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Does acknowledgement of a letter by attorney general translate to implied consent in garnishee proceedings?

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CENTRAL BANK OF NIGERIA v. ENGR. CLIFF EZEOBIKA & ORS

CITATION: (2021) LPELR-54148 (CA)
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar

ON WEDNESDAY, 5TH MAY, 2021
Suit No: CA/C/178/2020

Before Their Lordships:

MOJEED ADEKUNLE OWOADE JUSTICE, COURT OF APPEAL
JAMES SHEHU ABIRIYI JUSTICE, COURT OF APPEAL
MUHAMMED LAWAL SHUAIBU JUSTICE, COURT OF APPEAL

Between

CENTRAL BANK OF NIGERIA – Appellant(s)

1. ENGR. CLIFF EZEOBIKA
2. CHIEF ENGR. KERIAN UTSU
(Carrying on business in the name and style of Engineering Software Consultants)
3. THE INSPECTOR-GENERAL OF POLICE
4. NIGERIAN POLICE FORCE
5. FIRST BANK PLC
6. ZENITH BANK PLC
7. STERLING BANK PLC
8. ACCESS/DIAMOND BANK PLC
9. NPF MORTGAGE BANK – Respondent(s)

LEADING JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU, J.C.A.
FACTS
The 1st and 2nd respondents obtained judgment at the Federal High Court against the 3rd and 4th respondents. The 1st and 2nd respondents then sought to enforce the said judgment; thus, garnishee proceeding was commenced against the appellant. The trial Federal High Court granted the application of the 1st and 2nd respondents and made a Garnishee Order Nisi against the appellant.

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Upon being served with the Order Nisi, the appellant filed a notice of preliminary objection to the granting of the Order Nisi on the ground that the appellant being a public officer, the consent of the Attorney-General of the Federation must first be sought and obtained before the Garnishee proceeding is commenced against it.

In a considered ruling, the Federal High Court held the view that the consent of the Attorney-General of the Federation was impliedly given and thus dismissed the preliminary objection and accordingly made the Order Nisi absolute.

Miffed by the decision, the appellant filed an appeal.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on the sole issue as follows: whether the Attorney-General of the Federation’s acknowledgement of the 1st and 2nd Respondents’ application constitutes consent as envisaged by Section 84 of the Sheriffs and Civil Process Act?

APPELLANT’S SUBMISSIONS
The learned counsel for the appellant stated that the issue to be determined is the interpretation and or meaning of “consent” as envisaged by the SHERIFFS AND CIVIL PROCESS ACT. Counsel referred to BLACK’S LAW DICTIONARY 7TH EDITION PAGE 300, which defines “consent” as agreement, approval, or permission as to some act given voluntarily by a competent person. Counsel further referred to the STROUD’S LAW DICTIONARY OF WORDS AND PHRASES 6TH EDITION VOLUME 1 (A-F) PAGE 492 to submit that mere acquiescence does not amount to consent. That consent requires positive affirmative act and as such consent cannot be implied.

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Counsel submitted that the requirement of consent of the Attorney-General of the Federation as contained in SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT is statutory and calls for the exercise of public duty on the part of the Attorney-General of the Federation, which makes no provision for delegation by the Attorney-General. He cited the case of OGUNDIPE V. ODUWAIYE (2014) 6 NWLR (prt. 1404) 427; (2013) LPELR-20474 (CA).

Relying on the case of SARAKI V. F.R.N. (2016) 3 NWLR (prt.1500) 531 at 589-590; (2016) LPELR-40013 (SC), appellant’s counsel submitted that SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT is very clear and unambiguous and that where as in the present case, the wordings of the statutes are clear and unambiguous, the Court has a duty to give the words used in the statute, their plain and ordinary meaning without more.

Counsel distinguished the facts in CBN V. INTERSTELLA (2017) 12 SC (part iv) 97; (2017) LPELR-43940 (SC) with the facts in the instant case to the effect that in the former, the Attorney-General of the Federation was a party to the action and part payment was made before it was reneged. In the latter, the Attorney-General of the Federation merely acknowledged the 1st and 2nd respondents’ letter stating that same was forwarded to the Inspector General of Police for his comment. He submitted that the Attorney-General was in the process of acting on the 1st and 2nd respondents’ application and that he had not reached the position of not expressly objecting.

RESPONDENT’S SUBMISSIONS
Learned counsel for the 1st and 2nd respondents argued that the Attorney-General of the Federation is a public officer saddled with the responsibility of discharging public duties and therefore expected to operate in the interest of public policy and public interest. That his consent being a public officer cannot be wished away by mere simplistic and sentimental explanations.

He referred to UTOMUDO V. MILITARY GOVERNOR OF BENDEL STATE (2014) 58 NSCQR 1278 at 1283; (2014) LPELR-22880 (SC) to the effect that in law, words have their ordinary meaning if and only if no legal meaning has been attached to them. However, if any word or expression has been either statutorily or judicially defined then the legal meaning supersedes the ordinary meaning.

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Counsel submitted that considering the 1st and 2nd Respondents’ letter, they demonstrated unvarnished civility and therefore the Attorney-General had adequate and sufficient notice of the judgment of the Court.

RESOLUTION OF ISSUE
The Court quoted the provisions of SECTION 84(1) of THE SHERIFFS AND CIVIL PROCESS ACT CAP. S16 LAWS OF THE FEDERATION OF NIGERIA, 2004, which provides that: -“84(1) – Where money liable to be attached in garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodial legis, the order nisi shall not be made 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 control of a public officer or of a Court in the case of money in custodial legis, as the case may be.

(3) In this section, appropriate officer means – (a) in relation to money which is in custody of a public officer who holds a public office in the service of the Federation, the Attorney-General of the Federation.”

The Court stated that there is consensus between the parties that the appellant who is the Central Bank of Nigeria falls within the definition of public service in SECTION 318 (1) (E) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 AS AMENDED. That SECTION 1(1) (2) OF THE CENTRAL BANK OF NIGERIA ACT LAWS OF THE FEDERATION OF NIGERIA (AMENDED IN 2007) also provide for the establishment of the Central Bank of Nigeria.

The Court went ahead to explain that the rationale for the consent of the Attorney-General of the Federation as prescribed in SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT is to avoid embarrassment to him of not having prior knowledge that the funds earmarked for some purposes have been diverted in satisfaction of a judgment debt, which the Government may not know anything about.

The Court referred to the letter of the Attorney-General wherein he replied thus: – “I am directed by the Honourable Attorney-General of the Federation and Minister of Justice to acknowledge the receipt of your letter on the above subject dated October 22, 2019” and stated that the 1st and 2nd respondents regarded same as the element of the Attorney-General’s consent, which given the circumstances of this case may dispense with express consent.

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The Court stated that the words used in SECTION 84(1) OF THE SHERIFFS AND CIVIL PROCESS ACT are clear and unambiguous. That when the words of a document, legislation or Constitution is clear, there is no need to give them any other meaning than their ordinary natural and grammatical construction; that the Court would not permit such unless it would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation or Constitution. The Court posited that a Court is without jurisdiction or power to import into the meaning of what it does not say. See EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) 10 NWLR 544, at 588 paras. F – H, (2006) LPELR-1056(SC) Tabai, J.S.C.

The Court applying the literal rule of interpretation, stated that ‘consent” of the Attorney-General of the Federation as contained in SECTION 84(1) OF THE SHERIFFS AND CIVIL PROCESS ACT means “the permission for and/or agreement of the Attorney-General of the Federation before attaching money in the custody or control of a public officer by way of Garnishee proceedings”.

The Court maintained that the statute that is SECTION 84(1) SUPRA inclusive of the Constitution unavoidably, provides for a method, procedure for performing or doing any act or thing, that mode or precondition must be satisfied and followed strictly.

The Court aligned with the position of the appellant’s counsel that the case of CBN V. INTERSTELLA COMM. LTD (2017) 12 SC (part iv) 97; (2017) LPELR-43940 (SC) is distinguishable from the present case factually. That the Attorney-General of the Federation in the present case was neither a party to the proceedings before the Federal High Court nor took active part in any negotiation pertaining to the case.

The Court held that the letter written to the Attorney-General by the 1st and 2nd respondents was only intimating the Attorney-General of the indebtedness of the judgment debtors, which letter was subsequently acknowledged by the Attorney-General.

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That an acknowledgement is merely an acceptance of the existence of the said letter. The Court then held that the said acknowledgement cannot be an implied consent.

In conclusion, the Court posited that the consequence of non-compliance with the mandatory statutory provisions such as SECTION 84 (1) OF THE SHERIFFS AND CIVIL PROCESS ACT is that such purported act or thing done is marooned in a nullity.

HELD
On the whole, the appeal was allowed; the ruling of the Federal High Court inclusive of both the garnishee Order Nisi and Absolute were set aside for been made without jurisdiction.

Appearances:
Nnamonso Ekanem, SAN with him,
Inah Ubi For Appellant(s)

Sam Eboh – 1st & 2nd Respondents.
R. A. Utsu – 3rd & 4th Respondents.
Offisong Unoh – 9th Respondent.
Conelia T. Udofa – 8th Respondent. For Respondent(s)
Compiled by LawPavilion

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