When the Consent of the Attorney-General Will not be Needed Before Instituting a Garnishee Proceeding

CASE TITLE:       CBN v. YISA BI-STAR LTD & ORS (2023) LPELR-59960(CA)

JUDGMENT DATE:      16TH FEBRUARY, 2023

JUSTICES:                   ISAIAH OLUFEMI AKEJU, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

MOHAMMED LAWAL ABUBAKAR, JCA

DIVISION: YOLA

PRACTICE AREA:           GARNISHEE PROCEEDINGS

FACTS:

This appeal emanated from the decision of the High Court of Adamawa State, sitting in Yola, delivered by Honorable Justice Nathan Musa on the 2nd of August, 2019.

The 1st Respondent commenced an action against the 2nd and 3rd Respondents, and the trial Court ruled in favor of the 1st Respondent on October 18, 2017, awarding damages for breach of contract. As the 2nd and 3rd Respondents failed to pay the judgment sum, the 1st Respondent initiated garnishee proceedings against the Appellant through an ex parte motion. The trial Court granted a garnishee order nisi, attaching funds held by the Appellant, and scheduled a hearing on March 4, 2019, for the Appellant to show cause why the order should not be made absolute.

On March 4, 2019, the Appellant neither appeared in Court nor filed an affidavit to show cause, leading the trial Court to confirm the service of the garnishee order nisi and make the order absolute based on the request of the 1st Respondent. Subsequently, the Appellant filed a motion on notice to set aside the garnishee order absolute. The trial Court granted the Appellant’s request, setting aside the garnishee order absolute while affirming the validity of the garnishee order nisi. The Court adjourned the matter to May 15, 2019, for the Appellant to show cause regarding the garnishee order nisi. The Appellant then filed a preliminary objection challenging the trial Court’s jurisdiction to hear the garnishee proceedings, citing lack of consent from the Attorney General of the Federation and the Court’s lack of jurisdiction over accounts and revenue pertaining to the Appellant as a government agency.

The trial Court heard the preliminary objection and dismissed it, stating that since the Appellant opted for a preliminary objection instead of an affidavit to show cause, there was no impediment to granting the garnishee order absolute. The Court proceeded to make the order absolute, instructing the Appellant to pay the judgment sum.

 Dissatisfied with the ruling, the Appellant lodged an appeal at the Court of Appeal.

ISSUES:

The Court determined the appeal on the sole issue, viz:

Whether considering the fact that the Appellant is a public officer and an agency of the Federal Government and that the consent of the Honorable Attorney General was also not sought before the initiation of the garnishee proceedings, the learned trial Judge was right when he held that the matter was not only competent but that he has jurisdiction to hear and determine same.

COUNSEL SUBMISSIONS:

Appellant’s Counsel argued that according to Section 84 of the Sheriffs and Civil Process Act, the first Respondent should have obtained the consent of the Attorney General of the Federation before initiating the garnishee proceedings against the Appellant, who is a public officer. Counsel cited various cases to support the argument and contended that the trial Court lacked jurisdiction due to the failure to obtain the Attorney General’s consent. Counsel also distinguished the present case from a previous case relied upon by the trial Court, where the Attorney General was an active party involved in the dispute.

Appellant’s Counsel urged the Court to rule in favor of the Appellant, allow the appeal, and set aside the Garnishee Order Absolute issued by the trial Court.

On the other hand, 1st Respondent’s Counsel argued that the Attorney General of the Federation was a party in the trial Court proceedings and was duly represented. The Counsel stated that it would be unjust to require the first Respondent to seek the Attorney General’s consent before enforcing the judgment, considering that the Attorney General was also a judgment debtor based on the trial Court’s decision. Referring to a specific case, Counsel asserted that since the judgment was delivered and no appeal was made by the other Respondents, the need for the first Respondent to obtain the third Respondent’s consent for the garnishee proceedings was no longer necessary.

1st Respondent’s Counsel urged the Court to rule in his favor and to find no merit in the appeal, dismiss it, and affirm the ruling of the trial Court.

DECISION/HELD:

In conclusion, the appeal was allowed.

RATIO:

PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: Instance where the consent of the Attorney-General will not be needed before instituting a garnishee proceeding

“The second question in the appeal touches on the failure of the first Respondent to obtain the consent of the Attorney General of the Federation before seeking to attach funds in the hands of the Appellant. Section 84 (1) of the Sheriffs and Civil Process Act provides 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. Section 84 (3) defines the “appropriate officer” 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, as the Attorney General of the Federation.

The question of whether or not the Appellant is a public officer in respect of its role as banker to the Federal Government of Nigeria and to its constituent departments and agencies is an on-going debate in this Court. There are decisions that hold that the Appellant is not a public officer in those circumstances as to warrant consent of the Attorney General of the Federation before garnishee proceedings could be commenced against it and these cases rely on the Supreme Court decision in Central Bank of Nigeria Vs Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (Pt. 1618) 294 to support their position. These are the cases of Central Bank of Nigeria Vs Appah (2020) LPELR 51214(CA), Central Bank of Nigeria Vs JOD Partnership Limited (2021) LPELR 53217(CA), Central Bank of Nigeria Vs Foluso (2021) LPELR 54879(CA), Central Bank of Nigeria Vs Tripple C Acquisition Ltd (2022) LPELR 57441(CA), Central Bank of Nigeria Vs Ezeanya (2022) LPELR 57598(CA).

On the other side of the divide are cases that say that the Appellant is a public officer in those circumstances and that the consent of the Attorney General of Federation was required before funds in its possession can be attached by garnishee proceedings and they distinguished the Supreme Court decision in Central Bank of Nigeria Vs Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (Pt. 1618) 294 on the ground that it was decided on its peculiar facts and did not lay down a general rule. These are the cases of Central Bank of Nigeria Vs Atana (2019) LPELR 49194(CA), Utavie Vs Capital Development Authority (2019) LPELR 49095(CA), Central Bank of Nigeria Vs Ekpo (2021) LPELR 54147(CA), Akpan Vs Economic and Financial Crimes Commission (2021) LPELR 55800(CA), Central Bank of Nigeria Vs John (2021) LPELR 55875(CA), Central Bank of Nigeria Vs Bako (2021) 11 NWLR (Pt 1786) 122, Central Bank of Nigeria Vs Anwan (2021) LPELR 56075(CA), Ibrahim Vs Sarham (2022) LPELR 58716(CA), Central Bank of Nigeria Vs Enoch (2022) LPELR 58804(CA).

The above said, the facts of this case are peculiar and different from those of the several above referred cases and it is trite law that each case must be determined on its particular or peculiar facts and circumstances – CSS Bookshop Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) All FWLR (Pt 319) 819, Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179, United Bank for Africa Vs Fadlallah (2021) LPELR 55184(CA). Thus, it is settled in our jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the peculiar facts and circumstances of a particular case – Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55 at 96, Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (Pt 1333) 506 at 538A, All Progressives Grand Alliance Vs Oye (2019) 2 NWLR (Pt 1657) 472.

The distinguishing factor in this case is that the Attorney General of the Federation is one of the judgment debtors. The Attorney General of the Federation was a party in the lower Court and he took part in the trial and judgment was entered against him and the second Respondent. The accounts garnisheed are those of the second Respondent and the Attorney General of the Federation with the Appellant. In Central Bank of Nigeria Vs Interstella Communications Ltd & 3 Ors (2018) 7 NWLR (Pt. 1618) 294, the Supreme Court was of the view that where the Attorney General of the Federation is the judgment debtor or one of the judgment debtors, the requirement of his consent to garnishee under Section 84 (1) of the Sheriffs and Civil Process Act is an aberration. The Supreme Court stated 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. …

I have indicated earlier in the course of this judgment that the case under consideration herein is very peculiar and the circumstance cannot be fitted within the general interpretation of Section 84 of SCPA. …The most potent factor which makes Section 84(1) of the SCPA inapplicable herein is because the Attorney-General is the debtor and has been sued in that capacity. With the AGF being the Judgment Debtor therefore, will it not be absurd to require that his consent should be sought especially having admitted that he had taken the move by paying part of the debt in question? The appellant’s contention, understanding and interpretation of Section 84(1) of SCPA is a total misconception, I hold. The interpretation in my view would run against the application of natural justice, which could not have been the intendment of the legislature.

… 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.

The submission by the learned counsel for the appellant would certainly be counter-productive. It will also defeat the doctrine of the Rule of law which, as rightly argued by 1st & 2nd respondents’ counsel, is the hallmark of our democracy. This Court in NPA V. CGFC SPA (1971) NLR (P.11) 463 held that a section of a statute should not be given an undue emphasis, that it did not possess, and that a statute cannot be applied in a situation where its effect is clearly contrary to the intendment of the Legislature in passing that Law.”

Thus, in the present case, the fact that the Attorney General of the Federation is one of the judgment debtors whose account was attached by the Garnishee Order obliterates the requirement of his consent under Section 84 of the Sheriffs and Civil Process Act. There was no need for the first Respondent to have first obtained the consent of the Attorney General of the Federation prior to commencing the garnishee proceedings. The reliance placed by the lower Court on the decision of the Supreme Court in Central Bank of Nigeria Vs Interstella Communications Ltd & 3 Ors supra was appropriate and its decision on the point was correct.” Per ABIRU, J.C.A.