CENTRAL BANK OF NIGERIA v. ZENITH BANK PLC & ANOR
(2019)LCN/13428(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/J/46/2018
RATIO
CENTRAL BANK OF NIGERIA: WHETHER THE BANK IS A PUBLIC OFFICER FOR THE PURPOSE OF SEEKING THE AG’S CONSENT IN GARNISHEE PROCEEDINGS
The apex Court by its judgment (Ogunbiyi, J.S.C.) tackled the argument this way at p. 346:
The other leg of the argument is where the appellants counsel holds out that CBN is a public officer and relied on the case of Ibrahim v. JSC (supra) in particular.
It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government Funds with respect to government funds in its custody.
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. The case of Purification Tech (Nig.) Ltd v. A.G. Lagos State (2004) 9 NWLR (PT 8790 665 is also on all fours. (italics mine)
Instructively, that was a case where not only was the judgment debtor the Attorney-General of the Federation, even the funds sought to be attached by way of Garnishee proceeding were public funds owned by the Federal Government and statutorily held by appellant as banker to the Federal Government, quite unlike the instant case where the judgment debtor, Zenith Bank Plc, is merely a private commercial bank. In any case, the rationale behind securing the Attorney-Generals consent as prescribed under Section 84 of the Sheriffs and Civil Process Act is to avoid a situation (or the embarrassment to the Attorney-General, as Ogunbiyi, J.S.C., put it in CBN v. Interstella Communications Ltd supra) of Government not having prior knowledge that funds earmarked for some other purposes have been diverted in satisfaction of a judgment debt which government may not know anything about: see C.B.N. v. Inter Stella Communications Ltd (2018) 7 NWLR (PT 1618) 294 @ 344 para H (S.C.); Onjewu v. K.S.M.C.I. (2003) 10 NWLR (PT 827) 40 @ 89.PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
CENTRAL BANK OF NIGERIA – Appellant(s)
AND
1. ZENITH BANK PLC
2. AGBO ADAMSON – Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): The 2nd respondent herein, Agbo Adamson, obtained judgment against 1st Respondent, Zenith Bank Plc, at the National Industrial Court of Nigeria, Jos Division, for various sums of money but Zenith Bank only partly liquidated it. In order to fully recover the said judgment debt, 2nd respondent commenced in the Federal High Court garnishee proceedings against the appellant who is by law banker to all banks in Nigeria including Zenith Bank Plc.
In line with Section 83 of the Sheriffs and Civil Process Act, 2nd respondent commenced its application by way of an ex-parte application (without notice application) and secured an interim Order of attachment, otherwise called a Garnishee Order Nisi, of the Court attaching the funds of Zenith Bank with appellant and directing appellant to show cause why the order should not be made absolute.
Upon being served with the Order Nisi, appellant, instead of filing the necessary affidavit for it to show cause why the order should not be made absolute, rather filed a preliminary objection to the competence of the proceedings and the
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jurisdiction of the Court to entertain it. It contended therein that it is a public officer and it was in that capacity it was holding the funds of Zenith Bank so consent of the Attorney-General of the Federation was required under Section 84 of the Sheriffs and Civil Process Act to commence garnishee proceedings against it, that 2nd Respondents failure to get that consent invalidated the proceedings and consequently left the lower Court without jurisdiction to entertain it.
On 27/11/2017, the lower Court, presided over by Kurya, J., ruled on that objection along with the application to make the Order Nisi absolute. His Lordship first dismissed the preliminary objection and proceeded to make the earlier garnishee Order Nisi absolute.
Appellant (Central Bank of Nigeria) is still of the opinion that Kurya J., was wrong, that the consent of the Attorney-General was actually necessary and its absence invalidated the proceedings. It also complains that Kurya, J., denied it fair hearing by not giving reasons for dismissing its objection. It has accordingly brought the instant appeal and identified the following three issues for us to determine:
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1. Whether the failure of the lower Court to hear and determine the appellants preliminary objection amounted to denial of fair hearing.
2. Whether it is within the contemplation of Section 84 of the Sheriffs and Civil Process Act that a judgment should object to the grant of a order Nisi.
3. Whether the appellant was right in raising the issue of jurisdiction when it has not filed an affidavit to show cause.
The 2nd Respondent/Judgment creditor, Mr. Adamson Agbo, in his brief of argument distilled three similar but differently worded issues as follows:
1. Whether the ruling of the preliminary objection against the appellant at the lower Court amount to denial of fair hearing.
2. Whether it is within the contemplation of Section 84 of the Sheriffs and Civil Process Act that every garnishee proceeding against the Central bank of Nigeria must obtain the consent or fiat of the Attorney-General of the Federation.
3. Whether the lower Court was right not right when it made the garnishee order nisi absolute in the absence of appellants affidavit to Show Cause that 1st respondents funds are not in its custody.
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Zenith Bank Plc which has its separate appeal did not file brief of argument, so the appeal, with the leave of this Court, was argued on the appellant and 2nd respondents briefs alone.
The complaint of appellant under its issue 1 is that the lower Court breached its right to fair hearing by failing to properly consider its preliminary objection. It argued that it is the duty of the Court to consider every application before it, no matter how frivolous such application may be, that in this case all Kurya, J., did in his Ruling was to say that I do not see any merit in the Garnishee Preliminary Objection which is hereby rejected and struck out for want of merit. Denial of fair hearing, it argued, nullifies the entire proceeding and we should so hold.
Resolution of Issue
Having read the 8-page Ruling of the lower Court, I am in no doubt whatsoever that appellant was being most unfair to Kurya, J., in suggesting that all his Lordship did in his Ruling concerning its Preliminary Objection was to conclude perfunctorily that I do not see any merit in the Garnishee Preliminary Objection which is hereby rejected and struck
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out for want of merit. In reality, his Lordship devoted about five pages of his 8-page ruling giving reasons, and cogent ones for that matter, for his conclusion that appellants Preliminary Objection lacked merit and ought to be rejected and struck out, which reasons are incidentally the subject of attack by appellant in his issues 2 and 3. In fact this allegation of denial of fair hearing is like calling a dog a bad name to hang it. It is completely baseless. Accordingly, I resolve issue 1 against appellant.
Appellants issues 2 and 3 can be conveniently considered together. On its issue 2, appellant complains that the lower Court was wrong when it held that it is first Respondent as Judgment Debtor that ought to have drawn its attention to the need for consent of Attorney-General of the Federation pursuant to Section 84 of the Sheriffs and Civil Process Act to commence the Garnishee proceeding if that was truly the case. Citing Section 83 of the Sheriffs and Civil Process Act as well as the cases of Heritage Bank Co. Ltd v. N.U.C. (2015) 5 NWLR (PT 1557) 104; 7-UP Bottling Co. Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (PT 383) 275
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And Agbebaku v. The State (2014) LPELR- 22134, appellant argued that by Section 83(1) of the Sheriffs and Civil Process Act application for Garnishee Order Nisi is usually ex-parte and therefore one sided, that even the application for the Order to be made absolute is between the judgment creditor and the Garnishee so there is no way the judgment debtor could have had any chance to raise the preliminary objection it raised so the lower Court was wrong in suggesting that Zenith Bank as the judgment debtor is the proper party to draw its attention to need for Attorney-Generals consent if it was necessary.
On its issue 3, appellant argued that its preliminary objection that it is a public officer so the consent of the Attorney-General of the Federation was required under Section 84 of the Sheriffs and Civil Process Act for commencement of garnishee proceedings against it challenges the jurisdiction of the Court; that that issue being one of jurisdiction, it is more fundamental and more important than filing a affidavit to show cause as required by Section 83 of the Sheriffs and Civil Process Act, and to that extent its objection is an
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exception to the rule that affidavit to show cause must be filed by a g
