GOVT. OF ANAMBRA STATE & ORS v. AROMA FARMS AND HATCHERY LTD & ORS
(2020)LCN/14545(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Monday, August 03, 2020
CA/AW/607/2015
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
- GOVERNMENT OF ANAMBRA STATE 2. GOVERNOR OF ANAMBRA STATE 3. COMMISSIONER FOR LANDS AND SURVEY ANAMBRA STATE APPELANT(S)
And
- AROMA FARMS AND HATCHERY LTD 2. CHIEF BARRINGTON MOLOKWU 3. FIDELITY BANK [RESPONDENT] GARNISHEE RESPONDENT(S)
RATIO
DEFINITION OF THE TERM “PUBLIC OFFICER”
This Court in C.B.N v. ALHAJI MOHAMMED KAKURI (supra) held thus:
“The term “public officer” in Section 84 of the Sheriffs and Civil Process Act must be interpreted purposely to include the public office or department of government in which the public officer works. This is because he is a public or government department.” PER SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): By an exparte motion dated and filed on 23rd May, 2017 pursuant to Section 84 of the Sheriffs and Civil Process Act, L.F.N. 2010 and Order VIII (3) (ii) of the Judgment Enforcement Rules, the 1st and 2nd Respondents as Garnishors/Plaintiffs/Judgment Creditors/Applicants filed the said motion which was marked as: A/MISC/36/2017 before the High Court of Anambra State, Awka Judicial Division, D.A. Onyefulu J., presiding against the 1st and 2nd Appellants as Defendants/Judgment Debtors/Respondents and the 3rd Respondent Garnishee seeking for the following reliefs:
A. An order of the Hon. Court compelling the Garnishee to appear in Court on a date which the Court may so order to show cause why she should not pay to the Garnishors/Judgment Creditors/Applicants the sum of N310,712,430.00 (Three Hundred and Ten Million, Seven Hundred and Twelve Thousand, Four Hundred and Thirty Naira) only being the Judgment sum adjudged in their favour in suit No. A/13/2009 with cost of N10,000 (Ten Thousand Naira) only as special and general damages against the aforementioned defendants/judgment debtors from
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the account of the 1st and 2nd Defendants/Judgment debtors that is Account No. 5030026223 with the Garnishee’s main branch at Zik Avenue Awka, Anambra State.
B. A further order of the Court that an order Nisi made by this Court act as a stay of all actions or matters connected with this application, in particular, that the 1st and 2nd Defendants/Judgment Debtors do not be allowed to withdraw any fund or to operate Account No. 5030026223 except the judgment sum due to the Garnishors/Judgment Creditors/Applicants that is the sum of N310,712,430.00 with 10,000 cost has first been paid to them by the Garnishees. And for such order or other orders which the Honorable Court may deem fit to make in the circumstances. (pages 1 and 2 of the Records).
In support of the application is an affidavit deposed to by the 2nd Respondent containing 7 paragraphs and a written address. The Judgment order was also attached to the affidavit in support (pages 3 – 11 of the record of appeal).
On 29th June, 2017 the motion was heard and granted by the learned trial Judge wherein he issued an order Nisi ordering the Garnishee to appear before him on a date to
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be fixed to show cause why it (the Garnishee) should not pay to the Judgment Creditors the judgment sum of N310,712,430.00 plus N10,000.00 cost from the account No. 5030026223 belonging to the 1st and 2nd Defendants/Judgment Debtors. The learned trial Judge issued an order NISI staying all actions or matter by the 1st and 2nd Defendants/Judgment Debtors in connection with the account No. 5030026223 with the Garnishee except to withdraw the judgment sum and cost to be paid to the Garnishors/Judgment Creditors. The learned trial Judge also ordered that the Order Nisi be served on the Garnishee with immediate effect and adjourned the matter to 13th July, 2017. (page 12 – 14 of the Records).
Upon being served with the Order Nisi, the Appellants as Defendants Judgment Debtors/Respondents filed a motion on notice dated 11th July, 2017 and filed on 12/7/2017 seeking for the following reliefs:
1. for an order of the Honourable Court staying further proceedings in the above Motion No. A/MISC/136/2017: Aroma Farms and Hatchery Ltd & Anor. V. Government of Anambra State & Ors pending the hearing and determination of the 1st to 3rd defendants/judgment
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debtors/applicants’ appeal at the Court of Appeal. And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application is based are:
1. The Honourable Court granted a garnishee order nisi on the 29/6/2017 attaching funds belonging to the 1st Respondent/Judgment Creditor/Applicant and held by the Garnishee/Respondent in sequestration of a judgment sum as contained in the default judgment delivered in suit No. A/13/2009; Aroma Farm and Hatchery Ltd & Anor v. Government of Anambra State and Ors.
2. The 1st to 3rd defendants/judgment debtor/applicants’ appeal is still pending and yet to be determined by the Court of Appeal.
3. The said appeal rises substantial, serious and arguable issues of law, to wit; the propriety of granting the Garnishee Order Nisi without complying with statutory condition precedent as contained in Section 84 of the Sheriff and Civil Process Act.
4. The appeal, if determined, may have the effect of terminating the entire proceedings in the present Garnishee proceedings.
5. To proceed with the hearing of the Garnishee
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proceedings, during the pendency of the said appeal at the Court of Appeal, will render nugatory the decision of the Court of Appeal in the said appeal and will likely lead to the destruction of the res/subject matter in this application.
6. The 1st to 3rd defendants/judgment debtors/applicants will suffer untold hardship and inconvenience should the Honourable Court proceed with the hearing of the Garnishee proceedings in the face of the pending appeals.
In support of the motion is a 19 paragraphs affidavit deposed to by one Chike O. Emeka a Senior State Counsel in the Anambra State Ministry of Justice. In paragraphs 6, 9,10 and 12 the deponent averred thus:
“6: that an important condition precedent to the grant of the Garnishee Order Nisi to wit; obtaining the consent of the Attorney General of Anambra State before money/funds in the custody or under the control of a public officer in his official capacity or in custodial egis is attached by a garnishee order nisi was not fulfilled and consequently the Honourable Court lacked the jurisdiction to grant the Garnishee Order nisi”
“9: That the 1st to 3rd defendant/judgment
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debtors/application’s appeal is still pending and is yet to be determined by the Court of Appeal.”
“10: The said appeal raises substantial, serious and arguable issues of law, to wit; the propriety of granting the Garnishee Order Nisi without complying with statutory condition precedent as contained in Section 84 of the Sheriffs and Civil Process Act.”
“12: To proceed with the hearing of the Garnishee Proceedings, during the pendency of the said appeal at the Court of Appeal, will render nugatory the decision of the Court of Appeal in the said appeal and will likely lead to the destruction of the res/subject matter in this application.”
A copy of the Notice of Appeal was annexed to the affidavit in support. A written address was also attached to the application. (page 15 – 31 of the record of appeal).
The Appellants’ Notice of Appeal filed on 11/7/2017 at pages 74 -77 of the record of appeal contained only one ground of appeal which, shorn of its particulars reads thus:
The learned trial Judge erred in law and came to a conclusion which occasioned a miscarriage of justice when he granted
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the Garnishee Order Nisi attaching the funds of the Government of Anambra State held by the 4th Respondent/Garnishee without obtaining the consent of the Attorney-General of Anambra State in compliance with the provisions of the 84 (1) & (3) (sic) of the Sheriff and Civil Process Act.
The appellants’ Amended Brief of Argument was filed on 17/1/2019. It was settled by C.O. Igoanuzie Esq. Learned counsel formulated one issue as follows:
Whether the learned trial Judge had the competence to grant the garnishee order nisi without the requisite consent of the Attorney-General of Anambra State pursuant to Section 84 of the Sheriffs and Civil Process ACT Cap.
In his submission while arguing this issue, learned counsel to the Appellants submitted that before instituting this application for the grant of garnishee order nisi the 1st and 2nd Respondents ought to have obtained the prior consent of the Attorney-General of Anambra State. That this is mandatory since the appellants are public officers. Cited Section 84 of the Sheriffs and Civil Process Act Cap S6 Laws of the Federation of Nigeria 2010. That having failed to obtain the requisite
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consent aforesaid, the instant application is incompetent as the lower Court lacked the jurisdiction to entertain same. Cited: MADUKOLU v. NKEMDILIM (1962) 1 All NLR 587; ONJEWU v. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY; AKWA-IBOM STATE v. POWERCOM NIGERIA LTD (2005) All FWLR (pt. 246 1353 at 1371 – 1372. Learned counsel also cited and quoted the decision of this Court in C.B.N v. JAMES EJEMBI OKEFE (2015) LPELR 24825, CENTRAL BANK OF NIGERIA v. ALHAJI MOHAMMED KAKURI (unreported) judgment delivered on 12/12/2016.
He finally submitted that based on the foregoing authorities, the lower Court was in error when it entertained the 1st and 2nd respondents’ motion ex parte for Garnishee Order Nisi and went ahead to grant same on 29/6/2017 without complying with the provisions of Section 84 of the Sheriffs and Civil Process Act Cap. S6 Laws of the Federation of Nigeria 2010. That there is no evidence whatsoever that the 1st and 2nd respondents sought for and obtained the consent of the Attorney-General of Anambra State. That the grant of the Garnishee Order Nisi without the prior consent of the Attorney-General pursuant to
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Section 84 of the Sheriffs and Civil Process Act, Cap. S6 L.F.N., 2010 is null, void and of effect whatsoever.
Learned counsel urged the Court to allow this appeal and set aside the Garnishee Order Nisi made by the lower Court in its Ruling delivered on 29/6/2017 for lack of jurisdiction.
The 1st and 2nd Respondents brief of argument filed on 27/11/2018 but deemed as properly filed and served on 23/1/2019 was prepared by C. Chuma Oguejiofor Esq. Learned counsel to the 1st and 2nd Respondents adopted the sole issue canvassed by the Appellants.
In his submission while arguing this issue, learned counsel to the 1st and 2nd Respondents submitted that his clients did not need to secure and obtain the consent of the Attorney General of Anambra State to initiate the processes leading to the grant of the Garnishee Order Nisi by the Lower Court. That the funds or money subject matter of the garnishee proceedings in the instant suit is in the custody of the 4th Respondent/Garnishee and not in the custody of the Appellants as public officers, so to that extent, the provision of Section 84 of the Sheriffs and Civil Process Act (supra) are not applicable to this suit. He
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cited in support this Court’s decision in PURIFICATION TECHNIQUE NIGERIA LTD. V. A.G. LAGOS STATE (2004) 9 NWLR pt. 879) 665 at 670
That money subject of the Garnishee Order Nisi in the instant appeal, is in the eyes of the law, in custody of the 4th Respondent (Fidelity Bank) and not in custody of the Appellants. Learned counsel cited the holding by the Supreme Court in C.B.N. v. INTER STELLA COMM. LTD (2018) 7 NWLR (pt.1618) 294 at 346 – 347. He concluded his argument by submitting that “The apex Court in the land has spoken and so be it.” He urged the Court to dismiss this appeal and to distinguish the authorities cited and relied upon by the Appellants in their submission as they were made by this Court while the apex Court override this Court’s decision in CENTRAL BANK OF NIGERIA v. INTERSTELLA COMM. LTD. (supra).
On 3/6/2020 while counsel were adopting their respective briefs C.P. Oguchienti Esq. learned counsel to the 4th Respondent/Garnishee informed the Court that they did not file any brief of argument. Therefore, this appeal will be determined on the briefs of the appellants and the 1st and 2nd Respondents
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only.
FINDING:
The sole issue formulated by the Appellants is whether the learned trial Judge had the competence to grant the garnishee order nisi without the requisite consent of the Attorney General of Anambra State pursuant to Section 84 of the Sheriffs and Civil Process Act Cap S6 Laws of the Federation of Nigeria 2010, first had and obtained.
In order to determine this issue, it is necessary to consider the provisions of Section 84 of the Sheriffs and Civil Process Act (supra). The said section provides thus:
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 egis, 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 custodial egis, as the case may be.
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
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“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 a State, the Attorney-General of the State.
The main issue as provided by Section 84 of the Sheriffs and Civil Process Act is where the money liable to be garnisheed is in custody or under the control of a “public officer in his official capacity,” then the consent of the Attorney-General of the Federation or a State must be sought and obtained. The question seeking for an answer; in the instant appeal is: Can the money held by the Garnishee (Fidelity Bank PLC) be said to be in the custody of or under the control of a public officer in his official capacity?
In answer to this question, learned counsel to the appellants cited and quoted, extensively, the decisions by this Court which held that monies in custody of a financial institution (like the Respondent/garnishee in this appeal) is in the
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custody of a public officer in his official capacity based on the assumption that the money belongs to the state Government although lodged in the coffers of the Garnishee. Therefore Section 84 (1) of the Sheriffs and Civil Process Act (supra) is applicable.
This Court in C.B.N v. ALHAJI MOHAMMED KAKURI (supra) held thus:
“The term “public officer” in Section 84 of the Sheriffs and Civil Process Act must be interpreted purposely to include the public office or department of government in which the public officer works. This is because he is a public or government department.”
Learned counsel to the appellants also relied on the following authorities to buttress their argument:
1. ONJEWU v. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY (2003) FWLR (pt. 181) 1590 at 1623.
2. GOVERNMENT OF AKWA-IBOM STATE v. POWERCOMM NIGERIA LTD. (2005) All FWLR (pt. 246) 1353 at 1371 – 72.
3. CENTRAL BANK OF NIGERIA. v. JAMES EJEMBI OKEFE (2015) LPELR – 24825.
On the other hand, it is the contention by the respondents that they did not need to obtain the consent of the Honorable Attorney-General of Anambra
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State to initiate the processes leading to the grant of the Garnishee Order Nisi by the lower Court. That this is because the money subject of the Garnishee Order Nisi issued by the lower Court is not in custody or control of the Appellants who are public officers rather it is in the coffers of the 4th Respondent/Garnishee (Fidelity Bank PLC), and so, to that extent, Section 84 of the Sheriffs and Civil Process Act (supra) does not apply. Learned counsel to the Respondents cited another decision by this Court in PURIFICATION TECHNIQUES NIGERIA LTD v. A.G. LAGOS STATE (2004) 9 NWLR (pt.879) at 670 where it held thus:
“The customer of a bank does not have the control or custody of monies standing in his credit in account with his banker. What he possesses is a contractual right to demand repayment of such monies.”
This Court held further that:
“Monies in the hands of a garnishee banker are not in the custody or control of the Judgment Debtor customer. Such monies remain the property in the custody and control of the bankers, and payable to the judgment debtor until a demand is made. In the instant case, the monies held by the
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Respondents in the garnishee banks were not under the custody or control of the Respondent or a public officer. Consequently, such monies are not subject to the provision of Section 84 of the Sheriffs and Civil Process Act as contend by the Respondent.”
The decisions by this Court in respect to monies in the custody of a garnishee banker whether it is still in custody or control of the depositor or the bank was laid to rest by the Supreme Court in CENTRAL BANK OF NIGERIA v. INTERSTELLA COMMINUCATIONS LTD. & ORS (2017) LPELR – 43930 (SC) where OGUNBIYI, JSC held thus:
“In the case under consideration, I have ruled that the relationship between the appellant and the 3rd and 4th respondents is that of banker and customer relationship. In other words, and as rightly argued by 1st and 2nd Respondents’ counsel, the Appellant is not a public officer in the context of Section 84 of the Sheriffs and Civil Process Act when regard is had to the history of this appeal. It is apparent herein, on the facts of this case that the Central Bank of Nigeria acts as a banker to the Federal Government funds with respect to government funds in its
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custody… The appellant (CBN) 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 TECHNIQUES (NIGERIA) LTD v. LAGOS STATE (supra) is also on all fours with the facts of the case under consideration herein. Again the pursuasive judgment of the Court of Appeal at pages 679 – 680 is relevant and said:
“There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other juristic personality or customer.”
This erudite holding by the apex Court finally resolved the issue whether monies belonging to the Federal or State government in the bank can be said to be in custody and control of the said Federal or State government. Since the Central Bank of Nigeria was held not to be a public officer for purposes of garnishee proceedings in respect to monies belonging to the Federal Government in its custody, moreso the 4th Respondent/Garnishee a commercial bank that is in the custody of funds belonging to the Appellants.
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It is my finding therefore that the sole issue canvassed by the Appellants is answered in the positive. In view of the holding by the Supreme Court in CENTRAL BANK OF NIGERIA V. INTERSTELLA COMMUNICATIONS LTD (supra), the lower Court is competent to grant the Garnishee Order Nisi without the requisite consent of the Attorney-General of Anambra State pursuant to Section 84 of the Sheriffs and Civil Process Act. This issues is resolved in favour of the Respondents.
It is the judgment of this Court therefore that this appeal lacks merit and it is hereby dismissed. The decision by the lower Court to issue a Garnishee Order Nisi on 29th June, 2017 in respect of the Judgment sum plus cost in suit No. A/13/2009; Aroma Farms and Hatchery LTD & Anor v. Government of Anambra State & Ors is hereby upheld.
There shall be no order as to cost.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading the draft of the lead judgment delivered by B.G. SANGA, JCA. I agree with the reasoning and conclusion which I adopt as mine.
I also dismiss this appeal and affirm the judgment of the Awka division of the High Court of Anambra State.
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I also make no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I agree.
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Appearances:
C.O. IGBOANUZUE, Esq. For Appellant(s)
C.E. OKAFOR, Esq., holding the brief of C. OGUEJIOFOR, Esq. – for the 1st and 2nd Respondents
C.P. OGUCHIENTI, Esq. – for the 3rd Respondent For Respondent(s)
