FAYOSE v. EFCC & ANOR

CITATION: (2018) LPELR-46474(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON WEDNESDAY, 20TH JUNE, 2018Suit No: CA/IB/30/2017

Before Their Lordships:

MONICA BOLNA'AN DONGBAN-MENSEM Justice, Court of AppealCHINWE EUGENIA IYIZOBA Justice, Court of AppealNONYEREM OKORONKWO Justice, Court of Appeal

BetweenDR. PETER AYODELE FAYOSE - Appellant(s)

And1.ECONOMIC AND FINANCIAL CRIMESCOMMISSION2. CENTRAL BANK OF NIGERIA

- Respondent(s)

RATIO DECIDENDI

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MONICA BOLNA'AN DONGBAN-MENSEM,

J.C.A. (Delivering the Leading Judgment): This is an

appeal against the ruling of the Federal High Court of

Nigeria, Ibadan Division, Oyo State Coram Justice J. O.

Abdulmalik delivered on the 1st day of December, 2016. It

was in respect of a preliminary Objection brought by the

2nd Respondent against the garnishee proceedings in

which an Order NISI was made against the 2nd

Respondent. In its ruling the Court vacated the garnishee

order NISI made against the 2nd Respondent and

discharged the 2nd Respondent accordingly for want of

jurisdiction.

The Appellant is aggrieved. This appeal seeks redress by a

reversal of the Ruling of the learned trial Court, and the

entering of an Order Absolute against the 2nd Respondent.

A brief recount of the facts that culminated into this appeal

may aid a comprehension of the issues at stake. This is as

follows:

On the 30th day of March, 2011, Hon. Justice J. E.

Shakarho delivered a Judgment of the Federal High

Court Ibadan division. The Court awarded the sum of

Ten Million ten thousand Naira (N10,010,000.00) as

damages to the Appellant. The Judgment can be

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found on pages 10-27 of the record of appeal

transmitted to this Court on the 30th January, 2017.

Distressed by the said Judgment, the 1st Respondent

(EFCC) Appealed against the Judgment by a Notice of

Appeal dated and filed on the 4th day of May, 2011.

The said appeal was however dismissed for want of

prosecution. See Pg. 29 of the records for this appeal.

The Appellant took out a Garnishee Proceedings by

filing a Motion Exparte on the 5/8/16 praying the

Court to make an Order Nisi against the 2nd

Respondent for the Judgment sum.

The Order Nisi was made by the Court Coram

Abulmalik J. on the 4th day of October, 2016 directing

the 2nd Respondent to show cause why the Order Nisi

should not be made absolute. (see pages 4-42 of the

Record).

On the 27th day of October, 2016 when the matter

came up for hearing, the 2nd Respondent (CBN)

served a Notice of Preliminary Objection on the

Counsel to the Appellant seeking an Order to set

aside the Order NISI made against the 2nd

Respondent. The ground raised is that the consent of

the Hon. Attorney-General of the Federation was not

sought and obtained by the Appellant before the

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commencement of the Garnishee Proceedings.

On the 1st day of December, 2016, the Court upheld

the objection, set aside its Order NISI and discharged

the 2nd Respondent. (see page 137 of the Record.)

Agitated by the Ruling, the Appellant filed a Notice of

Appeal on the 8th day of December, 2016.

The Appellant’s Amended brief of argument was filed

on the 5th April, 2018 but dated the 26th of March,

2018. It was deemed properly filed on the 17th April,

2018.

The Amended brief of Argument of the 1st

Respondent dated the 16th April, 2018, filed on the

same date was deemed filed on the 22nd May, 2018.

The Amended brief of Argument of the 2nd

Respondent dated the 6th April, 2018, filed on the 9th

April, 2018 was consequentially deemed filed on the

22nd May, 2018.

Issues for determination:

Appellant formulates 3 issues thus:

1. Whether the 2nd Respondent (Central Bank of

Nigeria) is a Public Officer within the meaning of

Section 84 Sheriffs and Civil Process Act, Cap. 56

Laws of the Federation of Nigeria, 2004 and whether

the Trial Court is not bound by the Judgment of this

Honourable Court in CBN v. Njemanze (2015) 4

NWLR

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(Pt. 1449) 276 which remained the only direct judicial

pronouncement in Nigeria that the 2nd Respondent

(Central Bank of Nigeria) is not a public officer

within the meaning of Section 84 of the Sheriffs and

Civil Process Act, Cap 56 LFN, 2004.

2. Whether the Judgment of the Learned Trial Judge

that the consent of the Attorney General of the

Federation must be obtained before commencing

Ganishee proceedings is not inconsistent with the

Rules of Natural justice and Section 36 of the

Constitution of the Federal Republic of Nigeria

(1999) as amended.

3. Whether a Ganishee can object to and indeed

challenge the right of a Judgment Creditor/Applicant

to attach Judgment Debtor’s fund in Ganishee’s

custody when the judgment Debtor and owner of the

funds had no objection to its funds being attached to

satisfy its judgment Debt.

The 1st Respondent formulated this sole issue for

determination;

Whether the lower Court was wrong in setting aside

the Order nisi made by it on the ground that since the

money sought to be garnished is in the custody of a

Public Officer, consent of the Attorney General of the

Federation ought to have been sought before

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commencing the garnishee proceedings.

The 2nd Respondent formulates 2 issues vis:

1. Whether the 2nd Respondent is a Public Officer

within the meaning of Section 84 of the Sheriffs and

Civil Process Act, Cap 56, Laws of the Federation,

2004 LFN and that the omission/failure of Judgment

Creditor/Appellant to comply with the mandatory

provisions of Section 84 of the Sheriffs and Civil

Process Act, Cap 56, Laws of the Federation of

Nigeria, 2004 has robbed the Court of its jurisdiction

to entertain the Ganishee proceedings against the

Ganishee/Respondent.

2. Whether the trial Court is not bound by the

Judgment of this Honourable Court in CBN v.

Njemanze (2015) 4 NWLR (Pt. 1449) 276.

Although the Appellant and the 1st and 2nd Respondents

have adopted different styles in drawing up their respective

issues for determination, the crux of this appeal is the

status of the 2nd Respondent. The question to be

determined therefore is whether the 2nd Respondent the

CBN is a Public Officer.

The answer to this question will determine all the other

issues raised, especially by the Appellant.

This appeal will therefore be determined on the issues

raised by the Appellant.

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The Appellant contends that the trial Court was wrong to

have held that not seeking the consent of the Attorney

General before the commencement of the Ganishee

proceeding is fatal to the proceedings.

The Appellant cites on Section 84 of the Sheriffs and Civil

Process Act, Cap 56, Laws of the Federation of Nigeria,

2004 in submitting that the consent of the Attorney-General

of the Federation is not a condition precedent to initiate

garnishee proceedings.

Section 84 of the Sheriffs and Civil Process Act, provides as

follows:

“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 under the provisions

of the last proceeding section unless consent to such

attachment is first obtained from the Appropriate

Officer in the case of money in the custody or controls

of a Public Officer or of the Court in the case of

money in custodia legis, as the case may be”.

It is further argued that the Court should have relied on

Section 1 of the Central Bank of Nigeria (Establishment)

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Act, LFN, 2004 especially the Central Bank of Nigeria Act

Section 3 which provides:

“In order to facilitate the achievement of its mandate

under this Act and the Banks and their financial

institutions Act, and in line with the objective of

promoting stability and continuity in economic

management, the Bank shall be an independent body

in the discharge of its functions.”

It is also the contention of the Appellant that following the

provisions above, the Central Bank has been described as

an independent body.

In support of this argument, the Appellant, per Ola

Olanipekun SAN leading, Daniel Alumum Esq pointed to

the case ofCBN v. NJEMANZE (2015) 4 NWLR page

276 @ page 287 Para C-D and SHARIKA & SONS LTD

V. GOVERNOR OF KADUNA STATE (2013) LPELR

20379.

It is the case of the Appellant that these two authorities

gave judicial flavour to the position that the CBN is not a

Public Officer. By these decisions, which were cited at the

trial, maintains the learned silk, the trial Court was bound

under the doctrine of stare decisis.

This Court is, upon the authority of OGWE V. IGP (2015)

ALL FWLR PT. 779 page 1055 @ page 1067, bound to

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stand by and enforce its decision in CBN v. Njemanze and

Sharika & Sons Ltd v. Governor of Kaduna State, by

allowing this appeal, contends the learned Silk for the

Appellant.

Appellant also relies on Section 18(1) of the Interpretation

Act Cap 123 Laws of the Federation of Nigeria, 2004 which

states that Public Officer:

“Means a member of the Public Service of the

Federation within the meaning of the Constitution of

the Federal Republic of Nigeria 1999.”

For the meaning, the Appellant refers to Section 318(1) of

the 1999 Constitution of the Federal Republic of Nigeria,

(as amended) which describes a Public Officer as:

318(1)(c) - “Member of staff of any commission or

authority established for the Federation by this

Constitution or by an Act of the National Assembly.

318(1)(e) - Staff of any statutory corporation

established by an Act of the National Assembly, etc.”

By these definitions the Appellant insists that the CBN, not

being a “member of Staff” cannot be treated as a Public

Officer.

The learned Silk has also raised constitutional

inconsistency as an out let off the hook of Section 84 of

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the Sheriff and Process Act. Citing Sections 36(1) of the

1999 Constitution and the case of Orugbo v. Una (2002)

9-10 SC 61, the Appellant urges us to take judicial notice

of the relevant facts of this appeal. That the 1st Respondent

against whose funds Gamishee Order was to be made

absolute is part of the Executive arm of the Government of

Nigeria. The Attorney-General whose consent the learned

Trial Judge held to be indispensable is the Chief Law

Officer of the government and member of the same

Executive arm. That this scenario would make the Hon.

Attorney-General a judge in his own cause.

The 1st Respondent argues that the 2nd Respondent is a

Public Officer as described inCENTRAL BANK OF

NIGERIA V. JAMES EJEMBI OKEFE (2015) LPELR-CA

and IBRAHIM V. J.S.C. (1998) 14 NWLR (Pt. 584) 1 @

35.

It further submits that assuming but not conceding that the

2nd Respondent is a corporate body and not a Public

Officer as argued by the Appellant, the requirement of

consent from the Hon. Attorney General of the Federation

cannot be eroded, reason being that the Appellant had

rightly stated that by virtue of the provisions of Section

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1(1) of the Banks and other Financial Institutions Act, Cap

B3, Laws of the Federation of Nigeria, 2004, the functions

and duties of the 2nd Respondent are subject to the overall

supervision of the Minister of Finance who is without

contest a public officer within the scope and meaning of

Section 318 of the 1999 Constitution of the Federal

Republic of Nigeria (as amended). That since the monies of

the 2nd Respondent is in the custody of the Minister of

Finance, the consent of the Hon. Attorney General is still

required to garnish that account.

It was submitted by the 1st Respondent that the

requirement for the consent of the Hon. Attorney General

where money sought to be garnished is in the custody of a

public officer is to ensure that Federal Government’s

monies earmarked for specific purposes would not be

garnished without the Federal Government’s knowledge.

This was the decision inCBN V. INTERSTELLA COMMS.

LTD (2015) 8 NWLR (Pt. 1462) 456 @ 505 per UWANI,

J.C.A.:

“What then is the import of Section 84 of the Sheriffs

and Civil Processes Act? It is to avoid embarrassment

of not knowing that funds earmarked for some

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purposes have been diverted in satisfaction of a

judgment debt which the government may not know

anything about.”

Emphasis was laid by the 1st Respondent that the Appellant

did not at any point seek the consent of the Hon. Attorney

General which is a condition precedent for this garnishee

proceedings.

The 1st Respondent refuted the Appellant’s claim that

through the entire garnishee proceedings, it did not oppose

the application to garnish its account as the 1st Respondent

immediately filed a notice of appeal and an application for

stay of proceedings.

The 1st Respondent also maintains that the 2nd

Respondent can competently object to the garnishing of the

1st Respondent’s account with it, as it is trite that where

there are irregularities in a garnishee proceeding, the

Garnishee can object to the Order nisi being made

absolute.

The 2nd Respondent focused on the fact that Central Bank

is a statutory entity and not a staff of a statutory

corporation as argued by the Appellant.

The 2nd Respondent drew his strength on the basis of a

judicial authority of this Court delivered in the case of CBN

v. Njemanze (2015) 4 NWLR Page 276 @ Page 287

Para C-D,

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Court declared that Central Bank is not a Public Officer.

The 2nd Respondent argues that if a Public Officer by the

definition in ALH. ALIYU IBRAHIM V. JUDICIAL

SERVICE COMMITTEE KADUNA STATE (1988) 14

NWLR (Pt. 584) 1, per IGUH, J.S.C.;

“It is thus clear to me 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.”

Therefore, as a public officer, the consent of the Hon.

Attorney General must be sought before conducting

garnishee proceedings against the 2nd Respondent by

virtue of Section 84, Sheriffs and Civil Processes Act, 2004

and Section 2 of the Central Bank ACT, 2007, Cap C4 Laws

of the Federation, 2004. See CENTRAL BANK OF

NIGERIA V. HYDRO AIR PROPERTY LIMITED (2014)

16 NWLR (Pt. 1434) P. 482, per IYIZOBA, J.C.A.;

“Section 318 of the 1999 Constitution on which the

cross-appellant has placed reliance to contend that

reference to public officer in Section 84 of the

Sheriffs and Civil Process Act cannot include the

cross-appellant defines “public service of the

Federation”

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to include “staff of statutory corporation established

by an Act of the National Assembly”. There is no

doubt that this definition includes the officials of the

Central Bank of Nigeria.

When this provision is examined critically vis-à-vis

the provision of Section 84 of the Sheriffs and Civil

Process Act, it will be seen that the fund in the coffers

of the Central Bank of Nigeria are actually funds in

the custody or under the control are of a public

officer in his official capacity. This is because the

Central Bank of Nigeria is an artificial entity and it is

the officials of the body that control the money or

funds in the coffers of the entity.”

The 2nd Respondent further submits that its Affidavit in

support of the Prel iminary Object ion remains

uncontroverted by the Appellant and should be deemed

admitted. The 3rd and 4th Paragraphs of the affidavit state

as follows;

“That the 1st Garnishee, Central Bank of Nigeria, is

Agency of the Federal Government of Nigeria, by the

provisions of the Central Bank Act 2007 LFN 2004, it

is the Banker to the Federal Government of Nigeria

and by virtue of the Treasury Single Account

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(TSA) system being operated by the Federal

Government, it is the custodian of the all monies

belonging to the Federal Government of Nigeria and

its agencies, including that of the Judgment Debtor

and that such monies can only be disbursed by the

Bank in the manner specified in the Revenue

Appropriation Act.

That the Judgment Debtor is an agency of the Federal

Government.”

On issue 2, the 2nd Respondent submits that there are

distinguishing features in the instant case and that this

Court in CBN V. NJEMANZE did not follow the doctrine of

stare decisis as the issue of the term “Public Officer” had

been settled in law to include public department, a public

office or a public body by the Apex Court in the case of

ALH. IBRAHIM V. JUDICIAL SERVICE COMMITTEE

KADUNA STATE & ANOR. and a previous decision of this

Honourable Court in GOVERNMENT OF AKWA IBOM

STATE V. POWERCOM NIG. LTD (2004) 6 NWLR (Pt.

868) P.202 and CENTRAL BANK OF NIGERIA V.

HYDRO AIR PROPERTY LIMITED (2014) 16 NWLR

(Pt. 1434) p.482 where this Honourable Court held that

the Central Bank is a Public Officer. It is further submitted

that the issue of

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Central Bank being a public officer was not an issue argued

by any of the parties in CBN V. NJEMANZE, it was raised

and argued by the Court suo moto, without asking the

parties to address it on it. The 2nd Respondent urges the

Court to depart from that decision and hold that the

Central Bank is a Public Officer.

It is clear that the prior consent of the appropriate

authority i.e the Attorney General of the Federation should

be sought before the commencement of the garnishee

proceedings. This is a condition precedent and failure to do

so renders the proceedings a nullity, since it goes to the

jurisdiction of the trial Court.

The decision of this Court in CBN v. Njemanze (supra)

creates a nexus between the Constitution and the Sherriff

and Civil Process Act at Pg. 288 of the CBN v. Njemanze

(Supra) per AGBO J.C.A.:

“The term Public Officer relate to the holder of the

office as reflected only in S. 318(1) of the

Constitution (as amended). Equally, Section 84 of the

Sherrif and Civil Process Act also referred to a public

officer as a holder, officer or person holding a public

office. In the circumstance, offices of CBN are Public

Officers but CBN is not a Public Officer.”

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The decision of this Court in CBN v. NJEMANZE does not

however bear any diction as to the reason for that portion

of the decision which declares that the CBN is not a Public

Officer. Also, the said decision did not allude to the earlier

decision of the Apex Court as cited by the 2nd Respondent

and referred to in this Judgment. The case of SHARIKA V.

GOVERNOR OF KADUNA STATE falls in the same line of

error as a pronouncement contrary to that of the Apex

Court per IGUH, JSC (supra)

I find the Ruling of the learned trial Court compelling and

therefore crave indulgence to extensively reproduce part in

this Judgment as follows:

“On the argument on whether or not S. 84 of the

Sheriffs and Civil Processes Act CAP 56 Laws of

Federation, of Nigeria 2014 envisaged the 1st

Garnishee as a public officer, it is necessary to have a

review of the relevant provisions of statute available.

S. 84 (1) of the Sheriffs and Civil Processes Act CAP

56 Laws of Federation of Nigeria 2004 provides thus:-

"Where money liable to be attached by Garnishee

proceedings is in custody or under the control of a

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public officer in his official capacity………., the Order

Nisi shall not be made under the provision 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.

S 84 (3) of the above Act stipulates.

(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)A care fu l perusa l o f S . 318 (1) o f the

Constitution of Federal Republic of Nigeria (as

amended) reveals that the definition of "public

service of the Federation is construed as "service of

the Federation in any capacity in respect of the

Government of the Federation, and includes service

as

(e) "Staff of a statutory corporation established by an

Act of the National Assembly"

In the light of the exposition in sub "e" above, S. 19 of

the 5th Schedule to the Constitution of Federal

Republic of Nigeria 1999 (as amended) (the

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interpretation section) - Interpreted "public officer"

to mean a person holding any of the offices specified

in part II of this schedule.

An overview of Paragraph 14 of the 5th Schedule

provides that chairman, and members of the boards

or other governing bodies and staff of statutory

corporations and of companies in which the Federal

Government or State Government has controlling

interest from the above. It is my firm view, the

constitutional provision as expounded in the above

section of the Sheriffs and Civil Process Act and the

Constitutional of Federal Republic of Nigeria 1999 (as

amended) clearly envisaged that the Central Bank of

Nigeria is a public service body manned by a public

servant herein the Attorney General of the Federation

and therefrom by interpretation a public officer.

This was also decisively held in the case of Ibrahim Vs

Judicial Service Commission Kaduna State (Supra).

In the light of the above analysis, I find that since

from the evidence before Court, there is nothing to

show that the Judgment creditor sought and obtained

leave of the Attorney General of the Federation before

instituting this garnishee

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proceedings against the 1st Garnishee, I find that the

omission to comply with the provision of S. 84 of the

Sheriff and Civil Process Act has robbed this Court of

jurisdiction to entertain this garnishee proceeding

against the 1st Garnishee.

I hereby Order that the Garnishee Order Nisi against

1st Garnishee is set aside. It is vacated.

It is quite resultant, to hold that in the light of the

averments in the affidavits of the 2nd-9th garnishees,

it is foist on Court by law to hold and order thus:

1. The Order Nisi shall not be made absolute against

the 2nd - 9th garnishees. I so order.

2. The 2nd to 9th garnishees are hereby ordered

accordingly to stay out of this garnishees proceeding.

I so order”. (See page 136-138 of the records

transmitted on 30/01/2017).”

Having cited the case of Ibrahim as the authority which

declared the CBN a “Public Officer” was it necessary for

the trial Court to consider any other authority which

declared contrary to the subsisting decision of the Apex

Court?

By the provisions of the Central Bank Act 2007 LFN 2004,

the principal objects of the Central Bank of Nigeria which

is the 2nd Respondent are:

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(a). ensure monetary and price stability;

(b) issue legal tender currency in Nigeria;

(c) maintain external reserves to safeguard the

international value of the legal tender currency;

(d) promote a sound financial system in Nigeria; and

(e) Act as banker and provide economic and financial

advice to the Federal Government.

I would like to dwell particularly on object (e) which

describes the 2nd Respondents as “a banker and provides

economic and f inancial advice to the Federal

Government…” The learned Senior Advocate of Nigeria to

the 2nd Respondent Sen. Victor Ndoma-Egba has skillfully

linked this object to the Treasury Single Account (TSA) -

currently in operation in Nigeria.

The Treasury Single Account (TSA) System is a Federal

Government Financial Policy which makes the 2nd

Respondent the sole custodian of all monies belonging to

the Federal Government of Nigeria and its agencies.

The 2nd Respondent’s Affidavit in support of the

Preliminary Objection stated as follows:

“para (3) That the 1st Garnishee, Central Bank of

Nigeria, is an Agency of the Federal Government

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of Nigeria, by the provisions of the Central Bank Act

2007 LFN 2004, it is the Banker to the Federal

Government of Nigeria and by the virtue of the

Treasury Single Account (TSA) system being operated

by the Federal Government, it is the custodian of the

all monies belonging to the Federal Government of

Nigeria and its agencies, including that of the

Judgment Debtor and that such monies can only be

disbursed by the Bank in the manner specified in the

Revenue Appropriation Act.

Para (4) That the Judgment Debtor is an agency of

the Federal Government.

The Appellant failed to depose to a counter-affidavit

and the Affidavit of the 2nd Respondent stood

uncontroverted and should be deemed admitted. See

MUSA vs. COMMISSIONER OF POLICE (2014) LPELR

- 23475 COURT OF APPEAL

From the facts deposed to in above affidavit and in

line with current Banking practices, it can be seen

that the Central Bank of Nigeria is a Public Officer”.

The Appellant has raised a constitutional breach as a kite to

buttress and re-enforce his argument.

A breach of Section 36 of the Constitution is raised as the

icing on the cake for the success of the appeal.

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The Respondents respectively seek to break this ice. It is

the submission of the 2nd Respondent that the issue of

constitutional breach was not raised in accordance with the

requisite procedure. Nonetheless, being a jurisdictional

issue touching on a provision of the Supreme law of the

land we must address it.

In order not to belabor this issue, I find the treatment of

this issue by the learned Senior Counsel for the 2nd

Respondent; Sen. Victor Ndoma-Egba SAN as apt and

worthy of adoption. The learned Silk submitted thus:

“…..the issue of the constitutionality of requiring

prior consent of the Attorney General was not

properly raised in this appeal, we wish to state that

this is not new and has been raised and decided in

some previous decision of this Honourable Court.

These include:

ONJEKWU vs . KOGI STATE MINISTRY OF

COMMERCE AND INDUSTRY (2003)) 10NWLR (Pt.

827) 40; GOVERNMENT OF AKWA IBOM STATE vs.

POWERCOM NIG LTD (2004) 6 NWLR (Pt. 868) 202;

CENTRAL BANK OF NIGERIA vs. HYDRO AIR

PROPERTY LIMITED (2014) 16 NWLR (Pt.1434) 482.

In the case of Onjewu v. Kogi State Ministry of

Commerce & Industry (2003) 10 NWLR (Pt. 827) 40 at

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79 A-D Muntaka-Coomassie, JCA (as he then was)

after considering Section 287 (3) of the 1999

Constitution and all the points canvassed as to the

unconstitutionality of the provisions of Section 84 of

the Sheriffs and Civil Process Act and tracing its

origin to the common law principle that the King can

do no wrong, said:

"After considering the submissions of Counsel to all

parties and relevant authorities, I hold that since the

demand for the consent of the Attorney-General of

the State is sort of procedural and administrative in

nature and it has not made any violence to the

Constitution it can be tolerated and accepted. I hold

tha t the r equ i rement o f the consen t o r

authorization/permission of the Attorney-General of a

State is necessary before judgment of a High Court

can properly be enforced. The provisions of Section

8(3) of the State Proceeding Edict, 1988 of Kogi State

and Section 84 of the Sheriffs and Civil Process Law

could not be said to be inconsistent with the relevant

provisions of the 1999 Constitution of the Federal

Republic of Nigeria. That being the case this Court

will have no reason to disturb the position taken by

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the trial Court that failure of the judgment creditor to

comply with the condition precedent obtaining the

consent of the Hon. Attorney General deprived that

Court of the jurisdiction to hear the application. The

two legislations (supra) are not contrary to any of the

provisions of the 1999 Constitution and so I hold.

In view of the above, respectfully urge my Lords to

hold that the requirement for obtaining the prior

consent o f the a t to rney genera l be fo re

commencement of garnishee proceedings is not

contrary with the rules of natural justice and Section

36 of the Constitution of the Federal Republic of

Nigeria (as amended) and resolve this issue against

the Appellant."

I agree and I find no constitutional breach in the provisions

of Section 84 of Sheriff and Civil Process Act.

The Hon. Attorney General being the Chief Legal Officer of

the Federation is a vital officer and professional guide in

the disbursement by the 2nd Respondent in the manner

specified in the Revenue Appropriation Act.

I accept the argument that from the facts deposed to,

which stand un-contradicted, and in line with the current

Banking Practices, it can be seen that the Central Bank of

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Nigeria is a Public Officer and the Attorney General of the

Federation is an appropriate officer in the execution of the

functions of the Central Bank.

The independent status of the 2nd Respondent touted by

the Appellant is a lame link.

Section 1(3) of the Central Bank of Nigeria (Establishment)

Act has not been shown to be independent of the legal

guidance of the Hon. Attorney-General of the Federation

who is the Chief Legal Officer of the Federal Republic of

Nigeria. Nor was it demonstrated to the Court of trial that

the independent status of the CBN takes it out of the

supervisory management of the Hon. Ministry of Finance

who is a Public Officer.

The reference to being “an independent body in the

discharge of its functions” does not thereby make the

Central Bank a super “organ,” ‘Agent’ or “Alien” above

guidance by the office of the Hon. A-G of the Federation.

No doubt, this essential requirement for the consent of the

Hon. A-G is in consonance with the principle of checks and

balances entwined in the administrative framework of

Nigeria as a nation. Particularly so under the TSA Policy

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which requires all Government agencies to carry out

financial transactions solely with the Central Bank of

Nigeria as custodian.

No facts were set before the learned trial Court to

controvert the enormous responsibility placed on the 2nd

Respondent by the TSA Policy which takes it away from

requiring the legal expertise of the office of the Hon.

Attorney General of the Federation.

The Legislature reasoned wisely by inserting Section 84 of

the Sheri f f and Civi l Processes Act . I say this

contemplatively in view of the current situation of a TSA

policy. It is indeed imperative that the Hon. A-G of the

Federation be put on notice and thereby grant consent to

the depletion of the sole funds reservoir of a large nation

like Nigeria. The Hon. AG ought to know the legal

implications of such disbursement before it is done.

Issue 3 is subsumed in issue one.

I find no merit in this appeal which is hereby dismissed.

A cost of N50,000.00 is awarded collectively to the 1st &

2nd Respondents and against the Appellant.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the

judgment just delivered by my learned brother, MONICA B.

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DONGBAN MENSEM JCA. She has admirably dealt

exhaustively with the main issue in this appeal. The issue in

controversy here has long been settled in various

judgments of the apex Court and this Court. SeeOniewu v.

Kogi State Ministry of Commerce & Industry (2003)

10 NWLR (Pt. 827) 40; Government of Akwa Ibom

State v. Powercom Nig Ltd (2004) 6 NWLR (Pt. 868)

202. Some of the cases were mentioned and analyzed in

the recent case of CBN V AMCON & ORS (2017) LPELR-

42986(CA) 13 Per HUSSAINI J.C.A

"This appeal rests principally on the need to obtain

the consent of the Hon. Attorney-General of the

Federation as a necessary ingredient and condition

precedent to the exercise of jurisdiction by the Courts

in an action commenced by way of Garnishee

Proceedings against a Public Officer in whose custody

or control is the money liable to be attached. The

question arises whether the Central bank of Nigeria is

a Public Officer who holds a Public office in the

public Service of the federation based on which the

prior consent of the Attorney General of the

Federation is necessary to commence Garnishee

Proceedings but counsel in this appeal case took

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divergent positions in relation to this question.

Whereas from the appellant, the Central bank of

Nigeria is a Public Officer against whom garnishee

Proceedings cannot be initiated without the prior

consent of the Attorney General of the Federation, the

1st and 2nd Respondents have argued that the action

initiated by them to garnishee the money in the

custody of the Central Bank of Nigeria was in order

and did not require prior consent of the Attorney

General of the Federation. There is the need therefore

to look outside the Sheriff and Civil Process Act to

obtain a clearer picture on the meaning and

application of the expressions "Public Officer",

"Public Office" and Public Service of the Federation".

Under Section 18(1) of Interpretation Act, the

expression "Public Officer" is defined to mean: a

member of the public service of the Federation within

the meaning of the Constitution of the Federal

Republic of Nigeria, 1999 and the Public Service of

the State. But the term or expression "public service

of the federation" is defined at Section 318 (1 (e) of

the Constitution of the Federal Republic of Nigeria,

1999 (as amended) to mean "the service of

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Federation in any capacity in respect of the

Government of the Federation, and includes service

as"- "(e) Staff of any corporation established by an act

of the National Assembly" The Central Bank of

Nigeria, by virtue of its establishment by an Act of

National Assembly, is part of the Public service of the

Federation of Nigeria. Section 1 (1) (2) of the

Establishment Act Cap C4 provide thus: "1(1) There is

established for Nigeria a body known as the Central

Bank of Nigeria (hereafter in this Act referred to as

"the bank)" (2) The Bank shall be a body corporate

with perpetual succession and a common seal and

may sue and be sued in its corporate name". One of

the objectives for which the Central bank of Nigeria

was established among other things, is to act as a

banker and provide economic and financial advice to

the Federal Government; See: Section 2 (e) of the Act.

To this end, the Central bank of Nigeria is an agency

of the Federal Government and thus, form part of the

public service of Federation of Nigeria. See: CBN vs.

Jacob Oladele Amao & 2 Ors (2010) 16 NWLR (Pt.

1219) 271.

Being a body corporate the duty/functions of the CBN

are carried out through the

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operational staff of the organization who in

themselves by virtue of Paragraph 19 of the 5th

Schedule to the Constitution are Public Officers. But

as staff or employees of the Central bank of Nigeria,

they are also agents of their employers, the Central

Bank of Nigeria is the Central Bank of Nigeria (CBN)

a Public Officer within the meaning of Section 84 of

the Sheriffs and Civi l Process Act and the

Constitution of the Federal Republic of Nigeria? In

Ibrahim V. JSC Kaduna State (1998) LPELR- 1408

(SC) the Court in reference to Section 18 (1) of the

Interpretation Act defines Public officer as meaning a

member of the Public Service of the Federation or

Public Service of a State. The Apex Court went further

to hold that the expression "public officer" includes a

"public department" and therefore, an artificial

person. A Public Officer or Public body is an artificial

person by virtue of its corporate identity and that

qualifies it as a Public Officer. Similarly, this Court in

CBN Vs SCSBV (No. 1) (2015) 11 NWLR (Pt. 1469)

130 has held that the Central Bank of Nigeria, to the

extent of being the banker to the three tiers of

Government of the

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Federation who hold or has custody of public funds

for the three tiers of Government, is necessarily a

Public Officer, along with the staff or employees of

that Organization. Furthermore, the Court in CBN vs.

Adedeji (2004) 13 NWLR (pt. 890) 226, 245 has also

held that:

"Public officer refers not only to natural person or

persons sued in their personal names but that they

extend to public bodies, artificial persons, institutions

or person sued by their official names or titles" In

CBN vs. Hydro Air (PTY) Ltd (2014)16 NWLR (Pt.

1434) 482, 521 it was held that: "Public officers are

equated with Public department and includes every

officer of the department invested with performance

of public duties." Therefore from a critical

examination of Section 84 (1) of the Sheriffs and Civil

Process Act: "It will be seen that funds in the coffers

of the Central Bank of Nigeria are actually funds in

the custody or under the control of a public officer in

his official capacity... "Per lyizoba, JCA in CBN Vs.

Hydro Air PTY Ltd (supra)....... Order nisi cannot be

made and if made without the consent of the relevant

officer being sought and obtained, the order made is

liable to be set aside

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as a nullity for want of jurisdiction. In CBN vs. J.

Nwanyanwu & Sons Nig. Ltd (2014) LPELR - 277 - 45

this Court per Oseji, JCA held that: "Section 84 of the

Sheriffs and Civil Process Act is very clear and

unambiguous with regard to the procedure to be

followed in a garnishee proceedings where money to

be attached is in the custody or under the control of a

public officer in his official capacity or in custodia

legis. Under the afore mentioned Section consent of

the Attorney General of the Federation is required

before a Court can validly issue a garnishee order nisi

against funds in the hands of a public officer." See

further decisions in CBN vs. Hydro Air PTY Ltd (2015)

All FWLR (Pt. 765) 227; Government of Akwa Ibom

State Vs. Powercom Nigeria Ltd (2005) 6 NWLR (Pt.

868) 202. Obtaining the fiat of the Attorney-General

is a condition precedent to the commencement of

garnishee proceedings against a Public officer

without which the exercise of jurisdiction by the

Court is ousted.

It is thus clear that there is no merit in this appeal. The

lower Court was right in upholding the preliminary

objection and in vacating the order NISI made against the

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2nd Respondent (CBN) without first and foremost obtaining

the consent of the Hon. Attorney General. I also dismiss the

appeal and I abide by the consequential order as to costs in

the lead judgment.

NONYEREM OKORONKWO, J.C.A.: I have had the privilege

of reading in draft the judgment of my lord Monica

Bolna'an Dongban-Mensem in this appeal. I agree with the

decision and the reasoning behind it.

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Appearances:

Sunday Asana For Appellant(s)

Adebisi Adeniyi for the 1st Respondent.

O. O. Adebayo for the 2nd RespondentFor Respondent(s)

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