Garnishee proceeding is an effective way of enforcing a money judgment in Nigeria.
The efficacy of garnishee proceedings as a means of enforcing judgment is that, once the garnishee admits that the judgment debtor has money in its custody, he is bound to pay the money for the benefit of the judgment creditor. Hence, it is common to see a judgment creditor initiate garnishee proceedings against the Central Bank of Nigeria in which the judgment debtor operates.
Whether the Central Bank of Nigeria is a public officer for the purpose of garnishee proceeding is one issue which has created a lot of controversy, differing opinions, and differing judgments. Section 84 of the Sheriffs & Civil Process Act provides that where a judgment debt sought to be attached by garnishee proceedings are in the custody or under the control of a public officer, a garnishee order nisi shall not be made unless the consent to such an attachment is first obtained from the appropriate officer whose consent is to be sought depending on whether the public officer is in the custody of the federal or state public service. This appropriate officer is the Attorney General of the Federation or State as the case may be.
IS THE CBN A PUBLIC OFFICER?
In the case of CBN v HYDRO AIR LTD (2014) 16 NWLR (PT 1434) 482, the court held that CBN was a public officer for the purpose of garnishee proceedings and the consent of the Attorney General of the Federation is the condition for initiating garnishee proceedings against the CBN.
Also, in the case of C.B.N. v S.C.S.B.V.(No 1.) (2015) 11 NWLR (PT 1469) 130 AT 154 PARAS A-B, 155 PARAS C-F, the court held that CBN is a public officer for the purpose of garnishee proceeding and therefore the consent of the Attorney General is the condition precedent to the enforcement of the judgement by garnishee proceedings. Therefore, failure to obtain such consent renders garnishee proceedings incompetent.
However, in the case of CBN v NJAMENZE (2015) 4 NWLR (PT 1449) 276, the court held that CBN is not a public officer for the purpose of garnishee proceedings. The court per AGBO JCA held thus;
“The question to ask then is: is the CBN an officer or institution and what is its function in respect of this money of the federation that is in its custody?
Section 1 of the CBN ACT, 2007 describes the CBN to be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name. One of the objects of the CBN was defined in paragraph (e) of Section 2 of the CBN Act, 2007 as follows ” act as banker and provide economic & financial advice to the Federal Government”. See also Sections 27, 36(2), 39, 40 & 52 of the CBN Act. The question then to ask is whether the bank or the federal government is prohibited by the law from paying its duly incurred debts to its creditors? I definitely do not have problem with classifying the officers but I find it unacceptable to classify CBN as a public officer because it act as a banker to the Federal Government in respect of credit balances in the account of the federal government.”
The court held further that Officers of CBN are distinct from CBN and perhaps CBN unlike its members is not a public officer. CBN holds funds in its capacity as a banker to the Government as well as private banks and that create a banker- customer relationship.
Also, in the case of F.G.N. v INTERSTELLA COMMS LTD (2015) 9 NWLR (PT 1463) 1 AT 37-38 PARAS H-A, the court held that CBN is not a public officer and therefore consent of the Attorney General of the Federation is unnecessary.
Also, in the case of PURIFICATION TECHNIQUES NIG LTD v AG LAGOS STATE (2004) 9 NWLR (PT 879) 665, the court held thus;
“There is no basis for treating government bank accounts differently from bank accounts of other juristic personality or customers. The relationship of a banker to customer is contractual. It is essentially that of a debtor to a creditor in the case of credit balances.
We can say that monies in the hands of a garnishee banker are not in custody or under the control of the judgment debtor customer. Such monies remain the property in the custody and control of the banker, and payable to the judgment debtor without the consent of the Attorney General of the federation”.
Recall that in the case of SALOMON v SALOMON (1897) AC 22, the Court held that a company is a body corporate distinct from its officers and can sue or be sued in its corporate name.
The writer therefore asks ” Whether the case of SALOMON v SALOMON is apposite in this regard”
WHO IS A PUBLIC OFFICER?
It is the writer submission that the genesis of the above controversy on whether the CBN is a public officer is rooted to the operation of the Public Officers Protection Act.
In the case of C.B.N. v S.C.S.B.V. (No.1) (SUPRA) 130 AT 150 PARAS F-G, the Court held that a public officer refers not only to natural persons but extends to public bodies, artificial persons, institutions or persons sued by their official names or vested with performance of public duties.
Also in the cases of IBRAHIM v J.S.C. (1998) 14 NWLR (PT 558) 1, EZEANI v NRC (2015) 3 NWLR (PT 1445) 139, the court held that artificial entities such as CBN, the Judicial Service Commission are persons to be protected under the Public Officers Protection Act.
However, in the case of F.G.N. v INTERSTELLA COMM. LTD (SUPRA) 36 PARAS G-H., the court held that the term Public Officer relates to the holders of the office as reflected in Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999(As amended). The provision of Section 84 of the Sheriffs & Civil Process Act also refers to a public officer as a holder, officer or person holding a public office.
Furthermore, the court held in page 38, PARAS C-D of the same case that the CBN being a federal institution or a public body does not fall within the contemplation of the Public Officers Protection Act. The Public Officers Protection Act applies only to individual officers and not to public bodies or institutions.
While the above controversy remains unsettled, the writer submits that where the Attorney General of the Federation is a party in the garnishee proceedings and he admits owing a certain sum of money to the judgement creditor, it will not be necessary to seek his consent before proceeding to attach government funds in the CBN custody in execution of the judgment debt.
By MIRACLE AKUSOBI ESQ