Garnishee Proceedings: Disagreeing With The Court Of Appeal On Its Decision That The Central Bank Of Nigeria Is A Public Officer By Ekemini Udim

Preamble:

The Court of Appeal of Nigeria is an intermediate court between
the trial courts and the Supreme Court. It is made up of highly
cerebral and hardworking Justices whose elevations to the appellate
bench came as a result of distinction in their chosen career. This
article is therefore not intended to query their integrity or
question their intellectual sagacity in any way whatsoever; it is
simply intended to engender further discuss on this important
aspect of law so as to expand the frontiers of the recurring issue
of the Attorney General’s consent in our jurisprudence of garnishee
proceedings.

Introduction:

Garnishee proceedings are proceedings sui generis. That
is to say, they are proceedings of a special kind with special
principles and special procedures. Indeed, most of the principles
in garnishee proceedings are not applicable to other aspects of
law. They reside forever within the compass or circumference of
garnishee proceedings.

One thorny and seemingly intractable issue in the jurisprudence
of garnishee proceedings in Nigeria is the issue of the requirement
of the Attorney General’s consent. By Section 84 of the Sheriffs
and Civil Process Act, Laws of the Federation of Nigeria, 2004, the
consent of the Attorney General of the State or Federation is
required before money in the custody of a public officer can be
garnished to satisfy a judgment debt. Without first obtaining such
consent, garnishee proceedings against a public officer is
incompetent and liable to be struck out. This issue has gained the
status of a recurring decimal in courts of law across the
federation of Nigeria and yet, the last has not been said on
it.

The question of whether the Central Bank is a public officer for
which the consent of the Attorney General is required before money
in its custody can be garnished stems from the provision of Section
84 of the Sheriffs and Civil Process Act, Laws of the Federation of
Nigeria, 2004. That section clearly 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, the
consent of the Attorney General must be sought and obtained before
garnishee proceedings can be validly commenced and sustained. In
its efforts to resolve this issue, the Court of Appeal has handed
down some decisions which have pronounced the Central Bank of
Nigeria as a ‘public officer’. This author respectfully
disagrees hence this article.

Some Decisions of the Court of Appeal Pronouncing the
Central Bank of Nigeria as a Public Officer:

In the case of Central Bank of Nigeria v. Hydro Air
(Pty) Ltd reported in, (2014) 16 NWLR (Pt.1434) 482 at 522
paragraphs B-D, the Court of Appeal, per Iyizoba,
JCA held thus:

‘’Section 318 of the 1999 Constitution on which the
cross-appellant has placed reliance on to contend that reference to
public officer in section 84 of the Sheriffs and Civil Process Act
cannot include the cross-appellant defendant defines ‘’public
service of the Federation’’ to include ‘’staff of any statutory
corporation established by an Act of the National Assembly.’’ There
is in fact no doubt that this definition includes 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 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. 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.’’

In another case, Central Bank of Nigeria v. Shipping
Company Sara B.V (No. 1) reported in (2015) 11 NWLR (Pt.
1469) 130 at 154 paragraphs C-D,  and page 155 paragraphs E-F,
the Court of Appeal, sitting in Lagos held thus:

‘’The Central Bank of Nigeria is a banker to Local
Governments, State and the Federal Government institutions or
corporations pursuant to section 39 of the Central Bank of Nigeria
Act and acts as agent for them by virtue of section 40 thereof.
Therefore, it can necessarily be implied that the funds in the
hands of the appellant/garnishee (Central Bank of Nigeria) are
government funds for and on behalf of the government tiers. These
are obviously public funds and the officers are inclusive of CBN
and public officers. Seeking and obtaining of consent of the
Attorney General is a condition precedent to enforcement of money
judgment by garnishee proceedings where the garnishee is a public
officer. In the instant suit, the consent of the Federal Attorney
General not having been sought and obtained renders the proceedings
incompetent thereby robbing the court of jurisdiction.’’

The court went on to explain that, public officers refer not
only to natural persons or persons sued in their personal names but
extends to public bodies, artificial persons and institutions sued
in their official names; Central Bank of Nigeria v.
Shipping Company Sara B.V. (No.1) (supra) page 154
paragraphs D – E per Obaseki – Adejumoke, JCA.

From the above analysis, it can be seen that the Court of Appeal
is unequivocal (at least to the extent of the above cases) that a
garnishee proceeding against the Central Bank of Nigeria for
purpose of garnishing the funds of a Local Government Council,
State and/or Federal Government without the consent of the Attorney
General is incompetent and liable to be struck out. This is
because, by the Court’s interpretation, the Central Bank of Nigeria
is a public officer.

But what does Section 84(1) of the Sheriff and Civil
Process Act say?

Before we go further in this argument, it is important to note
that the legal framework for the requirement for the Attorney
General’s in consent in garnishee proceedings is section 84 of the
Sheriffs and Civil Process Act, Laws of the Federation of Nigeria,
2004. To assist in the better understanding of our discussion and
for ease of reference we take the liberty to reproduce the section
verbatim as follows:

84(1): “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 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 the court in the case
of money in custodia legis, as the case may be.”

         84(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)    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.”

For many years now, the courts have pontificated a great deal on
this section of the Sheriffs and Civil Process Act but the section
continues to present itself for further pontification. In the
earlier cases where this section was considered and interpreted
upon by the Court of Appeal in particular, the question was whether
money lodged in a commercial bank with a public officer as
signatory, is money in the custody of a public officer which
requires the consent of the Attorney General before commencement of
garnishee proceedings? In most of such cases such as the popular
case of Purification Technique, the Court held that money
in the custody of a commercial bank is not money in the custody of
a public officer and therefore, the consent of the Attorney General
is not required for purpose of garnishee proceedings.

In the Purification Techniques’ case, though the
Central Bank of Nigeria was listed as the thirty first respondent,
there was no question of whether the Central Bank is a public
officer or not for purpose of garnishee proceedings. The
aforementioned cases of Central Bank of Nigeria v. Hydro
Air (Pty) Ltd and Central Bank of Nigeria v.
Shipping Company Sara B.V (No. 1) are contemporary cases
where the fundamental question (whether the Central Bank is a
public officer for purpose of garnishee proceedings) was raised,
argued and decided upon by the Court of Appeal.

From the cases above cited, the position of the Court of Appeal
is that the Central Bank is a public officer and therefore, no
account of any tier of government (domiciled with the Central Bank)
can be garnished without the consent of the Attorney General being
first sought and obtained in accordance with Section 84 of the
Sheriffs and Civil Process Act. This author disagrees and below is
his argument:

Section 318 of the 1999 Constitution:

It is important to note that the decisions of the Court of
Appeal in the above cited cases were principally influenced by
Section 318 (interpretation section) of the 1999 Constitution of
the Federal Republic of Nigeria. Both cases referred to this
section of the constitution in reaching the conclusion that the
Central Bank of Nigeria is a ‘’public officer’’. That
section defines the ‘’public service of the Federation’’
and the Court of Appeal relied on the said definition to reach the
conclusion that the Central Bank of Nigeria is a public officer in
the eyes of the law, moreover in relation to garnishee
proceedings.

For ease of reference and clarity of our discussion, we take the
liberty to reproduce verbatim, the provision of the said section
318 of the Constitution herein below:

It was principally as a result of the above provision of the
Constitution [particularly sub-section (e)], that the court came to
the conclusion that the Central Bank of Nigeria, being
a statutory corporation established by an Act of the
National Assembly, qualifies as a public officer
in the eyes of the law. We refer again to the
earlier cited case of CBN v. Hydro Air (Pty)
Ltd reported in, (2014) 16 NWLR (Pt.1434) 482 at 522 where
His Lordship, Iyizoba, JCA, relying on Section 318
of the Constitution held thus:

‘’Section 318 of the 1999 Constitution defines ‘’public
service of the Federation’’ to include ‘’staff of any statutory
corporation established by an Act of the National Assembly.’’ There
is in fact no doubt that this definition includes 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 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. 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 Disagreement:

The first point of disagreement with the above conclusion of the
Court of Appeal is that, by the principle of corporate personality,
the Central Bank of Nigeria, having been created pursuant to an Act
of the National Assembly, is a corporate personality distinct from
the personality of its board of directors and of its staff. It is a
body corporate with perpetual succession and a common seal. It can
acquire properties in its name and dispose of them also in its
name. It can enter into contracts in its name. It can sue and be
sued in its corporate name. On this we refer to Section 1 of the
Central Bank of Nigeria Act, Laws of the Federation of Nigeria,
2004. In essence, the Central Bank is not the same as its staff or
officials; they are clearly different in personality in the eyes of
the law.

It is therefore difficult to agree with their Lordships in their
submissions in the above cited cases wherein they held 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, 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.’’

With profound respect, by the above holding, the Court of Appeal
appears not to have averted its mind to the corporate personality
of the Central Bank which personality is different, distinct and
distinguishable from the personality or personalities of its human
managers or staff. As long as the Central Bank has a personality of
its own with the capacity to sue and be sued in its corporate name,
cases involving the bank can be validly determined for or against
the bank without reference to its human managers or staff. If the
bank is found liable, such liability is not paid from the salaries
and allowances of the staff but from the vault (property) of the
bank. This is because the bank is a separate personality in the
eyes of the law.

In every garnishee proceeding where the Central Bank is a party,
what reflects on the face of the motion paper and the order nisi is
the name of the Central Bank as a known personality in law. The
validity of such order nisi is not dependent upon the inclusion of
the names of the officials of the bank. That means, the Central
Bank as an artificial entity can defend itself in the garnishee
proceedings without necessarily depending on its staff.  It is
the Central Bank as a person that is in custody of the funds in its
coffers.

It will be wrong and contrary to every known canon of
interpretation of statutes to describe the Central Bank as a public
officer placing reliance on Section 318 of the 1999 Constitution.
Such interpretation will (with due respect) be tantamount to
stretching the meaning of the phrase ‘’public officer’’
beyond acceptable limits. It will mean importing into the
Constitution what the law makers never intended in the provision of
the Constitution.

It is the law that the term ‘’public officer’’ relates only to
the holders of public offices. On this we refer to the case of
Shakira & Sons Ltd. v. Governor of Kaduna
State (2013) LPELR-20379(CA). This is the purport of
Section 318(e) of the 1999 Constitution which defines public
service of the federation to include,
Staff of any statutory corporation
established by an Act of the National Assembly. ‘’Staff’’ here
is different from the institution.

Even Section 84(3) of the Sheriffs and Civil Process Act leaves
no room for conjecture as it refers to a ‘’public officer’’ as one
who holds a public office in the public service of the State or of
the Federation. Indeed, it is only logical to say that a public
institution (such as the Central Bank) cannot hold a public office.
There is therefore no basis for equating a public institution with
a public officer.

It is important at this point to also make reference to the
Public Officers Protection Act [Laws of the
Federation of Nigeria] so as to widen the scope of our argument for
a better understanding of the phrase ‘’public officer’’. It would
be recalled that this piece of legislation (the Public Officers
Protection Act) was enacted to protect the public officer from
answering to complaints which have become stale and remote owing to
the passage of time. Thus, if a complainant fails to commence
proceedings against a public officer within the time specified in
the Act, he stands to lose his right  as he is precluded from
maintaining any action against the public officer after the
expiration of the time so specified in the Act.

The question that concerns this article is: What is the
meaning of the phrase ‘’public officer’’ as it relates to the
Public Officers’ Protection Act?

In the case of National Examination Council (NECO) v.
Sunday Ojo Tokode (2010) LPELR-9121(CA) at pages 27-28,
paragraphs B-E, the Court per Galadima, JCA held thus:

‘’The appellant (NECO) not being a public officer but a
statutory establishment or institution, is not entitled to the
benefit of the Public Officer’s Protection Act. Let it be noted
that the Act was passed to protect public officers as individuals
and not institutions or public authority.’’  

As seen here, there is a clear dichotomy between the public
officer as an individual and natural personality and, the public
institution as an artificial personality.

Also, in the case of Momoh v. Okewale (1977) 6
SC 81 at 88-89, the Supreme Court of Nigeria held as follows:

‘’There can be no doubt that there had been in the past the
tendency to confuse the ambit of operation of the provisions of
Section 2 of the Public Officers’ Protection Act, Cap168 with the
relevant provisions of Section 1 of the English Public Authorities
Protection Act, because the provisions of Section 1 of the former
Act were lifted almost wholesale from the provisions of Section 1
of the English Public Authorities Protection Act, 1993. It seemed
to have been over-looked that there is a vast difference between
the titles of the two Acts. The Nigerian Act is entitled: ‘’Public
Officers’ Protection Act.’’ The aims and objects and the purposes
of the two Acts are also different. The intention of the British
Parliament in enacting the English Act was; to protect public
Authorities engaged in the discharge of responsibilities imposed
upon them by Parliament. The Nigerian law was aimed at protecting
public officers as individuals in the discharge of public
duties.’’

The above holding of the Supreme Court also places the issue
beyond doubt that there is a distinction between a ‘’public
officer’’ and a ‘’public institution’’.

See also the case of Wakala v. State (1991) 8
NWLR (Pt. 211) 552 at 598 where His Lordship Ogundare, JCA (as he
then was) held that Section 2 of the Public Officers’ Protection
Law applies only to individual officers and not to public bodies or
institutions. See also the case of Central Bank of Nigeria
v. Ukpong (2006) 13 NWLR (Pt. 998) 555 at 568 – 569.

It is also important to refer to the case of U.B.R.B.D.A
v. Alka (1998) 2 NWLR (Pt. 537) 328 at 341-342 paragraphs
H – B, where the Court held as follows:

‘’The position of the law is that only individual public
officers, that is, natural persons are protected in the discharge
of public duties. The protection does not apply to public bodies or
institutions nor does it extend to cases founded on
contract…’’

Even the much-talked-about Section 84 of the Sheriffs and Civil
Process Act and Section 318 of the 1999 Constitution make mention
of ‘’public officer’’ which is different from ‘’public
person’’ or ‘’public institution’’. There is therefore no
legal justification in equating a public officer with the public
institution for purpose of garnishee proceedings or for any other
purpose whatsoever.

It is in view of the above submissions that this writer finds it
extremely difficult to agree with the Court of Appeal with its
conclusion that the Central Bank of Nigeria is a public officer for
purpose of garnishee proceedings. Such conclusion of the court
(with due respect) does not have the support of Section 84 of the
Sheriffs and Civil Process Act nor Section 318 (interpretation
section) of the 1999 Constitution, neither does it have the support
of available case law in Nigeria. It is more acceptable to describe
the Central Bank of Nigeria as a ‘’public institution’’ or
‘’public personality’’ than to describe her as a ‘’public
officer’’.

It is for the above reasons that this writer agrees in totality
with the latter case of Federal Government of Nigeria v.
Interstella Communications Ltd. (2015) 9 NWLR (Pt. 1463) 1
at 37 – 38 where His Lordship, Abba Aji, JCA held as
follows:

‘’I definitely do not have problem with classifying the
officers of the Central Bank of Nigeria as public officers but I
find it unacceptable to classify the Central Bank of Nigeria as a
Public Officer.’’

Conclusion:

It is the position of this writer that the Central Bank of
Nigeria is not a public officer but a public institution. For this
reason, the consent of the Attorney General is not required before
commencement of garnishee proceedings against the Central Bank of
Nigeria. To describe the Central Bank of Nigeria as a public
officer for purpose of garnishee proceedings is tantamount to
stretching the definition of the phrase ‘’public officer’’ to an
unimaginable and legally unacceptable limit. It is however hoped
that this issue will soon be presented to the Supreme Court for the
pronouncement of the apex court on this thorny and seemingly
intractable aspect of our jurisprudence of garnishee
proceedings.

Ekemini Udim is a Barrister and
Solicitor of the Supreme Court of Nigeria. He is the author of the
bestselling book, Principles of Garnishee Proceedings in Nigeria.
He is reachable on: ekeminiudimforjustice@gmail.com
  

Preamble:

The Court of Appeal of Nigeria is an intermediate court between
the trial courts and the Supreme Court. It is made up of highly
cerebral and hardworking Justices whose elevations to the appellate
bench came as a result of distinction in their chosen career. This
article is therefore not intended to query their integrity or
question their intellectual sagacity in any way whatsoever; it is
simply intended to engender further discuss on this important
aspect of law so as to expand the frontiers of the recurring issue
of the Attorney General’s consent in our jurisprudence of garnishee
proceedings.

Introduction:

Garnishee proceedings are proceedings sui generis. That
is to say, they are proceedings of a special kind with special
principles and special procedures. Indeed, most of the principles
in garnishee proceedings are not applicable to other aspects of
law. They reside forever within the compass or circumference of
garnishee proceedings.

One thorny and seemingly intractable issue in the jurisprudence
of garnishee proceedings in Nigeria is the issue of the requirement
of the Attorney General’s consent. By Section 84 of the Sheriffs
and Civil Process Act, Laws of the Federation of Nigeria, 2004, the
consent of the Attorney General of the State or Federation is
required before money in the custody of a public officer can be
garnished to satisfy a judgment debt. Without first obtaining such
consent, garnishee proceedings against a public officer is
incompetent and liable to be struck out. This issue has gained the
status of a recurring decimal in courts of law across the
federation of Nigeria and yet, the last has not been said on
it.

The question of whether the Central Bank is a public officer for
which the consent of the Attorney General is required before money
in its custody can be garnished stems from the provision of Section
84 of the Sheriffs and Civil Process Act, Laws of the Federation of
Nigeria, 2004. That section clearly 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, the
consent of the Attorney General must be sought and obtained before
garnishee proceedings can be validly commenced and sustained. In
its efforts to resolve this issue, the Court of Appeal has handed
down some decisions which have pronounced the Central Bank of
Nigeria as a ‘public officer’. This author respectfully
disagrees hence this article.

Some Decisions of the Court of Appeal Pronouncing the
Central Bank of Nigeria as a Public Officer:

In the case of Central Bank of Nigeria v. Hydro Air
(Pty) Ltd reported in, (2014) 16 NWLR (Pt.1434) 482 at 522
paragraphs B-D, the Court of Appeal, per Iyizoba,
JCA held thus:

‘’Section 318 of the 1999 Constitution on which the
cross-appellant has placed reliance on to contend that reference to
public officer in section 84 of the Sheriffs and Civil Process Act
cannot include the cross-appellant defendant defines ‘’public
service of the Federation’’ to include ‘’staff of any statutory
corporation established by an Act of the National Assembly.’’ There
is in fact no doubt that this definition includes 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 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. 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.’’

In another case, Central Bank of Nigeria v. Shipping
Company Sara B.V (No. 1) reported in (2015) 11 NWLR (Pt.
1469) 130 at 154 paragraphs C-D,  and page 155 paragraphs E-F,
the Court of Appeal, sitting in Lagos held thus:

‘’The Central Bank of Nigeria is a banker to Local
Governments, State and the Federal Government institutions or
corporations pursuant to section 39 of the Central Bank of Nigeria
Act and acts as agent for them by virtue of section 40 thereof.
Therefore, it can necessarily be implied that the funds in the
hands of the appellant/garnishee (Central Bank of Nigeria) are
government funds for and on behalf of the government tiers. These
are obviously public funds and the officers are inclusive of CBN
and public officers. Seeking and obtaining of consent of the
Attorney General is a condition precedent to enforcement of money
judgment by garnishee proceedings where the garnishee is a public
officer. In the instant suit, the consent of the Federal Attorney
General not having been sought and obtained renders the proceedings
incompetent thereby robbing the court of jurisdiction.’’

The court went on to explain that, public officers refer not
only to natural persons or persons sued in their personal names but
extends to public bodies, artificial persons and institutions sued
in their official names; Central Bank of Nigeria v.
Shipping Company Sara B.V. (No.1) (supra) page 154
paragraphs D – E per Obaseki – Adejumoke, JCA.

From the above analysis, it can be seen that the Court of Appeal
is unequivocal (at least to the extent of the above cases) that a
garnishee proceeding against the Central Bank of Nigeria for
purpose of garnishing the funds of a Local Government Council,
State and/or Federal Government without the consent of the Attorney
General is incompetent and liable to be struck out. This is
because, by the Court’s interpretation, the Central Bank of Nigeria
is a public officer.

But what does Section 84(1) of the Sheriff and Civil
Process Act say?

Before we go further in this argument, it is important to note
that the legal framework for the requirement for the Attorney
General’s in consent in garnishee proceedings is section 84 of the
Sheriffs and Civil Process Act, Laws of the Federation of Nigeria,
2004. To assist in the better understanding of our discussion and
for ease of reference we take the liberty to reproduce the section
verbatim as follows:

84(1): “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 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 the court in the case
of money in custodia legis, as the case may be.”

         84(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)    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.”

For many years now, the courts have pontificated a great deal on
this section of the Sheriffs and Civil Process Act but the section
continues to present itself for further pontification. In the
earlier cases where this section was considered and interpreted
upon by the Court of Appeal in particular, the question was whether
money lodged in a commercial bank with a public officer as
signatory, is money in the custody of a public officer which
requires the consent of the Attorney General before commencement of
garnishee proceedings? In most of such cases such as the popular
case of Purification Technique, the Court held that money
in the custody of a commercial bank is not money in the custody of
a public officer and therefore, the consent of the Attorney General
is not required for purpose of garnishee proceedings.

In the Purification Techniques’ case, though the
Central Bank of Nigeria was listed as the thirty first respondent,
there was no question of whether the Central Bank is a public
officer or not for purpose of garnishee proceedings. The
aforementioned cases of Central Bank of Nigeria v. Hydro
Air (Pty) Ltd and Central Bank of Nigeria v.
Shipping Company Sara B.V (No. 1) are contemporary cases
where the fundamental question (whether the Central Bank is a
public officer for purpose of garnishee proceedings) was raised,
argued and decided upon by the Court of Appeal.

From the cases above cited, the position of the Court of Appeal
is that the Central Bank is a public officer and therefore, no
account of any tier of government (domiciled with the Central Bank)
can be garnished without the consent of the Attorney General being
first sought and obtained in accordance with Section 84 of the
Sheriffs and Civil Process Act. This author disagrees and below is
his argument:

Section 318 of the 1999 Constitution:

It is important to note that the decisions of the Court of
Appeal in the above cited cases were principally influenced by
Section 318 (interpretation section) of the 1999 Constitution of
the Federal Republic of Nigeria. Both cases referred to this
section of the constitution in reaching the conclusion that the
Central Bank of Nigeria is a ‘’public officer’’. That
section defines the ‘’public service of the Federation’’
and the Court of Appeal relied on the said definition to reach the
conclusion that the Central Bank of Nigeria is a public officer in
the eyes of the law, moreover in relation to garnishee
proceedings.

For ease of reference and clarity of our discussion, we take the
liberty to reproduce verbatim, the provision of the said section
318 of the Constitution herein below:

It was principally as a result of the above provision of the
Constitution [particularly sub-section (e)], that the court came to
the conclusion that the Central Bank of Nigeria, being
a statutory corporation established by an Act of the
National Assembly, qualifies as a public officer
in the eyes of the law. We refer again to the
earlier cited case of CBN v. Hydro Air (Pty)
Ltd reported in, (2014) 16 NWLR (Pt.1434) 482 at 522 where
His Lordship, Iyizoba, JCA, relying on Section 318
of the Constitution held thus:

‘’Section 318 of the 1999 Constitution defines ‘’public
service of the Federation’’ to include ‘’staff of any statutory
corporation established by an Act of the National Assembly.’’ There
is in fact no doubt that this definition includes 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 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. 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 Disagreement:

The first point of disagreement with the above conclusion of the
Court of Appeal is that, by the principle of corporate personality,
the Central Bank of Nigeria, having been created pursuant to an Act
of the National Assembly, is a corporate personality distinct from
the personality of its board of directors and of its staff. It is a
body corporate with perpetual succession and a common seal. It can
acquire properties in its name and dispose of them also in its
name. It can enter into contracts in its name. It can sue and be
sued in its corporate name. On this we refer to Section 1 of the
Central Bank of Nigeria Act, Laws of the Federation of Nigeria,
2004. In essence, the Central Bank is not the same as its staff or
officials; they are clearly different in personality in the eyes of
the law.

It is therefore difficult to agree with their Lordships in their
submissions in the above cited cases wherein they held 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, 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.’’

With profound respect, by the above holding, the Court of Appeal
appears not to have averted its mind to the corporate personality
of the Central Bank which personality is different, distinct and
distinguishable from the personality or personalities of its human
managers or staff. As long as the Central Bank has a personality of
its own with the capacity to sue and be sued in its corporate name,
cases involving the bank can be validly determined for or against
the bank without reference to its human managers or staff. If the
bank is found liable, such liability is not paid from the salaries
and allowances of the staff but from the vault (property) of the
bank. This is because the bank is a separate personality in the
eyes of the law.

In every garnishee proceeding where the Central Bank is a party,
what reflects on the face of the motion paper and the order nisi is
the name of the Central Bank as a known personality in law. The
validity of such order nisi is not dependent upon the inclusion of
the names of the officials of the bank. That means, the Central
Bank as an artificial entity can defend itself in the garnishee
proceedings without necessarily depending on its staff.  It is
the Central Bank as a person that is in custody of the funds in its
coffers.

It will be wrong and contrary to every known canon of
interpretation of statutes to describe the Central Bank as a public
officer placing reliance on Section 318 of the 1999 Constitution.
Such interpretation will (with due respect) be tantamount to
stretching the meaning of the phrase ‘’public officer’’
beyond acceptable limits. It will mean importing into the
Constitution what the law makers never intended in the provision of
the Constitution.

It is the law that the term ‘’public officer’’ relates only to
the holders of public offices. On this we refer to the case of
Shakira & Sons Ltd. v. Governor of Kaduna
State (2013) LPELR-20379(CA). This is the purport of
Section 318(e) of the 1999 Constitution which defines public
service of the federation to include,
Staff of any statutory corporation
established by an Act of the National Assembly. ‘’Staff’’ here
is different from the institution.

Even Section 84(3) of the Sheriffs and Civil Process Act leaves
no room for conjecture as it refers to a ‘’public officer’’ as one
who holds a public office in the public service of the State or of
the Federation. Indeed, it is only logical to say that a public
institution (such as the Central Bank) cannot hold a public office.
There is therefore no basis for equating a public institution with
a public officer.

It is important at this point to also make reference to the
Public Officers Protection Act [Laws of the
Federation of Nigeria] so as to widen the scope of our argument for
a better understanding of the phrase ‘’public officer’’. It would
be recalled that this piece of legislation (the Public Officers
Protection Act) was enacted to protect the public officer from
answering to complaints which have become stale and remote owing to
the passage of time. Thus, if a complainant fails to commence
proceedings against a public officer within the time specified in
the Act, he stands to lose his right  as he is precluded from
maintaining any action against the public officer after the
expiration of the time so specified in the Act.

The question that concerns this article is: What is the
meaning of the phrase ‘’public officer’’ as it relates to the
Public Officers’ Protection Act?

In the case of National Examination Council (NECO) v.
Sunday Ojo Tokode (2010) LPELR-9121(CA) at pages 27-28,
paragraphs B-E, the Court per Galadima, JCA held thus:

‘’The appellant (NECO) not being a public officer but a
statutory establishment or institution, is not entitled to the
benefit of the Public Officer’s Protection Act. Let it be noted
that the Act was passed to protect public officers as individuals
and not institutions or public authority.’’  

As seen here, there is a clear dichotomy between the public
officer as an individual and natural personality and, the public
institution as an artificial personality.

Also, in the case of Momoh v. Okewale (1977) 6
SC 81 at 88-89, the Supreme Court of Nigeria held as follows:

‘’There can be no doubt that there had been in the past the
tendency to confuse the ambit of operation of the provisions of
Section 2 of the Public Officers’ Protection Act, Cap168 with the
relevant provisions of Section 1 of the English Public Authorities
Protection Act, because the provisions of Section 1 of the former
Act were lifted almost wholesale from the provisions of Section 1
of the English Public Authorities Protection Act, 1993. It seemed
to have been over-looked that there is a vast difference between
the titles of the two Acts. The Nigerian Act is entitled: ‘’Public
Officers’ Protection Act.’’ The aims and objects and the purposes
of the two Acts are also different. The intention of the British
Parliament in enacting the English Act was; to protect public
Authorities engaged in the discharge of responsibilities imposed
upon them by Parliament. The Nigerian law was aimed at protecting
public officers as individuals in the discharge of public
duties.’’

The above holding of the Supreme Court also places the issue
beyond doubt that there is a distinction between a ‘’public
officer’’ and a ‘’public institution’’.

See also the case of Wakala v. State (1991) 8
NWLR (Pt. 211) 552 at 598 where His Lordship Ogundare, JCA (as he
then was) held that Section 2 of the Public Officers’ Protection
Law applies only to individual officers and not to public bodies or
institutions. See also the case of Central Bank of Nigeria
v. Ukpong (2006) 13 NWLR (Pt. 998) 555 at 568 – 569.

It is also important to refer to the case of U.B.R.B.D.A
v. Alka (1998) 2 NWLR (Pt. 537) 328 at 341-342 paragraphs
H – B, where the Court held as follows:

‘’The position of the law is that only individual public
officers, that is, natural persons are protected in the discharge
of public duties. The protection does not apply to public bodies or
institutions nor does it extend to cases founded on
contract…’’

Even the much-talked-about Section 84 of the Sheriffs and Civil
Process Act and Section 318 of the 1999 Constitution make mention
of ‘’public officer’’ which is different from ‘’public
person’’ or ‘’public institution’’. There is therefore no
legal justification in equating a public officer with the public
institution for purpose of garnishee proceedings or for any other
purpose whatsoever.

It is in view of the above submissions that this writer finds it
extremely difficult to agree with the Court of Appeal with its
conclusion that the Central Bank of Nigeria is a public officer for
purpose of garnishee proceedings. Such conclusion of the court
(with due respect) does not have the support of Section 84 of the
Sheriffs and Civil Process Act nor Section 318 (interpretation
section) of the 1999 Constitution, neither does it have the support
of available case law in Nigeria. It is more acceptable to describe
the Central Bank of Nigeria as a ‘’public institution’’ or
‘’public personality’’ than to describe her as a ‘’public
officer’’.

It is for the above reasons that this writer agrees in totality
with the latter case of Federal Government of Nigeria v.
Interstella Communications Ltd. (2015) 9 NWLR (Pt. 1463) 1
at 37 – 38 where His Lordship, Abba Aji, JCA held as
follows:

‘’I definitely do not have problem with classifying the
officers of the Central Bank of Nigeria as public officers but I
find it unacceptable to classify the Central Bank of Nigeria as a
Public Officer.’’

Conclusion:

It is the position of this writer that the Central Bank of
Nigeria is not a public officer but a public institution. For this
reason, the consent of the Attorney General is not required before
commencement of garnishee proceedings against the Central Bank of
Nigeria. To describe the Central Bank of Nigeria as a public
officer for purpose of garnishee proceedings is tantamount to
stretching the definition of the phrase ‘’public officer’’ to an
unimaginable and legally unacceptable limit. It is however hoped
that this issue will soon be presented to the Supreme Court for the
pronouncement of the apex court on this thorny and seemingly
intractable aspect of our jurisprudence of garnishee
proceedings.

Ekemini Udim is a Barrister and
Solicitor of the Supreme Court of Nigeria. He is the author of the
bestselling book, Principles of Garnishee Proceedings in Nigeria.
He is reachable on: ekeminiudimforjustice@gmail.com