Is The Central Bank Of Nigeria A Public Officer?: Contextualizing The Provision Of Section 84(1) Of The Sherrifs And Civil Processes Act.
By S.T. Afolabi Esq.
Controversies have continued to visit the question of whether or not the Central Bank of Nigeria is a “Public officer” within the context of Section 84(1) of the Sherrifs and Civil Processes Act. In other to fully appreciate the Provision of the above Legislation, it is germane to lay a proper Foundation and background, so as to facilitate holistic comprehension of the facts in issue.
Without any fear of contradiction, It is of paramount importance to categorically state that the Sherrifs and Civil Processes Act is a special legislation that amongst other things aims to facilitate the enforcement of Judgment. One of the ways of enforcing Judgment is via a Garnishee proceeding.
What then is a Garnishee Proceeding?, The Court of Appeal in the case of CBN vs. OSCKO PETROLEUM LTD & ORS (2018) LPELR-CA/A/704/2016 defines a “Garnishee Proceeding as follows, “A Garnishee is a Judicial proceeding is a Judicial proceeding by a judgement creditor against a person in custody or possession of money belonging to the judgment debtor. The word “Garnishee” is derived from the Norman French, it denotes one who is requested to “garnish”, that is furnish a creditor with the money to pay off a debt. It also denotes that the judgment creditor has to obtain the order of the court that the debtor pays the judgment creditor by the process of attaching the debt once an Order NISI is served on the Garnishee…”
In Other words, in a Garnishee proceeding, one party known as the “judgment creditor”, who is legally entitled to the payment of judgment sum, approaches the court for an order to be served on another party (the Garnishee), whom, he (the judgment Creditor) believes has custody of the money of his debtor (the judgement debtor), who have refused to pay him.
While this is understandable to the extent that banks are usually and in most cases the Garnishees, the narrative seems to be quite different with the Central Bank of Nigeria when the apex bank is joined as a Garnishee in any Garnishee proceedings. It has always been the custom of the apex bank to take shelter under the Provisions of Section 84(1) of the Sherrifs and Civil Processes Act, while canvassing the argument that the prior consent of the Attorney General of the Federation need be sought before any execution can be levied against any funds in its custody. It is noteworthy to state the various decisions of the Court have Appeal have remained controversial on this issue.
One of such is the recently decided case of MR ALHAJI AMINU IBRAHIM v MAJOR GENERAL JAMIL & ORS. With Suit no. CA/PH/144/2022, that was delivered by Honourable Justice JOSEPH SHAGBABOR IKYEGH, JCA.
A Court of Appeal sitting in Port Harcourt, on Monday, 30th of May, 2022 in Suit no. CA/PH/144/2022, gave fundamental rulings as regards the determination and hearing of appeal – what must be fulfilled thus, the jurisdiction and other procedures of court in determining the merit of a Garnishee Order Nisi. The judgement which was delivered in the case between MR ALHAJI AMINU IBRAHIM v MAJOR GENERAL JAMIL & ORS.(supra) was delivered by Honourable Justice JOSEPH SHAGBABOR IKYEGH, JCA.
The case was an appeal from a decision of the Federal High Court in FHC/PH/22/2018 wherein the court set aside its prior ruling of an order of nisi in the garnishee proceedings on the grounds that it had no jurisdiction to grant such other in line with Section 84 of the Sherriff and Civil Processes Act. The case was filed on the 18th February, 2020 on three Grounds, which include;
GROUND ONE: The learned trial Judge erred in law when he set aside the Garnishee order nisi he made on the 31% day of October, 2019, the subject matter of this Appeal by relying on the preliminary objection of the 3 Respondent.
GROUND TWO: The learned trial Judge erred in law when he set aside the Garnishee order nisi he made on the 31% day of October, 2019 by holding that section 86 of the Sheriff and Civil Processes Act was applicable and the Attorney general consent was required.
GROUND THREE: The learned trial Judge erred in law when he held that the 3rd respondent had locus standi to file a preliminary objection in a garnishing proceeding.
In determining the appeal, three issues were raised thus;
Whether or not the Court below became functus Officio as at on the 31 day of October, 2019 when the Garnishee Order Nisi was made against the 3 Respondent in an open court directing it to disclose the account of the 1st and 21 Respondents? (Distilled from grounds 1).
Whether or not the consent of the Attorney General of the Federation was required by virtue of Section 84(1) of the Sheriff and Civil Process Act to garnishee the account of the 2nd Respondent in the hands of the 3M Respondent in view of the Treasury Single Account (TSA) Policy of the Federal Government? (Distilled from grounds 2).
Whether or not the Court below was right in countenancing the preliminary objection of the 3° Respondent which lack the locus to file such an application in garnishee proceeding? (Distilled from grounds 3).
After considering the argument of the counsels, the Court of Appeal deciding if it will let the appeal per JOSEPH SHAGBABOR IKYEGH, JCA. first expressed their displeasure in the counsel for the appellant filing irregular dates in the notice of appeal as to when the ruling of the lower court was delivered, stating that such acts has not present the court with certainty the ruling it is directed to and which jurisdiction of the court is being excited, and this causes distraction or fatality to the appellate journey. According to the court;
On the first issue, the court held that the issue and argument on the issue was a far cry from the ground (ground 1) relied upon by the Appellant and as such they resolved the issue in favour of the respondents. According to the court;
An issue for determination that does not arise from judgment appealed against is incompetent. In the instant case, the respondent’s first issue did not arise from ground 1 in the notice of appeal, as alleged by the appellant. Consequently, the first issue is incompetent and is liable to be disregarded.
Moving unto issue two, the court held that seeing that the 3rd respondent whom the order was to be made against was a public officer and held money on behalf of the federal government, section 84 of the sheriff and civil processes act – which stipulated that in such situations, the consent of the Attorney General before the order was made was a must – was applicable. In the words of the court;this court further remarked that by virtue of section 84 of the Sheriffs and Civil Process Act, a judgment-creditor who chooses to recover a judgment debt by means of garnishee proceedings, if the funds sought to be obtained by garnishee order is in the custody or control of a public officer in his official capacity, must first obtain the consent of the relevant Attorney-General to attach such funds by garnishee before commencing the proceedings. Garnishee proceedings cannot validly commence and/or the court would lack the jurisdiction to entertain it or make the order sought, without the consent of the relevant Attorney-General to such attachment having been first sought and obtained. The consent of the Attorney-General to the attachment of such funds is a pre-condition to a competent garnishee process and a valid exercise of jurisdiction to entertain it and issue the relevant orders. Any application for order nisi filed in such instance is incompetent and the court lacks the jurisdiction to make the order nisi. Such an order nisi will be a nullity. No competent or valid garnishee proceedings can be based on a vold garnishee order nisi. Once the order nisl is void or invalid, the court would lack the jurisdiction to proceed to make the order absolute.
Then deciding the third issue, the Court held that the 3rd respondent had every right to raise a preliminary objection as he acted in line with Section 87 of the Sherriff and Civil Processes Act by challenging its liability, and since the preliminary objection was on the jurisdiction of the court, the court had to countenance the preliminary objection. According to the court;
A garnishee is enabled by law to dispute liability where appropriate, when served with the order nisi. Section 87 of the Sheriff and Civil Process Act provides:
Also; A garnishee challenging the jurisdiction of a court to determine the garnishee suit before it, is, in a way, disputing his or her or its liability. Such is provided, under the law. Thus, the three issues were resolved in favor of the respondents, nevertheless, the court in conclusion held that the appeal was struck out for being incompetent.
It is apposite to state that, there is another Court of Appeal judgment that contradicted the judgment delivered by the Port Harcourt Judicial division on the same issue. This was the case of CENTRAL BANK OF NIGERIA vs. KIMI APPAH ESQUIRE (2020) LPELR 51214 (Pp. 23-24, paras E-D) where Per Hussaini, JCA, has this to say:
“The decision of the Supreme Court in CBN vs. INTERSTELLA COMMUNICATIONS LTD (2018) 7 NWLR (pt. 1618) 294 has put pad, 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 Sherriff and Civil Process Act, as distinguished from the Supreme Court decision in IBRAHIM vs. JUDICIAL SERVICE COMMISSION KADUNA STATE, (1998) LPELR – 1408 (SC) where the provision of section 84(1) of the Sherriff and Civil Process Act was not considered. The effect of the decision in CBN vs. INTERSTELLA COMMUNICATIONS (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).”
At this juncture, it is sacrosanct to place reliance on the Supreme Court case of CBN vs. INTERSTELLA COMMUNICATIONS LTD (2018) 7 NWLR (Pt. 1618) 294, where the apex Court has put pad on all the raging controversies that the CBN cannot be regarded as a “Public officer” within the context of Section 84(1) of the Sheriffs and Civil Processes Act, and thus, the consent of the AGF can be dispensed with in levying execution against the Funds the CBN holds in its custody, even when the body (judgment debtor) is a public or statutory body. In CBN vs. INTERSTELLA COMMUNICATIONS LTD. & 3 ORS. (2018) All FWLR (Pt. 930) page 442 at 529, (2018) 7 NWLR (Pt. 1618) 294 Ogunbiyi, JSC said:
“The role of a garnishee in any garnishee proceedings is delimited. As rightly argued by the counsel for the 1st and 2nd respondents it is not envisaged after a judgment creditor has gone through the rigors to establish his rights through the legal system, that the garnishee, who is asked to surrender the judgment debtor’s money in its possession should engage the judgment creditor in another bout of legal battle. See Order VIII, Part II of the Judgment (Enforcement) Rules”.
Indeed, there is no need to further belabor the fact clearly shown that a miscarriage of justice has taken place against the appellants and the necessity for the intervention of this court is to be made. The appeal is meritorious and I allow it. I abide by the consequential orders made.”
In summation, Suffice it to say that the decision of the Court of Appeal on this same issue will be dead on arrival on appeal.
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