Garnishee Proceedings: Disagreeing With The Court Of Appeal On Its Decision That The Central Bank Of Nigeria Is A Public Officer By Ekemini Udim

Preamble:

The Court of Appeal of Nigeria is an intermediate court between the trial courts and the Supreme Court. It is made up of highly cerebral and hardworking Justices whose elevations to the appellate bench came as a result of distinction in their chosen career. This article is therefore not intended to query their integrity or question their intellectual sagacity in any way whatsoever; it is simply intended to engender further discuss on this important aspect of law so as to expand the frontiers of the recurring issue of the Attorney General’s consent in our jurisprudence of garnishee proceedings.

Introduction:

Garnishee proceedings are proceedings sui generis. That is to say, they are proceedings of a special kind with special principles and special procedures. Indeed, most of the principles in garnishee proceedings are not applicable to other aspects of law. They reside forever within the compass or circumference of garnishee proceedings.

One thorny and seemingly intractable issue in the jurisprudence of garnishee proceedings in Nigeria is the issue of the requirement of the Attorney General’s consent. By Section 84 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004, the consent of the Attorney General of the State or Federation is required before money in the custody of a public officer can be garnished to satisfy a judgment debt. Without first obtaining such consent, garnishee proceedings against a public officer is incompetent and liable to be struck out. This issue has gained the status of a recurring decimal in courts of law across the federation of Nigeria and yet, the last has not been said on it.

The question of whether the Central Bank is a public officer for which the consent of the Attorney General is required before money in its custody can be garnished stems from the provision of Section 84 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004. That section clearly provides that, 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, the consent of the Attorney General must be sought and obtained before garnishee proceedings can be validly commenced and sustained. In its efforts to resolve this issue, the Court of Appeal has handed down some decisions which have pronounced the Central Bank of Nigeria as a ‘public officer’. This writer respectfully disagrees with the Court of Appeal, hence this article.

Some Decisions of the Court of Appeal Pronouncing the Central Bank of Nigeria as a Public Officer:

In the case of Central Bank of Nigeria v. Hydro Air (Pty) Ltd reported in, (2014) 16 NWLR (Pt.1434) 482 at 522 paragraphs B-D, the Court of Appeal, per Iyizoba, JCA held thus:

‘’Section 318 of the 1999 Constitution on which the cross-appellant has placed reliance on to contend that reference to public officer in section 84 of the Sheriffs and Civil Process Act cannot include the cross-appellant defendant defines ‘’public service of the Federation’’ to include ‘’staff of any statutory corporation established by an Act of the National Assembly.’’ There is in fact no doubt that this definition includes officials of the Central Bank of Nigeria.

                   When this provision is examined critically vis-à-vis the provision of section 84 of the Sheriffs and Civil Process Act, it will be seen that funds in the coffers of the Central Bank of Nigeria are actually funds in the custody or under the control of a public officer in his official capacity. This is because the Central Bank of Nigeria is an artificial entity and it is the officials of the body that control the money or funds in the coffers of the entity.’’

In another case, Central Bank of Nigeria v. Shipping Company Sara B.V (No. 1) reported in (2015) 11 NWLR (Pt. 1469) 130 at 154 paragraphs C-D, and page 155 paragraphs E-F, the Court of Appeal, sitting in Lagos held thus:

‘’The Central Bank of Nigeria is a banker to Local Governments, State and the Federal Government institutions or corporations pursuant to section 39 of the Central Bank of Nigeria Act and acts as agent for them by virtue of section 40 thereof. Therefore, it can necessarily be implied that the funds in the hands of the appellant/garnishee (Central Bank of Nigeria) are government funds for and on behalf of the government tiers. These are obviously public funds and the officers are inclusive of CBN and public officers. Seeking and obtaining of consent of the Attorney General is a condition precedent to enforcement of money judgment by garnishee proceedings where the garnishee is a public officer. In the instant suit, the consent of the Federal Attorney General not having been sought and obtained renders the proceedings incompetent thereby robbing the court of jurisdiction.’’

The court went on to explain that, public officers refer not only to natural persons or persons sued in their personal names but extends to public bodies, artificial persons and institutions sued in their official names; Central Bank of Nigeria v. Shipping Company Sara B.V. (No.1) (supra) page 154 paragraphs D – E per Obaseki – Adejumoke, JCA.

From the above analysis, it can be seen that the Court of Appeal is unequivocal (at least to the extent of the above cases) that a garnishee proceeding against the Central Bank of Nigeria for purpose of garnishing the funds of a Local Government Council, State and/or Federal Government without the consent of the Attorney General is incompetent and liable to be struck out. This is because, by the Court’s interpretation, the Central Bank of Nigeria is a public officer.

But what does Section 84(1) of the Sheriff and Civil Process Act say?

Before we go further in this argument, it is important to note that the legal framework for the requirement for the Attorney General’s in consent in garnishee proceedings is section 84 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria, 2004. To assist in the better understanding of our discussion and for ease of reference we take the liberty to reproduce the section verbatim as follows:

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 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 the court in the case of money in custodia legis, as the case may be.”

         84(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.”

For many years now, the courts have pontificated a great deal on this section of the Sheriffs and Civil Process Act but the section continues to present itself for further pontification. In the earlier cases where this section was considered and interpreted upon by the Court of Appeal in particular, the question was whether money lodged in a commercial bank with a public officer as signatory, is money in the custody of a public officer which requires the consent of the Attorney General before commencement of garnishee proceedings? In most of such cases such as the popular case of Purification Technique, the Court held that money in the custody of a commercial bank is not money in the custody of a public officer and therefore, the consent of the Attorney General is not required for purpose of garnishee proceedings.

In the Purification Techniques’ case, though the Central Bank of Nigeria was listed as the thirty first respondent, there was no question of whether the Central Bank is a public officer or not for purpose of garnishee proceedings. The aforementioned cases of Central Bank of Nigeria v. Hydro Air (Pty) Ltd and Central Bank of Nigeria v. Shipping Company Sara B.V (No. 1) are contemporary cases where the fundamental question (whether the Central Bank is a public officer for purpose of garnishee proceedings) was raised, argued and decided upon by the Court of Appeal. Other similar cases have also been decided in recent time.

From the cases above cited, the position of the Court of Appeal is that the Central Bank is a public officer and therefore, no account of any tier of government (domiciled with the Central Bank) can be garnished without the consent of the Attorney General being first sought and obtained in compliance with Section 84 of the Sheriffs and Civil Process Act. This writer disagrees and below is his argument:

Section 318 of the 1999 Constitution:

It is important to note that the decisions of the Court of Appeal in the above cited cases were principally influenced by Section 318 (interpretation section) of the 1999 Constitution of the Federal Republic of Nigeria. Both cases referred to this section of the constitution in reaching the conclusion that the Central Bank of Nigeria is a ‘public officer.’ That section defines the ‘public service of the Federation’ and the Court of Appeal relied on the said definition to reach the conclusion that the Central Bank of Nigeria is a public officer in the eyes of the law, moreover in relation to garnishee proceedings.

For ease of reference and clarity of our discussion, we take the liberty to reproduce verbatim, the provision of the said section 318 of the Constitution herein below:

It was principally as a result of the above provision of the Constitution [particularly sub-section (e)], that the court came to the conclusion that the Central Bank of Nigeria, being a statutory corporation established by an Act of the National Assembly, qualifies as a public officer in the eyes of the law. We refer again to the earlier cited case of CBN v. Hydro Air (Pty) Ltd reported in, (2014) 16 NWLR (Pt.1434) 482 at 522 where His Lordship, Iyizoba, JCA, relying on Section 318 of the Constitution held thus:

‘’Section 318 of the 1999 Constitution defines ‘’public service of the Federation’’ to include ‘’staff of any statutory corporation established by an Act of the National Assembly.’’ There is in fact no doubt that this definition includes officials of the Central Bank of Nigeria.

                   When this provision is examined critically vis-à-vis the provision of section 84 of the Sheriffs and Civil Process Act, it will be seen that funds in the coffers of the Central Bank of Nigeria are actually funds in the custody or under the control of a public officer in his official capacity. This is because the Central Bank of Nigeria is an artificial entity and it is the officials of the body that control the money or funds in the coffers of the entity.’’

The Disagreement:

The first point of disagreement with the above conclusion of the Court of Appeal is that, by the principle of corporate personality, the Central Bank of Nigeria, having been created pursuant to an Act of the National Assembly, is a corporate personality distinct from the personality of its board of directors and of its staff. It is a body corporate with perpetual succession and a common seal. It can acquire properties in its name and dispose of them also in its name. It can enter into contracts in its name. It can sue and be sued in its corporate name. On this we refer to Section 1 of the Central Bank of Nigeria Act, Laws of the Federation of Nigeria, 2004. In essence, the Central Bank is not the same as its staff or officials; they are clearly different in personality in the eyes of the law.

It is therefore difficult to agree with their Lordships in their submissions in the above cited cases wherein they held that ‘’funds in the coffers of the Central Bank of Nigeria are actually funds in the custody or under the control of a public officer in his official capacity, because the Central Bank of Nigeria is an artificial entity and it is the officials of the body that control the money or funds in the coffers of the entity.’’

With profound respect, by the above holding, the Court of Appeal appears not to have averted its mind to the corporate personality of the Central Bank which personality is different, distinct and distinguishable from the personality or personalities of its human managers or staff. As long as the Central Bank has a personality of its own with the capacity to sue and be sued in its corporate name, cases involving the bank can be validly determined for or against the bank without reference to its human managers or staff. If the bank is found liable, such liability is not paid from the salaries and allowances of the staff but from the vault (property) of the bank. This is because the bank is a separate personality in the eyes of the law.

In every garnishee proceeding where the Central Bank is a party, what reflects on the face of the motion paper and the order nisi is the name of the Central Bank as a known personality in law. The validity of such order nisi is not dependent upon the inclusion of the names of the officials of the bank. That means, the Central Bank as an artificial entity can defend itself in the garnishee proceedings without necessarily depending on its staff.  It is the Central Bank as a person that is in custody of the funds in its coffers.

It may be contrary to the known canon of interpretation of statutes to describe the Central Bank as a public officer placing reliance on Section 318 of the 1999 Constitution. Such interpretation will (with profound respect) be tantamount to stretching the meaning of the phrase ‘’public officer’’ beyond acceptable limits. It will mean importing into the Constitution what the law makers never intended in the provision of the Constitution. Note the deliberate use of the words ‘staff’ and ‘member of staff’ in the said section as against ‘institution’ etc.

There are decided cases which hold that the term ‘’public officer’’ relates only to the holders of public offices. On this we refer to the case of Shakira & Sons Ltd. v. Governor of Kaduna State (2013) LPELR-20379(CA). This is the purport of Section 318(e) of the 1999 Constitution which defines public service of the federation to include, Staff of any statutory corporation established by an Act of the National Assembly. ‘’Staff’’ here is different from ‘institution.’

Even Section 84(3) of the Sheriffs and Civil Process Act leaves no room for conjecture as it refers to a ‘’public officer’’ as one who holds a public office in the public service of the State or of the Federation. Indeed, it is only logical to say that a public institution (such as the Central Bank) cannot hold a public office in the public service of the federation. There is therefore no basis for equating a public institution with a public officer.

I hold the view that the definition of public officer in Section 84(3) of the Act (which is the enabling section on the subject matter) is sufficient to handle all issues relating to the question of who is in possession and custody of funds belonging to government. The definition section represents the intention of the drafters of the law and there is no ambiguity in the said definition section. There is therefore no need to step out of the circumference of the definition section of the enabling Act and resort to definitions in other statutes. Every statute provides for what it intends. Therefore, the definition of one word in a particular statute may not necessarily fit into the provision of another statute. Where a statute has provided for a thing and goes ahead to define what it has provided, without creating any ambiguity in the definition, there is absolutely no reason why the court should resort to other definitions in other statutes. I hold the view that Section 84(3) of the Sheriffs and Civil Process Act which defines a ‘’public officer’’ as one who holds a ‘’public office’’ in the public service of the State or of the Federation does not harbour any ambiguity. There is therefore no need resorting to the Interpretation Act and the Constitution or any other statute in a bid to expand the scope of the definition of the term ‘public officer.’

In the case of National Examination Council (NECO) v. Sunday Ojo Tokode (2010) LPELR-9121(CA) at pages 27-28, paragraphs B-E, the Court per Galadima, JCA held thus:

‘’The appellant (NECO) not being a public officer but a statutory establishment or institution, is not entitled to the benefit of the Public Officer’s Protection Act. Let it be noted that the Act was passed to protect public officers as individuals and not institutions or public authority.’’  

As seen here, there is a clear dichotomy between the public officer as an individual and natural personality and, the public institution as an artificial personality.

It is in view of the above submissions that this writer finds it extremely difficult to agree with the Court of Appeal on its conclusion that the Central Bank of Nigeria is a public officer for purpose of garnishee proceedings. Such conclusion of the court (with due respect) does not have the support of Section 84 of the Sheriffs and Civil Process Act. It is more acceptable to describe the Central Bank of Nigeria as a ‘public institution’ or ‘public personality’ than to describe it as a ‘public officer.’

It is for the above reasons that this writer agrees in totality with the latter case of Federal Government of Nigeria v. Interstella Communications Ltd. (2015) 9 NWLR (Pt. 1463) 1 at 37 – 38 where His Lordship, Abba Aji, JCA held as follows:

‘’I definitely do not have problem with classifying the officers of the Central Bank of Nigeria as public officers but I find it unacceptable to classify the Central Bank of Nigeria as a Public Officer.’’

Conclusion:

It is the position of this writer that the Central Bank of Nigeria is not a public officer but a public institution. For this reason, the consent of the Attorney General is not required before commencement of garnishee proceedings against the Central Bank of Nigeria. The drafters of the Sheriffs and Civil Process Act were clear in their definition of the term ‘public officer’ in section 84 (3) of the Act and I personally see no need resorting to definitions in other statutes when the enabling statute has already defined what it intends. The courts should dwell on the definition therein and end the growing resort to other statutes. To describe the Central Bank of Nigeria as a public officer for purpose of garnishee proceedings is tantamount to stretching the definition of the phrase ‘’public officer’’ beyond acceptable limits. It is however hoped that this issue will soon be presented to the Supreme Court for a clear pronouncement on this thorny and seemingly intractable aspect of our jurisprudence of garnishee proceedings.

Ekemini Udim is a Barrister and Solicitor of the Supreme Court of Nigeria. He is the author of, Principles of Garnishee Proceedings in Nigeria. He is reachable on: ekeminiudimforjustice@gmail.com