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CBN v. ENOCH & ORS (2022)

CBN v. ENOCH & ORS

(2022)LCN/16104(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, October 14, 2022

CA/A/46/2017

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

CENTRAL BANK OF NIGERIA APPELANT(S)

And

1. PASTOR DAVID KOLAWOLE ENOCH 2. BABA ALI ZAKARI (Comptroller, Nig. Immigration Service, Kogi State Command)      3. COMPTROLLER GENERAL NIGERIA IMMIGRATION SERVICE RESPONDENT(S)

 

RATIO:

THE ISSUE OF JURISDICTION RAISED FOR THE FIRST TIME ON APPEAL

It has been contended that this issue was not raised at the lower Court hence should not have been raised for the first time in this Court. This contention with due respect holds no water as an issue of jurisdiction can be raised for the first time on appeal. See SALISU & ANOR VS MOBOLAJI & ORS (2016) 15 NWLR (PT. 1535) P. 242 where MUHAMMAD JSC had this to say on this point:
“It is not out of place to stress that the issue of jurisdiction is a threshold issue which this Court in ELUGBE VS. OMOKHAFE (2004) 11-12SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court, the proceedings would come to naught and remain a nullity if some were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See PETROJESSICA ENTERPRISES LTD. VS. LEVENTIS TECHNICAL CO. LTD. (1992) 6SC PART 11), KATTO VS CBN (1991) 11-12SC. 176, OLORIODE VS. OYEBI (1984) 5 SC. 1, EZOMO VS. OYAKHIRE (1985) 2 SC. 260 at 282 and LADO & 43 Others VS CPC & 53 ORS (2011) 12 SC. (PART 111) 113.” TUNDE OYEBANJI AWOTOYE, J.C.A. 

THE DEFINITION OF PUBLIC OFFICER AND OBTAINING THE FIAT OF AN ATTORNEY GENERAL

Also, a public officer was defined by the Supreme Court in IBRAHIM VS. JUDICIAL SERVICE COMMIT, KADUNA STATE & ANOR (1998) 14 NWLR PART 564 P. 1 to include artificial or natural person.
One is more fortified in this view when one considers the fact that Section 318 (1) of the Constitution defines public service as service of the Federation IN ANY CAPACITY.
Since no such consent was obtained before the ORDER NISI was granted by the lower Court it means the High Court lacks jurisdiction to so do: According to HUSSAINI JCA in CBN vs. AMCON & ORS (2017) ALL FWLR PART 900 page 422:
“Obtaining the fiat of the Attorney-General is a condition precedent to the commencement of garnishee proceedings against a public officer without which the exercise of jurisdiction by the Court is averted. I daresay in this case on appeal, that the trial Court understood inception of garnishee proceedings leading to the order Nisi and culminating in the order made absolute at the Court below.” TUNDE OYEBANJI AWOTOYE, J.C.A. 

THE ISSUE OF JURISDICTION CAN BE RAISED ORALLY AND EVEN FOR THE FIRST TIME IN COURT

See SALISU & ANOR VS MOBOLAJI & ORS (2016) 15 NWLR (PT. 1535) P. 242 where MUHAMMAD JSC had this to say on this point:
“It is not out of place to stress that the issue of jurisdiction is a threshold issue which this Court in ELUGBE VS. OMOKHAFE (2004) 11-12SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court, the proceedings would come to naught and remain a nullity if some were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See PETROJESSICA ENTERPRISES LTD. VS. LEVENTIS TECHNICAL CO. LTD. (1992) 6SC PART 11), KATTO VS CBN (1991) 11-12SC. 176, OLORIODE VS. OYEBI (1984) 5 SC. 1, EZOMO VS. OYAKHIRE (1985) 2 SC. 260 at 282 and LADO & 43 Others VS CPC & 53 ORS (2011) 12 SC. (PART 111) 113.” TUNDE OYEBANJI AWOTOYE, J.C.A. 

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Appellant against the decision of the Federal High Court Lokoja delivered on 15/11/2016.

On 12/8/2016, the judgment Creditor/Applicant in Suit No. FHC/LKJ/CS/44/2015 filed a Motion ex parte praying for an ORDER NISI attaching the sum of N1,000,000 (One Million Naira) only from the capital account or any other account of Nigeria Immigration Service (headed by the 2nd Judgment Debtor/Respondent) with the Garnishee Bank and for the Garnishee to show cause why the said sum should not be used to redeem the judgment debt and the cost of the garnishee proceedings.

After hearing the application, the lower Court granted the orders as prayed on 27/9/2016.

The Garnishee Order was made absolute on 15/11/2016.

The lower Court in making the order absolute ordered as follows:
1. “That the Garnishee Order Nisi made on the 15th day of November, 2016, in this proceeding by this Honourable Court is now made Absolute in respect of the Garnishee, Central Bank of Nigeria (CBN)
2. That the Garnishee Bank by its staff in Court, Fatima O. Audu, has admitted that the Nigeria Immigration Service has an Account with the Garnishee Bank. The Court hereby makes the Order Nisi, Absolute, to wit: That the sum of N1,000,000.00 (One Million Naira) only the Account, Capital or any other, being maintained by the Garnishee Bank for the Nigeria Immigration Service be used to satisfy the judgment debt being owed the judgment Creditor/Applicant by the judgment debtors, herein.
3. That the Court also makes an Order, pursuant to Section 86 and Section 106 of the Sheriffs and Civil Process Act, under the Judgment Enforcement Rules, that 10% of the judgment Sum shall be paid to the judgment Creditor/Applicant as cost of prosecuting the Garnishee proceedings.
4. This Garnishee proceedings is adjourned to the 12/12/2016, for Report on compliance or otherwise with the Garnishee Order Absolute.”

Miffed by the above order the appellant on 14/12/16 filed Notice of Appeal challenging it on the following grounds:
GROUNDS OF APPEAL
Ground 1: Error in Law
The learned judge of the lower Court erred in law when he proceeded to make the garnishee order nisi absolute against the Appellant without jurisdiction.
Particulars of Error
The consent of the Attorney-General of the Federation was not sought and obtained before the garnishee order nisi was issued in violation of the mandatory provision of Section 84 of the Sheriffs and Civil Process Act. Where the relevant condition precedent in an action is not met a Court is deprived of jurisdiction to adjudicate in the proceeding.

Consent of the Attorney-General of the Federation is a necessary condition precedent before the lower Court could assume jurisdiction to entertain the garnishee proceeding against the Appellant.
Appellant is not within the State for the lower Court to exercise jurisdiction over it as required by Section 83 (1) of the Sheriffs and Civil Process Act. The long established principle in garnishee proceeding is that where the debt is situate determines the jurisdiction of the trial Court.
Proceeding without jurisdiction is a nullity no matter how well conducted.

Ground 2: Error in Law
The learned judge of the lower Court erred in law when he made the garnishee order nisi absolute without considering the Appellant’s affidavit to show cause and satisfying himself that the Appellant has custody of the money sought to be attached, and this has occasioned a miscarriage of justice.
Particulars of Error
The Appellant’s affidavit to show cause clearly stated that Appellant was not in custody of the money sought to be attached.
The Appellant’s affidavit to show cause was never controverted and/or contradicted. At the very least, the lower Court ought to have followed the procedure laid down in Section 87 of the Sheriffs and Civil Process Act to determine the liability or otherwise of the Appellant.
Records of Appeal was subsequently compiled and transmitted after which parties filed and exchanged briefs of argument.

SUBMISSION OF COUNSEL
APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s Brief of Argument filed on 09/02/2017 settled by her learned counsel, BABAJIDE BABATUNDE ESQ. The learned Appellant Counsel formulated sole issue for determination in this appeal thus:
1. WHETHER THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE GARNISHEE PROCEEDINGS AGAINST THE APPELLANT.

ARGUMENT ON SOLE ISSUE
Learned Counsel to the Appellant submitted that the law is settled beyond prevarication that the issue of jurisdiction is threshold. A Court must have jurisdiction before it can entertain any cause or matter and make a binding order or orders. He cited NWANKWO V. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518.

Learned Counsel to the Appellant contended that by virtue of Section 84 of the Sheriffs and Civil Process Act, the prior consent of Attorney General of Federation to attach by garnishee order the fund held in custody of a public officer is a condition precedent to the validity of the garnishee proceedings and the valid exercise of jurisdiction to entertain same.

He further submitted that failure to obtain the requisite consent robbed the trial Court of jurisdiction to entertain the garnishee proceedings against the Appellant. He cited NATIONAL INSURANCE COMMISSION V. OYEFESOBI (2013) LPELR- 20660. He urged the Court to so hold and resolve the sole issue in favour of the Appellant and set aside the entire garnishee proceedings and the garnishee order absolute against the appellant.

1st RESPONDENT’S BRIEF OF ARGUMENT
B.E. OTOLA ESQ, on behalf of the 1st Respondent prepared the brief of argument. He donated two issues for determination to wit:
ISSUES FOR DETERMINATION
1. WHETHER THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE GARNISHEE PROCEEDINGS AGAINST THE APPELLANT.
2. WHETHER THE LOWER COURT WAS RIGHT WHEN IT MADE THE GARNISHEE ORDER NISI AN ORDER ABSOLUTE.

ARGUMENT ON ISSUE ONE
Learned Counsel to the 1st Respondent submitted that the lower Court has been empowered to entertain garnishee proceedings by virtue of the provisions of Order 37 of the Federal High Court (Civil Procedure) Rules, 2009 and Section 83 of the Sheriffs and Civil Process Act, Cap S. 6 LFN, 2004.

Learned Counsel to the 1st Respondent contended that the issue of obtaining consent of Attorney General has been whittled down by the provisions of Section 6 (6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and it is by virtue of Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) void and of no effect. He cited PECOTAN V. D.F.R.R.I. (1992) VOL. 1 ABJ. L.R. 69 AT 70 RATIO 1 AND 2, BRIX V. AJAOKUTA STEEL COMPANY LTD (2004) VOL. 3 AD. L.R. 1 AT 3 RATIO 5 AND 6.

ARGUMENT ON ISSUE TWO
Learned Counsel to the 1st Respondent submitted that it is on the return date when all interests are to be represented that garnishee has opportunity to convince the Court to discharge the order nisi by it affidavit to show cause. He relied on NIGERIAN BREWERIES PLC. V. CHIEF WORHI DUMUJE (2015) ALL FWLR (PT. 807) 513 AT 588 PARAS. A-G.

Learned Counsel to the 1st Respondent contended that facts deposed to in an affidavit are not sufficient to sustain the prayers of the applicant or discharge the order nisi in this case. He relied on EKANEM V. EBONG (2008) ALL FWLR (PT.425) 1766 AT 1780 PARAS C- E.

The Counsel urged the Court to dismiss this appeal in its entirety with cost for lacking merit and reaffirm the order absolute and cost of garnishee proceedings awarded in favour of the 1st Respondent by the lower Court.

2ND and 3RD RESPONDENTS’ BRIEF OF ARGUMENT
The 2nd and 3rd Respondents adopt with the sole issue formulated by the Appellant to wit;
ISSUES FOR DETERMINATION
1. WHETHER THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE GARNISHEE PROCEEDINGS AGAINST THE APPELLANT.

ARGUMENT ON SOLE ISSUE
Learned Counsel to the 2nd and 3rd Respondents submitted that the three features jurisdiction are mutually inclusive and a violation of any the features strips the Court the requisite jurisdiction and any step taken in the proceedings is and remains a nullity however well conducted and brilliantly decided. He cited MAGAJI V. MATARI (2000) 8 NWLR (PT. 670) 722.

Learned Counsel to the 2nd and 3rd Respondents contended that the statutory requirement of Section 84(1) of Sheriffs and Civil Process Act that the consent of the Attorney General must be first sought and obtained before order nisi is made in any garnishee proceedings to attach the funds in the custody or under the control of a public officer in official capacity or custodia legis is not negotiable.
The counsel further submitted that for the 1st Respondent to argue that Section 84(1) of Sheriffs and Civil Process Act is null and void by virtue of Section 6 (6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is misconceived.

The counsel urged the Court to allow the appeal and set aside the order absolute of the lower Court.

APPELLANT’S REPLY BRIEF
Learned Counsel to the Appellant submitted that the issue of constitutionality of Section 84 of Sheriffs and Civil Process Act has been settled in a number of previous decisions of this Honourable Court. He cited CBN V. HYDRO AIR PTY (2014) LPELR-22587, ONJEWU V. KOGI STATE MINISTRY OF COMMERCE AND INDUSTRY (2003) 10 NWLR (Pt.827) 40.

He further submitted that Section 84 of Sheriffs and Civil Process Act is a necessary procedural safeguard needed by Government to avoid embarrassment and therefore does not do violence to the Constitution.

Learned Counsel to the Appellant contended that the trial Court was wrong to have made the garnishee order nisi absolute against the Appellant without any shred of credible and admissible evidence to do so.

The counsel urged the Court to disregard the 1st Respondent’s submissions and uphold this appeal.

ISSUES
The Appellant in its brief of argument formulated one sole issue for determination to wit:-
WHETHER THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE GARNISHEE PROCEEDINGS AGAINST THE APPELLANT

The 1st Respondent through his counsel donated two issues for determination as follows:
1) WHETHER THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE GARNISHEE PROCEEDINGS AGAINST THE APPELLANT.
2) WHETHER THE LOWER COURT WAS RIGHT WHEN IT MADE THE GARNISHEE ORDER NISI AN ORDER ABSOLUTE.

Learned Counsel for the 2nd and 3rd respondent adopted the sole issue formulated by the Appellant.

Learned Counsel for the 1st Respondent B.E. OTOLA even though raised preliminary objection in his brief however failed to move it as required. Having not sought the leave to move before the appeal was argued.
See REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. NAMA (2014) 8 NWLR PART 1408 P.1;
NSEFIK (JINCE DEAD) & ORS V. NUMA (2014) 2NWLR PART 1390. 151;
NSIRIM VS. NSIRIM (1990) 5SC. (PT 11) 94 AND ONOCHIE & ORS VS. ODOGWU AND ORS (2006) 2SC. (PT. 11) 153.
The consequence of this is that the preliminary objection is deemed abandoned and liable to be work out. The preliminary objection of the 1st Respondent is accordingly struck out.

RESOLUTION OF ISSUES
I have deeply considered the issues crafted by the parties. I shall adopt the sole issue formulated by the appellant (who is the aggrieved in this appeal) in determining this appeal.

SOLE ISSUE
WHETHER THE LOWER COURT HAS JURISDICTION TO ENTERTAIN THE GARNISHEE AGAINST THE APPELLANT.

The contention of the appellant is principally on whether the lower Court ought to have entertained the garnishee proceedings against the appellant when the provision of Section 83(1) and 84 of the Sheriffs and Civil Process Act Vol. 14 Laws of the Federation were not complied with.
It is relevant at this juncture to reproduce the above provision for ease of reference.
Section 83 (1) of the Sheriffs and Civil Process Act reads thus:
“(1) The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. [L.N. 47 of 1955. First Schedule. Forms 25 and 26.]
(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor. Section 84 of the same Act also read 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 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. [L.N. 47 of 1955.]
(2) In such cases, the order of notice must be served on such public officer or on the registrar of the Court, as the case may be.
(3) In this section, “appropriate officer” means –
(a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation;
(b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.”
The question is: Is the Central Bank, the appellant, a public officer within the context of the provision of Section 84 of the Sheriffs and Civil Process Act?
This question had been considered by this Court in a plethora of cases.
See:- C.B.N. V. AMCON & ANOR (2017) LPELR-42986 FAYOSE V. EFCC & ANOR (2018) LPELR – 46474 and others Section 84 (3), of the Sheriffs and Civil Process Act defines the phrase “appropriate officer” as used in Section 84 (1) of the same Act as:
“in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney General of the Federation.”
Section 318 (1) of the 1999 Constitution of Federal Republic of Nigeria (as amended) also defines Public Service of the Federation to mean service of the Federation IN ANY CAPACITY which to my mind includes institutions or Corporations.
The Central Bank of Nigeria having been established by virtue of Section 1 of the Central Bank Act the Central Bank may act as banker to States and Local Government and to financial institutions or corporation established by Federal State and Local Governments. The Nigeria Immigration Service is an institution established by the Federal Government. It therefore follows from the above that the provision of Section 84 (1) is applicable in the instant appeal and the consent of the Attorney General of the Federation should have been sought and obtained before an order NISI is granted as the money sought to be attached is in the custody of the Central Bank of Nigeria. There is in my view, no justifiable reason why the term “public officer” should be defined to distinguish the individual holding the office from the office. What is significant in defining the term is who controls the money? It is immaterial whether it is the individual, or it is the corporation or institution, natural persons or artificial persons. Provided he holds public office IN ANY CAPACITY.
Also, a public officer was defined by the Supreme Court in IBRAHIM VS. JUDICIAL SERVICE COMMIT, KADUNA STATE & ANOR (1998) 14 NWLR PART 564 P. 1 to include artificial or natural person.
One is more fortified in this view when one considers the fact that Section 318 (1) of the Constitution defines public service as service of the Federation IN ANY CAPACITY.
Since no such consent was obtained before the ORDER NISI was granted by the lower Court it means the High Court lacks jurisdiction to so do: According to HUSSAINI JCA in CBN vs. AMCON & ORS (2017) ALL FWLR PART 900 page 422:
“Obtaining the fiat of the Attorney-General is a condition precedent to the commencement of garnishee proceedings against a public officer without which the exercise of jurisdiction by the Court is averted. I daresay in this case on appeal, that the trial Court understood inception of garnishee proceedings leading to the order Nisi and culminating in the order made absolute at the Court below.”
I entirely agree with the above opinion of HUSSANINI JCA and I also adopt it.

I therefore resolve the sole issue as crafted by the appellant in favour of the appellant.

It has been contended that this issue was not raised at the lower Court hence should not have been raised for the first time in this Court. This contention with due respect holds no water as an issue of jurisdiction can be raised for the first time on appeal. See SALISU & ANOR VS MOBOLAJI & ORS (2016) 15 NWLR (PT. 1535) P. 242 where MUHAMMAD JSC had this to say on this point:
“It is not out of place to stress that the issue of jurisdiction is a threshold issue which this Court in ELUGBE VS. OMOKHAFE (2004) 11-12SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court, the proceedings would come to naught and remain a nullity if some were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See PETROJESSICA ENTERPRISES LTD. VS. LEVENTIS TECHNICAL CO. LTD. (1992) 6SC PART 11), KATTO VS CBN (1991) 11-12SC. 176, OLORIODE VS. OYEBI (1984) 5 SC. 1, EZOMO VS. OYAKHIRE (1985) 2 SC. 260 at 282 and LADO & 43 Others VS CPC & 53 ORS (2011) 12 SC. (PART 111) 113.”

The appellant also argued that under Section 83(1) of the Sheriffs and Civil Process Act it is mandatory that the garnishee must be indebted to the judgment creditor within the State and be resident in the State in which the proceedings are to be brought. See C.B.N. VS AUTO IMPORT EXPORT (2013) 2 NWLR (PT. 1337) 80 at 128. To my mind this has to do with the territorial jurisdictional limit of the Court where the proceeding is instituted. See SOKOTO STATE GOVERNMENT VS. KAMDEX (NIG) LTD. (2004) 9 NWLR PT. 878, 345 at 379.
However this is a matter that affects the IMMIGRATION SERVICE OF NIGERIA an agency of the Federal Government of Nigeria. Clearly this matter falls within the jurisdiction of the Federal High Court, i.e. the lower Court. See NEPA VS EDEGBERO & ORS (2002) LPELR – 1957 (SC). I need to add that the provision of the Section 83(1) of the Sheriffs and Civil Process Act cannot be read to erode, impede or detract from the jurisdiction generously granted to the Federal High Court by the provision of Section 251 (1) (d) of the 1999 Nigerian Constitution (as amended). The Section read thus:
“251.-(1) Notwithstanding anything to the contrary contained in this Constitution and addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters …
(a) …
(b) …
(c) …
(d) “connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures:
Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.
The provision of Section 251(1)(d) of the Constitution has been interpreted to grant both the Federal High Court and State High Court concurrent jurisdiction in dispute between an individual customer and his bank. See UBA Plc vs B.T.L. INDUSTRIES LTD (2005) 10 NWLR PT. 933, P. 356. What I am saying in essence is that the lower Court inspite of the provision of Section 83(1) of the Sheriffs and Civil Process Act had jurisdiction to hear and determine the matter now on appeal.

However, inspite of the above and having held that the consent of the Attorney General of the Federation ought to have been sought and obtained before this matter now on appeal was instituted at the lower Court, I hold that this appeal has merit. It is hereby allowed. The entire proceedings at the lower Court (including the ORDER ABSOLUTE made by the lower Court are set aside for want of jurisdiction. Parties are to bear their respective costs.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read in draft the judgment prepared by my learned brother, T. O. AWOTOYE, JCA. I agree with His Lordship’s reasoning and conclusion reached therein and adopt same as mine in also allowing this appeal.
I only wish to add that the provisions of Section 84(1)(a) of the Sheriffs and Civil Process Act (SCPA) in relation to the Appellant have been subject to various and divergent interpretations from the decisions of this Court. The divergent views expressed in the numerous decisions is with regard to whether the Appellant is a public officer within the contemplation of the said provisions. In the case of CBN VS. NJEMANZE & ORS (2014) LPELR-24016 (CA), Agbo, JCA expressed the view that in view of the provisions of Section 2(e) read together with Sections 39 and 40 of the Central Bank Act, the Appellant is a banker of the Federal Government and therefore is not a public officer within the contemplation of Section 84 of the SCPA. This view is shared by Wambai, JCA when he held for this Court in the case of CBN VS. FALASH ENTERPRISES (NIG.) LTD (2017) LPELR-45415 (CA) that the Central Bank of Nigeria is not a public officer contemplated by Section 84 of the SCPA; which contemplates a natural not an artificial entity. His Lordship relied on the provisions of Section 18 of the Interpretation Act read together with Sections 318(1) of the Constitution of Nigeria, 1999 as amended and 2(e) of the CBN Act.
However, the more popular view is the one expressed in the lead judgment in this appeal to the effect that the Appellant is a public officer within the contemplation of Section 84 of the SCPA and therefore the prior consent of the Attorney General of the Federal is a condition precedent to the initiation of garnishee proceedings in respect of funds belonging to the Federal Government or any of its agencies domiciled or held by the Appellant. See CBN VS. OKEFE (2015) LPELR-55-58, CBN VS. KAKURI (2016) LPELR-41468 (CA), CBN VS. AMCON & ORS (2017) LPELR- 42986 (CA), CBN VS. AZORO & ORS (2018) LPELR-44389 (CA), CBN VS. ZAKARI (2018) LPELR-44751 (CA) and CBN VS. ACCESS BANK & ORS (2022) LPELR-57017 (CA).
In this appeal, I share the view expressed by my learned brother the lead judgment that the consent of the Attorney General of the Federation is needed as a condition precedent to the commencement of the garnishee proceedings against the funds of the judgment debtor in the hands of the Appellant. The reasons is because of the definition of ‘public officer’ expounded by the Supreme Court in the cases of

IBRAHIM VS. JSC KADUNA STATE (1998) LPELR-1408 (SC) and CBN VS. AMAO (2010) 16 NWLR (PT. 1219) 317 at 303 where the ONNOGHEN JSC (as he then was, later CJN) held that the Central Bank of Nigeria is part and parcel of the public service of the Federation.

For the fuller reasons in the lead judgment, I too find merit in this appeal and I allow it, I set aside the judgment of the trial Court and strike out the proceedings for lack of jurisdiction.

YUSUF ALHAJI BASHIR, J.C.A.: I have read in draft the leading judgment delivered by my Noble Brother, TUNDE O. AWOTOYE, JCA. His Lordship has succinctly addressed the issues in this appeal and has resolved same articulately well.

Infact, the entire appeal revolved around the necessity to comply with the condition precedent prescribed under Section 84 of the Sherriff and Civil Processes Act. Before a decree absolute becomes due in a garnishee proceedings where the funds are held in the custody of a public officer.
It is crystal clear that the Appellant, the Central Bank of Nigeria, a statutory corporation established by an Act of the National Assembly, is a public officer being a part of the Public Service of the Federation of Nigeria. Therefore, 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” of a Court, as the case may be, the Order Nisi shall not be made under the provisions of Section 83 of the Sheriffs and Civil Process Act (supra), unless consent to such attachment is first sought and obtained from the appropriate officer, that is, the Federal/State Attorney-General 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.
Since no such consent was obtained as required by law, the lower Court lack the necessary jurisdiction to proceed with the garnishee proceedings against the Appellant. Consequently, I agree that his appeal has merit.

​The order allowing the appeal is therefore appropriate. I abide by the order as in the lead judgment.

Appearances:

…For Appellant(s)

…For Respondent(s)