Authored By: CHINWENDU SOPULU DIVINE
GRADUATE, REDEEMER’S UNIVERSITY NIGERIA
(2015) COURT OF APPEAL LAGOS DIVISION,
APPEAL NUMBER: CA/L/467/2012
C.B.N. V. S.C.S.B.V. (No. 1) (2015) 11 NWLR (Pt. 1469) 130
Introduction
Section 84 of the Sheriffs and Civil Process Act holds significant importance within the Act. If one were to identify the ten most frequently cited sections in garnishee proceedings, it is evident that section 84 of the Act ranks among the top five sections in terms of frequency.[1] It provides that if money held by a public officer in their official role is to be attached through garnishee proceedings, the consent of the Attorney General must be acquired first.[2] This section has led to so much controversy as many believe it is unconstitutional because it aims to shield the government from judgment execution, which would be detrimental to the judgment creditor,[3] and also because is a way of subjecting the decision of the court of law to the whims and or the authority of the Attorney General of the Federation, i.e. the government and its agencies who are parties to the case.[4]
The case of Central Bank of Nigeria v. Shipping Company Sara B.V., The Nigerian Navy, The Attorney-General of the Federation, and the Federal Republic of Nigeria[5] is instrumental in resolving this issue. The Central Bank of Nigeria is the garnishee[6]/appellant, Shipping Company Sara B.V. is the Judgment Creditor/first respondent, The Nigerian Navy is the Judgment Debtor/ second respondent, and the Attorney-General of the Federation is the 3rd respondent. While the appellant and first respondent were represented and filed their briefs, the second and third respondents were represented but did not file any briefs.
Procedural History
The matter commenced at the High Court, specifically the Federal High Court, Lagos, with the suit number FHC/L/CS/342/2004. The presiding judge was Archibong, J. The date of the Ruling was Monday, 28th May 2012. The decision was appealed to the Court of Appeal Lagos, with Appeal Number CA/L/467/2012. Names of Justices that sat on the appeal were; Chinwe EugeniaIyizoba, J.C.A. (Presided), Tijjani Abubakar, J.C.A., Abimbola Osarugue Obaseki-Adejumo, J.C.A. The date of the Judgment was Friday, 20th March 2015.
Facts of the Case
The Nigerian Navy unlawfully detained a vessel belonging to Shipping Company Sara B.V. after a judgment by the Federal High Court in Lagos. A garnishee proceeding was commenced by the Shipping Company Sara B.V., The Federal High Court in Lagos issued an order nisi[7] on 25th October 2011, which was served to the Central Bank of Nigeria/appellant and other garnishees to show cause. The Central Bank of Nigeria, upon receiving the order nisi, filed a motion on notice to dismiss the entire garnishee proceedings a preliminary objection due to lack of jurisdiction. Nevertheless, it failed to provide an affidavit to show cause. After the motion hearing, the trial court dismissed both motions in its ruling on May 28, 2012, during which it also ruled Section 84 of the Sheriffs and Civil Process Act unconstitutional, despite this matter not being raised by any party or addressed in court. Dissatisfied, the Central Bank of Nigeria/appellants appealed to the Court of Appeal.
Issues for Determination
- Whether the trial court was right in declaring Section 84 of the Sheriffs and Civil Process Act unconstitutional when no such issue was raised by any of the parties in the course of their argument and without affording the appellant a hearing therein.
- Whether the trial court had jurisdiction to entertain the garnishee proceedings.
- Whether the garnishee proceeding was properly constituted.
Arguments
The appellant submits that the garnishee proceeding in question does not meet the requirement of Section 83 of the Sheriff and Civil Process Act that provides that the garnishee who is indebted to the judgment debtor must be within the jurisdiction of the court[8], as the appellant/garnishee business is located at Abuja which is not within the jurisdiction of the lower court. He further submits that the suit is incompetent because the money to be attached is in the hand of a public officer and as such the consent of the Federal Attorney General is required,[9] failure to obtain the consent renders the order nisi a nullity and liable to be struck out.[10] He submitted that the exhibit attached to the counter affidavit is not consent as required[11] and it was not before the court at the time of making the order nisi and as such the order nisi should be stuck out.[12]
The respondent contends that Section 83 of the Sheriff and Civil Process Act does not say the head office must be within the State. The word ‘within the State’ envisages some form of presence within the State and that the affidavit established the presence of the appellant/ garnishee within Lagos under the jurisdiction of the lower court and that the affidavit was not challenged by the appellant. He submits that Section 84(1) of the Sheriffs and Civil Process Act has been improperly applied, as the garnishee proceeding in the lower court was exclusively aimed at the Nigeria Navy and not the Federal Government of Nigeria, which has a debtor-creditor relationship with the judgment debtor, the second respondent.[13] The appellant is a deposit-taking institution and therefore the first respondent ought not to have sought and obtained the consent of the Attorney-General of the Federation before initiating the garnishee proceedings.[14] The appellant had acknowledged that the funds of the second respondent were under its control and that the relationship between the appellant and the second respondent is one of debtor and creditor; thus, the funds held by the appellant in the name of the second respondent cannot be classified as being in the custody of a public officer.[15] He submitted that the court rightly held that possession of section 84 of SCPA[16] is unconstitutional.
Court Analysis
On the issue that the provision of section 84 of the Sheriff and Civil Process Act was not complied with, this contention has been settled by several case laws. There is no doubt that the debt sought to be garnished in the instant case is in the hands of the Central Bank of Nigeria,[17] and it follows that before a garnishee order nisi can be granted; the judgment creditor must first seek and obtain consent of the Federal Attorney General.[18] Seeking and obtaining the consent of the Attorney General is a condition precedent to the enforcement of money judgment by garnishee proceedings where garnishee is a public officer. In the instant suit, the consent of the Federal Attorney General not having been sought and obtained rendered the proceedings incompetent thereby robbing the court of jurisdiction.[19] The respondent’s assertion that the letter from the Attorney General of the Federation instructing the Central Bank of Nigeria to settle the appellant’s debt constitutes consent is erroneous. This is incompatible with the procedure established in section 84 of the Sheriffs and Civil Process Act. The purported letter was not presented to the lower court before the issuance of the order nisi. Moreover, the issuance of notices ought not to take place until this prerequisite is fulfilled, which was not the case. Therefore, the lower court was in error when it issued the decree nisi as it had no jurisdiction.
On the Constitutionality of Section 84 of the Sheriff and Civil Process Act, though it has been settled with long lines of cases,[20] the court reiterated for the umpteenth time that the requirement for the Attorney General’s consent is not inconsistent with the provision of section 287 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and until set aside it remains good law.
Similarly, the law is settled that garnishee matters can only be initiated in a court where the judgment debtor can sue for the debt,[21] this means the Federal High Court is the court where the proceeding is to be brought.[22] Contrary to the assertion of the respondent’s counsel, the jurisdiction is determined by the domicile of the defendant/garnishee, the Central Bank of Nigeria, whose chief executive is the “Governor of the Central Bank of Nigeria.”[23] The management and control section is located in the head office.[24] Consequently, the garnishee proceedings should have been initiated in the Abuja division of the court. Despite the above, it would be inappropriate to dismiss the proceedings; rather, a transfer to the appropriate division of the Federal High Court should be executed.[25]
Decision
The appeal succeeds in part but having made the order nisi without jurisdiction ab initio the entire garnishee proceedings is affected and is a nullity, the ruling of Archibong, J. of the Federal High Court delivered on 28th May 2012 is set aside. A cost of NGN30, 000.00 is awarded against the respondent.
Significance
The decision of the Court has made an impact on Debt Recovery particularly on garnishee proceedings by reiterating the constitutionality of section 84 of the Sheriff and Civil Process Act. It is also significant because it prevents the potential embarrassment that may arise from the lack of awareness regarding the diversion of funds designated for specific purposes to satisfy a judgment debt, of which the government may be unaware.
Conclusion
The decision of the case discusses the constitutionality of section 84 of the Sheriff and Civil Process Act and also the issue of Jurisdiction of Garnishee proceedings which are issues plaguing one of the modes of debt recovery. This decision in my view is a good one because it protects funds in the hands of public office and prevents the funds allocated by the National Assembly or State’s House of Assembly for a specific purpose in the Appropriation Bill, or Budget, from unnecessary and frivolous court process.
Reference(S):
[1] E Udim, Principles of Garnishee Proceedings in Nigeria (Princeton and Associate Publishing Co. Ltd 2021)
[2] Sheriffs and Civil Process Act, section 84.
[3] S Akpan ‘An Appraisal of Section 84 of the Sheriffs and Civil Process Act (cap. S6), Laws of the Federation of Nigeria (LFN) 2004 on Public Financial Institutions’ [2018] (2)(4) Commonwealth Law Review Journal 239-240
[4] A Jimoh, ‘Section 84 of the Sheriffs and Civil Process Act, 2004: Invalid and Unconstitutional!’(2022) <https://lawpavilion.com/blog/section-84-of-the-sheriffs-and-civil-process-act-2004-invalid-and-unconstitutional/> accessed 16 March 2025.
[5] (2015) 11 NWLR (Pt. 1469) 130
[6] It refers to a third party who is indebted to the judgment debtor or has custody of his money and who at the instance of the judgment creditor is called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the credit of the judgment debtor in his account with the third party.
[7] It directs the Garnishee to appear in court on a specified date to show cause why an order should not be made upon him for the payment to the judgment creditor of the amount of debt owed by the judgment debtor.
[8] George v. S.B.N. Plc. (2009) 5 NWLR (Pt. 1134) 320 Paragraph A-H
[9] Sheriffs and Civil Process Act, section 84.
[10] Benin Rubber Produce Cooperate Marketing Union Ltd. v. Ojo & Anor. (1997) 9 NWLR (PT 521) 388
[11] Section 84 (1) of Sheriffs and Civil Process Act
[12] Oduwa Investment Co. Ltd v. Talabi (1997)10 NWLR (PT 532) 1-50
[13] First Inland Bank Plc. v. Effiong & Ors (2010) 16 NWLR (Pt. 1218) page 199 at 206 paras C-F;
[14] Section 27 & 32(1) of Central Bank of Nigeria Act 2007
[15] Trendex Trading Corp. Ltd. v. CBN (1976) 3 ALLER 437; Purification Tech Nig. v. A.-G., Lagos State (2004) 9NWLR (Pt. 879) 665,679 – 681
[16] Sheriffs and Civil Process Act
[17] Section 4 (2) of the CBN
[18] Government of Akwa Ibom State v. Powercom (Nig.) Ltd. (2004) 6NWLR (Pt. 868) 202
[19] Madukolu v. Nkemdilim (1962) 2 SCNLR 341
[20] Government of Akwa Ibom State v. Power com (Nig.) Ltd (2004) 6NWLR (Pt. 868) 202
[21] CBN v. Auto Import Export (2012) LPELR – 7858 (CA)
[22] Order 2 (9) of Federal High Court Rules 2009
[23] Section 6 Central Bank of Nigeria Act 2007
[24] Section 3 Central Bank of Nigeria Act 2007
[25] section 22 of the Federal High Court Act
