(2023) LPELR-61120(CA)
Another win for the Supreme Court decision in CBN v. Interstella (2017) LPELR 43940 (SC) and the proponents of the abolition of the requirement of the Attorney General’s (AG’s) Consent in section 84 of the Sheriffs and Civil Processes Act (SCPA). The learned Justices in CBN v. Barbedos (2023), (coram Williams-Dawodu, Tukur, and Senchi, JJCA) of the Court of Appeal sitting in the Abuja Division on 25 August 2023 followed and illuminated the purport of the SC decision thus:
Whether the consent of the Attorney General of the Federation should only be sought for (sic) and not obtained for the trial Court to grant an order absolute in view of Section 84(1) Sheriff and Civil Process Act Cap S6 LFN 2004.” Section 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 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. (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.” The parties have both submitted with respect to the foregoing provision of the law particularly the status of the Appellant. The Appellant invoked Section 84(1) and anchors on it in its defence as well as for the 2nd, 3rd and 4th Respondents as it would appear. The case of CENTRAL BANK OF NIGERIA V. INTERSTELLAR COMMUNICATIONS LIMITED by the apex Court throws a lot of light on the issue at hand. The issue was instructively and lucidly explained in the case of CENTRAL BANK OF NIGERIA V. LIDAN ENGINEERING LTD & ORS 2021 LPELR-52622 CA where this Court per MONICA DONGBAN-MENSEM PCA, affirmed as follows the bindingness of the case of CBN V. INTERSTELLA COMMUNICATIONS LTD supra as earlier stated on the position that the Appellant is not a public officer with regard to the funds in its custody. I therefore quote extensively therefrom as follows: “In determining this issue, the question is whether or not the Appellant is a Public Officer in relation to the instant case. The relationship between the Appellant, Central Bank of Nigeria (CBN) and the Judgment Debtors is said to be one between a banker and its customer and by the provisions of Sections 2(e) and 36 of the CBN Act, the CBN acts as a banker to the Federal Government and its Agencies. Government bank accounts are to be treated no differently from the bank accounts of every other juristic personality or customers. The CBN therefore does not fall under the category of Public Officers in the context of Section 84 of the Sheriffs and Civil Process Act. In the case of CBN V. INTERSTELLAR COMMUNICATIONS LTD & ORS(2017) LPELR – 43940 (SC), the Apex Court held thus; “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 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… “Per Ogunbiyi, J.S.C. (Emphasis Supplied). Having established that the Appellant is not a Public Officer, the requirement of obtaining the consent of the Hon. Attorney-General of the Federation before funds can be released to the 1st-4th Respondents does not apply to the instant case. It can be seen from the Record of Appeal on Pages 44-45 that the lst-4th Respondents performed their due diligence by seeking the consent of the Hon. Attorney-General which application as duly received but ignored it for an entire year. See PURIFICATION TECHNIQUES (NIG) LTD V. ATTORNEY GENERAL, LAGOS STATE (2004) 9 NWLR (Pt. 879) 665. It is important at this point to re-emphasize that the principle underlying securing the consent of the Hon. Attorney-General as prescribed in Section 84 Sheriffs and Civil Processes Act is to avoid embarrassment on the Government 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. Judgment creditors should not be deprived of their monies in the name of requiring consent from the Hon. Attorney-General as other Federal Government Agencies will exploit this avenue to owe private bodies, which would be harsh and unfair. In the interpretation of Laws and Statutes, it is important to put into consideration, the intendment of the makers of the legislation. “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. “Per Ogunbiyi J.S.C, in the case of CBN V. INTERSTELLAR COMMUNICATIONS LTD & ORS (Supra), See also the case of PURIFICATION TECH (NIG.) LTD V. A.G. LAGOS STATE (2004) 9 NWLR (PT 8790 665. In resolving this issue against the Appellant, I am bound by the decision of the Apex Court in CBN V. INTERSTELLAR COMMUNICATIONS LTD & ORS (Supra) that the Appellant is not a Public Officer, therefore the consent of the Hon. Attorney- General of the Federation is not required.” The foregoing has without any doubt cleared whatever grey areas if any in the question of the status of the Appellant herein. One is therefore fortified to hold as submitted by the learned Counsel for the 1st Respondent that the need for the consent of the Attorney-General either for the Federation or the State did not arise in the instant appeal, as the Appellant is not a public officer with respect to the Section 84(1) of the Sheriffs and Civil Process Act. Indeed, it needs be noted further that the officers of the Office of the Attorney-General for Zamfara State from the Record, participated in the whole proceedings just as in the CBN V. INTERSTELLAR case. That being the case, it would have been unfair to still seek the consent of one who had participated in the matter whether or not the money should be attached. [emphasis added] {Per JAMILU YAMMAMA TUKUR ,JCA (Pp. 10-15, paras. C-E)}
The Garnishee is not Don Quixote! The Garnishee is neither a Knight Errant nor an advocate of the judgment debtor. The Court frowns on attempts of any garnishee to evade his legal duty. The primary role of the Garnishee upon being served with an order nisi is to inform the court via affidavit evidence and statement of account (if available) about the status of the judgment debtor’s account/funds with the garnishee available for attachment and defrayment of the judgment debt. The Court of Appeal clearly and emphatically stressed this point:
The Appellant being one of the Garnishees, the 19th, and was given an opportunity to state by oath whether or not it owed funds to the 3rd Respondent before the order nisi was made absolute, had a duty as instructively stated by the apex Court in the CBN V. INTERSTELLAR case thus on page 350: “Basically, the restrictive role and legal duty of a garnishee; in a judgment enforcement proceeding is to conscientiously and truthfully appear before the Court in order to disclose the judgment debtor’s state of account in its custody. So it is not the garnishee’s business to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor The role of a garnishee in any proceeding is delimited. And it is not envisaged that after a judgment creditor had gone through the rigours of establishing his rights through the legal system, the garnishee, who is asked to surrender the judgment debtor’s money in its possession should engage the judgment creditor in another bout of legal battle. In this case, the garnishee/appellant took so much interest and appeared to have forgotten its role as a banker to the Federal Government.” See also the case of OCEANIC BANK PLC. V. OLADEPO 2012 LPELR-19670. From the Record herein, the Appellant’s affidavit is seen as not being frank in terms of the necessary information needed to decide whether the order nisi be made absolute. The apex Court posited thus in that regard in the CBN V. INTERSTELLAR’S case page 304; “A garnishee who chooses to play a game of hide and seek with the Court by failing or refusing to depose to affidavit to show cause; that is, to disclose the true account status of the judgment debtor only exposes itself to trouble, daring the Court to do its worst. It can therefore be made to pay the judgment debt, if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law to disclose the true state of account of the judgment debtor in its custody. [Emphasis Mine] {Per ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU ,JCA (Pp. 15-17, paras. F-D)}.
The Judgment of the Court of Appeal was delivered in August 2023 and appeared have put paid to the controversy of the AG’s Consent under the SCPA. However, on 4 September 2023 a different panel of judges (coram Mustapha, Waziri, and Abundaga, JJCA) sitting in the same Abuja Judicial Division in the case of CBN v. Adejoh (2023) LPELR 61118 (CA) held a contrary view and held that the CBN was a public officer within the context of section 84 of the SCPA and that the AG’s Consent was required. The learned Justices would do well to re-read the decision of the Supreme Court in CBN v. Interstella and the decision of their learned brothers in CBN v. Barbados. If they are still not convinced they may wish to read the Book of A Wodi, Garnishment Law and Practice in Nigeria, UK and US (2023) where the issue of AG’s Consent among other interesting issues (national, international and across jurisdictions) were extensively considered and discussed with clarity of expression and academic rigour.
Perhaps it is time the various Judicial Divisions of the Nigerian Judiciary begin to centralise records of their judgements for consistency, certainty and clarity. An automated and centralised data base would definitely help to solve this problem. It would deepen and enrich Nigerian jurisprudence and the efficacy of justice delivery.
See link below: . Garnishment Law and Practice in Nigeria, UK, and U.S.: Wodi, Alex: 9798987288306: Amazon.com: Books
WODI & WODI 