CBN v. CANAANLAND INVESTMENT LTD & ORS
(2022)LCN/16102(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, September 06, 2022
CA/ABJ/422/2020
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
CENTRAL BANK OF NIGERIA APPELANT(S)
And
1. CANAANLAND INVESTMENT LIMITED 2. MONIET DEVELOPMENT CO. LTD. 3. THE FEDERAL MINISTRY OF ENVIRONMENT 4. ATTORNEY GENERAL OF FEDERATION RESPONDENT(S)
RATIO:
CENTRAL BANK OF NIGERIA BEING A BODY CORPORATE AND EMPLOYEES BEING PUBLIC OFFICERS
Now, it is not in doubt that, the Central Bank of Nigeria is a body corporate, which can sue and be sued in its corporate name. It is created by the Central Bank of Nigeria (Establishment) Act of 2007. Thus, all employees of the Bank are public officers within the contemplation of Section 318(1) of the 1999 Constitution. See Sharika & Sons Ltd. v. The Government of Kaduna State & Ors (2013) LPELR – 20329 (CA) and CBN v. Njemanze (2015) 4 NWLR (Pt. 1449) 279. That being so, while these corporate bodies which are created by law provide public services, persons who hold offices in such institutions or corporate bodies are “public officers”. Thus, Section 84 of the Sheriffs and Civil Process Act envisages natural persons who hold offices in such public institutions or corporations either of the Federation or of a State. Accordingly, a corporate or statutory body such as the Central Bank of Nigeria (CBN) does not qualify as such public officer within the ambit of Section 84 of the Sheriffs & Civil Process Act. Thus, in CBN v. Interstella Communication Ltd. (2015) 8 NWLR (Pt. 1462) 456 at 505 paras C-D, Abba Aji, JCA (as he then was) held that:
“Section 84 of the Sheriffs and Civil Process Act refers to a Public Officer as a holder, officer or person holding a public office. The term public officer is also defined to only relate to the holders of the offices as reflected only in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)….” HARUNA SIMON TSAMMANI, J.C.A.
THE DEFINITION OF A GARNISHEE PROCEEDING AND ITS PROCEEDINGS
A garnishee proceeding is therefore a separate and distinct action between the Judgment Creditor and the person known as the Garnishee, holding or being in custody of the money or asset of the Judgment Debtor. A garnishee proceeding therefore, flows from the judgment that pronounced the debt. The Garnishee is therefore not a party to nor has he any interest in the dispute between the Judgment Creditor and Judgment Debtor, leading to the judgment that pronounced the debt. The Garnishee is only required by the Court at the instance of the Judgment Creditor, to pay to the Judgment Creditor, money in its custody belonging to the Judgment Debtor. See Balogun v. Wema Assets Mgt. Ltd & Ors (2015) LPELR – 25573 (CA), Citizens International Bank Ltd. v. SCOA (Nig.) Ltd & Anor (2006) LPELR – 5509 (CA) and UBA Ltd. v. SGB Ltd. (1996) 10 NWLR (Pt. 478) 381 at 383. HARUNA SIMON TSAMMANI, J.C.A.
GARNISHEE IS CALLED UPON TO SHOW CAUSE AND ITS ROLE IN A GARNISHEE PROCEEDING
Generally, garnishee proceedings are a process of enforcing a money judgment by the attachment or seizure of the debts due or accruing to the Judgment Debtor in custody of the Garnishee, and which form part of his asset liable in execution. The attachment is usually done by the Court issuing a garnishee order nisi. By the issuance of the order nisi, the Garnishee is called upon to show cause why he shall not be made to pay to the Judgment Creditor, money of the judgment debtor in its custody or so much of it as will satisfy the Judgment debt. The role or duty of the Garnishee in a garnishee proceeding is to satisfy the Court by way of Affidavit, why the funds in its possession or custody belonging to the judgment debtor should not be garnished to pay the judgment debt. See GTB v. Innoson Nigeria Ltd. (2017) 16 NWLR (Pt. 1591) 181, UBA Plc. v. Ekanem & Anor (2009) LPELR – 8428 (CA) and Total Upstream (Nig.) Ltd. v. A.I.C. Ltd. & Ors. (2015) LPELR – 25388 CA. Such reasons could include the fact that the judgment debtor does not have the assets said to be in the custody of the Bank. HARUNA SIMON TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal Capital Territory, sitting in Abuja delivered by A. I. Akobi, J on the 20th day of January, 2020 in Motion No:M/38/99.
By an Exparte Motion filed on the 21/11/2018, the Judgment Creditors/Applicants who are the 1st and 2nd Respondents in this appeal, sought in the Court below, the following reliefs:
1. An Order nisi attaching sums of monies due, accruing and/or standing to the credit of the Judgment Debtor/Respondent in the custody of the Garnishee.
2. An Order directing the Garnishee to show cause why order absolute shall not be made attaching sums or monies due, accruing and/or standing to the credit of the Judgment Debtor/Respondent in the custody of the Garnishee.
3. An Order for the Garnishee to pay the cost of enforcement of the judgment.
4. ANY OTHER order the Court might deem fit to make in the circumstance.
The Exparte Motion was supported by an Affidavit of 20 paragraphs to which were annexed three (3) exhibits marked as Exhibits CM1, CM2 and CM3 respectively. A Written Address was also filed in support of the Application as required by the Court’s Rules. The Garnishee Order Nisi was made on the 21/2/2019 and duly served on the Garnishee. The Exparte Motion was filed along with a Motion on Notice which prayed for the following reliefs:
1. An Order ABSOLUTE attaching the sums or monies due, accruing and/or standing to the credit of the Judgment Debtor/Respondent in the custody of the Garnishee.
2. An Order directing the Garnishee to pay the cost of enforcing the garnishee Absolute.
3. ANY OTHER order the Court might deem fit to make in the circumstance.
The motion was supported by an Affidavit of 20 paragraphs and a Written Address also in support. However, it seems that the said motion was abandoned as the Judgment Creditors also filed another Motion on Notice on the 12/12/2018. The said motion prays as follows:
1. An Order Nissi attaching the sums or monies in the sum of N40,103,636.00 (Forty Million, One Hundred and Three Thousand, Six Hundred and Thirty-Six Naira Only) due, accruing and/or standing to the credit of the Judgment Debtor/Respondent in the custody of the Garnishee.
2. An Order directing the Garnishee to show cause why order absolute shall not be made attaching sums or monies in the sum of N40,103,636.00) (Forty Million, One Hundred and Three Thousand, Six Hundred and Thirty- Six Naira Only) due, accruing and/or standing to the credit of the Judgment Debtors /Respondent in the custody of the Garnishee.
3. An Order for the cost of enforcement of the Garnishee.
4. Any other order the Court might deem fit to make in the circumstances.
The motion was supported by an Affidavit of 23 paragraphs to which were annexed four (4) documents marked as Exhibits CM1, CM2, CM3 and CM4 respectively. A Written Address was also filed along with the motion as required by the rules of the trial Court. Upon being served, the order nisi, made on the 21/2/2019, the Judgment Debtor/3rd Respondent filed a Notice of Preliminary Objection. Same was heard and in ruling delivered on the 13/1/2020, the trial Court struck out the objection. There is no appeal against that ruling. It is necessary to note at this point, that the Garnishee filed a “GARNISHEE’S AFFIDAVIT TO SHOW CAUSE” on the 6/3/2019. The Judgment Creditors then filed a Counter-Affidavit against the Garnishee’s Affidavit to show cause. Thus, in a ruling delivered on the 20/01/2020, the learned trial judgment made the Garnishee Order Nisi, Absolute in the following terms:
“1. The Garnishee Order Nisi made on the 21/02/2019 is made absolute with respect to the sum of N40,103,636.00 held by the Garnishee for the Judgment Debtor.
2. The payment of the sum of N40,103,636.00 is subject to tax and vat (sic: VAT).
3. The Garnishee shall pay the said sum in its custody to the Judgment Creditor forthwith to satisfy the outstanding judgment sum in this suit.”
Dissatisfied by the decision, the Garnishee/Appellant (Central Bank of Nigeria) filed this appeal. The Notice of Appeal Consisting of two (2) Grounds of Appeal, was filed on the 06/3/2020. Same was amended by the leave of this Court granted on the 20/9/2021. This appeal was therefore argued on the Amended Notice of Appeal filed on the 01/9/2021 but deemed filed on the 20/9/2021, consisting of three (3) Grounds. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Argument was filed on the 01/9/2021 but deemed filed on the 20/9/2021.
Therein, two (2) issues were raised for determination as follows:
1. Whether, in view of the fact that the consent of the Attorney General of the Federation was not obtained as required by the provisions of Section 84 of the Sheriffs and Civil Process Act before the Garnishee Order Nisi herein was made on 21st February, 2019, the Court below was right to make absolute the said Garnishee order Nisi on 2th January, 2020. (Grounds 1 and 2).
2. Whether the Appellant’s Affidavit to show cause filed before the Court below on March, 2019 did not disclose sufficient cause to warrant the Court below refusing to make absolute the order nisi made on 21/02/2019. (Ground 3).
The 1st and 2nd Respondents filed a Brief of Argument. Same was filed on the 13/10/2021. The 1st and 2nd Respondent adopted the issues filed by the Appellant. The 3rd and 4th Respondents did not file any Brief of Arguments. The 1st and 2nd Respondents having adopted the issues raised by the Appellant, I do not hesitate in adopting the issues raised by the Appellant. I begin with issue one 1.
Now, in arguing issue, learned counsel for the Appellant contended that, by Section 84(1) of the Sheriffs and Civil Process Act, Cap. S. 6, Laws of the Federation, 2004. where the money sought to be attached in satisfaction of a Judgment debt through garnishee proceedings is money in the custody or control of a public officer in his official capacity, the order nisi shall not be made except the consent of the Attorney General of the Federation is first sought and obtained. That the requirement of consent is mandatory. That the Supreme Court has held in plethora of authorities that the Central Bank of Nigeria is a public officer within the context of Section 84 of the Sheriffs and Civil Process Act. The cases of CBN v. Hydro Air Pty Ltd. (2015) All FWLR (Pt. 765) 227 at 265 Paras. C – D; Sanni v. Unity Bank Plc & CBN (2017) All FWLR (Pt. 891) 882 at 896 – 898; CBN v. James Ejembi Okefe (2015) LPELR – 24825 (CA); CBN v. Shipping Company Sara B. V. (No.1) (2015) 11 NWLR (Pt. 1469) 130 at 154 and Central Bank of Nigeria v. Alhaji Mohammed Kakuri (2016) LPELR – 41468 (CA) were cited in support.
Learned counsel for the Appellant also submitted that, all the decisions cited above, had held that, the various institutions owned by government are treated as public officers. It was then submitted that, the Central Bank of Nigeria is a public officer within the context of the provisions of Section 84 of the Sheriffs and Civil Process Act. That in the circumstances, the consent of the Attorney-General is a prerequisite for the making of the Order Nisi. Furthermore, that the Central Bank of Nigeria (Appellant) therefore, holds the money of the 3rd Respondent in its capacity as a public officer. That this fact was admitted by the 1st and 2nd Respondents in paragraphs 18, 19 and 20 of the Affidavit in Support of their Motion on Notice for the Garnishee Order Nisi. That, from the facts deposed in the Motion on Notice, it is apparent that the consent of the Attorney-General of the Federation was not obtained for the attachment of the 3rd Respondent’s funds in the custody of the Appellant.
Learned Counsel for the Appellant went on to submit that, the garnishee order nisi made by the Court below, without the consent of the Attorney-General was done without jurisdiction. That, the fact that the consent of the Attorney-General of the Federation was required for the attachment of the money of the 3rd Respondent in the custody of the Appellant, was brought to the knowledge of the Court by virtue of paragraphs 7 and 8 of the Affidavit to show cause. That despite the fact that such requirement was brought to the knowledge of the Court below, it proceeded to make the garnishee order absolute on the 20/1/2020. The case of Macfoy v. U.A.C (1961) 3 All NLR 1169 at 1172 was then cited to submit that, in law, an invalid order is a null act and therefore, no valid action can be based on it. We were accordingly urged to hold that, the garnishee order absolute made on the 20/1/2020 based on the void garnishee order nisi is a nullity and cannot be sustained.
It is also contended by learned counsel for the Appellant that, upon being served the garnishee order nisi, the Appellant filed an Affidavit to show cause on the 06/3/2019 and bringing to the notice of the Court below, that the consent of the Attorney-General of the Federation had not been obtained. That despite being so notified, the learned trial Judge proceeded to make the garnishee order nisi, absolute in the sum of N40,103,636.00k in satisfaction of the outstanding judgment sum. Learned counsel then submitted that, in the light of the above arguments, the learned trial Judge was wrong in making absolute, the garnishee order nisi without the requisite consent of the Attorney General of the Federation. That, the failure to obtain the consent of the Attorney-General of the Federation as required by Section 84 of the Sheriffs and Civil Process Act before the garnishee order nisi could be made absolute, is sufficient cause shown by the Appellant why the order nisi should not have been made absolute. We were accordingly urged to resolve the issues in favour of the Appellant and to set aside the judgment of the trial Court.
In response, learned counsel for the 1st and 2nd Respondents contended that, the 1st and 2nd Respondents duly obtained the consent of the Attorney-General of the Federation prior to the filing of the motion for an order nisi attaching the sum of money in custody of the Appellant. The case of Fidelity Bank v. Onwuka (2017) LPELR – 42839 (CA) was then cited to further contend that, the order nisi is a mere fact finding order preparatory to the grant or refusal of the garnishee order absolute. That the arguments canvassed by the Appellant in this appeal, centers on the garnishee order nisi made by the trial Court on the 21/2/2019. That, in response to the garnishee order nisi, the Garnishee/Appellant filed an Affidavit to show cause, which was countered by the judgment creditors stating how they had complied with the requirements of Section 84(1) of the Sheriffs and Civil Process Act.
Learned counsel for the 1st and 2nd Respondents also contended that the Garnishee/Appellant did not file any Further and Better Affidavit to challenge, refute or challenge the said Counter-Affidavit, particularly paragraphs 6(a), (b) and (c) thereof. That in the circumstances, those unchallenged depositions are deemed admitted and the Court had no option than to act on it. Therefore, the learned trial Judge considered the processes and arguments of counsel before coming to the conclusion that, the Judgment Creditors/Respondents complied with the requirements of Section 84 of the Sheriffs and Civil Process Act.
Learned counsel for the 1st and 2nd Respondents relied on the case of CBN v. Interstella Communications Limited (2017) LPELR – 43940 (SC) to submit that, the Supreme Court has put to rest the question of the status of the Central Bank of Nigeria as a public officer, and the requirements of consent of the Attorney-General before attaching money of the Government in its custody. That in the Interstellar case (supra), the Supreme Court made the following findings of fact:
i. the Attorney General of the Federation participated in the negotiation that gave rise to the settlement of judgment debt on behalf of the Federal Government and also signed the terms of settlement thereon in that capacity.
ii. that on the above facts, the consent of the Attorney General had been impliedly given.
iii. that the Federal Government personified in the Attorney General had already taken steps in paying part of the negotiated sum.
iv. that in those circumstances, it is inconceivable that the Judgment Creditor will require the consent of his debtor to recover the money.
Learned counsel for the 1st and 2nd Respondent then argued that the above facts are in all material facts, the same with the facts of the instant case. Furthermore, that Exhibit CM4, which is a letter from the Attorney-General directing the 3rd Respondent to comply with the judgment of the Court below, indicates consent of the Attorney-General to execute judgment. That in the circumstances, the requirement of Section 84(1) of the Sheriffs and Civil Process Act had been complied with. We were accordingly urged to hold that, the trial Court was right when it granted the garnishee order nisi which it subsequently made absolute.
On whether the Affidavit of the Garnishee/Appellant to show cause disclosed sufficient cause to warrant the Court below to refuse the grant of garnishee order absolute, learned counsel contended that, every case must be considered within the peculiarity of its facts and circumstances; and the applicable law. The case of Fidelity Bank v. Onwuka (2017) LPELR – 42839 (CA) was then cited to submit that, an order nisi does not automatically transmit to an order of Court attaching the funds for execution, but is an attempt to ascertain whether such funds in the custody of the Garnishee belonging to the Judgment Debtor can satisfy the judgment debt. However, that the issues canvassed in this appeal border on the order nisi made by the trial Court on the 21/2/2019.
It was then submitted that, in answer to the garnishee order nisi served on it, the Garnishee/Appellant filed an Affidavit to show cause which was countered by the Judgment Creditor vide a Counter-Affidavit filed on the 26/02/2019 stating how the provisions of Section 84(1) of the Sheriffs and Civil Process Act was complied with. That, the Garnishee did not file a Further and Better Affidavit to challenge or controvert the depositions in the Counter-Affidavit. That those facts or depositions therefore, are deemed admitted and the Court had no option but to act on it. Furthermore, that the Appellant admitted the fact that the consent of the Attorney General was obtained before applying for the order nisi.
Learned counsel for the 1st and 2nd Respondents went on to submit that by virtue of the letter admitted in evidence as Exhibit CM4, the Attorney General had directed the 3rd Respondent to comply with the arbitral award adopted as the judgment of the lower Court. That, the letter necessitated the payments made by the 3rd Respondent leaving only a fraction unpaid. That by the decision of the Supreme Court in CBN v. Interstella Comms. Ltd. (supra), the requirement of consent by the Attorney General had been satisfied. That by the said decision, the Supreme Court held that the Central Bank is not a public officer. In other words, that by Section 36 of the Central Bank of Nigeria Act, the Central Bank does not stand as a public officer. On that note, we were urged to discountenance the arguments of the Appellant and to dismiss the appeal.
In reply on points of law, learned counsel for the Appellant submitted that, the depositions in paragraphs 6(a), (b), and (c) of the 1st and 2nd Respondents’ Counter-Affidavit, are a response to the depositions in paragraph 7 of the Garnishee’s Affidavit to show cause. That in that circumstances, there was no need to file any Further Affidavit.
On the case of CBN V. Interstella Comm. Ltd. (supra), learned counsel for the Appellant contended that, a case is only an authority for what it decided. That any decision to serve as binding precedent, the circumstances and the issues decided must be the same or similar to those of the case to which the doctrine is sought to be applied. The cases of Okoye v. C.P.M.B. Ltd (2008) 15 NWLR (Pt. 1110) 335, Action Congress v. Jang (2009) 4 NWLR (Pt. 1132) 475 at 509 were cited in support; and to further submit that, the facts in CBN V. Interstella Comm. Ltd are different from the facts of this case. That Exhibit HAGI did not convey the consent of the Attorney General nor did it suggest the grant of any consent to the 1st and 2nd Respondents to attach the funds of the 3rd Respondent in the custody of the Appellant.
Learned counsel for the Appellant went on to argue that, the case of CBN V. Interstella Comm. Ltd decided that, for a case to come under Section 84 of the Sheriffs and Civil Process Act, the Attorney-General must be a neutral party in the transaction giving rise to the application for garnishee order nisi. That, from the facts of this case, the Attorney-General was not in anyway involved in the transaction leading to the judgment sought to be enforced by the 1st and 2nd Respondents. It was therefore submitted that, it is apparent that CBN v. Interstella Comm. Ltd is not applicable to the facts of this case. We were accordingly urged to allow the appeal.
Now, the main issue here is, whether or not the Appellant (Central Bank of Nigeria) is a public officer, so that consent of the Attorney-General of the Federation must be obtained before garnishee proceedings can be commenced against it. The said argument is centered on Section 84 of the Sheriffs and Civil Process Act, which require that consent of the Attorney-General must be obtained before garnishee proceedings can be commenced against the Appellant. In the instant case, it is disputed that the consent of the Attorney-General was obtained before the garnishee proceedings was commenced at the lower Court. The issue here, therefore, is whether there was the need to first obtain such consent. In other words, whether the facts and circumstances of this case falls within the ambit of Section 84 of the Sheriffs & Civil Process Act (supra). For a clearer appreciation, Section 84 of the Sheriffs & Civil Process Act reads thus:
“84 (1) 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 custodial legis, the order nisi shall not be made under the provisions of the last preceding Section unless consent of such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the Court in the case of money in custodial leg is, as the case may be.”
By the above provision therefore, for a garnishee order nisi to be made, for the attachment of any money in the custody of a “public officer” in his official capacity or in custodial legis, the consent of the appropriate officer, and in this case, the Attorney-General of the Federation, must be first sought and obtained. For a proper resolution of the issue, it will be necessary to settle the issue of who a “public officer” is, in the circumstances of this case, and in the contemplation of Section 84 of the Sheriffs & Civil Process Act. The term, “public officer” has been defined in Section 18(1) of the Interpretation Act as; “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the Public Service of a State”. Public Service of the Federation has been defined in Section 318(1) of the said Constitution as; service of the Federation in any capacity in respect of the Federal Government of Nigeria and includes service as enumerated in paragraphs (a) – (h) of the said Section 318(1) of the Constitution. Of particular relevance to this case, is paragraph (e) which includes, staff of any statutory corporation established by an act of the National Assembly.
Now, it is not in doubt that, the Central Bank of Nigeria is a body corporate, which can sue and be sued in its corporate name. It is created by the Central Bank of Nigeria (Establishment) Act of 2007. Thus, all employees of the Bank are public officers within the contemplation of Section 318(1) of the 1999 Constitution. See Sharika & Sons Ltd. v. The Government of Kaduna State & Ors (2013) LPELR – 20329 (CA) and CBN v. Njemanze (2015) 4 NWLR (Pt. 1449) 279. That being so, while these corporate bodies which are created by law provide public services, persons who hold offices in such institutions or corporate bodies are “public officers”. Thus, Section 84 of the Sheriffs and Civil Process Act envisages natural persons who hold offices in such public institutions or corporations either of the Federation or of a State. Accordingly, a corporate or statutory body such as the Central Bank of Nigeria (CBN) does not qualify as such public officer within the ambit of Section 84 of the Sheriffs & Civil Process Act. Thus, in CBN v. Interstella Communication Ltd. (2015) 8 NWLR (Pt. 1462) 456 at 505 paras C-D, Abba Aji, JCA (as he then was) held that:
“Section 84 of the Sheriffs and Civil Process Act refers to a Public Officer as a holder, officer or person holding a public office. The term public officer is also defined to only relate to the holders of the offices as reflected only in Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)….”
On appeal before the Supreme Court as CBN v. Interstella Communications Ltd. & Ors. (2018) 7 NWLR (Pt. 1618) 249; (2017) LPELR – 43940 (SC), the Supreme Court per Ogunbiyi, JSC held as follows:
“…….In the case under consideration, I have ruled that the relationship between the Appellant and the 3rd and Respondents is that of Banker and Customer relationship. In other words, and as rightly argued by 1st and 2nd Respondent’s counsel, the Appellant is not a public officer in the context of Section 84 SC PA, when regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment. It is apparent herein, on the facts of this case that the CBN acts as Banker to the Federal Government Funds with respect to government funds in its custody. Section 2(e) of the CBN Act provides thus:
“act as a banker and provide economic and financial advice to the Federal Government”
Section 36 of the CBN Act also provides:
“The Bank shall receive and disburse Federal Government moneys and keep account thereof”.
The Appellant does not stand as 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.”
I cannot find anything substantial to distinguish the facts and principles of law settled by the Supreme Court, from the facts and law applicable to the circumstances of this case. To strengthen the view I have expressed above, I wish to call in aid, the decision of this Court in CBN v. Appah (2020) LPELR – 51214 (CA) per Hussain, JCA who opined thus:
“The decision of the Supreme Court in CBN v. Interstella Communications Ltd. (2018) 7 NWLR (Pt. 1618) 294 has put paid, all the raging controversies as to whether the Central Bank of Nigeria (CBN) is a “public officer” or not. With this decision, it is now the law that the Central Bank of Nigeria (CBN) is not a “Public Officer” within the meaning of Section 84(1) of the Sheriff and Civil Process Act…. The effect of the decision in CBN v. Interstella (supra) is that the prior consent of the Attorney-General of the Federation is not necessary before execution can be levied against the Central Bank of Nigeria (CBN).”
On that note, I agree with learned counsel for the 1st and 2nd Respondents that the Appellant, is not a public officer within the context of Section 84 of the Sheriffs and Civil Process Act. That being so, the consent of the Attorney-General of the Federation was not required before the initiation of the garnishee proceedings, the subject of this appeal. On that note, and on the facts, I find that the relationship between the Appellant and the 3rd Respondent, is merely that of Banker and Customer and nothing else. The Appellant, I reiterate, is not a public officer within the context of Section 84 of the Sheriff and Civil Process Act, as it merely acts as Banker to the Federal Government Funds in its custody. See Sections 2(e) and 36 of the Central Bank of Nigeria Act. See also Central Bank of Nigeria v. Access Bank Ltd & Ors. (2022) LPELR – 57014 (CA). I therefore hold that the Appellant, not being a public officer, the need to seek consent of the Attorney-General of the Federation did not arise. It therefore means that the Application for consent of the Attorney General by the 1st and 2nd Respondents, was done in error, or at best is an excess baggage. In other words, the consent of the Attorney-General of the Federation was not required before the initiation of the garnishee proceedings, the subject of this appeal.
Now, in law, a Garnishee is a person or an institution, such as a bank, that has money or property in his possession or custody belonging to a judgment debtor. See Central Bank of Nigeria v. Auto Import Export & Anor (2012) LPELR – 7858 (CA). Thus, in STB Ltd v. Contract Resources (2011) 6 NWLR (Pt. 708) 115 at 123, this Court, per Olagunju, JCA defined a garnishee in these words:
“…..a third party who is indebted to the Judgment Debtor or having custody of his money and who at the instance of the Judgment Creditor is being called upon to pay the judgment debt from his indebtedness to the Judgment Debtor or from the credit of the Judgment Debtor in his account with the third party.”
A garnishee proceeding is therefore a separate and distinct action between the Judgment Creditor and the person known as the Garnishee, holding or being in custody of the money or asset of the Judgment Debtor. A garnishee proceeding therefore, flows from the judgment that pronounced the debt. The Garnishee is therefore not a party to nor has he any interest in the dispute between the Judgment Creditor and Judgment Debtor, leading to the judgment that pronounced the debt. The Garnishee is only required by the Court at the instance of the Judgment Creditor, to pay to the Judgment Creditor, money in its custody belonging to the Judgment Debtor. See Balogun v. Wema Assets Mgt. Ltd & Ors (2015) LPELR – 25573 (CA), Citizens International Bank Ltd. v. SCOA (Nig.) Ltd & Anor (2006) LPELR – 5509 (CA) and UBA Ltd. v. SGB Ltd. (1996) 10 NWLR (Pt. 478) 381 at 383.
The purpose of garnishee proceedings is to order a third party known as the Garnishee, to pay direct to the Judgment Creditor the debt due or accruing from him to the Judgment Debtor or so much of it as may be sufficient to satisfy the amount of the judgment and costs of the proceedings.
Generally, garnishee proceedings are a process of enforcing a money judgment by the attachment or seizure of the debts due or accruing to the Judgment Debtor in custody of the Garnishee, and which form part of his asset liable in execution. The attachment is usually done by the Court issuing a garnishee order nisi. By the issuance of the order nisi, the Garnishee is called upon to show cause why he shall not be made to pay to the Judgment Creditor, money of the judgment debtor in its custody or so much of it as will satisfy the Judgment debt. The role or duty of the Garnishee in a garnishee proceeding is to satisfy the Court by way of Affidavit, why the funds in its possession or custody belonging to the judgment debtor should not be garnished to pay the judgment debt. See GTB v. Innoson Nigeria Ltd. (2017) 16 NWLR (Pt. 1591) 181, UBA Plc. v. Ekanem & Anor (2009) LPELR – 8428 (CA) and Total Upstream (Nig.) Ltd. v. A.I.C. Ltd. & Ors. (2015) LPELR – 25388 CA. Such reasons could include the fact that the judgment debtor does not have the assets said to be in the custody of the Bank.
Upon being served the Garnishee order nisi, the Garnishee/Appellant filed a “GARNISHEE’S AFFIDAVIT TO SHOW CAUSE” when the following facts were deposed to:
“7. That the Central Bank of Nigeria is a Public Officer and from all the processes served on the Bank, there is indication that the consent of the Honourable Attorney-General of the Federation was obtained as required.”
The above quoted paragraph of the Affidavit to show cause indicates that, the only reason the Appellant as Garnishee proffered why the Garnishee Order Nisi should not be made is that, the consent of the Attorney General of the Federation was not sought and obtained. However, it has been my finding that, the Appellant not being a public officer, the consent of the Attorney-General was not necessary. In any case, the Garnishee/Applicant has deposed in paragraph 6 of the said Affidavit to show cause that:
“…..the Bank has set aside the N40,103,636.00 (Forty Million, One Hundred and Three Thousand, Six Hundred and Thirty- Six Naira only) being the Judgment sum from the account of the Judgment Debtor”
Consequently, it is my finding that, the Appellant failed to give sufficient reason why the garnishee order nisi should not have been initiated nor any reason why the garnishee order nisi so made, should not be made absolute. This appeal therefore lacks merit. It is hereby dismissed. The parties are to bear their respective costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, Haruna Simon Tsammani, JCA. I agree with the reasoning and conclusion reached and abide by the orders made therein.
I therefore also find the appeal lacking in merit and it is hereby dismissed.
I make no order as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I read in its draft form before now the lead judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA just delivered. I agree with the findings made by my Learned Brother in the lead judgment and I want to add that many a times in garnishee proceedings involving the Central Bank of Nigeria, Section 84 of the Sherriff and Civil Process Act LFN 2004 is misinterpreted and the CBN giving a colouration of a “public officer.” The lead judgment had aptly defined who a public officer is vis-a- vis the status of the Appellant, (CBN) in the circumstance, does not qualify as a Public officer within the meaning of Section 84 SCPA 2004. See CBN V INTER-STELLA COMMUNICATIONS LIMITED & ORS (2018) NWLR (pt. 618)247, CBN V APPAH (2020) LPELR-51214(CA).
Thus, the CBN as a corporate entity by virtue of its establishment Act, whenever money of the Federal Government or that of the State as the case may be, is in its custody, it acts as a Banker to the Federal Government or the state in relation to the funds in its custody.
Finally, I endorsed as mine the rich reasoning and elucidation of the law in this vex interpretation of Section 84 of the Sherriff and Civil Process Act as it relates to the Appellant. Hence, this appeal lacks merit and it is accordingly dismissed.
No award as to costs.
Appearances:
Godwin N. Chigbu, Esq. with him, Judge Ezeobi, Esq. For Appellant(s)
Jason C. Nwosu, Esq. for the 1st & 2nd Respondent.
Chieme Ogbeyialu Chukwu, Esq. (Snr. S.C, Fed. Mins, of Justice) for the 4th Respondent. For Respondent(s)