CBN V DOMA

CBN V DOMA


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON MONDAY, 16TH JULY, 2018


Appeal No: CA/J/170/2017
CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

CENTRAL BANK OF NIGERIA

(APPELLANT)

AND

SHUAIBU DOMA

(RESPONDENT)


PRONOUNCEMENTS


A. PRACTICE AND PROCEDURE
1. Garnishee Proceedings –

Whether the Central Bank of Nigeria (CBN) is a Public Officer within the meaning of Section 84 of the Sheriffs and Civil Process Act

“Reading through the records of appeal, it is clear that the basis upon which the Appellant approached the lower Court in its application dated the 9th of February, 2017, to set aside the Garnishee Order Absolute made on the 23rd of January, 2017 was that it is a public officer and that as such the consent of the Attorney General Federation ought to have been sought for and obtained before the Garnishee Order Nisi could be made to attach funds under its control and in its custody. The lower Court found in its Ruling that the Appellant did not qualify as a public officer for the purposes of attachment of funds in its custody and that as such the consent of the Attorney General of the Federation was not necessary. It is obvious from the Ruling and the submissions of Counsel in this appeal that the question of whether the Appellant is a public officer for the purpose of garnishee proceedings has engaged this Court, particularly, in several cases and there are conflicting decisions of this Court on the point.
Before proceeding to answer this same question in this appeal, this Court considers it pertinent to state that it is high time that the narrative of the conversation around the status of the Appellant vis a vis garnishee proceedings is changed. The question of whether the Appellant is a public officer to warrant the consent of the Attorney General of the Federation to attach the funds in its control and custody should no longer be the inquiry that should engage the Courts in garnishee proceedings where the Appellant is involved as the garnishee. And the reason for this need to change the narrative is very simple, as demonstrated hereafter. ?Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed by the provisions of the Sheriffs and Civil Process Act. The nature of and procedure for garnishee proceedings were beautifully captured by this Court in Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120, where the Court stated thus:
‘Garnishee proceeding is one of the ways of executing a judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as “attachment of debt.” It is a separate and distinct action between the judgment creditor and the person or body holding custody of the assets of the judgment debtor, although it flows from the judgment that pronounced the debt owing. A successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the Judge will make an order which is technically known as a “garnishee order nisi” attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the judgment creditor the debt owed by it to the judgment debtor. The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 86 of the Sheriffs and Civil Process Act …’
This Court reiterated these statements in the cases of Sokoto State Government Vs Kamdax (Nig) Ltd (2004) 9 NWLR (Pt 878) 345, Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State (2004) 9 NWLR (Pt 879) 665, Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt 1083) 418, Nigerian Telecommunications Plc Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356 and First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199.
Now, Section 84 of the Sheriffs and Civil Process Act provides:

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 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.
2. In such cases, the order or notice must be served on such public officer or registrar of Court as the case may be.

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 in the custody of a public officer who holds a public officer in the public service of the State, the Attorney General of the State.” The purpose and essence of this provision has been explained by the Courts. In Onjewu Vs Kogi State Ministry of Commerce and Industries (2003) 10 NWLR (Pt 827) 40, this Court stated at pages 88-89 thus:
“… the rationale for the provision in Section 84(1) of the Sheriffs and Civil Process Act for the previous consent of the Attorney General before a Court could validly issue even an order garnishee nisi against the funds in the hands of a Public Officer is to ensure that moneys that have been voted by the House of Assembly of a State for a specific purpose in the appropriation Bill presented to that House and approved in the budget for the year of appropriation does not end up being the subject of execution for other unapproved purposes under the Sheriffs and Civil Process Law.”
The Court continued that “it is a provision to ensure sound public administration. It is a matter of good public policy aimed at protecting the public funds. It makes good sense too.” This position on the essence and purpose of Section 84 of the Sheriffs and Civil Process Act was reiterated by this Court in Government of Akwa Ibom State Vs Powercom (Nig) Ltd (2004) 6 NWLR (Pt 868) 202, Ode Vs Attorney General, Benue State (2011) LPELR 4774(CA), Central Bank of Nigeria Vs Okefe (2015) LPELR 24825(CA), University of Calabar Teaching Hospital Vs Lizikon Nigeria Ltd (2017) LPELR 42339(CA). The Supreme Court affirmed this position in the case of Central Bank of Nigeria Vs Interstella Communications Ltd (2017) 12 SC (Pt IV) 97 at page 176, per Ogunbiyi, JSC, thus:
“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.” Thus, the purpose of Section 84 of the Sheriffs and Civil Process Act, as deciphered by the Court, is the protection of public funds from indiscriminate use to settle judgment debts. Now, it is elementary that the objective of the interpretation of the provisions of a statute is to discover the intention of the legislature in making the statute; the purpose the legislature intended to achieve by the provisions of the statute -Isah Vs State (2017) LPELR 43472(SC). In Ugwu Vs Ararume (2007) 12 NWLR (Pt 1048) 367, the Supreme Court made the point at page 498 thus:
“A statute, it is always said, is ‘the will of the legislature’ and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of a Court is to interpret the document according to the will of those who made it. Thus, the Court declares the intention of the legislature.”
The Court must guide itself with the essence of a provision in giving meaning to words of that provision. Courts must interpret statutes by implication to give effect to the true intention of the law makers – Abdulraheem Vs Olufeagba (2006) 17 NWLR (P 1008) 280 at 355, Peoples Progressive Alliance Vs Saraki (2007) 17 NWLR (Pt 1064) 453. This is the corner stone of the purposive and creative approach to the interpretation of statutes, sometimes referred to as purposivism or the modern principle of construction. The purposive approach is an approach to statutory and constitutional interpretation under which common law Courts interpret an enactment in the light of the purpose for which it was enacted – Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76 at 138H. Once an interpretation meets the purpose of the provision of an enactment, then it is fine, and it is irrelevant that other possible interpretations of the provision exist – Rivers State Government Vs Specialist Konsult (2005) 7 NWLR (Pt 923) 145.
As stated above, the purpose of Section 84 of the Sheriffs and Civil Process Act is the protection of public funds. It is elementary, and pure common sense, that public fund means monies belonging to the Federal, State and Local Governments and their different agencies and departments. In other words, what determines whether a fund is a public fund is the status of who owns the money, and not the status of the person in whose physical possession the money is kept. It is on this basis that monies belonging to State Governments in possession of private banks qualify as public funds and due for protection under Section 84 of the Sheriffs and Civil Process Act, and why monies belonging to a private contractor for completed contracts in the hands of a State Government do not qualify as public funds and not due for protection under Section 84 of the Sheriffs and Civil Process Act.
Therefore, looking at the wordings of Section 84 of the Sheriffs and Civil Process Act, the words money “in the custody or under the control of a public officer in his official capacity” must be interpreted with reference to the owner of the said money and not the person in physical possession of the money. This was the approach taken by this Court in the case of United Bank for Africa Vs Access Bank Plc (2018) LPELR 44058(CA) when it stated:
“The money in the bank account is in the custody of the account holder thereof. In other words, it need not be in the pockets of the public officer. It suffices if the public officer has … constructive possession of the money. The bank merely keeps cashless records of accounts of its customers but the control of such account, which in the instant case lies with a public officer, is what constitutes custody.”
Also, in Central Bank of Nigeria Vs Auto Import Export (2012) LPELR 7858(CA), this Court stated that the rule has been settled that the amount at a judgment debtor’s credit in his Bank account is property of the judgment debtor constituting a debt, the Bank being the person indebted. This, in the view of this Court, is the right approach. To interpret the words with reference to the person in physical possession of the monies only will lead to an absurdity and will not achieve the purpose of Section 84 of the Sheriffs and Civil Process Act. This is because the funds of the Federal, State and Local Governments and their agencies in accounts with private banks such as Zenith Bank Plc or GT Bank Plc will not come under the provision of the section because those banks are not public officers and it will also mean monies of a private contractor in the hands of a State Government will be covered because the State Government is a public officer. This was the decision taken by this Court in the case of Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State (2004) 9 NWLR (Pt 879) 665 when it relied on the literal rule in interpreting the provisions of Section 84. The Court held in that case that monies of Lagos State Government which were in the hands of garnishee banks were not in custody and control of Lagos State Government, but in the custody and control of the garnishee banks and that since the garnishee banks were not public officers, the monies were not subject to Section 84 of the Sheriffs and Civil Process Act.

It is trite law that no reasonable Court or tribunal will impute any absurd and unjust consequences to a statute or imply in a statute consequences that will lead to absurdity and injustice – Attorney General, Ondo State Vs Attorney General, Ekiti State (2001) 17 NWLR (Pt 743) 706, Attorney General, Nasarawa State Vs Attorney General, Plateau State (2012) 10 NWLR (Pt 1309) 419. In Nyesom Vs Peterside (2016)
1 NWLR (Pt 1492) 71 at 112 F-G, the Supreme Court made the point thus:

“It is trite law that provisions of statutes should not be construed in a way as would defeat the intention of the legislature or defeat the ends it was meant to serve or where it will cause injustice. The law is well settled too that where the interpretation of a word in a statute is capable of being given two meanings, the Court saddled with the responsibility of interpreting such word shall adopt and use the interpretation which would not defeat the intention of the law makers.”
With the use of the proper approach of interpretation, the germane question to ask in a garnishee proceedings vis a vis Section 84 of the Sheriffs and Civil Process Act will not be whether the bank or person in physical possession of the money is a public officer, but whether the owner of the money is a public officer. This will render the recurrent question of whether the Central Bank of Nigeria is a public officer for the purpose of Section 84 totally irrelevant and the relevant question will be whether the owner of the money in possession of Central Bank of Nigeria is a public officer. This is the narrative that, this Court believes, should guide future conversations on the effect of Section 84 of the Sheriffs and Civil Process Act on garnishee proceedings and not the vexed question of whether the Central Bank of Nigeria is a public officer.

These said, we now go back to the question that was posed in this appeal by the Counsel to the both parties, and which was the issue decided by the lower Court in the Ruling appealed against – whether the Appellant, Central Bank of Nigeria, qualified as a public officer in the circumstances of this case to necessitate the application of Section 84 of the Sheriffs and Civil Process Act. It must be stated that the approach of the Counsels to the parties in answering this question in their respective briefs of arguments was more academic than factual; they based their arguments on the general nature, structure and operations of the Appellant rather than on the factual situation in the present case. It is elementary law that decisions of Courts draw their inspiration and strength from the facts which framed the issues for decision and Courts do not make a habit of answering academic questions – Adeogun Vs Fashogbon (2008) 17 NWLR (Pt 1115) 149, Independent National Electoral Commission Vs Atuma (2013) LPELR 20589(SC), Ardo Vs Independent National Electoral Commission (2017) LPELR 41919(SC). This Court will thus answer the question posed on the basis of the factual situation in this case.
The factual basis upon which Counsel to the Appellant predicated the assertion that the Appellant is a public officer in this case is that the Appellant acts as banker of the monies of the second and third judgment debtors, the Nigeria Army and Chief of Army Staff, agencies of the Federal Government of Nigeria, as part of its duty of being a banker and financial adviser to the Federal Government of Nigeria. A similar question in similar circumstances was posed before and answered by the Supreme Court in the case of Central Bank of Nigeria Vs Interstella Communications Ltd supra at pages 178 to 180 thus: “The other leg of the argument is where the Appellant’s Counsel holds out CBN as a public officer and relied on the case of Ibrahim v JSC … in particular. …
It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government 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 a 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. Relevant to this conclusion is again the persuasive authority of the CBN v Ekong … wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the CBN:
‘Generally, it is for overall control and administration of the monetary and banking policies of the Federal Government … It is not established for commercial profit making purpose …”

The case of Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State … is also on all fours with the facts of the case under consideration herein. Again the persuasive judgment of the Court of

Appeal … is relevant and said:

‘… There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other juristic personality or customers …'”

It is trite that where the provisions of a statute or section of a statute are in pari material, light may be thrown on the meaning of such a provision of a statute or section which is in pari material by referring to a previous decision of a competent Court where similar provisions had been previously considered – Attorney General, Abia State Vs Attorney General, Federation (2005) 12 NWLR (Pt 940) 452. Where that previous decision was given by a Court higher up in the judicial hierarchy then it becomes a matter of judicial precedent and is binding on the Courts lower in the hierarchy where they are called upon to consider a provision similar to that earlier considered – Nwobodo Vs Onoh (1984) 1 SCNLR 1, University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt 1) 156 and Ngige Vs Obi (2006) 14 NWLR (Pt 999) 1.
This above quoted decision of the Supreme Court is on similar facts and on the same Section 84 of the Sheriffs and Civil Process Act as in this case and this Court is bound by the decision. The decision affirmed the earlier decision of this Court in Central Bank of Nigeria Vs Interstella Comms Ltd (2015) 9 NWLR (Pt 1463) 1 and it supersedes the myriad of decisions of this Court referred to by Counsel to the Appellant. Thus, the reliance placed by the lower Court on the decision of this Court in Central Bank of Nigeria Vs Interstella Comms Ltd supra in making its finding in the instant case cannot be faulted, any more, on the ground that the lower Court ignored latter decisions of this Court on the point.
The answer to the question posed by Counsel to the parties in this appeal therefore is that, on the facts and in the circumstances of this case, the Appellant is not a public officer as to warrant the application of Section 84 of the Sheriffs and Civil Process Act.”Per ABIRU, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY ABIRU, JCA.


This appeal is against the decision contained in the Ruling of the High Court of Bauchi State delivered in Suit BA/616M/2016 by Honorable Justice Mu’azu Abubakar on the 27th of April, 2017.

The Respondent obtained a money judgment in the total sum of N1.65 Million against one Isa Tano, the Nigerian Army and the Chief of Army Staff on the 31st of October, 2014. Following the failure of the judgment debtors to satisfy the judgment debt, the Respondent commenced garnishee proceedings by filing a motion ex parte dated the 28th of November, 2016 before the lower Court seeking for a Garnishee Order Nisi against thirteen commercial banks and the Appellant. The lower Court made the Garnishee Order Nisi on the 8th of December, 2016 attaching the monies of the judgment debtors in the possession of the thirteen commercial banks and the Appellant to the tune of N1.65 Million and directing the banks and the Appellant to show cause why the Order Nisi should not be made absolute. The hearing date for the hearing of the application for the Garnishee Order Absolute was fixed for the 9th of January, 2017.

The Garnishee Order Nisi was served on the Appellant on the 9th of December, 2016 and the Appellant failed and/or neglected to file any affidavit or any other process to show cause why the Order Nisi should not be made absolute against it. The matter did not come up on the 9th of January, 2017 as earlier scheduled, but on the 23rd of January, 2017, and on which day the lower Court delivered a Ruling making a Garnishee Order Absolute against the Appellant. On being served with the Garnishee Order Absolute, the Appellant filed a motion on notice dated the 9th of February, 2017 before the lower Court praying for an order setting aside the Garnishee Order Absolute on the ground of lack of jurisdiction on the part of the lower Court and also for an order of stay of execution of the Order. The lower Court took arguments on the application and it dismissed same in a considered Ruling delivered on the 27th of April, 2017.

The Appellant was dissatisfied with the Ruling and it caused its Counsel to file a notice of appeal containing one ground of appeal and dated the 28th of April, 2017 against it. In ventilating the grievance of the Appellant with the Ruling of the lower Court, Counsel to the Appellant filed a brief of arguments dated the 7th of July 2017 on the 10th of July, 2017 and the brief of arguments was deemed properly filed and served by this Court on the 17th of October, 2017. The Appellant also filed a list of additional authority dated the 23rd of March, 2018 on the 26th of March, 2018. The Respondent, on his part, caused his Counsel to file a brief of arguments dated the 20th of November, 2017 on the 23rd of November, 2017 and the brief of arguments was deemed properly filed and served by this ourt on the 7th of February, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the parties were agreed that there is only one issue for determination in this appeal and it is whether the Appellant, the Central Bank of Nigeria, is a public officer for the purposes of the garnishee proceedings brought against it.

In answering the question, Counsel to the Appellant stated that the Central Bank of Nigeria was established by the Central Bank of Nigeria (Establishment) Act, Cap C4, Laws of the Federation of Nigeria 2004 as a statutory body with perpetual succession and common seal and which may sue and be sued in its corporate name and that it is wholly owned by the Federal Government of Nigeria and set up to provide public service set out in Section 2 of the Act in the discharge of its public office and he referred to the case of CBN Vs Ukpong (2006) 13 NWLR (Pt 998) 555. Counsel then put up a poser – whether the Appellant is a public officer and the prior consent of the Attorney General is a sine qua non to commencing the garnishee proceedings against it. Counsel stated that the Sheriffs and Civil Process Act does not defined who or what is a public officer for the purposes of the Act and he referred to the definitions of public officer in Section 18(1) of the Interpretation Act and of public service in Section 318(1)(e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Counsel stated that by virtue of the fact that the Appellant was established by an Act of National Assembly and has as one its objectives, to act as banker and provide economic and financial advice to the Federal Government, it was an agency of the Federal Government and formed part of the public service of the Federation and he referred to the case of CBN Vs Amao (2010) 16 NWLR (Pt 1219) 271.

Counsel stated that the Appellant as a body corporate executes its duties through its employees who by virtue of Paragraph 19 of the 5th Schedule of the Constitution are equally public officers and are also the agents of the Appellant. Counsel stated that by very wordings of Section 318(1) of the Constitution, the listed items therein on what constitutes public service is not exhaustive and it can accommodate the nature of the services rendered by the Appellant, as mentioned in the Act establishing it, within the meaning of public service of the Federation and he referred to the case of Rabiu Vs The State (1980) 8-11 SC (Reprint) 85 . Counsel referred to the case of Ibrahim Vs JSC (199 ) 14 NWLR (Pt 584) 1 where the Supreme Court stated that the term public officer has by law been extended to include a public department, and therefore an artificial person, a public office or a public body and he stated that this definition was relied upon by this Court in CBN Vs Hydro Air Pty (2014) 16 NWLR (Pt 1434) 482 to hold that the Appellant is a public officer.

Counsel stated that this position has been reiterated by this Court in Central Bank of Nigeria Vs Okefe (2015) LPELR 24852(CA), Central Bank of Nigeria Vs Kakuri (2016) LPELR 41469, Central Bank of Nigeria Vs Asset Management Corporation (2017) LPELR 42986(CA) and Central Bank of Nigeria Vs Maiyini Century Company Ltd (2017) LPELR 43024(CA). Counsel conceded that in the case of CBN Vs Interstella Comms Ltd (2015) 9 NWLR (Pt 1463) 1, this Court held the Appellant was not a public officer for the purposes of garnishee proceedings. Counsel stated that the lower Court placed reliance on the case of CBN Vs Interstella Comms Ltd supra in making its finding in the present case that the Appellant is not a public officer and that the lower Court was wrong in doing so because there were later decisions of this Court brought to its attention and that the law is that where there are conflicting decisions of a higher Court on a point, the latter decision in time prevails and he referred to the cases of Alao Vs Unilorin (2008) 1 NWLR (Pt 1069) 421 and Adigun Vs Ayinde (1993) 8 NWLR (Pt 315) 534. Counsel stated that, in making the finding, the lower Court also discountenanced the decision of the Supreme Court in Ibrahim Vs JSC supra in favour of the decision of this Court inFGN Vs Interstella Comms Ltd supra and that this was wrong as a decision of this Court cannot override or be preferred to a decision of the Supreme Court on the same issue and he referred to the cases of Mbah Vs State (2014) 10 NWLR (Pt 1415) 316 and Ojora Vs AGIP (Nig) Plc (2014) 1 NWLR (Pt 1387) 150.

Counsel asserted that Appellant being a bank to agencies of government is part of the public service of government and that it is thus a public officer and stated that this brings up the question whether the lower Court was correct in granting the Garnishee Order Nisi of 8th of December, 2016 and making same Absolute on the 23rd of January, 2017. Counsel reproduced the provisions of Section 84 of the Sheriffs and Civil Process Act, which he said dealt with a situation where garnishee proceedings is commenced against money in the custody or control of a public officer in his official capacity, and stated that the provisions put in place a condition precedent of obtaining the consent of the Attorney General of the Federation where the public officer holds public office in the public service of the Federation. Counsel stated that one of the important conditions for a court exercising its jurisdiction over a matter is that the matter must have been instituted by the due process of law and upon the fulfillment of any condition precedent and he referred to the cases of Umanah Vs Attah (2006) 17 NWLR (Pt 1009) 503, Maitumbi Vs Baraya (2017) 2 NWLR (Pt 1550) 347.

Counsel stated that it was not in contention that the money sought to be attached in the instant case is in the custody of the Appellant, a statutory body/a public department, and that the Respondent did not obtain the requisite consent of the Attorney General of the Federation before applying for the Garnishee Order Nisi, and thus failed to fulfill a condition precedent to the exercise of jurisdiction by the lower Court in making the Order Nisi and he referred to the cases of Central Bank of Nigeria Vs Kakuri (2016) LPELR 41468, Central Bank of Nigeria Vs Asset Management Corporation (2017) LPELR 42986(CA) and Central Bank of Nigeria Vs Maiyini Century Company Ltd (2017) LPELR 43024(CA). Counsel stated that the lower Court was robbed of jurisdiction, in the circumstances, and that the Garnishee Order Nisi and the Garnishee Order Absolute made by the lower Court were nullities.

Counsel urged the Court to resolve the sole issue for determination in favour of the Appellant and to allow the appeal and set aside the Garnishee Orders made by the lower Court.

In his response, Counsel to the Respondent conceded that the Appellant as an institution was established by the Central Bank of Nigeria (Establishment) Act, Cap C4, Laws of the Federation of Nigeria 2004 and charged with many responsibilities in the Act and he proceeded to mention some of the responsibilities. Counsel also conceded that by virtue of Section 84 of the Sheriffs and Civil Process Act, consent of appropriate officer ought to be obtained before money in custody of a public officer is attached, but stated that the Appellant is not a public officer within the contemplation of the extant laws and that no consent was thus required to be sought and obtained before money in its custody is attached.

Counsel stated that Section 84 (2) of the Sheriffs and Civil Process Act defined a public officer as someone who holds public office in either the public service of the Federation or in the public service of a State and that the question of whether the Appellant, the Central Bank, qualified as such public officer was considered by this Court in the case of CBN Vs Interstella Comms Ltd (2015) 9 NWLR 1 and that this Court found that the Appellant as an institution is not a public officer and that therefore the requirement of consent of the Attorney General of the Federation was not required to initiate garnishee proceedings to attach funds in its possession. Counsel stated that this ourt had earlier reiterated this position in the case of CBN Vs Njemanze (2015) 4 NWLR (Pt 1449) 276 and he also referred to the case of Purification Techniques Nig Ltd Vs A. G., Lagos State (2004) All FWLR (Pt 211) where, he said, this Honorable Court held that given the nature of the contract that exists between a banker and a customer, the customer neither has control nor custody of the funds standing to his credit in an account with the bank and that funds are under the control and custody of the bank.

Counsel stated that following the above cases, this Court should find that the Appellant is not a public officer within the contemplation of Section 84 of the Sheriffs and Civil Process Act to necessitate the obtaining of the consent of the Attorney General of the Federation before funds in its custody are attached. Counsel urged the Court resolve the issue for determination in favour of the Respondent and to hold that there is not merit in the appeal and to dismiss same and affirm the decision contained in the Ruling of the lower Court.

Reading through the records of appeal, it is clear that the basis upon which the Appellant approached the lower Court in its application dated the 9th of February, 2017, to set aside the Garnishee Order Absolute made on the 23rd of January, 2017 was that it is a public officer and that as such the consent of the Attorney General Federation ought to have been sought for and obtained before the Garnishee Order Nisi could be made to attach funds under its control and in its custody. The lower Court found in its Ruling that the Appellant did not qualify as a public officer for the purposes of attachment of funds in its custody and that as such the consent of the Attorney General of the Federation was not necessary. It is obvious from the Ruling and the submissions of Counsel in this appeal that the question of whether the Appellant is a public officer for the purpose of garnishee proceedings has engaged this Court, particularly, in several cases and there are conflicting decisions of this Court on the point.

Before proceeding to answer this same question in this appeal, this Court considers it pertinent to state that it is high time that the narrative of the conversation around the status of the Appellant vis a vis garnishee proceedings is changed. The question of whether the Appellant is a public officer to warrant the consent of the Attorney General of the Federation to attach the funds in its control and custody should no longer be the inquiry that should engage the Courts in garnishee proceedings where the Appellant is involved as the garnishee. And the reason for this need to change the narrative is very simple, as demonstrated hereafter. Garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed by the provisions of the Sheriffs and Civil Process Act. The nature of and procedure for garnishee proceedings were beautifully captured by this Court in Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt 795) 120, where the Court stated thus:

‘Garnishee proceeding is one of the ways of executing a judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as “attachment of debt.” It is a separate and distinct action between the judgment creditor and the person or body holding custody of the assets of the judgment debtor, although it flows from the judgment that pronounced the debt owing. A successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the Judge will make an order which is technically known as a “garnishee order nisi” attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the judgment creditor the debt owed by it to the judgment debtor. The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 86 of the Sheriffs and Civil Process Act …’

This Court reiterated these statements in the cases of Sokoto State Government Vs Kamdax (Nig) Ltd (2004) 9 NWLR (Pt 878) 345, Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State (2004) 9 NWLR (Pt 879) 665, Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt 1083) 418, Nigerian Telecommunications Plc Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356 and First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199.

Now, Section 84 of the Sheriffs and Civil Process Act provides:

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 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.

2. In such cases, the order or notice must be served on such public officer or registrar of Court as the case may be.
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 in the custody of a public officer who holds a public officer in the public service of the State, the Attorney General of the State.”

The purpose and essence of this provision has been explained by the Courts. In Onjewu Vs Kogi State Ministry of Commerce and Industries (2003) 10 NWLR (Pt 827) 40, this Court stated at pages 88-89 thus:

“… the rationale for the provision in Section 84(1) of the Sheriffs and Civil Process Act for the previous consent of the Attorney General before a Court could validly issue even an order garnishee nisi against the funds in the hands of a Public Officer is to ensure that moneys that have been voted by the House of Assembly of a State for a specific purpose in the appropriation Bill presented to that House and approved in the budget for the year of appropriation does not end up being the subject of execution for other unapproved purposes under the Sheriffs and Civil Process Law.”

The Court continued that “it is a provision to ensure sound public administration. It is a matter of good public policy aimed at protecting the public funds. It makes good sense too.” This position on the essence and purpose of Section 84 of the Sheriffs and Civil Process Act was reiterated by this Court in Government of Akwa Ibom State Vs Powercom (Nig) Ltd (2004) 6 NWLR (Pt 868) 202, Ode Vs Attorney General, Benue State (2011) LPELR 4774(CA), Central Bank of Nigeria Vs Okefe (2015) LPELR 24825(CA), University of Calabar Teaching Hospital Vs Lizikon Nigeria Ltd (2017) LPELR 42339(CA). The Supreme Court affirmed this position in the case of Central Bank of Nigeria Vs Interstella Communications Ltd (2017) 12 SC (Pt IV) 97 at page 176, per Ogunbiyi, JSC, thus:
“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.”

Thus, the purpose ofSection 84 of the Sheriffs and Civil Process Act, as deciphered by the Court, is the protection of public funds from indiscriminate use to settle judgment debts. Now, it is elementary that the objective of the interpretation of the provisions of a statute is to discover the intention of the legislature in making the statute; the purpose the legislature intended to achieve by the provisions of the statute –Isah Vs State (2017) LPELR 43472(SC). In Ugwu Vs Ararume (2007) 12 NWLR (Pt 1048) 367, the Supreme Court made the point at page 498 thus:

“A statute, it is always said, is ‘the will of the legislature’ and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of a Court is to interpret the document according to the will of those who made it. Thus, the Court declares the intention of the legislature.”

The Court must guide itself with the essence of a provision in giving meaning to words of that provision. Courts must interpret statutes by implication to give effect to the true intention of the law makers – Abdulraheem Vs Olufeagba (2006) 17 NWLR (P 1008) 280 at 355, Peoples Progressive Alliance Vs Saraki (2007) 17 NWLR (Pt 1064) 453. This is the corner stone of the purposive and creative approach to the interpretation of statutes, sometimes referred to as purposivism or the modern principle of construction. The purposive approach is an approach to statutory and constitutional interpretation under which common law Courts interpret an enactment in the light of the purpose for which it was enacted – Elabanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76 at 138H. Once an interpretation meets the purpose of the provision of an enactment, then it is fine, and it is irrelevant that other possible interpretations of the provision exist – Rivers State Government Vs Specialist Konsult (2005) 7 NWLR (Pt 923) 145.

As stated above, the purpose of Section 84 of the Sheriffs and Civil Process Act is the protection of public funds. It is elementary, and pure common sense, that public fund means monies belonging to the Federal, State and Local Governments and their different agencies and departments. In other words, what determines whether a fund is a public fund is the status of who owns the money, and not the status of the person in whose physical possession the money is kept. It is on this basis that monies belonging to State Governments in possession of private banks qualify as public funds and due for protection under Section 84 of the Sheriffs and Civil Process Act, and why monies belonging to a private contractor for completed contracts in the hands of a State Government do not qualify as public funds and not due for protection under Section 84 of the Sheriffs and Civil Process Act.

Therefore, looking at the wordings of Section 84 of the Sheriffs and Civil Process Act, the words money “in the custody or under the control of a public officer in his official capacity” must be interpreted with reference to the owner of the said money and not the person in physical possession of the money. This was the approach taken by this Court in the case of United Bank for Africa Vs Access Bank Plc (2018) LPELR 44058( A) when it stated:

“The money in the bank account is in the custody of the account holder thereof. In other words, it need not be in the pockets of the public officer. It suffices if the public officer has … constructive possession of the money. The bank merely keeps cashless records of accounts of its customers but the control of such account, which in the instant case lies with a public officer, is what constitutes custody.”

Also, in Central Bank of Nigeria Vs Auto Import Export (2012) LPELR 7858(CA), this Court stated that the rule has been settled that the amount at a judgment debtor’s credit in his Bank account is property of the judgment debtor constituting a debt, the Bank being the person indebted. This, in the view of this Court, is the right approach. To interpret the words with reference to the person in physical possession of the monies only will lead to an absurdity and will not achieve the purpose of Section 84 of the Sheriffs and Civil Process Act. This is because the funds of the Federal, State and Local Governments and their agencies in accounts with private banks such as Zenith Bank Plc or GT Bank Plc will not come under the provision of the section because those banks are not public officers and it will also mean monies of a private contractor in the hands of a State Government will be covered because the State Government is a public officer. This was the decision taken by this Court in the case of Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State (2004) 9 NW R (Pt 879) 665 when it relied on the literal rule in interpreting the provisions of Section 84. The Court held in that case that monies of Lagos State Government which were in the hands of garnishee banks were not in custody and control of Lagos State Government, but in the custody and control of the garnishee banks and that since the garnishee banks were not public officers, the monies were not subject to Section 84 of the Sheriffs and Civil Process Act.

It is trite law that no reasonable Court or tribunal will impute any absurd and unjust consequences to a statute or imply in a statute consequences that will lead to absurdity and injustice – Attorney General, Ondo State Vs Attorney General, Ekiti State (2001) 17 NWLR (Pt 743) 706, Attorney General, Nasarawa State Vs Attorney General, Plateau State (2012) 10 NWLR (Pt 1309) 419. In Nyesom Vs Peterside (2016) 1 NWLR (Pt 1492) 71 at 112 F-G, the Supreme Court made the point thus:

“It is trite law that provisions of statutes should not be construed in a way as would defeat the intention of the legislature or defeat the ends it was meant to serve or where it will cause injustice. The law is well settled too that where the interpretation of a word in a statute is capable of being given two meanings, the Court saddled with the responsibility of interpreting such word shall adopt and use the interpretation which would not defeat the intention of the law makers.”
With the use of the proper approach of interpretation, the germane question to ask in a garnishee proceedings vis a vis Section 84 of the Sheriffs and Civil Process Act will not be whether the bank or person in physical possession of the money is a public officer, but whether the owner of the money is a public officer. This will render the recurrent question of whether the Central Bank of Nigeria is a public officer for the purpose of Section 84 totally irrelevant and the relevant question will be whether the owner of the money in possession of Central Bank of Nigeria is a public officer. This is the narrative that, this Court believes, should guide future conversations on the effect of Section 84 of the Sheriffs and Civil Process Act on garnishee proceedings and not the vexed question of whether the Central Bank of Nigeria is a public officer.

These said, we now go back to the question that was posed in this appeal by the Counsel to the both parties, and which was the issue decided by the lower Court in the Ruling appealed against – whether the Appellant, Central Bank of Nigeria, qualified as a public officer in the circumstances of this case to necessitate the application of Section 84 of the Sheriffs and Civil Process Act. It must be stated that the approach of the Counsels to the parties in answering this question in their respective briefs of arguments was more academic than factual; they based their arguments on the general nature, structure and operations of the Appellant rather than on the factual situation in the present case. It is elementary law that decisions of Courts draw their inspiration and strength from the facts which framed the issues for decision and Courts do not make a habit of answering academic questions – Adeogun Vs Fashogbon (2008) 17 NWLR (Pt 1115) 149, Independent National Electoral Commission Vs Atuma (2013) LPELR 20589(SC), Ardo Vs Independent National Electoral Commission (2017) LPELR 41919(SC). This Court will thus answer the question posed on the basis of the factual situation in this case.

The factual basis upon which Counsel to the Appellant predicated the assertion that the Appellant is a public officer in this case is that the Appellant acts as banker of the monies of the second and third judgment debtors, the Nigeria Army and Chief of Army Staff, agencies of the Federal Government of Nigeria, as part of its duty of being a banker and financial adviser to the Federal Government of Nigeria. A similar question in similar circumstances was posed before and answered by the Supreme Court in the case of Central Bank of Nigeria Vs Interstella Communications Ltd supra at pages 178 to 180 thus:

“The other leg of the argument is where the Appellant’s Counsel holds out CBN as a public officer and relied on the case of Ibrahim v JSC … in particular. …

It is apparent herein, on the facts of this case that the CBN acts as a banker to the Federal Government 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 a 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. Relevant to this conclusion is again the persuasive authority of the CBN v Ekong … wherein Fabiyi, JCA (as he then was) held thus on his consideration of the purpose for establishing the CBN:

‘Generally, it is for overall control and administration of the monetary and banking policies of the Federal Government … It is not established for commercial profit making purpose …”

The case of Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State … is also on all fours with the facts of the case under consideration herein. Again the persuasive judgment of the Court of Appeal

… is relevant and said:

‘… There is absolutely no basis for treating government bank accounts any differently from bank accounts of every other juristic personality or customers …’”

It is trite that where the provisions of a statute or section of a statute are in pari material, light may be thrown on the meaning of such a provision of a statute or section which is in pari material by referring to a previous decision of a competent Court where similar provisions had been previously considered – Attorney General, Abia State Vs Attorney General, Federation (2005) 12 NWLR (Pt 940) 452. Where that previous decision was given by a Court higher up in the judicial hierarchy then it becomes a matter of judicial precedent and is binding on the Courts lower in the hierarchy where they are called upon to consider a provision similar to that earlier considered – Nwobodo Vs Onoh (1984) 1 SCNLR 1, University of Lagos Vs Olaniyan (1985) 1 NWLR (Pt 1) 156 and Ngige Vs Obi (2006) 14 NWLR (Pt 999) 1.

This above quoted decision of the Supreme Court is on similar facts and on the same Section 84 of the Sheriffs and Civil Process Act as in this case and this Court is bound by the decision. The decision affirmed the earlier decision of this Court in Central Bank of Nigeria Vs Interstella Comms Ltd (2015) 9 NWLR (Pt 1463) 1 and it supersedes the myriad of decisions of this Court referred to by Counsel to the Appellant. Thus, the reliance placed by the lower Court on the decision of this Court in Central Bank of Nigeria Vs Interstella Comms Ltd supra in making its finding in the instant case cannot be faulted, any more, on the ground that the lower Court ignored latter decisions of this Court on the point.

The answer to the question posed by Counsel to the parties in this appeal therefore is that, on the facts and in the circumstances of this case, the Appellant is not a public officer as to warrant the application of Section 84 of the Sheriffs and Civil Process Act. The sole issue for determination in the appeal is thus resolved in favour of the Respondent. The appeal fails and it is hereby dismissed. The decision contained in the Ruling of the High Court of Bauchi State delivered in Suit BA/616M/2016 by Honorable Justice Mu’azu Abubakar on the 27th of April, 2017 is affirmed. The Respondent is awarded the cost of this appeal assessed at N50, 000.00. These shall be the orders of the Court.

ONYEMENAM, J.C.A.

I had the opportunity of reading in draft the lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with his reasoning and conclusion reached thereat in dismissing the appeal. Appeal fails and I dismiss it for same reasons adduced in the lead judgment.

I affirm the decision contained in the Ruling delivered by the High Court of Bauchi State delivered on 27th April, 2017 by Mu’azu Abubakar, J. in Suit No. BA/616M/2016. I abide by the order as to costs.

WILLIAMS-DAWODU, J.C.A.

I had the privilege and opportunity to read the draft of the lead Judgment delivered by my learned brother, HABEEB A. O. ABIRU, JCA.

Having so done, I agree with the reasoning and conclusion reached therein. I also find the appeal to be unmeritorious and consequently affirm the Ruling delivered on April 27th 2017 by Hon. Justice Mu’azu Abubakar in the Court below. I make no order as to costs.

Appearances:

Godwin Udondiah For Appellant(s)

Y. D. Mele For Respondent(s)