The Central Bank Of Nigeria As “Public Officer” In Garnishee Proceedings: An Understanding Of The Intricacies Of Garnishee Proceedings Under Nigerian Law

By Oliver Azi

Here, the “Judgment Creditor” is the person who was successful in a suit and the court has granted the award of a monetary judgment in his or her favour, while the “Judgment Debtor” is the person whom the court has ordered to pay a sum of money (called the judgment sum) in terms of the judgment delivered.

Hence, in situation where monetary judgment has been given in favour of a party (who is the judgment creditor), he has an obligation to enforce such judgment. However, where the money is domiciled in the custody of a third party (mostly a bank, or an institution or public officer) and not the judgment debtor, he has an obligation to institute a claim in court called a “Garnishee Proceeding”.

So therefore, for a garnishee proceeding to commence, there is need for a court judgment declaring the debt and to who the debt is to be paid—the judgment creditor. This makes garnishee proceedings, amongst other disputes resolution process in court, sui generis (a class of its own).  While the judgment creditor becomes the “Garnishor”; the “Garnishee” is the third party who, while not involved in the initial cases between the judgment creditor and judgment debtor, is made a party by virtue of holding some money for the judgment debtor. This money, being the target of the judgment, is slated to satisfy the judgment already granted to the judgment creditor.

Garnishee Proceedings are highlighted by the provisions of section 82 – 92 of the Sheriff and Civil Process Act (Herein referred to as “SCPA”) and are to be commenced in the state high court where the garnishee resides, as shown in Section 83 of the SCPA and adopted by the court in C.B.N v INTERSTELLA COMM. LTD. (2018) 7 NWLR (Pt. 1618) 294

For a garnishee proceeding to succeed, the order nissi is to be served on the garnishee and the judgment debtor before the date for hearing of the garnishee proceeding. An order Nissi is a court order served on a third party who is believed to be in possession of the funds of the judgment debtor. It simply notify such party to enter legal representation in line with the claim made before it by disclosing an “Affidavit to show cause” indicating ether the said third party/institution are in possession of the funds of the third party and the specifics of the funds.

• The Garnishee as a Public Officer

Where the Garnishee is a Public Officer, the procedure is quite different and distinct from the other situation highlighted in the preceeding s. 83 of the SCPA. Here, according to the SCPA it provides in s. 84 that

• 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.

Hence, consent must be gotten before the order nissi is issued in such garnishee proceeding involving a public officer. The order of notice for consent must be served before such public officer or the registrar of the court, as the case may be. The act further describes and defines who the “appropriate officer” is in this type of proceeding as:

(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.

By this, it is clear that the Attorney-General (Of the federation or the state) depending on the nature of the garnishment is to give this consent within the framework of the law.

• The Central Bank of Nigeria as Public Officer

Accordingly, having firmly established that in where a public officer is the third party or garnishee in a case for garnishment, the consent of the attorney general must be obtained first before such a suit can commence. Where this is not done, it robs the court of the required jurisdiction to entertain such matter.

The Central Bank of Nigeria is created and defined by the provision of the Central Bank Act of 2007 which by the ambit of s. 1 states that: There is established for Nigeria a body known as the Central Bank of Nigeria. Hence, as a creation of law, the central bank status as a public office is established or in this instance, debated.

There are conflicts of positions of law as to whether the Central Bank of Nigeria is a public officer as defined by law. The position of the court has been varying and inconsistent as to the “public officer” nature of the CBN. In F.G.N v INTERSTELLA COM (2015), 9 NWLR (Pt. 1463) 11 it was the position of the court that:

While officers of the Central Bank of Nigeria are public officers, it is unacceptable to classify Central Bank of Nigeria as a public officer, because it acts as a Banker to the Federal Government in respect of credit balances in the accounts of the Federal Government of Nigeria.  

Furthermore, the court held in F.G.N v INTERSTELLA COMMS LTD (2015) 9 NWLR (Pt. 1463) 11 it made linkage to the Public Protection Act and posits that:

Section 2 of the public officers (Protection) Act applies only to individual officers and not to public bodies or institutions. Thus, the Central Bank of Nigeria, being a Federal Government institution or a public body, does not fall within the contemplation of the public officers’ Protection Act. Whereas the officers of Central Bank of Nigeria can be classified as public officers, it will be difficult to classify the Central Bank of Nigeria as a public officer.

However, the position varies and in more recent cases the Supreme Court has continuously adopted and hold that the Central Bank of Nigeria, for the purpose of garnishee proceedings is a public officer, in the case of IBRAHIM v SARHAM (2024) 4 NWLR (Pt. 1785) 407 it was the provision of the court, standing on the principle of s. 84 SCPA that:

By virtue of section 84 of the Sheriffs and Civil Process Act, a judgment-creditor who chooses to recover a judgment debt by means of Garnishee Proceedings, if the funds sought to be obtained by Garnishee order is in the custody or control of a public officer in his official capacity, must first obtain the consent of the relevant Attorney-General to attach such funds by Garnishee before commencing the Proceedings. Garnishee Proceedings cannot validly commence and the court would lack the jurisdiction to entertain it or make the order sought, without the consent of the relevant Attorney-General to such attachment having been first sought and obtained. Such instances include where the monies sought to be attached by the Garnishee Proceedings are in the custody or control of the Central Bank of Nigeria or a government ministry or parastatal. In that wise, the consent of the Attorney-General to the attachment of such funds is a pre-condition to a competent Garnishee process and a valid exercise of jurisdiction to entertain it and issue the relevant orders.

This same principle was adopted in the case of UNITY BANK PLC v. IGALA CONSTRUCTION CO. LTD (2021) 10 NWLR (Pt. 1785) 407 and C.B.N v UKPONG (2016) LPELR 11610

In conclusion, this piece examines the process of recovering monetary judgment through garnishee proceedings and set forth the framework through which this can be done. It further explores the debate on whether or not, in a process of garnishee proceeding, the central bank of Nigeria is a public officer.

Legal Researcher and Writer, Oliver Azi is a law graduate from the University of Jos and can be reached via email at: oliverazi20@gmail.com or LinkedIn at: www.linkedin.com/in/oliver-azi-76b323182

Source: @Thenigerialawyer