I recently read a post on social media (WhatsApp to be specific) wherein the anonymous poster shared an extract of the leading judgment delivered by His Lordship, Honourable Justice Ogunbiyi J.S.C. in Central Bank of Nigeria v. Interstella Communications Limited & Ors. (2018) 7 NWLR (Part 1618) page 294, and stated authoritatively that based on the said extract of the judgment, the law is now settled that consent of the Attorney-General of the Federation (“AGF”) is no longer required in garnishee proceedings against the CBN. For the purpose of clarity, the post is reproduced hereunder:
“The law is now settled that Central Bank of Nigeria is not a public officer for the purpose of enforcement money judgment in its custody. In other words, garnishee proceedings in respect of money in the custody of CBN does not come within section 84 of the SCPA so as to require the consent of AGF. See Central Bank of Nigeria v. Interstella Communications Limited & Ors. (2018) (Part 1618) 294 wherein per Ogunbiyi (JSC) held:
“The other leg of the argument is where the appellant’s counsel holds out the CBN as a public officer and relied on the case of Ibrahim V. JSC (supra) in particular.
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 SCPA, when regard is had to the history of this appeal. Section 84 has been reproduced earlier in the course of this judgment.
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. Section 2(e) of the CBN Act provides thus:
“act as a banker and provide economic and financial advice to the Federal Government.”
Section 36 of the CBN Act also provides:
“The Bank shall receive and disburse Federal Government moneys and keep accounts thereof.”
“The appellant does not stand as 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.”
Haven read the case earlier, the interpretation of the case and the conclusions drawn therefrom made me to doubt for a minute the accuracy of my recollection of the decision. The question that naturally came to mind was whether, as presented in the post, the Supreme Court in the above decision has dispensed with requirement of the AGF’s consent in garnishee proceedings in respect of funds in the custody of the CBN. To reaffirm my recollections and to be sure that I had not missed a fundamental part of the decision, I decided to reread the decision before commenting on the issue. And after taking a second read, I feel it expedient to address the effect and implications ascribed to the decision by the poster in the light of the facts of the case and established principles of law.
Summary of Facts
The 1st and 2nd Respondents sometime in 2004 sued the Nigerian Telecommunications Ltd. (NITEL) at the Federal High Court, Umuahia in Suit No. FH1/UM/CS/95/04 for breach of contract and damages therefrom and judgment was delivered in their favour on 6/11/2001 by Hon. Justice H. T. Soba.
As at October 2008, the judgment debt stood at over N23 Billion and $48 Million. Consequently, an Inter-Ministerial Committee was set up in intervention, by the Federal Government of Nigeria for the amicable settlement of the judgment debt with the 1st and 2nd Respondents. Resultantly, the said Respondents accepted the sum of N12 Billion (Twelve Billion Naira) in full and final settlement of the judgment debts of N23 Billion (Twenty-Three Billion Naira) and $48 Million (Forty-Eight Million US Dollars). This was via a Report of Settlement dated 11/6/2009 and subject to the 1st and 2nd Respondents’ terms of acceptance dated 20/3/2009. Eventually and with the consent of the 3rd and 4th Respondents (the Federal Government of Nigeria and AGF respectively), the said offer of N12 Billion was entered as consent judgment of the Federal High Court, Umuahia Judicial Division, on 17/6/2009. The 3rd and 4th Respondents paid less than 30% of the said judgment debt and reneged on their undertaking to liquidate the entire sum. The 1st and 2nd Respondents subsequently commenced garnishee proceedings against the Appellant and the 3rd and 4th Respondent for the sums owed. The Garnishee/Appellant did not show cause why the order should not be made absolute. Instead, it brought a preliminary objection challenging the competence of the garnishee proceedings. The trial High Court dismissed the Appellant’s preliminary objection and made the Garnishee order absolute.
The Appellant’s appeal to the Court of Appeal was dismissed and the Appellant consequently appealed to the Supreme Court. One of the issues submitted for determination at the Supreme Court was: Whether the Court below was right when it held that the appellant is not a Public officer and as such the consent of the Attorney-General of the Federation was not required for attachment of funds in its custody in a Garnishee proceeding.
In resolving the foregoing issue, the Court held that in the light of the peculiar facts and history of the case, the consent of the AGF was not required to commence the garnishee proceedings to recover the debt. The Court relied on the involvement of the AGF in the negotiation of the debt, the admission of the debt and undertaking to pay via the Report of Settlement, the adoption of the terms of settlement and subsequent part payment of the debt to hold that the consent of the AGF had already been obtained and that there was no further requirement to obtain consent. The Court (per Ogunbiyi JSC) held thus:
“Rather and as rightly argued and submitted by the learned counsel for the 1st and 2nd Respondents, the peculiar facts of this case herein removes it from the purview of the general interpretation of Section 84 of the Sheriffs and Civil Process Act in that the consent of the 4th Respondent by virtue of Exhibits ‘I’ and ‘L’ has already been obtained and the Appellant (CBN) was acting as a Banker only, to the 3rd Respondent (FGN).
It should be noted clearly that the principle underlying securing the AGF’s consent as prescribed in Section 84 SCPA is to avoid embarrassment on him of not having the prior knowledge that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt, which the government may not know anything about. See the persuasive authority of the case of Onjewu V. KSMCI (2003) 10 NWLR (Pt 827) 40 at 89.
Counsel submits further that the appellant as well as its officials have been held to be public officers and relied on the case of CBN V. Adedeji (supra) wherein the lower Court followed the decision of this Court in Ibrahim V. JSC under reference. For purpose of clear understanding, it is expedient that the provision of Section 84(1) of the SCPA is hereby reproduced as follows:
“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 custodio legis, 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 custodia legis, as the case may be.”
I have indicated earlier in the course of this judgment that the case under consideration herein is very peculiar and the circumstance cannot be fitted within the general interpretation of Section 84 of SCPA. Again the case of Onjewu V. KSMCI (supra) is well under reference.
Furthermore and as rightly submitted on behalf of the 1st and 2nd Respondents, certain qualifying conditions must be met for a case to come under the purview of Section 84 of SCPA. In other words, justice would demand that the AGF must be a neutral/nominal party in the transactions and proceedings giving rise to the application for order nisi and not him being the debtor. It is well and explicit on the facts of this case that the AGF has all along held out himself to be an active participant in the several stages of negotiations, transactions and even part payment of the debt owed. Paragraph 13 of the affidavit in support of the AGF’s application of page 76 of the record is under reference as admission against interest. In the circumstance, the AGF cannot be a neutral /nominal party in this case.
“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 reneged on full satisfaction thereof. The most potent factor which makes Section 84(1) of the SCPA inapplicable herein is because the Attorney-General is the debtor and has been sued in that capacity.
“With the AGF being the Judgment Debtor therefore, will it not be absurd to require that his consent should be sought especially having admitted that he had taken the move by paying part of the debt in question? The appellant’s contention, understanding and interpretation of Section 84(1) of SCPA is a total misconception, I hold. The interpretation in my view would run against the application of natural justice, which could not have been the intendment of the legislature.
“In the present transaction, and as rightly submitted by the 1st and 2nd Respondents’ counsel, the appellant is only a Banker to the 3rd and 4th respondents and has in that capacity made Payments to the 1st and 2nd respondents based on the consent of the 4th respondent. It could not have been the intention of the legislature that Section 84(1) of the SCPA should be used as an umbrella for the 3rd and 4th respondents to evade a debt owed, by simply putting its funds in the hands of the appellant; it is not also the intention that a judgment creditor should first obtain the consent of the debtor before proceeding against the debtor to recover his money.” (underlined for emphasis).
It is clear from the foregoing that the decision of the Court dispensing with the requirement of consent of the AGF was predicated on the peculiarity of the facts and circumstances of the case and not on the status of the CBN. Indeed, there was no general statement in the judgment to the effect that CBN is not a public officer. The Court only denied the CBN the status of a public officer in the factual and historical context of the case. To underscore the fact that the consent of the AGF remains a requirement for garnishee proceedings against the CBN, the Court held that the facts and history of the case imply that “… 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 reneged on full satisfaction thereof.” This informed the subsequent holding by the Court that the CBN held the funds of the Federal Government only as a banker and not as a public officer. The Court did not hold as a general principle that the CBN is not a public officer and that the consent of the AGF was no longer required to commence garnishee proceedings in respect of funds in the custody of the CBN. It is therefore not correct to conclude that it is now established by this decision that the CBN is not a public officer for the purposes of garnishee proceedings and that on that ground, the consent of the AGF is not required anymore.
The law is trite that decisions of courts are not cited at large. For a judicial decision to apply to a particular case, it is not enough for a party to merely refer to the decision; he must condescend to relate the case to the facts of the case to which he is seeking to apply the decision. See Fawehinmi v. N. B. A. (No. 2) (1989) 2 NWLR (Pt.105) 558. This position of the law was reiterated by Peter-Odili JSC in the case at hand when she held in her concurring judgment as follows:
“It is now trite that every case is to be considered and determined based on its peculiar facts and that being the case and in the light of the unique facets displayed in the case under review that it is to say that those peculiar circumstances have removed this case from the purview of the general application of Section 84 of the Sheriffs and Civil Process Act in that the consent of the 4th respondent by virtue of Exhibit “1” and Exhibit “L” which exhibits reveal that the 3rd and 4th respondents adopted indebtedness of N12B to the 1st and 2nd respondents on behalf of NITEL, which are effectively the consent already obtained and so appellant (CBN) was only acting as a banker to the 3rd respondent (FGN).”
The answer to the question whether the Supreme Court has by this decision dispensed with the requirement of obtaining the consent of the AGF in garnishee proceedings in respect of funds in custody of the CBN, in the light of the facts of the case and the fuller decision of the Court, is an emphatic NO! It is however apposite to conclude that where the AGF is the judgment debtor, consent will not be required to commence garnishee proceedings. As held by the Court, (per Ogunbiyi JSC) it is not the intention of the law “… that a judgment creditor should first obtain the consent of the debtor before proceeding against the debtor to recover his money.” But where the AGF is merely a nominal party to the transaction or proceedings, consent will still be required to commence garnishee proceedings against the CBN.
Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com
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