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ACCESS BANK PLC v. IGWE & ANOR (2022)

ACCESS BANK PLC v. IGWE & ANOR

(2022)LCN/15974(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 02, 2022

CA/B/146/2021

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

ACCESS BANK PLC APPELANT(S)

And

1. MR. UGOCHUKWU GERALD IGWE 2. CENTRAL BANK OF NIGERIA RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE CENTRAL BANK  OF NIGERIA IS A PUBLIC OFFICER

A sea of cases decided by the Court of Appeal concluded that the Central Bank of Nigeria is a public officer within the intendment of Section 84(1) of the Act. Amongst these cases are CBN V. Jay Jay & Ors (2020) LPELR-52290 (CA), CBN V. SCSBV(No.1) (2015) 11 NWLR (Pt. 1469) 130 at 154, CBN V. Ainamo (2019) NWLR (Pt.1672) 407; CBN V. Oodo (2020) LPELR-50290 (CA), CBN V. Zakari (2018) LPELR-44751; CBN V. Azoro (2018) LPELR-44389 (CA) and CBN V. Amcon (2017) LPELR-42986 (CA) and a host of other cases.
However, the above cases cannot be said to be a unanimous decision of the Appellate Court. While the above cases are of the view that the CBN an artificial entity is a public officer some other decisions hold contrary views to the effect that the CBN an artificial entity cannot be said to be a public officer within the contemplation of Section 84(1) of the Sheriffs and Civil Processes Act and under Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). This decision emanate from the cases CBN V. Njemanze (2015) 9 NWLR (Pt. 1653)1 at 36, Alamieyeseigha V. Igoniwari (No.2) (2007) 7 NWLR (Pt. 1034) 314 at 579, CBN V. Interstella Communications (2015) 8 NWLR (Pt.1462), FGN V. Interstella Communications  (2014)NWLR (Pt. 1663) 1 at 36 and Central Bank of Nigeria V. Interstella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294 at 346-347. In the case CBN V. Interstella (2018) Supra, the Supreme Court held as follows:
“The other leg of this argument is where the Appellant does not stand as a public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney General of the Federation does not arise.
Relevant to this conclusion is again the persuasive authority of the CBN V. Ukpong (2006) 13 NWLR (Pt. 998) 555 cited also by the Appellant’s Counsel wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the Central Bank of Nigeria:
“Generally, it is for the overall control and administration of the monetary and banking policies of the Federal Government… it is not established for commercial or profit making purpose…”
On the relationship between the 2nd Respondent and the Appellant in this case, same is purely that of a banker to a customer. Therefore, the question of whether the Appellant is a public officer, who cannot release funds except the consent of the Attorney General of the Federation is obtained, does not apply to the fact and circumstances of this case.”
PER BOLA, J.C.A.

ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This appeal challenges the ruling of the Federal High Court, Benin City Coram Hon. Justice C.A. Obizor delivered on 27th September, 2012 in which the Court refused to set aside the application of the Appellant who was the Judgment Debtor/Applicant at the lower Court. The Appellant at the trial Court made an application for the setting aside the Garnishee Order Nisi made on 12th March 2020 against the 2nd Respondent – the Central Bank of Nigeria.

Not satisfied with the ruling of the lower Court, the Appellant appealed to this Court when it filed its Notice of Appeal at the Federal High Court Benin City on 14th October, 2021. The Notice of Appeal consist of four grounds. The Record of Appeal was transmitted to this Court on 26th October 2021.

The Appellant’s Brief of Argument settled by Chukwuebuka Okeke Esq., was filed on 28/10/2021. The 1st Respondents Brief of Argument settled by A. Odhigbo Esq., was filed on 30/11/2021. The Appellant’s Reply Brief was filed on 10/12/2021. The 2nd Respondent – Central Bank of Nigeria, filed no Brief of Argument. The appeal was heard on 8/3/2022 and judgment reserved.

BACKGROUND TO APPEAL
The 1st Respondent vide a Motion Exparte filed on 5th March, 2020 commenced garnishee proceedings to enforce the judgment of the trial Court in Suit No. FHC/B/CS/2018 Mr. Ugochukwu Gerald Igwe V. Diamond Bank PLC delivered on 13th June, 2020 Coram Honourable Justice A.A. Demi – Ajayi.

Upon the grant of the garnishee Order Nisi on the 12th day of March, 2020 and subsequent service on the judgment debtor and garnishee the Appellant as Judgment Debtor/Applicant filed an application on 28th of August, 2020 praying the trial Court to set aside the garnishee Order Nisi on the ground that same was granted against a non-juristic person and the consent of the Honourable Attorney General of the Federation was not obtained before the garnishee order was sought and obtained.

The learned trial Judge Hon. Justice (Prof) C.A. Obizor heard the application to set aside and delivered his ruling on 27th September, 2020 dismissing the Appellant’s application.

APPELLANT’S BRIEF OF ARGUMENT: ISSUES DISTILLED
The Appellant donated two issues for consideration and resolution in its brief. They are:
1. Was it proper for the 1st Respondent to execute as against the Appellant, a Judgment obtained against the deceased and defunct Diamond Bank PLC, without first obtaining the leave of Court (Ground 1)
2. In the face of binding decision of the Honourable Court, was it not wrong of the learned trial Judge to hold that the consent of the Attorney General of the Federation is not necessary to attach funds in the custody of the Central Bank of Nigeria? (Grounds, 2, 3 and 4).

The Appellant’s Counsel argued the two issues together. In respect of the first issue distilled, it was submitted that by the provision of the Judgment (Enforcement) Rules, it was mandatory for the 1st Respondent to put the Appellant on notice, in seeking leave to attach the fund of the Appellant in satisfaction of the Judgment obtained against the defunct Diamond Bank PLC.

It was argued that the Judgment of the lower Court was delivered on 13th June, 2019, and from the first page of the judgment, it was clear from the judgment that the parties to the suit were the 1st Respondent as the Applicant and the defunct Diamond Bank PLC as the Respondent. That until the conclusion of the case at judgment, the Appellant was not a party. That it was when the 1st Respondent filed a Motion Exparte to execute the Judgment of the trial Court via garnishee proceedings the 1st Respondent changed the name of the judgment debtor. It was submitted that without recourse to any judicial process, the 1st Respondent deviated from the parties as they stood during Judgment and altered the name of the judgment debtor to read “Diamond Bank (now known as Access Bank PLC)”.

This alteration was revealed in the garnishee order nisi made by the trial Court, whereas judgment was obtained against the defunct Diamond Bank PLC alone; without the permission of the trial Court, the 1st Respondent obtained an order to attach the funds of the Appellant in satisfaction of the judgment debt. It was submitted that when the 1st Respondent sought to execute the Judgment of the trial Court by garnishee proceedings, he was fully aware of the change in the nature and composition of the defunct Diamond Bank, and without recourse to judicial process, the Respondent converted the Appellant into the judgment debtor.

It was submitted that being a jurisdictional issue, the lower Court was in position as the trial Court to determine whether the 1st Respondent ought to have obtained leave before naming the Appellant as the judgment debtor in the garnishee proceedings. He referred to the case of Management Ent. Ltd. V. Otunsanya (1987) Vol. 18 INSCC 577 at 583.

Counsel referred to Order II Rule 17 of the Judgment (Enforcement) Rules Cap 56 LFN 2004. Counsel referred to the Order of Lagos Judicial Division of the Federal High Court where the Court directed that all the assets, liabilities and undertakings of the defunct Diamond Bank be transferred to and vested in the Appellant (Access Bank)PLC (page 93 of the Record). That this order was made on 19th of March, 2019. That by reason of the operation of the law, the Appellant became the successor in interest to the defunct Diamond Bank.

Counsel argued that by the order of the Federal High Court which dissolved the defunct Diamond Bank PLC, the defunct Diamond Bank died a legal death. The case C.C.B (Nig) Ltd. V. Onwu Chekwa (2000) 3 NWLR (Pt. 647) 65 at 73 – 74.

It was submitted that the 1st Respondent was fully aware that the defunct Diamond Bank had ceased to exist, and that the Appellant was the successor – in – interest to the defunct Diamond Bank PLC, without leave of Court, the 1st Respondent proceed to obtain an ex-parte garnishee order nisi to execute the Judgment of the trial Court against the funds of the Appellant. Counsel referred to Order IV Rule 9 (1) (a) of the Judgment Enforcement Rules. Counsel also referred to Khoury of Nsawam V. Amoah (1942) 8 WACA 59; Technip V. A.I.C. Ltd. (2016) 2 NWLR (Pt. 1497) 421 at 451 – 452.

It was submitted on the authority of Khoury of Nsawam V. Amoah II (supra) and Technip V. A.I.C. Ltd. (supra), that before commencing the garnishee proceedings against the Appellant, the 1st Respondent ought to have filed a Motion on Notice to obtain the leave of the trial Court. In the instance case there was no Motion on Notice neither was the leave of the trial Court sought and obtained.

Appellant Counsel argued that it was a fundamental requirement of due process that the 1st Respondent should file a Motion on Notice for leave, before attempting to execute the Judgment of the trial Court against the Appellant. It was submitted that leave was a mandatory condition precedent for the trial Court to have competently issued the garnishee order nisi to attach funds of the Appellant with the 2nd Respondent.

Concluding on this issue, Appellant Counsel urged the Court to resolve the issue in favour of the Appellant and hold that in the absence of leave of Court, the 1st Respondent could not execute as against the Appellant, a Judgment obtained against the defunct Diamond Bank PLC.

On the second issue, the Appellant raised the question whether in the face of binding decisions of this Court it was not wrong of the learned trial Judge to hold that the consent of the Attorney General of the Federation was not necessary to attach funds in the custody of the Central Bank of Nigeria.

The Appellants Counsel Chukwuebuka Okeke submitted that the learned trial Judge was wrong because the CBN (2nd Respondent) was a Public Officer within the contemplation of Section 84 of the Sheriffs and Civil Processes Act. That the consent of the Attorney General of the Federation was a mandatory condition precedent before a garnishee order nisi could be issued to attach funds in the custody of the 2nd Respondent. Counsel referred to the case of Utavie V. Capita Development Authority (2020) 14 NWLR (Pt. 1744) 368 at 388, CBN V. Oscko Petroleum Ltd. & Ors (2018) LPELR – 46732 (CA), CBN V. Hydro Air Property Ltd (2014) 16 NWLR (Pt. 1434) 482; CBN V. Maiyini Century Co. Ltd. (2017) LPELR – 43024 (CA), CBN V. James Okefe (2015) LPELR – 24825 (CA), CBN V. J.I. NWANYANWU & Sons (2014) LPELR – 22745 (CA), CBN V. Zakari (2018) LPELR – 44751 (CA).

It was submitted that the lower Court ignored the above decisions and the doctrine of stare decisis and declined to set aside the garnishee order nisi. Refer to Rean V. Aswani Textiles Ltd (1991) 2 NWLR (Pt. 176) 639 at 672.

Counsel cited Section 84 of the Sheriffs and Civil Processes Act LFN 2004.

It was argued that the funds attached by the garnishee order nisi was in the custody and under the control of the 2nd Respondent that is the CBN. In this regard, the 2nd Respondent is an agency of the Federal Government which was created by an Act of the National Assembly. Refer to CBN. V. Amao (2010) 16 NWLR (Pt. 1219) 271 at 302.

It was submitted that the case of CBN V.  Interstellar Comm. Ltd (2018) 7 NWLR (Pt. 1618) 204 relied upon by the lower Court had no applicability to the facts and circumstance of this case. That the case was decided outside the provision of Section 84 (1) of the Sheriffs and Civil Processes Act.

Counsel also referred to the decision of this Court in CBN V. Access Bank & Ors (2022) LPELR – 57017 (CA), a decision of the Kaduna Division of the Court of Appeal delivered on the 10th of March 2022.

Concluding, Counsel invited this Court to resolve the 2nd issue in favour of the Appellant’s Counsel.

RESPONDENT’S BRIEF
Two issues were couched for determination in the Respondent’s Brief. They are:
1. Whether the learned trial Court was right as holding that the garnishee order was properly commenced without obtaining leave to reflect Access Bank PLC on the face of the Motion (Ground 1).
2. Whether the learned trial Judge was right when he held that the Garnishee in this case does not stand as a public officer and that the consent of the Attorney General was not required (Ground 2).

In respect of issue no. 1, it was submitted by the Respondent that the Appellant’s objection was misconceived. That though the Diamond Bank PLC appeared on the face of the Motion Paper, the judgment debtor in the said proceeding was the Appellant and the trial Court was not misled as to the proper identity of who was the Judgment debtor between Diamond Bank and the Appellant. The Garnishee who was directed to show cause did not also complain of having been misled by the way and manner the judgment debtor was referred to. The Garnishee had complied with the order of Court by deposing to an affidavit to show cause as revealed on pages 71 – 72 of Record of Appeal.

Counsel referred to the 1st Respondent’s affidavit in support of its Motion Exparte, paragraph 6 on page 61 of the Record. It was said that the Appellant in paragraph 4(a) of the Motion on Notice deposed to on 28/8/2020 averred that a copy of the Order Nisi was served on his office (page 74 of Record). Flowing from these admissions, the issue of who was the Judgment debtor was not in dispute.
It was submitted that garnishee proceedings are sui generis, that it flowed from the Judgment, it is separate and distinct from the main action that yielded the Judgment sought to be enforced. He referred to the case of Heritage V. Interlagos Oil Ltd (2018) LPELR – 44801 (CA), Polaris Bank V. Gumau & Ors (2019) LPELR – 47066 (CA).

It was argued that the Garnishee proceeding was at the interlocutory stage and any party was not precluded from making an order of substitution on or before the conclusion of the proceedings. That misjoinder or non-joinder will not defeat a proceeding.

It was submitted that failure to seek and obtain leave to properly reflect or substitute the Appellant was not enough ground to defeat the garnishee proceedings at the order nisi stage. Refer to Sapo V. Sunmonu (2010) LPELR – 3015 (SC), CBN V. Azoro (2018) LPELR 44389, CBN V. Interstella Comm. (2017) ALL FWLR (Pt. 930) 442 at 507.

Counsel referred to Exhibit ‘C’ attached to the Appellants affidavit in support of Motion in respect of the merger. It was submitted that Exhibit ‘C’ clearly showed that there was an established nexus between the Diamond Bank PLC and Access Bank PLC and by Order 2 of Exhibit ‘C’, the Appellant had assumed all liabilities of Diamond Bank having stepped into the shoes of Diamond Bank PLC.

By Exhibit ‘C’ the Appellant was mandated to continue all legal proceedings by or against Diamond Bank PLC. That this create a comparable intervening event that makes the Appellant presumed to be a party in this suit with or without leave of the Court being sought. He cited the cases Gwede V. Delta State House of Assembly (supra), CBN. V. Interstella Comm. (supra), CBN. V. Lidan Engineering Ltd & Ors (2021) LPELR 52622, Anchor Ocean Ltd. V. Bono Energy Ltd (2018) LPELR – 45530.

Counsel argued that the provision of Order IV Rule 9(a) of the Judgment Enforcement Rules relates to issuance of Writ of Execution which is distinct from garnishee proceedings. Refer to the case of Technip V. AIC Ltd. (supra) cited by the Appellant Counsel in his brief, the Court of Appeal per Hon. Justice Samuel Oseni (as he then was) held inter alia:
“This is to my mind the real intent and purport of Order IV Rule 9(1) (a) of the Judgment Enforcement Rules, which provision must not be mixed up or confused with Section 83 of the Sheriffs and Civil Processes Act which specifically provided for the use of Exparte application for garnishee proceedings.”

By reason of the foregoing, it was submitted that Technip V. AIC was not applicable or on all fours with the facts of this come as in Technip’s case, the Judgment debtor was still in existence and in operation unlike the facts of this case.

It was submitted that by Order 6 of the Federal High Court Judgment sanctioning the scheme of merger the Appellant was under a duty to continue all pending legal proceeding claims and litigation pending against Diamond Bank.

It was contended that the presence of Diamond Bank Plc on the face of the Motion paper does not in any way vitiate the garnishee proceedings commenced to enforce the Judgment of the trial Court.

Order 7 of Exhibit ‘C’ state that Diamond Bank Plc was dissolved without being wound up. From the order, the banking license of Diamond Bank was merely withdrawn leading to its dissolution as there was no formal winding up proceeding carried out to properly dissolve Diamond Bank Plc.

It was asserted that the mere withdrawal of a banking license does not bring the corporate existence of a bank to an abrupt end. That its existence will come to an end or will be completely dissolved after being fully wound up. He referred to the cases APC V. INEC (2015) 8 NWLR (Pt. 1462) 531 or (2014) LPELR-24036 (SC) 27-28, Oredola-Okeya Trading Co. V. BCCI Ltd (2014) LPELR-22011 (SC) 37-39. Finally cited the case of Chukwukelo & Ors V. Fidelity Bank Nig. Plc & Ors (2020) LPELR-51632.

On this issue, Counsel urged the Court to uphold the ruling of the trial Judge.

The 2nd issue is whether the Consent of the Attorney General of the Federation should have been obtained before the commencement of this proceedings.

Counsel referred to the ruling of the lower Court to the effect that the Appellant was not a public officer to warrant the consent of the Attorney General of the Federation before its funds could be garnished.

On the submission that he lower Court failed to distinguish authorities supplied by it before arriving at its conclusion and that the lower Court was bound to follow the authorities cited by the Appellant on the issue whether the 2nd was a public officer or not in the context of garnishee proceedings, it was submitted that the submission was misconceived against the background of the decision of the Supreme Court in CBN V. Interstella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294 which held that the CBN is not a public officer and does not require the consent of the Attorney General of the Federation. Counsel also cited cases with similar decision such as CBN V. Abdullahi Abubakar (2019) LPELR at 48261, CBN V. Appah (2020) LPELR-51214, CBN V. Zenith Bank (2019) LPELR-48383, CBN V. Doma (2018) LPELR-45639 (CA); CBN V. Aprimpex Ent., CBN V. Lidan Eng. Ltd & Ors (2021) LPELR 52622.

It was submitted that the argument of Appellant Counsel that the case of CBN V. Interstella (Supra) was inapplicable was met by this Court in its recent decision in CBN V. Aminu Umar & Ors (2021) LPELR-55565 per B.M. Ugo JCA.

Respondent’s Counsel submitted that the holding in the Judgment of the Supreme Court in the case of CBN V. Interstella applied to the facts of the case, and the learned trial Judge was bound to follow the said decision.

Counsel urged the Court to dismiss this appeal and affirm the ruling of the Federal High Court.

Having gone through the issues formulated by the parties and the submissions of their respective Counsel, this Court is inclined to adopt the issues donated for consideration by the 1st Respondent subject to necessary modification:
“1. Whether the Garnishee proceeding was properly commenced without the leave of the Court first sought and obtained before the name of Access Bank Plc was reflected on the Motion paper commencing the garnishee proceeding.
2. Whether the learned trial Judge was right when he held that the Central Bank of Nigeria was not a public officer and by reason of which the consent of the Attorney General of the Federation was not required before garnishing the funds in the custody of the CBN.

Appellant’s Counsel submitted that at the time of the judgment that parties to the suit were the 1st Respondent as the Applicant and the defunct Diamond Bank Plc as the Respondent that when the Judgment was delivered the Appellant was not a party to the action. However, when the 1st Respondent Ugochukwu Gerald Igwe filed a motion ex-parte to execute the Judgment of the trial Court via garnishee proceedings, the 1st Respondent deviated from the parties as they stood when judgment was delivered, and altered the name of the Judgment debtor to read “Diamond Bank Plc (now known as Access Bank Plc)”.

It was argued that although the 1st Respondent was fully aware that the defunct Diamond Bank Plc had ceased to exist, and that the Appellant was the successor in interest to the defunct Diamond Bank Plc, without leave of Court, the 1st Respondent proceeded to obtain ex-parte garnishee order nisi to execute the trial Court against the funds of the Appellant.

It was argued that styling the judgment debtor as “Diamond Bank Plc (now known as Access Bank Plc)” did not cure the defect complained of.

Without much ado and complexity, the question that calls for an answer in the circumstance of the present issue is: was it necessary to seek and obtain leave of the lower Court before reflecting the name of the Appellant – Access Bank on the motion paper in respect of the garnishee proceeding? This question is against the background of the contention of the Appellant that failure to seek and obtain leave before joining the Appellant to the Garnishee proceeding was fatal to the garnishee proceeding.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

It is not in doubt that the substantive matter in which judgment was entered in favour of the 1st Respondent, the Defendant in the action was the defunct Diamond Bank Plc, the precursor of the Appellant. It is a settled issue that the Diamond Bank Plc metamorphosed to the Access Bank the Appellant in this appeal. In paragraph 4(d) of the Affidavit in support of motion filed by the Appellant, the Appellant annexed the Judgment of the Federal High Court, Lagos Judicial Division in Suit No. FHC/L/CS/90/2019 which sanctioned a merger scheme in respect of the Appellant and the defunct Diamond Bank Plc. Orders 1, 2, 3, 4, 5, 6 and 7 made by the Federal High Court in respect of the Scheme of Merger made on 13th day of March, 2019 are set out hereunder:
“1. That the Scheme set out on pages 26 to 30 of the Scheme Document annexed to the Affidavit as Exhibit AD1 filed on behalf of the 1st Petitioner in support of this Joint Petition, is hereby sanctioned by this Honourable Court so as to be binding on the Petitioners and the respective holders of their fully-paid ordinary shares.
2. That all the assets (including but not limited to real properties and intellectual property rights) liabilities and undertakings of the 2nd Petitioner be transferred and vested in the 1st petitioner without further act or deed, as provided in the Scheme.
3. That the 1st Petitioner shall issue and allot to all shareholders of the 2nd Petitioner 2 ordinary shares of 50 kobo each in the 1st Petitioner “(credited as fully paid) in exchange for every 7 ordinary shares of 50 kobo each held by the shareholders in the 2nd Petitioner.
4. That cash consideration of N1.00 for every share of the 2nd Petitioner be paid by the 1st Petitioner to the Shareholders of the 2nd Petitioner within 10 Business Days from the date of this order (i.e. 19th day of March, 2019), sanctioning the scheme of merger.
5. That the entire issued share capital of the 2nd Petitioner is hereby cancelled.
6. That all legal proceedings, claims and litigation matters pending, by or against the 2nd Petitioner shall be continued by or against the 1st Petitioner.
7. That the 2nd Petitioner is hereby dissolved without being wound up.

Orders 2, 6 and 7 of the above are pertinent and germane in respect of the issue at hand. Order 2 vividly shows that there was a connexion or nexus between Diamond Bank Plc and Access Bank and by reason of this Order the Appellant (Access Bank) had inherited all liabilities and undertakings of Diamond Bank. It is of further importance to note that by Order 6 all legal proceedings, claims and litigation matters pending by or against the Diamond Bank shall be maintained by or against the Access. Order 7 establishes clearly that the Diamond Bank Plc had become dissolved by the order of the Court. Without being wound up.

Considering the above orders particularly Orders 2 and 6 communally, I do not think it is necessary to seek the leave of the lower Court before the garnishee proceedings can be enforced against the Access Bank the successor to the defunct Diamond Bank Plc and also the inheritor of its assets and liabilities including legal proceedings, claims and litigations
Further to the above, Order 2 Rule 16 of the Judgment Enforcement Rules provides that:
​“Where a person not being a party in a proceeding obtains an order or has an order made in his favour he shall be entitles to enforce obedience to such order by the same process as if he were a party in the proceedings; and any person not being a party in any proceedings against whom obedience to any judgment may be enforced shall be liable to the same process for enforcing obedience to such Judgment as if he were a party to the proceeding.”
I also refer to the case cited by the 1st Respondent which is Anchor Ocean Ltd V. Bono Energy Ltd & Ors (2018) LPELR-45530 where this Court per Obaseki-Adejumo JCA held inter alia:
“It is not disputed in the instant case that the Appellant is not a party to the suit at the lower Court, and applying the general position of the law stated above to the instant case, the reasonable conclusion here is to declare the order made by the trial Judge against the Appellant, a nullity. This is ipso facto the Appellant’s wish; I must say I am unable to tow that line…I have earlier enumerated the relevant facts in the instant case, and while it is undisputed that the Appellant is not also the pending suit at the lower Court, it is not also disputed that the Appellant is no stranger to the suit from the record before us.”
The above decision presupposes that failure to obtain leave of the lower Court before the institution of the garnishee proceedings against the Appellant upon the dissolution of the Diamond Bank Plc will not constitute an obstacle to the enforcement of the judgment against the Appellant. The Appellant cannot claim ignorance of the decision of the Federal High Court in respect of the merger scheme particularly being vested with the assets and liabilities of its predecessor – Diamond Bank, and also inheriting legal proceedings, claims and litigation involving Diamond Bank. The Appellant cannot inherit the assets of the Bank and jettison the liabilities inherited in respect of Judgments awarded against its predecessor. By reason of Order 2 and 6 granted by the Federal High Court in 2019, the Appellant is a party to the garnishee proceeding with or without the leave of the Court being sought and obtained. In other words the failure to seek and obtain leave to properly reflect or substitute the Appellant was not enough ground to defeat the garnishee proceedings at the order nisi stage.
​Without doubt, the Appellant has made heavy weather of the failure to seek the leave of the Court before it was joined as a party to the garnishee proceedings. Suffice to say, failure to obtain leave before the joinder of the Appellant does no damage to the garnishee proceeding and the consequential order nisi made by the lower Court. In any case, it is settled law that misjoinder or non-joinder of a party cannot defeat a proceeding. See Sapo V. Sunmonu (2010) LPELR-3015 (SC), CBN V. Azoro (2018) LPELR-44389.

On this premise, issue no.1 is of no momentum against the garnishee proceeding before the lower Court. The issue is hereby resolved in favour of 1st Respondent and against the Appellant. It is accordingly laid to rest.

The 2nd issue is whether the learned trial Judge was right when he held that the Central Bank of Nigeria was not a public officer and by reason of which the consent of the Attorney General of the Federation was not required before garnishing the funds in custody of the CBN.

The Appellant’s Counsel submitted that the learned trial Judge was wrong because the CBN (2nd Respondent) was a public officer within the contemplation of Section 84 of the Sheriffs and Civil Processes Act. That the consent of the Attorney General of the Federation was a mandatory condition precedent before a garnishee order nisi could be issued to attach funds in the custody of the CBN (2nd Respondent).

It was equally argued that the lower Court ignored decisions in respect of the above contention and also jettisoned the doctrine of stare decisis when it declined to set aside the garnishee order nisi.

The issue whether the Central Bank is a public officer or not and the question whether the consent of the Attorney General of the Federation is necessary in the circumstance have become a recurring contentions in our case law. Issues that have become inundated with a myriad of decision of our Courts particular the Appellate Courts. The decisions of the Appellate Court are more noted in conflict than in unison.

Is the 2nd Respondent – Central Bank of Nigeria a public officer within the intendment and contemplation of Section 84 of the Sheriffs and Civil Processes Act? Section 84(1) of the Act provides as follows:
“Where money is liable to be attached by garnishee proceedings is in the custody of or under the control of a public officer in his official capacity or in custodial legis, the order nisi shall not be made under the provision of the last proceeding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in custody or control of a public officer or of the Court in the case of the money in custodial legis, as the case may be.”
As clearly provided, the above requires the consent of the appropriate officer that is the Attorney General of the Federation or of a state where the money liable to be attached is in the custody or under the control of a public officer in his official capacity.
A sea of cases decided by the Court of Appeal concluded that the Central Bank of Nigeria is a public officer within the intendment of Section 84(1) of the Act. Amongst these cases are CBN V. Jay Jay & Ors (2020) LPELR-52290 (CA), CBN V. SCSBV(No.1) (2015) 11 NWLR (Pt. 1469) 130 at 154, CBN V. Ainamo (2019) NWLR (Pt.1672) 407; CBN V. Oodo (2020) LPELR-50290 (CA), CBN V. Zakari (2018) LPELR-44751; CBN V. Azoro (2018) LPELR-44389 (CA) and CBN V. Amcon (2017) LPELR-42986 (CA) and a host of other cases.
However, the above cases cannot be said to be a unanimous decision of the Appellate Court. While the above cases are of the view that the CBN an artificial entity is a public officer some other decisions hold contrary views to the effect that the CBN an artificial entity cannot be said to be a public officer within the contemplation of Section 84(1) of the Sheriffs and Civil Processes Act and under Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). This decision emanate from the cases CBN V. Njemanze (2015) 9 NWLR (Pt. 1653)1 at 36, Alamieyeseigha V. Igoniwari (No.2) (2007) 7 NWLR (Pt. 1034) 314 at 579, CBN V. Interstella Communications (2015) 8 NWLR (Pt.1462), FGN V. Interstella Communications  (2014)NWLR (Pt. 1663) 1 at 36 and Central Bank of Nigeria V. Interstella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294 at 346-347. In the case CBN V. Interstella (2018) Supra, the Supreme Court held as follows:
“The other leg of this argument is where the Appellant does not stand as a public officer in this situation. Therefore, it follows that the need to seek the consent of the Attorney General of the Federation does not arise.
Relevant to this conclusion is again the persuasive authority of the CBN V. Ukpong (2006) 13 NWLR (Pt. 998) 555 cited also by the Appellant’s Counsel wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the Central Bank of Nigeria:
“Generally, it is for the overall control and administration of the monetary and banking policies of the Federal Government… it is not established for commercial or profit making purpose…”
On the relationship between the 2nd Respondent and the Appellant in this case, same is purely that of a banker to a customer. Therefore, the question of whether the Appellant is a public officer, who cannot release funds except the consent of the Attorney General of the Federation is obtained, does not apply to the fact and circumstances of this case.”
Likewise in the case Central Bank of Nigeria V. Shuaibu Doma (2018) LPELR-45639 (CA) 11-28 the Court of Appeal held:
“The recurrent question of whether the Central Bank of Nigeria is a public officer for the purpose of Section 84 of the Sheriffs and Civil Processes Act is, therefore, totally irrelevant….
“On the facts of the circumstances of this case, the Appellant is not a public officer as to warrant the application of Section 84(1) of the Sheriffs and Civil Processes Act.”
The Court held further
“An artificial entity created by law cannot be a public officer under the provision of Section 84 of the Sheriffs and Civil Processes Act. That is to say, the consent of the Attorney General is not necessary in this case because the Central Bank of Nigeria is not a public officer as contemplated by Section 84 of the Sheriffs and Civil Act (Supra).”
The decision of this Court in the case CBN V. Interstella Communication Ltd (2015) 8 NWLR (Pt. 1462) 457 where it was held that Section 84 of the Act does not intend the Central Bank of Nigeria to be a public officer is apposite in the circumstance. The Court had this to say:
“By virtue of Section 2(1) of the Central Bank of Nigeria, the Central Bank act as a banker and provides economic and financial advice to the Federal Government of Nigeria. Further by Section 36 of the Act, the Bank receives and disburses the Federal Government moneys and keeps account thereof. In this case, the relationship between the Appellant and 1st and 2nd Respondents was that of a banker and customer relationship. In other words, the Appellant was not a public officer in the context of the provision of Section 84 of the Sheriffs and Civil Processes Act. So the need to seek the consent of the Attorney General did not arise.”
In CBN V. Njemanze (supra), the Court of Appeal held thus:
“The term ‘public officer’ relates to holder of the office only in Section 318(1) of the Constitution of the Federal Republic of Nigeria (as amended). Equally, Section 84 of the Sheriffs and Civil Processes Act also refers to public officer as a holder, officer or person holding a public office. In the circumstance, officers of Central Bank of Nigeria are public officers but Central Bank of Nigeria is not a public officer.”
The Court further held
“Having gone through Section 318(1) of the 1999 Constitution, the conclusion of this Court is that the section only refers to natural person or individuals and not artificial person like Central Bank of Nigeria the meaning of Public Officer according Section 318(1) excludes artificial persons like Central Bank of Nigeria.”
See also CBN V. APPAH (2020) LCN/14063 (CA) a decision of the Kaduna Division of the Court of Appeal in Appeal No: CA/K/371/2017 Coram Adefope Okojie JCA.
In rounding up on this issue, it is the considered view of this Court that the decision of the Supreme Court in CBN V. Interstella Communication Ltd (2018) 7 NWLR (1618) 294 has put an end to the conflicting decisions and controversies as to whether the Central Bank of Nigeria (CBN) is a public officer within the meaning of Section 84(1) of the Sheriffs and Civil Processes Act or not.
Arising from the foregoing, I hold that the Central Bank of Nigeria is not a public officer within the intendment of the provision of Section 84(1) of the Sheriffs and Civil Processes Act. In the light of this, it is held that the consent of the Attorney General of the Federation was not required before the commencement of the garnishee proceeding. It is therefore not necessary for the consent of the Attorney General of the Federation be sought and obtained before the lower Court could grant the Garnishee Order Nisi and eventually Garnishee Order Absolute. The lower Court has the jurisdiction to entertain garnishee proceeding for the enforcement of Judgment in which the Central Bank is a custodian of the fund sought to be garnisheed to satisfy the Judgment debt.

I therefore resolve the second issue formulated by this Court to the effect that the lower Court was right in its decision when it held that the consent of the Attorney General of the Federation was not required for attachment of funds in its custody in the Garnishee Proceedings.

Having resolved the two issues against the Appellant, this appeal is therefore considered unmeritorious. It fails in the circumstance. The ruling of the lower Court is affirmed. This appeal is dismissed.

Parties to bear their respective costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, SAMUEL ADEMOLA BOLA, JCA.

I agree with the holding of my learned brother in the issues canvassed therein. I also hold that the appeal lacks merit and the same is accordingly dismissed. I too affirm the ruling of the High Court of Edo State delivered on 27th September 2012 in Suit No: FHC/B/CS/156/2018 by C. A. Obiozor, J.

I also abide by the order as to cost.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, Samuel Ademola Bola, JCA. I agree with his conclusion that the appeal is unmeritorious.

Now, the issue of whether the Central Bank of Nigeria (the 2nd Respondent herein) is a public officer is a recurrent issue. Happily, the apex Court put it to rest in the case of CBN v. Interstella Communication Ltd (2018) 7 NWLR (Pt.1618) 294 where it held quite unequivocally that the Central Bank of Nigeria is not a public officer, and therefore the consent of the Attorney-General of the Federation is not required to attach money in its custody in satisfaction of a debt.
It must be emphasized that a lucid reading of Section 318(1) of the 1999 Constitution (as amended) does not leave in any iota of doubt that the section only refers to natural persons or individuals not artificial persons like Central Bank of Nigeria. This is in keeping in fidelity with the rules of interpretation that when the words used in a statute are clear and unambiguous, they must be accorded their liberal and natural meaning.

On the first, his Lordship was meticulous in his conclusion and leaves no room for addition.

It is for the foregoing reasons that I hold the appeal to be lacking in merit and dismiss same.

Appearances:

CHUKWUEBUKA S. OKEKE, ESQ. For Appellant(s)

A. ODHIGBO, ESQ. For Respondent(s)