How often is the victorious litigant (or his lawyer) faced with the stark reality that he may not enjoy the fruits of his judgment as early as he thinks. He is met with an unwilling judgment debtor or a string of ‘stay’ applications standing at the gates of his promised land.
The litigant is then advised by his lawyer to pursue some judgment enforcement options. Where the judgment obtained is a monetary sum, such enforcement options would include; taking out a writ of fifa or sequestration, or a judgment summons or instituting a garnishee proceedings (it is the latter option that we are here concerned with).
The garnishee proceedings is frequently used by many litigants. In a garnishee proceedings the judgment creditor brings an application defray the judgment debt by asking a third party to pay to him, monies due to the judgment debtor. The judgment creditor is the garnishor while the third party is the garnishee. But one major hurdle faced in this regard is that where the money judgment is obtained against a public office or officer, one law says that the consent of the Attorney-General (either of the state or Federation as the case may be) must be obtained. This provision is in Section 84 of the Sheriffs and Civil Process Act (SCPA).
As recently as 2003, the Court of Appeal in the case of Christopher Onjewu vs. Kogi State Attorney General (2003) 10 NWLR Part 82. Abuja Division deliberated exhaustively on the question of the validity of Section 84 of the SCPAvis-à-vis the Constitution of the Federal Republic of Nigeria. The court decided inter-alia that there was nothing unconstitutional in the requirement that the consent of an Attorney General is required before a victorious Nigerian citizen in a case involving the state, can reap the fruit of victory. Indeed, in that case their Lordships went on to find justification for the existence of the provision.
In Onjewu v. K.S.M.C.I (2003) 10 NWLR (Pt. 827) 40, the Court of Appeal held that the provisions of Section 84(1) of the SCPA which requires the consent of the Attorney-General before a garnishee proceedings can be commenced against money in custody of a public officer was not inconsistent with the provisions of the 1999 Constitution.
On the basis of these decisions, the Nigerian citizen would be unable to enforce a judgment obtained against the Government and its agencies without the consent/approval or fiat of the Attorney General. What an ignominy? Why would a litigant be required to take permission from the government to enforce a court government against the government?
Some courts have said that the only remedy for a litigant where the Attorney General refuses or withholds consent would be to apply to the court for an order of mandamus compelling him to give such consent. But is that truly a remedy? Given the fact that the litigant would have to spend more money and time in applying for an order of mandamus, I doubt where that is truly a remedy.
Whither the Constitution?
Section 6(6)a and 287 (3) of the Constitution. Section 6(6)(a) provides: “The judicial powers vested in accordance with the foregoing provisions of this section- (a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law”. Section 287(3) provides: “The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.” The combined effect of these provisions is that where a court exercises its power to order and sanction, such decision should be enforced by all authorities. To then subject the decision of a court of law to the whims and caprices of a political appointee like the Attorney General would, in my view, amount to promoting the ‘moral code of tyrants’.
True remedy came for litigants faced with the obstruction of Section 84 of the SCPA in some of the decisions of our courts. As a new light was thrown on the issue in the case of Purification Techniques (Nig.) Ltd. vs. Attorney General of Lagos State (2004) 9 NWLR. Part 879. In that case, a Nigerian registered company had obtained judgment against the Lagos State Government. The company sought and obtained a Garnishee order nisi against several banks as part of its efforts to enforce the judgment. The Lagos State Government sought to resist the Garnishee order on the grounds that monies held by a state Government/judgment debtor in a bank is in the custody or under the control of a public officer and therefore subject to the provisions of Section 84 of the SCPA. If this objection was to be upheld it will mean that the consent of the Attorney General of the State would have had to be obtained before the Garnishee order could be made. The Court of Appeal (Lagos Division) rejected the argument on grounds that such monies in the hands of a banker are not in the custody or under the control of the judgment debtor customer. Such monies remain the property in the custody and control of the banker and payable to the judgment debtor.
Another decision which did not bow to the draconian pressure of Section 84 In the meantime, The Common Man in October 2005 scored a major victory against the forces of oppression. This is in the case of Isaac Alfred Akhigbe v. IGP and Others Suit No. ID/33M/2005. This was a fundamental rights application involving an Applicant who had been indiscriminately shot and tortured by the Police. The Applicant obtained judgment in form of monetary compensation against the Inspector General of Police (IGP) and enforced same without having to apply for the consent of the Attorney General.
The issue also formed the kernel of a ruling Justice Abang of the Federal High Court, Lagos, in Hydro Air (PTY) Limited v. Nigerian Airspace Management Agency (NAMA) and Ors. Suit No. FHC/L/CS/220/2010. Hydro Air, a South African company, had sued NAMA, NCAA and the
Attorney-General of the Federation in 2004, alleging negligence on the part of officials of the two Federal Government agencies, which it said caused its aircraft, a Boeing 747-258C to crash land on November 2003 at the Murtala Mohammed Airport, Lagos. Midway into the case, in which the company claimed $30 million damages against the defendants, parties agreed to an out-of-court settlement, with NCAA and NAMA agreeing to pay the company $6million as final settlement. The defendants later reneged in paying the agreed sum, forcing the Hydro Air to urge the court to enter judgment against NAMA and NCAA in the agreed compromise sum of $6m, a request which was granted by the court. Hydro Air then initiated a garnishee proceedings against them. The court granted a garnishee order nisi, attaching the Bilateral Air Services Agreement (BASA) account in the Central Bank of Nigeria (CBN).
Responding to the court’s order, CBN argued that it was only NAMA that operated an account with it and that the said account could only be accessed with the consent of the Attorney-General of the Federation and the Accountant-General of the Federation. In making the garnishee order absolute, the court held as untenable, the argument by NAMA and NCAA that the approval of the President, the Attorney-General of the Federation, the Accountant General of the Federation and the National Assembly (by way of appropriation) were required before monetary judgment entered against them could be executed.
The court voided Section 84 of the Sheriff and Civil Process Act, requiring the approval of the Attorney-General or Accountant-General before monetary judgments against government agencies could be executed. In declaring the provision null and void, the court further held that the provision contravened the provisions of sections 36 (6) and 287 of the Constitution. The court further held that Section 84 of the SCPA, a product of the British Common Law system, has been rendered otiose by the Nigerian Constitution. The judge described the Sheriff and Civil Process Act provision as archaic, undemocratic, primitive and against the spirit of separation of powers. The judge held that the approval of the Accountant-General, the Attorney-General and that of the National Assembly (by way of appropriation) was not required before monetary judgments could be executed against government agencies. The reverse would amount to these government appointees and institution sitting in appeal over a judgment of a competent court. In the words of His Lordship:
“The only court that is entitled to review the judgment of this court (the Federal High Court) is the Court of Appeal and then, the Supreme Court. I have no doubt in my mind that the NCAA and the Federal Government of Nigeria operate the BASA account with the CBN and the account properly funded to satisfy the judgment sum… The consent of the Attorney General of the Federation on the account is not required before funds in the said account are attached. Therefore, the order nisi was rightly made to attach the funds in the said account.”
In conclusion, let me say in the words of St. Augustine that an unjust law is no law at all. The brunt of s.84 SCPA is felt by all. The rich, the poor. The learned, the layman. The high, the low. But the dogged lawyer and the radical judge who see justice as the servant of all, can continue to win victory for the common litigants by doing away with bad, anachronistic and otiose laws like Section 84. Because as ministers in the temple of justice we must bear in mind that the brick of society is held by the hopes and aspirations of the hoi polloi- the common ordinary people.
Yibakuo David Amakiri