Often a victorious litigant is faced with the stark reality that the fruits of a favourable judgment may not be enjoyed as easily as was initially anticipated. The ‘winner’ or judgment creditor is met with an unwilling ‘looser’ or judgment debtor who is armed with a string of ‘stay’ applications standing at the gates of the proverbial Promised Land.

“Under the dispensation which has also been enshrined in the 1989 Constitution it ought to be the duty of the Attorney-General, Federal or State to consult quickly with the Minister/Commissioner of Finance or Budget, to provide funds to satisfy judgment debts lawfully obtained against the State. No Attorney-General worth his salt should fold his arms and do nothing when the State is a judgment debtor.”[1]


The judgment creditor is then advised by legal counsel to pursue some judgment-enforcement options. If the judgment obtained is a monetary sum, the enforcement options would ordinarily include taking out a writ of attachment, a judgment summons, or instituting a garnishee proceeding (another case again? Some might ask). I am concerned here with the institution of a garnishee proceeding and the hurdles that await applicants that choose this option.

In a garnishee proceeding, the judgment creditor brings an application to defray thelook apart judgment debt by asking a third party to pay to him monies due to the judgment debtor which are in the custody of the third party. The judgment creditor is the garnishor while the third party is the garnishee. This appears simple and straightforward. But one major hurdle faced in this regard is that if the money judgment is obtained against a public office, the law says that the consent of the Attorney-General (either of the State or Federation as the case may be) must be obtained before such funds in the custody of a public officer can be attached in a garnishee proceeding. This provision is in section 84 of the Sheriffs and Civil Process Act Cap S6 LFN 2010 (“SCPA”). By this provision, before a party can attach sums in the custody or credit of a public officer by garnishee proceedings, the consent of the Attorney General must have been sought and obtained.

Judicial Attitude to Section 84

Judicial attitude on this issue is markedly divided.

The Abuja Division of the Court of Appeal in Christopher Onjewu vs. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Part 827) 40 deliberated exhaustively on the question of the validity of this provision in section 84 of the SCPA vis-à-vis the provisions of the 1999 Constitution of the Federal Republic of Nigeria (“the Constitution”). The Court decided, amongst others, 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. In CBN v Nwanyanwu & Sons Ent. Ltd [2014] , the Court of Appeal once again held that the provisions of section 84(1) of the SCPA was not inconsistent with the provisions of the Constitution.

This issue also formed the kernel of a ruling by 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, Nigerian Civil Aviation Agency (NCAA), and the
Attorney-General of the Federation in 2004, alleging negligence on the part of officials of the two Federal Government agencies, which caused its Boeing 747 aircraft to crash-land in November 2003 at the Murtala Mohammed Airport, Lagos. Midway into the case, parties agreed to an out-of-court settlement, with NCAA and NAMA agreeing to pay the company $6million in final settlement. NCAA and NAMA later reneged in paying the agreed sum. Hydro Air initiated a garnishee proceeding 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 account could only be attached with the consent of the Attorney-General of the Federation and the Accountant-General of the Federation. The Court held as untenable, the argument 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 NAMA and NCAA could be executed.

The Court voided section 84 of SCPA on the basis that it contravened sections 36 (6) & 287 of the Constitution. The Court further held that section 84 – a product of the British common law system – has been rendered otiose by the Constitution. The judge described the Sheriff and Civil Process Act provision as archaic, undemocratic, primitive, and against the spirit of separation of powers. The reverse would amount to executive appointees and institutions sitting on appeal over a judgment of a competent court.

But the Federal High Court’s decision was upturned by the Court of Appeal in March 2014. The Court of Appeal took the position that section 84 SCPA does no violence to section 287 of the Constitution. The Court reasoned that section 84 of the SCPA is a necessary procedure that must be fulfilled before  judgment sums can be attached. The Court relied on its earlier decision in Onyenwu v. KSMCI (above).

As recently as January 2017, the Court of Appeal once again reiterated that section 84 of the SCPA remains a hurdle that must be surmounted by a judgment creditor seeking to attach monies in custody of a public officer.  This was in the case of University of Calabar Teaching Hospital v. Lizikon (Nig.) Ltd & Anr. (2017) LPELR-42339 (CA).

On the basis of the decisions above, the Nigerian citizen is unable to enforce a money judgment obtained against the Government of the Federation or a State, and its agencies without the consent, approval, or fiat of the Attorney General (of either the State or the Federation, as the case may be).

This is anomalous. Why would a judgment creditor be required to obtain permission from the government to enforce a valid court judgment against the government?

Any Remedy?

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 consent. But is that truly a remedy? Given that the litigant would have to spend more money and time in applying for an order of mandamus, I doubt if this is truly a remedy.

Whither the Constitution?

Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (asgazel.jpg amended) provides that “[t]he 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”. By this provision, the judicial powers vested in Courts in Nigeria extend to exercising all the inherent powers of a court of law. That is, the Nigerian courts can do what a court of law would ordinarily do. Enforcing its orders and judgments is one of them.

Decisions of Courts of Law are binding on all parties and enforceable

Similarly,  section 287(3) provides that “[t]he 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 Section 6(6)(a)  and section 287(3) is that whenever a court exercises its power to order and sanction, such decision should be enforced by all authorities. So to subject the decision of the same court of law to the whims and caprices of a political appointee as the Attorney-General is, in my view, inconsistent with the spirit and letter of sections 6(6) and 287(3) of the Constitution.

A public officer is the individual in a public entity, not the institution the public entity represents.

The decisions of the Court of Appeal that have held that consent is required to attach monies belonging to public entities do not also align with the definition of “Public Service” in section 318(1) of the Constitution.

Under section 318(1) of the Constitution, members of the public service of the Federation was defined to mean the following group of persons:

  1. Clerk or staff of the National Assembly or House of Assembly;
  2. Member or staff of the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of State/FCT, Sharia Court of Appeal, Customary Court of Appeal, or other Courts established by the Constitution or Act of the National Assembly, such as the National Industrial Court, Tax Appeals Tribunal, etc. This does not include ad-hoc courts/tribunals;
  3. Member or staff of any commission or authority established by the Constitution or an Act of the National Assembly;
  4. Staff of any area council;
  5. Staff of any statutory corporation created by an Act of the National Assembly;
  6. Staff of any educational institution established or financed by the FGN;
  7. Staff of any company or enterprise in which the FGN or any of its agencies owns controlling shares or interest;
  8. Members or officers of the armed forces, the Police, or other security agencies.

This definition, relied on by the courts in UCTH v Lizikon, CBN v Hydro Air, and other cases, clearly show that public service means service in specific positions by individuals. Therefore a public officer is the individual not the entire entity. For example, the public officer in the National Assembly is not the National Assembly but an individual officer–say the Speaker or the Clerk of the House. Likewise, the Courts, the public officer is not the court but specific officers therein. This is why money in the custody of a public officer is distinguished from money in the custody of the court -and.

If the court’s interpretation in CBN v Hydro Air, UCTH v. Lizikon, and others is to be followed strictly, companies in the category of (g) above would also not be subject of garnishee orders except with the consent of the Attorney-General. This will include certain purely corporate bodies as Keystone Bank and other companies controlled by the FGN through the Asset Management Corporation of Nigeria, the Central Bank of Nigeria, or the Bureau of Public Enterprises, etc.

Section 318 of the Constitution versus the Public Officers Protection Act on what a “Public Officer” means

The Court of Appeal in CBN v Hydro Air threw up a very interesting argument. Relying on the Supreme Court decision in Ibrahim v JSC Kaduna State [1998] 14 NWLR (Pt. 584) 1, the Court of Appeal held that a public officer can be equated with the term public department. And that in any case, the “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”. It upheld section 84 because of this.

The Supreme Court’s decision in Ibrahim v. JSC Kaduna State bordered squarely on the definition of the word “person” by the Public Officers Protection Law of Northern Nigeria (applicable to Kaduna State) and “public officer” as defined the Interpretation Law of Northern Nigeria 1963. In that case, the Supreme Court took the view that “public officer” as defined by the Interpretation Law of Northern Nigeria equates with “public department’.

The construction of the word “public officer” in that case will not be good authority for the construction to be given under section 84 of the SCPA. This is because of 2 reasons: (1) The decision was based on the Public Officers Protection Law of Northern Nigeria and the Interpretation Law of Northern Nigeria 1963; and (2) those laws and constructions were made under specific laws applicable in a few states— before the coming into effect of the 1999 Constitution—specific laws which may no longer be applicable today).

The definition in section 318(1) of the Constitution is more apposite to be relied upon. The Interpretation Act defines a “public officer” to mean a member of the Public Service as defined under section 318 of the Constitution. The Interpretation Act also defines a “police officer” as any member of the police force. In Shakira & Sons Ltd v The Governor of Kaduna State & Ors. (2013) LPELR 20379, the term “public officer” was defined to mean the holders of the office as reflected in section 318(1) of the Constitution.

Interestingly, although comparison has been drawn, the Public Officers Protection Act P41 LFN 2010 (POPA) does not use the word “public officer”. Rather the Act uses the word “person”, defined under the Interpretation Act to include any body of persons corporate or unincorporated. Therefore, it is clear that extant statutes make a distinction between reference to a “public officer” as being a member or staff of a public entity and reference to “person” under which a corporate entity or an unincorporated entity could be said to subsume. The Courts in many instances have held that the POPA only applies to the individual officers and its provisions do not extend to issues of contract. [2]

Reference to public officer under section 84 of the SCPA can be interpreted to mean a member or staff of a public entity such as the Inspector General of the Nigerian Police or the Chief Registrar of the Federal High Court. As the Constitution, the POPA, and the Interpretation Act have shown, it is inapt and unjust to stretch the term to include a public entity since the latter cannot be said to fall under the definition of member of a public service as defined by the Constitution.

Rays of Hope for Judgment Creditors Who Don’t Want to be Held Back by the SCPA

Three cases have been decided in a way that does justice to the judgment creditor in a garnishee proceeding. These decisions are Purification Techniques Ltd v AG Lagos State, CBN v Njemanze, CBN v Interstellar Communications Ltd.

In Purification Techniques (Nig.) Ltd. vs. Attorney General of Lagos State [2004] 9 NWLR (Part 879), a company which had obtained judgment against the Lagos State Government 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 or 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 would mean that the consent of the Attorney General of the State had to be obtained before the garnishee order could be made. The Court of Appeal (Lagos Division) rejected the argument on grounds that 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.

But the Court of Appeal’s (Lagos) decision in Purification Technologies did not lay the issue to rest. This is reasonably so since the case is distinguishable on the grounds that the garnishee in that case was a private entity, not a public officer or government entity such as the Central Bank of Nigeria, Ministry of Justice, or perhaps the Inspector General of Police.

In another garnishee proceedings, the Court of Appeal – this time the Owerri Division – in CBN v Interstella Communications Ltd [2015] 8 NWLR (Part 1462) 457 dealt with the issue. In this case, Interstella had obtained consent judgment in its favour against the Federal Government of Nigeria (FGN), AGF, and NITEL. The FGN paid a part of the judgment debt and reneged on paying the balance. In a garnishee proceedings involving the CBN, the issue of applicability of section 84 arose. The Court of Appeal held that it is unacceptable to classify CBN as a public officer, even if its officers can be so classified. According to the Court, this is because the CBN acts as a banker to the FGN in respect of credit balances in the accounts of the Government. The CBN also acts as banker to other banks. And since the relation between a banker and the customer is contractual, there is no basis for treating government bank accounts differently. Another twist to this case is that the FGN parties had admitted and paid a portion of the judgment debt—constructed and held by the Court as implied consent to the attachment of the remainder. In all these though, the Court did not invalidate section 84.

Once again, the Owerri Division of the Court of Appeal was called to duty in CBN v Njemanze [2015] 4 (Part 1449) 276. The Court held that “public officer” as used in section 84 was not applicable to artificial bodies. Therefore, the Court upheld the garnishee order attaching the funds in the CBN.

Another decision which did not bow to the draconian rule in section 84 is the Lagos State High Court case of Isaac Alfred Akhigbe v IGP and Ors[3].  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 was allowed by the Court to enforce the judgment without having to apply for the Attorney General’s consent.

These cases show that some courts have found creative ways of making the government pay judgment debts by going round the provision of section 84 of SCPA without voiding it on the one hand and without relying on it to thwart the reaping of benefits of litigation by a successful party on the other hand. From these cases, section 84 will not apply when (1) it can be shown that the entity is not a public officer; (2) the relationship between the public entity and the judgment debtor is contractual; and (3) there is implied consent evidenced by some overt steps taken such as part-payment of the judgment debt.

As mentioned above, one remedy lawyers use is apply for an order of mandamus[4] to compel the Attorney General to consent to the attachment of funds. In practical terms, this has not always proven effective. In fact, it often results in another round of litigation. Also, courts generally do not grant mandamus where an element of discretion is involved in the exercise of a duty.

Conclusion

In the words of St. Augustine “an unjust law is no law at all.” The reasons why section 84 SCPA is a bad law are that: (1) it contradicts the intention of several sections of the Constitution as highlighted above; (2) the relation between a banker and a customer, or a creditor and debtor, is contractual. It is not good for business that parties cannot benefit from legitimate contractual obligations as a result of statutory impediment; (3) On the public policy argument, it is in the interest of public policy that there be a “fruitful” end to litigation.

The brunt of section 84 SCPA is felt by all. But the dogged lawyer and the radical Judge/Justice who sees justice as the servant of all can continue to get victory for litigants by doing away with anachronistic and otiose laws like Section 84.

[1]  Jallo v. Military Governor of Kano State (1991) 5 NWLR (Pt.194) 754 @ 764

[2] UBRD v Alka [1998] 2 NWLR (Pt. 538) 328; Wakala v State [1991] 8 NWLR (Pt. 211) 552.

[3] Suit No. ID/33M/2005.

[4] A judicial remedy that compels a public body or officer to carry out that duty.

[1] A smaller version of the work was first posted three years ago. However I have decided to update this work to provide a better analysis of the issues and to present more recent authorities on the issues.

About the author

Yibakuo David Amakiri

Yibakuo David Amakiri writes on Corporate Law and Debt Management. Yibakuo is a Commercial & Energy Lawyer at Edward Ekiyor & Co. He Co-Founded Nigerian Law Today.

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1 Comment

  • Very well set out. The option of getting an order of mandamus remains the only way out till the issue is further laid to rest by the Supreme Court.