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C.K. ANYANWU
(Lawyer of Promise).
CONSENT OF THE ATTORNEY GENERAL BEFORE GARNISHEE PROCEEDINGS
11-28, Paras. C-B).UBA PLC vs. ACCESS BANK PLC & ANOR.(2018)LPELR-44062(CA)
ISSUE: GARNISHEE PROCEEDINGS: Effect of failure to obtain the consent of the Attorney General before obtaining a garnishee order over public funds.
PRINCIPLE:
"In the instant case, the 1st respondent filed a motion ex-parte to commence the garnishee proceedings at the Court below, praying as follows: "An order nisi attaching the judgment debt plus the cost of the garnishee proceedings from the funds of the judgment debtor/respondent's account with the First Bank of Nigeria PIc, Talata Mafara Branch and the Zamfara State Joint Local Government Account (JAC) with United Bank for Africa PIc, Old Park Road Gusau in order (sic) to satisfy the judgment sum of N18,482,072.71 plus the cost of the garnishee proceedings".
It is clear from the relief being claimed by the 1st respondent in the originating process as reproduced above that the account which the 1st respondent sought to be attached at the Court below is the Joint Local Government Account of Zamfara State one out of which Bakura Local Government Council (the judgment debtor and 2nd respondent herein). The funds which the 1st respondent sought to be attached are public funds standing to the credit of the Joint Local Government Councils in Zamfara State and domiciled with the appellant, out of which the 2nd respondent owns nothing until the money is shared and its allocation severed from it.
The 1st respondent failed or neglected to apply for consent of the Attorney General of Zamfara State when the money in the Joint Local Government Account of Zamfara State was sought to be attached by the garnishee order nisi.
The Joint Local Government Account for the 14 Local Government Councils of Zamfara State is created by Section 162(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows:-
"Each State shall maintain a special account to be called State Joint Local Government account into which shall be paid all allocations to the Local Government Councils of the state from the Federation Account and from the Government of the State."
(See, also the provision of Sections 1 and 4 of the Allocation of Revenue (Federation Account, etc) Act Cap. A15, Laws of the Federation of Nigeria 2004).
I have no doubt in my mind that the said account is a public account and the monies kept therein are public funds belonging jointly to the 14 Local Government Councils in Zamfara State as listed in Part 1, First Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended). Unless the funds are appropriated or shared and transferred to the individual bank accounts of each of the said 14 Local Government Councils of Zamfara State, it does not belong to Bakura Local Government Council. It, therefore, qualifies as public funds in Public Officer's custody that requires the consent of the Attorney General of Zamfara State first sought for and obtained before obtaining the garnishee order nisi. However, in the instant case no such consent was ever sought for much less being obtained as required by law.
The provisions of Sections 84(1) and (2) of the Sheriffs and Civil Process Act clearly makes it a mandatory requirement to seek the consent of the Attorney General of Zamfara State before attaching the funds in the said Joint Account. The fact that the attached funds are not in the 2nd respondent's account coupled with the failure to seek for and obtain the consent of the Attorney General of Zamfara State renders the order nisi otiose. The same virus hits the order absolute thereby rendering it totally insignificant and audaciously overreaching.
See the cases of ONJEWU V. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY (2003) 10 NWLR (PT. 827) 40; ODE & ORS. V. BENUE STATE GOVT. (2011) LPELR- 4774.
In the case of JAIZ BANK PLC V. UNITY BANK PLC & ORS. (unreported) Appeal No. CA/S/58/2015 decided by this Court in this Division on 01/07/2016 on a similar issue which arose from Zamfara State where my learned brother M. L. Shuaibu, JCA observed thus:-
"The facts in the instant case, are in all four with the facts in the unreported Appeal No. CA/S/59/2015, SKYE BANK PLC V. UNITY BANK PLC & ORS. delivered on 12/05/2016 wherein I held the view that any fund standing to the credit of the State Government whether in a bank or in a shelf of a public officer is attachable only with the consent of the Attorney General in accordance with the provision of Section 84(1) of Sheriff and Civil Process Act. The absence of prior consent of the Attorney General of Zamfara State before granting the order nisi as in Appeal No. CA/S/59/2015, SKYE BANK PLC V. UNITY BANK PLC & ORS. above has rendered the entire garnishee proceedings a nullity as the lower Court lacked the requisite jurisdiction to entertain same. Consequently, the appeal is meritorious and is hereby allowed."
As I earlier observed, the Local Government Joint Account in issue contains funds jointly owned by all the 14 Local Government Councils of Zamfara State. The said account is a public account and the sums of money standing therein are public funds under the custody and control of public officers. The failure to apply for and obtain the consent of the Attorney General of Zamfara State by the 1st respondent before garnisheeing the said account which is domiciled with the appellant renders both the order nisi and the order absolute obtained against the appellant unsustainable. Moreover, attachment money in an account other than that of the judgment debtor is a clear misdirection in law and in fact.
See the case of LAFFERI NIGERIA LTD. & ANOR V. NAL MERCHANT BANK PLC & ANOR. (2015) ALL FWLR (PT. 802) 1578 AT 1612, Galadima, JSC held thus:-
"Where a Court lacks jurisdiction or competence to make an order, whatever order that is made in such circumstance is of no moment. It is a nullity ab initio, as if no order was made at all. It is no longer in the eye of the law, an effective adjudication on the right of parties." Per MUKHTAR, JCA. (Pp. 11-16, Paras. B-B).
CENTRAL BANK OF NIGERIA vs. DOMA (2018) LPELR-45639(CA)
ISSUE: 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
PRINCIPLE:
"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 Vs. 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 Vs. 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, JCA. (Pp. 11-28, Paras. C-B).
CHIDI OKOROJI:
By the recent Supreme Court decision in CBN v Interstella Communications Ltd 2018 All FWLR (Pt 930) where the Attorney General is the judgement debtor the provision of the Sheriff and Civil Process Act on the need for AG's consent before the attachment of funds in the custody of a public officer will not apply. So you can garnishee government funds even in the Central Bank if the AG was a party to the
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