CBN v. EZEOBIKA & ORS
(2021)LCN/15156(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, May 05, 2021
CA/C/178/2020
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
CENTRAL BANK OF NIGERIA APPELANT(S)
And
1. ENGR. CLIFF EZEOBIKA 2. CHIEF ENGR. KERIAN UTSU (Carrying On Business In The Name And Style Of Engineering Software Consultants) 3. THE INSPECTOR-GENERAL OF POLICE 4. NIGERIAN POLICE FORCE 5. FIRST BANK PLC 6. ZENITH BANK PLC 7. STERLING BANK PLC 8. ACCESS/DIAMOND BANK PLC 9. NPF MORTGAGE BANK RESPONDENT(S)
RATIO
THE PROPER APPROACH TO THE INTERPRETATION OF A STATUTE
When the words of a document, legislation or Constitution is clear, there is no need to give them any other meaning than their ordinary natural and grammatical construction would permit unless that would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation or Constitution. In such a situation, a Court is without jurisdiction or power to import into the meaning of what it does not say. In other words, that nothing is to be added or taken from the statute unless there are adequate grounds to justify the inference that the legislature intended which it omitted to express. In EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) 10 NWLR 544, at 588 paras. F – H, Tabai, J.S.C. observed:-
“The proper approach to the interpretation of clear words of a statute is to follow them in their simple grammatical and ordinary meaning rather than look further because what prima facie gives them their most reliable meaning. This is generally also true of construction of Constitutional provision if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation.” PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court sitting in Calabar delivered on the 11th of June, 2020 in Suit NO. FHC/CA/MISC/21/2020.
The brief facts of the case as encapsulated in the appellant’s brief of argument is that the 1st and 2nd respondents having obtained judgment against the 3rd and 4th respondents herein, sought to enforce same at the lower Court by way of Garnishee Proceedings against the appellant. The trial Federal High Court granted the application of the 1st and 2nd respondents and made a Garnishee Order Nisi against the appellant.
Upon being served with the Order Nisi, the appellant filed a notice of preliminary objection to the granting of the Order Nisi on the ground that the appellant being a public officer the consent of the Attorney-General of the Federation must first be sought and obtained before the Garnishee proceedings is commenced against it.
In a considered ruling delivered on 11/6/2020, the lower Court held the view that the consent of the Attorney-General of the Federation was impliedly given and thus dismissed the preliminary
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objection and accordingly made the Order Nisi absolute. At page 183 of the record of appeal, learned trial Judge has this to say:-
“An insistence on the express consent of the Attorney-General of the Federation in the instance case, will not only occasion a miscarriage of justice, but will also erode public confidence in the Court if judgment creditors are unable to enjoy the fruit of their judgment because the Attorney-General did not expressly write to convey his consent where public funds is sought to be attached, despite the judgment creditors requesting for same in accordance with the law.
…it is the considered and firm opinion of this Court that there is need to dispense with the express consent of the Attorney-General of the Federation as insisting on such would be putting an unnecessary technical clog on the path of the judgment creditor and thereby frustrating their efforts to enjoy the fruit of their judgment.”
Miffed by the above decision, appellant filed this appeal through a notice of appeal filed on 15/6/2020. The said notice of appeal contains one (1) ground of appeal at pages 185-187 of the record of
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appeal.
Briefs of argument including appellant’s reply brief were exchanged by the parties in accordance with the rules of this Court. The appellant distilled a sole issue for the determination of this appeal while the 1st and 2nd respondents adopt the sole issue distilled by the appellant. The sole issue distilled by the appellant and adopted by the 1st and 2nd respondents is as follows:-
Whether the Attorney-General of the Federation acknowledgement of the 1st and 2nd respondent’s application constitutes consent as envisaged by Section 84 of the Sheriffs and Civil Process Act?
Proffering argument on the sole issue, learned senior counsel, Mr. Ekanem contended that the lower Court having held the view that the appellant is a public officer, the issue to be determined is narrowed down to the interpretation and or meaning of “consent” as envisaged by the Sheriffs and Civil Process Act. He referred to Black’s Law Dictionary 7th Edition page 300 which defines “consent” as agreement, approval, or permission as to some act given voluntarily by a competent person. Counsel further referred to the
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Stroud’s Law Dictionary of Words and Phrases 6th Edition volume 1 (A-F) page 492 to submit that mere acquiescence does not amount to consent. Thus, consent requires positive affirmative act and as such consent cannot be implied.
Still in argument, Counsel submits that the requirement of consent of the Attorney-General of the Federation as contained in Section 84 of the Sheriffs and Civil Process Act is statutory and calls for the exercise of public duty on the part of the Attorney-General of the Federation which makes no provision for delegation by the Attorney-General. He referred to the cases of OGUNDIPE V. ODUWAIYE (2014) 6 NWLR (prt. 1404) 427 and A.G, LAGOS STATE V. OSUKA (2010) 4 NWLR (prt. 1183) 68 at 76.
In further argument, counsel submits that Section 84 of the Sheriffs and Civil Process Act is very clear and unambiguous and that where as in this case, the wordings of the statutes are clear and unambiguous, the Court has a duty to give the words used in the statute, their plain and ordinary meaning without more. He referred to KRAUS THOMPSON V. NIPPS (2014)17 NWLR (prt. 901) 44 at 60-61, A.G. ONDO STATE V. A.G. EKITI STATE (2001) 17 NWLR (prt.745) 706 at 756 and SARAKI V. F.R.N. (2016) 3 NWLR (prt.1500) 531 at 589-590.
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Finally, Counsel distinguished the facts in CBN V. INTERSTELLA (2017) 12 SC (part iv) 97 with the facts in the instant case to the effect that in the former, the Attorney-General of the Federation was a party to the action and part payment was made before it was reneged. In the latter, the Attorney-General of the Federation merely acknowledged the 1st and 2nd respondents’ letter stating that same was forwarded to the Inspector General of Police for his comment. Counsel submits that the Attorney-General was in the process of acting on the 1st and 2nd respondents’ application and that he had not reached the position of not expressly objecting.
In his response, learned counsel for the 1st and 2nd respondents, Dr. Sam C. Eboh contended that the Attorney-General of the Federation is a public officer saddled with the responsibility of discharging public duties and therefore expected to operate in the interest of public policy and public interest. Counsel, thus submits that his consent being a public officer cannot be
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wished away by mere simplistic and sentimental explanations. He referred to UTOMUDO V. MILITARY GOVERNOR OF BENDEL STATE (2014) 58 NSCQR 1278 at 1283 to the effect that in law words have their ordinary meaning if and only if no legal meaning has been attached to them. However, if any word or expression has been either statutory or judicially defined then the legal meaning supersedes the ordinary meaning. Thus, when words have been legally or judicially defined, their ordinary meaning will give way to their meaning as legally and judicially defined.
Counsel chronicled the antecedent of the 3rd and 4th respondents whom he said made initial payment to the 2nd respondent as well as the failure of the judgment debtors to appeal against the judgment. He submits that given the surrounding circumstances in this case and considering the 1st and 2nd respondents’ letter, they have demonstrated unvarnished civility and therefore the Attorney-General had adequate and sufficient notice of the judgment of the Court.
As rightly posited that the narrow compass in this appeal is the interpretation of the consent of the Attorney-General of the Federation
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within the context of Section 84(1) of the Sheriffs and Civil Process Act. The provisions of Section 84(1) of the Sheriffs and Civil Process Act Cap. S16 Laws of the Federation of Nigeria, 2004 provides that:-
“84(1) – Where money liable to be attached in 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 proceeding 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 a Court in the case of money in custodial legis, as the case may be.
(3) In this section, appropriate officer means –
(a) in relation to money which is in custody of a public officer who holds a public office in the service of the Federation, the Attorney-General of the Federation.”
Parties in this case are ad idem that Central Bank of Nigeria falls within the definition of public service in Section 318 (1) (e) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
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Also Section 1(1) (2) of the Central Bank of Nigeria Act Laws of the Federation of Nigeria (amended in 2007) provides for the establishment of the Central Bank of Nigeria. The Bank shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.
It is also not in dispute that the rationale for the consent of the Attorney-General of the Federation as prescribed in Section 84 of the Sheriffs and Civil Process Act is to avoid embarrassment to him of not having prior knowledge that the funds earmarked for some purposes have been diverted in satisfaction of a judgment debt which the Government may not know anything about.
Learned Counsel for the 1st and 2nd respondents has contended that upon obtaining judgment, the 1st and 2nd respondents wrote to the office of the judgment debtors on 23/7/2019 informing them about the judgment. Also the judgment creditors through their counsel wrote to the office of the Attorney-General of the Federation drawing his attention to the judgment debt, the intermittent negotiations between the judgment creditors and the judgment debtors and the need for his consent in payment of the judgment sum.
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About three months later, precisely on 7/1/2020, the Attorney-General replied thus:-
“I am directed by the Honourable Attorney-General of the Federation and Minister of Justice to acknowledge the receipt of your letter on the above subject dated 22nd October, 2019.”
The above according to the respondents’ counsel may be regarded as the element of the Attorney-General’s consent which given the circumstances of this case may dispense with express consent.
There is no gain saying the fact that the words used in Section 84(1) of the Sheriffs and Civil Process Act are clear and unambiguous. When the words of a document, legislation or Constitution is clear, there is no need to give them any other meaning than their ordinary natural and grammatical construction would permit unless that would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation or Constitution. In such a situation, a Court is without jurisdiction or power to import into the meaning of what it does not say. In other words, that nothing is to be added or taken from the statute unless there are adequate grounds to justify the
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inference that the legislature intended which it omitted to express. In EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) 10 NWLR 544, at 588 paras. F – H, Tabai, J.S.C. observed:-
“The proper approach to the interpretation of clear words of a statute is to follow them in their simple grammatical and ordinary meaning rather than look further because what prima facie gives them their most reliable meaning. This is generally also true of construction of Constitutional provision if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation.”
The word requiring interpretation in this appeal as stated earlier “consent” of the Attorney-General of the Federation as contained in Section 84(1) of the Sheriffs and Civil Process Act. Applying the literal rule of interpretation, the words simply mean “the permission for and/or agreement of the Attorney-General of the Federation before attaching money in the custody or control of a public officer by way of Garnishee proceedings”.
Where as in the present case, the statute inclusive of the Constitution
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unavoidably, provides for a method, procedure for performing or doing any act, or thing that mode or precondition must be satisfied and followed strictly.
Learned Counsel for 1st and 2nd respondents also relied heavily on the case of CBN V. INTERSTELLA COMM. LTD equally reported in (2018)7 NWLR (prt. 1618) 345 where the apex Court held inter alia thus:-
“It is right to say that by implication Section 84 of the SCPA which stipulates “consent” had already been fully complied with as the Government itself negotiated the terms, and took steps to settle the debts, before it later renege on full satisfaction thereof. The most potent factor which makes Section 84 (1) of the SCPA inapplicable herein is because he Attorney-General is the debtor and has been sued in that capacity.”
The Attorney-General of the Federation in the instance case is neither the judgment debtor nor sued in his capacity as Attorney-General. Indeed he is not a party to the proceedings before the lower Court and there is nothing in the record that shows that he took active part in any negotiation pertaining the case that gave rise to this appeal.
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Thus, the case of CBN V. INTERSTELLA is clearly distinguishable from the present case factually. In the absence of these peculiar features, the consent or permission of the Attorney-General of the Federation must of necessity be obtained as a condition precedent to attachment of Garnishee as mandatorily required by law.
What played out in the present case was that the 1st and 2nd respondents through their counsel wrote a letter intimating the Attorney-General of the Federation of the indebtedness of the judgment debtors which letter was subsequently acknowledged by the Attorney-General as shown elsewhere in this judgment. An acknowledgement which is merely an acceptance of the existence of the said letter cannot in my respectful view be an implied consent as erroneously argued and subscribed to by the lower Court. It is therefore pertinent to stress that the consequence of non-compliance with the mandatory statutory provisions such as Section 84 (1) of the Sheriffs and Civil Process Act is far-reaching in the sense that the purported act or thing done is marooned in a nullity.
On the whole, the sole issue is resolved in favour of the
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appellant and therefore the appeal is meritorious and is accordingly allowed. The ruling of the lower Court delivered on 11/6/2020 inclusive of both the garnishee Order Nisi and Absolute in Suit No: MISC/21/2020 are hereby set aside for been made without jurisdiction.
Parties shall bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother MUHAMMED LAWAL SHUAIBU, J.C.A.
I agree with the reasoning and conclusion reached in the judgment.
I also agree that the appeal is meritorious and ought to be allowed.
I abide by the consequential orders and the order as to costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, MUHAMMED LAWAL SHUAIBU, J.C.A. and I am in agreement that the appeal should be allowed. There was no basis for the finding of the Court below that there was an implied consent of the Attorney General. There is either consent or no consent of the Attorney General. In the instant case, there was no consent of the Attorney as required by law.
For the reasons more elaborated and demonstrated
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in the lead judgment, I too allow the appeal and set aside both the garnishee order nisi and absolute made by the Court below.
I abide by all other orders in the lead judgment including the order as to costs.
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Appearances:
Nnamonso Ekanem, SAN with him, Inah Ubi For Appellant(s)
Sam Eboh – 1st & 2nd Respondents.
R. A. Utsu – 3rd & 4th Respondents.
Offisong Unoh – 9th Respondent.
Conelia T. Udofa – 8th Respondent. For Respondent(s)
