

On page 95 of the record of proceedings, the trial court said:
 

"I note here that CBN flouted Order of Court by failing to file statement of BASA account with it. CBN also flouted the Order of Court directing it to set aside the Judgment sum. I cannot insist in CBN complying with the Order of Court in BASA account, I know what to do here. I will go ahead and do what I have to do without fear or favour affection or ill will."

The trial Court then proceeded to make the order nisi absolute immediately. There is no doubt that this comment of the trial Judge is not mere obiter as taken in its context, it definitely influenced the decision of the trial Judge. I therefore disagree with learned counsel for the Respondent that the comment is not appealable. The Appellant rightly appealed against that part of the decision of the trial court.
It is also clear from the part of the ruling of the trial court quoted above that it had earlier made orders to the effect that the Appellant should file statement of BASA account with it an Order directing it to set aside the Judgment sum. The terms of the orders made by the trial court and what informed it were not made part of the record of appeal in this matter. The records of the proceedings as recorded by the trial court were not made part of the record of appeal in this case and I think that this is wrong. That notwithstanding, it seems to me that it would amount to prejudging the issues for the trial court to make such orders and insist on their being obeyed at a stage when the Appellant was contending that there was no such account with it.

There is no doubt that the trial court found the Appellant to be in contempt of its orders and this finding influenced its decision in this matter. It is trite that a party who avails himself of the procedure enacted in a statute of responding to an order of court will not be held to be in contempt. See Adelakun v. Adelakun (1993) 7 NWLR (Pt.308) 746 at 762 B-E; Mobil Oil Nig. Ltd v. Assan (1995) 8 NWLR (Pt.412) 129 @ 150 D-E. In the instant case, the Appellant as far as is evident from the record of proceedings filed an affidavit to show cause disputing liability. This ought to have set in motion the provisions of section 87 of the Sheriffs and Civil Process Act but without following that procedure; the trial court summarily determined the liability of the Appellant which has led to this appeal.
 

I am of the view that the Appellant is not guilty of contempt having filed an affidavit to show cause contending that it is not liable to set aside the judgment sum as the judgment debtor did not have an account with it. Although this fact was disputed by the Respondent, it was pre-emptive and premature for the trial court to conclude that the Appellant was in contempt. This issue is also resolved in favour of the Appellant.

In the final result, the appeal succeeds and the order of the trial court in this matter delivered on 24th February, 2012 attaching the funds in the hands of the Appellant is hereby set aside. Based on the fact that the trial court in its said ruling had found that the Respondent did not comply with section 84(3) of the Sheriffs and Civil Process Act the Appellant is hereby discharged. I make no order as to costs.

CROSS-APPEAL
The Respondent by Notice of Cross Appeal dated 10th May, 2012 and filed on the same date filed a cross-appeal against the part of the decision of the trial Judge where he found that the Appellant is a public officer by virtue of the decision of the Supreme Court in Ibrahim v. JSC Kaduna State (1998) 14 NWLR (Pt.584) 1. Although the cross-appeal was given a different appeal number, that is CA/L/235A/2012 and it has its own separate record, it was argued jointly with the main appeal and hence will also be determined in this judgment.

In the cross-appeal the Respondent filed a ground which as aforesaid challenges the finding of the trial court that the Appellant/Cross-Respondent is a public officer. From the ground of appeal, the Cross-appellant formulated a sole issue for determination which is as follows:

"Whether by a combined reading of section 84(1)(2) & (3) (a) of the Sheriffs and Civil Process Act (Cap S6) Laws of the Federation of Nigeria 2004, the Learned trial Judge was right in holding that the Cross-Respondent bank was a public officer and consequently that the consent of the Attorney-General of the Federation was required to be obtained before the garnishee Order Nisi was made on 18/5/2011  to attach the funds in the account of the 1st Judgment Debtor domiciled in the Cross Respondent Bank."

The Cross-Respondent in its brief of argument raised a preliminary objection to the competence of the issue formulated out of the said sole ground of appeal. I will consider the preliminary objection first.

PRELIMINARY OBJECTION:

CROSS-RESPONDENT'S ARGUMENTS

Arguing the preliminary objection, the Cross-Respondent's learned counsel submitted that the issue formulated did not arise from the single ground of appeal of the Cross-Appellant. He submitted that an issue that does not arise from the ground of appeal is incompetent, citing Uwanta v. INEC (2011) 11 - 12 S.C. (Pt.II) 35 it was argued by him that issue for determination must be related to a complaint arising from specific finding in the judgment appealed against. He relied on Mainasara v. Imam (2012) ALFWL (Pt.618) 854; Adewunmi v. AG Ondo State (1996) 8 NWLR (Pt.464) 73 @ 96; Okon v. State (1995) 1 NWLR (Pt 372) 388 @ 389; Chinwuba v. Alade (1997) 6 NWLR (Pt 507) 85 @ 94. He submitted that the issue formulated by the Cross-Appellant does not arise from the ground of appeal and does not also arise from the ruling being appealed. He set out the sole issue formulated by the Cross-Appellant and contended that the issue is wider in scope that the sole ground of appeal filed. He argued that the trial court in its ruling did not hold that the consent of the Attorney-General is required before an order nisi could be made attaching the funds in the custody of the Cross-Respondent. He contended that the issue formulated not being within the confines of the ground of appeal is incompetent. He urged the court to strike out the issue for being incurably bad.

CROSS-APPELLANT'S ARGUMENTS

The Cross-Appellant in his Reply Brief submitted that the preliminary objection is misconceived. He contended that the trial court in its ruling held that the Cross-Respondent is a public officer and that the consent of the Attorney-General was not obtained to attach the funds with the Cross-Respondent and that it was based on these finding that the said issue was formulated. He stated that notwithstanding the issue as couched, the argument of the Cross-Appellant in its brief did not go beyond the issue of the Cross-Respondent being a public officer. He submitted that there is clear nexus between the issue formulated and the ground of appeal. He submitted that this court can re-couch the issue so formulated if it was inelegantly formulated. Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139 @ 168. He submitted that in all the cases cited by the Cross-Respondent in support of its preliminary objection, nowhere was it held that if an issue is wider than the ground of appeal it must be struck out. He submitted that the Court has an inherent power to reframe the issue. He cited a host of cases including Akpa v. State (1995) 6 NWLR (Pt 248) 439; Sha v. Kwan (2000) 8 NWLR (Pt.670) 685.

RESOLUTION OF PRELIMINARY OBJECTION

There is no doubt that the issue as framed by the Cross-Appellant is beyond or wider in scope than the sole ground of appeal filed. The ground of appeal without its particulars read thus:

"The learned trial Judge erred in holding that the Cross Respondent was a public officer going by the definition given to the words "Public Officer" by the Supreme Court in Ibrahim v. Kaduna State (Supra)."

The Cross-Respondent has clearly shown this in the underlined portion of the issue formulated. The issue formulated is not completely unrelated to the ground of appeal but is only wider than the ground of appeal. This is just a matter of inelegantly framed issue. The Court has the power to adopt the issues framed by an appellant or to reframe same to bring it within the scope of the ground of appeal filed. In the interest of justice, I will prefer to adopt this course instead of striking out the issue framed and the cross-appeal. I will consequently re-frame the issue as follows:

"Whether by a combined reading of section 84(1) (2) & (3) (a) of the Sheriffs and Civil Process Act (Cap 56) Laws of the Federation of Nigeria 2004, the learned trial Judge was right in holding that the Cross-Respondent Bank was a public officer?"

CROSS-APPELLANT'S ARGUMENTS IN THE CROSS-APPEAL

Arguing the above issue the Cross-Appellant submitted that the decision of the trial court that the Cross-Respondent is a public officer, following the decision of the Supreme Court in Ibrahim v. JSC Kaduna State (supra) is wrong as the statute construed in that case, according to him, is the Public Officers protection Act and not section 84(1) (2) & (3)(a) of the Sheriffs and Civil Process Act. He argued that this case has nothing to do with the Public Officers protection Act and that the decision in that case was given in relation to the Public Officers protection Act.

He submitted that the Cross-Respondent is not a public officer as where the words of a statute are clear and unambiguous they must be given their ordinary and grammatical meaning. Jolasun v. Bamgboye (2010) 18 NWLR (Pt 1225) 313; Abubakar v. Yaradua (2008) 19 NWLR (Pt.1120) 1 @ 94. He referred to section 318 of the 1999 Constitution for the definition of public officer which he said does not include the Cross-Respondent. He relied on the maxim 'expressio unius est exclusion alterius' in this regard and the cases of Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446 at 499; Udo v. Orthopaedic Hospitals Mangt. Board (1993) 7 NWLR (Pt.304) 139 @ 148; Ojukwu v. Yaradua (2008) 4 NWLR (Pt.1078) 435 @ 467. He contended that by section 318, a public officer must be one who holds office in the Public Service of the Federation which the Cross-Respondent is not.

CROSS-RESPONDENTS ARGUMENTS

On his part the learned counsel for the Cross-Respondent argued that the interpretation of public officer in Ibrahim v. JSC (supra) can be applied to appropriate situations. He referred to Anyiom v A.G. Cross River State (2007) 24 WRN. He argued that there is little doubt that the Cross-Respondent is a public officer. He submitted that the trial court having found that the Cross-Respondent is a public officer has no option than to follow the provisions of section 84 of the Sheriffs and Civil Process Act. City Eng. Nig Ltd v. NAA (1997) 11 WRN (Pt.625) 76 @ 80.

CROSS-APPELLANT'S REPLY:

In the Cross-Appellant's Reply Brief, it was contended that the Cross-Respondent did not address the cross-appeal but tended to re-argue his main appeal.

RESOLUTION:
The Cross-Respondent is contending that the interpretation of public officer in Ibrahim v. JSC (supra) is not applicable to this case because a different statute was construed in that decision. In the case of Ibrahim v. JSC (supra) the Supreme Court interpreted the word 'person' in section 2(a) of the Public Officers Protection Law of Northern Nigeria applicable to Kaduna State and arrived at the conclusion that 'person' includes person corporate or unincorporated. The court then in view of the fact that the statute deals with public officers considered the meaning of 'public officer' also. At page 38 of that case, Iguh, JSC said:

"I have found it desirable to set out the various definitions of the term 'public officer' as the definition in section 3 of the Interpretation Law of Northern Nigeria, 1963, in particular, equates the term 'public officer' with 'public department' and includes every officer or department invested with the performance of Public duties."

I must say that although the provisions of section 18 of the Interpretation Act, which adopts the meaning in section 318 of the 1999 Constitution, was considered in that case, the actual meaning the Supreme Court gave to 'public officer' was influence by the peculiar provisions of section 3 and 55 of the Interpretation Law of Northern Nigeria, 1963.

Now adverting to the provisions of section 84 of the Sheriffs and Civil Process Act, the section 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." (Emphasis supplied)

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 service 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 funds 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 provisions of section 84 of the Sheriffs and Civil Process Act are not applicable to the facts of this case.

Also based on the facts of this case, I am of the view that the decision in the case of Purification Techniques Nig. Ltd v. Attorney-General Lagos State (2004) 9 NWLR (Pt 879) 665 @ 681 that monies held in the custody or under the control of the garnishee banker are not in custody or under the control of the judgment debtor customer and that such money remain the property and in the control of the banker is not applicable for the reason that the money involved in this case is in the custody and control of the Appellant/Cross-Respondent which is a bank unlike the case of the Purification Techniques (supra) where the public officer was the Attorney-General.

In the final result the sole issue in contention in the cross-appeal is resolved against the cross-appellant. I hold that the cross-appeal lacks merit and it is hereby dismissed. I make no order as to costs.

AMINA ADAMU AUGIE, J.C.A.:

I have read the lead Judgment delivered by my learned brother, Iyizoba, JCA, and I agree with his reasoning and conclusion in the appeal and cross -appeal.

He dealt with all the issues therein comprehensively, and I will only say that although there is a rebuttable presumption that findings and conclusions of a trial Court on facts are correct, this Court has a duty to interfere with its improper findings or correct erroneous conclusions - see Sanni V. State (1993) 4 NWLR (Pt. 285) 99 & Nwankwoala v. State (2005) 12 NWLR (Pt.940) 637.

In this case, I agree with my learned brother that the lower Court's findings based on the Affidavit to show cause sworn on behalf of the Appellant, are perverse, and this is a proper case in which this Court will have to interfere.
To this end, I also allow the appeal and dismiss the cross-appeal. I abide by the consequential orders in the lead Judgment including that as to no costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.:

The provisions of section 84 of the Sheriffs and Civil Process Act is not in conflict with any provision of the Constitution of the Federal Republic of Nigeria, 1999, as amended. See the elaborate lead judgment prepared by Muntaka-Coomassie, J.C.A., (now J.S.C.) in Onjewu V. Kogi State Ministry of Commerce and Industry (2003) 10 NWLR (Pt. 827) 40, which is a decision of this Court (Abuja  Division) and is binding on the court below which, surprisingly, did not follow the said decision.

For the painstaking reasons contained in the lead judgment of my learned brother, Chinwe Eugenia Iyizoba, J.C.A., which I had the benefit of reading in advance, I too find merit in the appeal which I hereby allow and abide by the consequential order(s) contained in the lead judgment; while the cross- appeal has no substance and is hereby dismissed by me.