Introduction:
If there are ten most frequently discussed issues in garnishee
proceedings in Nigeria, the issue of the Attorney General’s consent
is perhaps one of the first two. Like the beautiful lady’s skirt,
this article is intended to be as brief as possible but long enough
to cover the subject matter.
Attorney General’s Consent in Garnishee Proceedings –
What the law provides
It is the law that where money sought to be attached is in the
custody of a public officer in his official capacity, the consent
of the Attorney General must first be sought and obtained before
garnishee proceedings can be duly or validly commenced for the
attachment of any judgment debt against the affected government.
For this reason, any garnishee proceedings commenced against the
government, without obtaining the consent of the Attorney General
is incompetent and liable to be struck out by the court. This is
the provision and purport of Section 84 of the Sheriffs and Civil
Process Act, Laws of the Federation of Nigeria, 2004.
For ease of reference and clarity of our discussion we take the
liberty to reproduce the provision of the above section herein
below:
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.
Breakdown of the above section:
- There must be in existence a judgment of a court of law which
pronounced a debt against the Government.
- If Government refuses to pay the debt, the judgment debtor has
the right to go to court to compel the Government to pay. This can
be done through the machinery of garnishee proceedings.
- There is the possibility that Government could keep some monies
under the custody, control, care or supervision of its staff [it
could be a civil servant or public servant in, let’s say the
revenue department of the Ministry of Finance].
- Once the money sought to be garnished is in custody or control
of such a public officer, before the garnishee proceedings can be
validly commenced and sustained, the judgment creditor/applicant
must first obtain the consent of the Attorney General. This will
mostly be in writing.
- If the money sought to be attached belongs to the State
Government, the consent of the Attorney General of the State is
required. If the money sought to be attached is that of the Federal
Government, the appropriate officer to give consent is the Attorney
General of the Federation.
- Without this consent, garnishee proceedings for the attachment
of money in the custody of a public officer is
incompetent, dead on arrival and liable to be struck out.
- Note the deliberate use of the phrase ‘’public
officer’’ which, by Section 84(3) above is a person
who holds a public office in the public service of the
Federation or State as the case may be. This definition does
not include a bank. The bank is not a public officer or person
holding any public office in the public service of the Federation
or State. Please permit me to leave this very discussion for
another day in another article.
Essence of the Consent
Requirement:
The legal argument for the requirement of the consent of the
Attorney General before the attachment of government funds in the
custody of the public officer was recently captured by the Court of
Appeal in the case of Federal Government of Nigeria v.
Interstella Communications Ltd [2015] 9 NWLR (Pt. 1463) 1
at 36 – 37 paragraphs H-A as follows:
What then is the import of section 84 of the Sheriffs and
Civil Process Act? It is to avoid embarrassment of not knowing that
funds earmarked for some purposes have been diverted in
satisfaction of a judgment debt which the government may not know
anything about.
In the case of Christopher Onjewu v. Kogi State Ministry
of Commerce & Industry (2003) 10 NWLR (Pt. 872) 41,
the Court of Appeal, per Albert Gbadebo Oduyemi,
JCA had this to say on the rationale for Section 84 of the
Sheriffs and Civil Process Act:
In my view, the rationale for the provision in Section 84(1)
of the Sheriffs and Civil Process Act for the previous consent of
the Attorney General before a court could validly issue even an
order garnishee nisi against funds in the hands of a Public Officer
is to ensure that moneys that have been voted by the House of
Assembly of a State for a specific purpose in the Appropriation
Bill presented to that House and approved in the Budget for the
year of appropriation does not end up being the subject of
execution for other unapproved purposes. [Also reported in: (2002)
LPELR – 5507 (CA) page 57-58 paragraph G-A].
Whether the above rationale is fair and just is a discussion for
another day in another article. But may it quickly be added that
any law which leaves the judgment creditor at the mercy of the
Attorney-General in whose name actions against Government are
brought would amount to a judgment creditor seeking permission from
his adversary to allow him reap the fruits of his validly obtained
judgment. Such law will certainly run contrary to the hallowed
principle of law which states that the judgment of a court of law
takes immediate effect from the day of its pronouncement. It will
also create a dichotomy between parties before the court by making
one appear superior to the other contrary to the trite position of
the law on equality of persons before the court. I rather prefer
the argument which says that the provision of section 84 is aimed
at giving notice to the Government to pay up its just debts.
As stated earlier, this is a discussion for another day. Our
discussion here is whether the consent of the Attorney General is
also required for the attachment of Government funds where the
Attorney General was himself a party to the suit that pronounced
the debt owing?
Where the Attorney General was a party to the
suit:
One condition for the commencement of garnishee proceedings for
the attachment of money belonging to any judgment debtor is that
there must be a valid and subsisting judgment of a court of law of
competent jurisdiction which pronounced the debt owing. Where the
case is against the Government (State or Federal) the Attorney
General’s office is usually included as a necessary
party/defendant. This is because, the Attorney General being the
chief law officer of the State or Federal Government is well
clothed with the legal personality to institute and defend actions
in court for the Government which he represents.
Once served with processes from the court, the Attorney
General’s office is expected to enter appearance and defend the
Government in the suit if it so wishes. Memorandum of appearance is
usually filed and the requisite statement of defence also filed
with documents and exhibits attached in defence of the affected
Government. The Attorney General or officers in his department also
participate at the pre-trial conference and progress to the hearing
of the matter. They also participate in the examination-in-chief
and cross-examination of witnesses. They also write and adopt final
addresses and await the judgment of the trial court. In essence,
the Attorney General has always participated in the defence of most
cases instituted against the Government and is therefore, always
aware of the judgments of the courts pronouncing the Government as
a debtor.
The question again is: Whether the consent of the Attorney
General is required for the attachment of Government funds where
the Attorney General was himself a party to the suit that
pronounced the debt owing?
If the essence of the provision of section 84 of the Sheriffs
and Civil Process Act is to put the Attorney General on notice
about the pendency of a judgment debt and to avoid embarrassment,
it will therefore, (ordinarily) not make sense to give notice to a
man (Attorney General) who himself was a party to the suit and who
participated fully in the proceedings that led to the pronouncement
of the judgment (debt) against the Government. This is in line with
common sense; the Attorney General is already aware of the judgment
debt having participated in the suit that pronounced the debt
owing.
The Law must be obeyed:
The requirement of section 84 of the Sheriffs and Civil Process
Act (which provides that the consent of the Attorney General must
be sought and obtained before the commencement of garnishee
proceedings against the Government) is a requirement of law. Same
must be strictly obeyed. The consent must be sought and obtained.
It is immaterial that the Attorney General was a party to the suit
and very much aware of the judgment debt. If his participation in
the suit was intended to be an exception to the provision, the Act
would have stated so. There not being such exception, it therefore
means that the consent of the Attorney General must be sought and
obtained before garnishee proceedings can be validly commenced and
sustained for the attachment of funds belonging to the Government,
were such funds are in the custody of a public officer in his
official capacity.
Whether the Attorney General was a party to the suit or not and
whether he participated fully in the proceedings or not, the
requirement of the law is that he must be informed and his consent
obtained before the commencement of garnishee proceedings against
the Government. The requirement of the law must be strictly
complied with until such day when the provision will be amended by
the legislature.
It should be noted however that by the clear provision of
section 84 of the Sheriffs and Civil Process Act, the consent of
the Attorney General is only required where the money in issue is
in the custody or possession of a public officer in his
official capacity. A bank is not a public officer in any
official capacity whatsoever; it is simply a business entity
(garnishee) keeping the funds of its customers, the government
being one of such customers. Such funds can therefore be validly
attached through garnishee proceedings for the satisfaction of a
judgment debt without the necessity of obtaining the Attorney
General’s consent.
The Exception – Where the judgment debt has been paid in
part
The next question here is: What happens in a situation where the
Government has already paid part of the judgment debt to the
judgment debtor remaining the balance which is now the subject of
garnishee proceedings? Is the consent of the Attorney General still
mandatory so as to put him on notice of the pendency of the
judgment debt before commencement of garnishee proceedings?
To answer the above question, it is pertinent to refer to the
recent case of Federal Government of
Nigeria v. Interstella Communications Ltd (2015) 9
NWLR (Pt. 1463) 1 where the above question presented itself for
determination before the Court of Appeal sitting in Owerri, South
East Nigeria. In that case, Interstella Communications Ltd and Obi
Barth Thompson sometime in 2004 sued the Nigerian
Telecommunications Ltd (NITEL) at the Federal High Court sitting in
Umuahia, Abia State for breach of contract and damages therefrom.
Judgment was delivered in their favour in 2007 by Honourable
Justice H. T. Soba.
As at October, 2008, the judgment debt stood at over N23 Billion
Naira and 48 Million Dollars. Consequently, an inter-ministerial
committee was set up by the Federal Government of Nigeria for the
amicable settlement of the judgment debt. A compromise was reached
and the sum of 12 Billion was accepted to be paid to the plaintiffs
in full and final settlement of the judgment debt. With the consent
of all parties, the said offer of 12 Billion Naira was entered in
court as consent judgment of the Federal High Court. The Federal
Government then commenced payment of the judgment sum, paying about
thirty percent and failing to pay the balance despite repeated
demands.
As a result of the delay and frustration by the judgment debtors
to defray the debt, the judgment creditors commenced garnishee
proceedings against them for purpose of recovering the outstanding
balance of the judgment debt. The garnishee proceedings succeeded
and, an order absolute was made against the garnishee.
Not happy with the decision of the trial court, the Federal
Government appealed the decision and argued inter alia
that, the consent of the Attorney General was not sought and
obtained before the commencement of the garnishee proceedings and
for that reason, the order absolute was incompetent and ought to be
set aside by the Court of Appeal.
Resolving this issue, the Court, per Abba Aji,
JCA at pages 38 – 40, referred to page 75 of the record of
appeal wherein the appellant admitted that pursuant to the consent
judgment, the judgment creditor was paid the sum of Five Hundred
Million Naira and a further sum of One Billion Naira in November
2010. His Lordship also referred to page 76 of the record of appeal
wherein the appellant admitted that the judgment creditor has so
far been paid a total sum of Two Billion, Seven Hundred Million
Naira in fulfillment of the agreement and towards the discharge of
the judgment sum. His Lordship then resolved as follows:
The Attorney General of the Federation having paid part of
the money to be attached, there is in fact no consent left. The
consent, by express and necessary implication has been given by the
Attorney General of the Federation. It will thus amount to a
reversal or superfluity to seek for his consent when he has already
given his consent. Moreover, even if the consent is needed to be
obtained, he has waived it by the payment he has made and cannot
not be heard now to turn around to deny what he has consented to
expressly and by conduct. It is my humble opinion therefore that
this case is an exception to the provision of section 84 of the
Sheriffs and Civil Process Act and the consent of the Attorney
General of the Federation needs not be obtained again and I so
hold.
Away from the consent requirement:
The consent requirement should not be employed to frustrate
garnishee proceedings. In most countries of the world, judgments of
courts of law are either obeyed with immediate effect or taken to
the appellate court if government is not in agreement with the
trial court. As soon as the appellate court hands down its verdict,
the judgment is immediately obeyed without delay.
A provision such as the one in Section 84 of the Sheriffs and
Civil Process Act, Laws of the Federation of Nigeria which requires
the consent of the Attorney General before the enforcement of a
valid judgment of a court of law is unheard of in most countries of
the world. Judgments of courts are sacrosanct and take immediate
effect upon delivery. It does not make sense that one has to take
permission from his debtors before he can go to court to seek his
legal right. Government should not always wait to be taken to court
before it can pay its debts. Government should lead by example.
In the case of Jallo v. Military Governor of Kano
State (1991) 5 NWLR (Pt. 194) 154, Honourable Justice
Ogunare, JCA (as he then was) admonished Attorneys
General as follows:
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.
In the later case of Christopher Onjewu v. Kogi State
Ministry of Commerce & Industry (2001) LPLR –
page 42, the Court of Appeal, Jos per … held thus:
The present position is that it is the duty of the Attorney
General of the Federation or the State to ensure that the Federal
Government or State Governments pay their lawful debts. The
Attorney General can no longer fold his arms for the judgment
creditors to write him soliciting for his consent before he can
enforce the judgment given in his (judgment creditor’s)
favour.
Conclusion:
There is the urgent need to review the provision of Section 84
of the Sheriffs and Civil Process Act which requires that consent
of the Attorney General must be obtained before commencement of
garnishee proceedings for attachment of judgment debt against the
government. While the intendment of the drafters of that section of
the law may have been for the public good, the last couple of years
of the operation of the Sheriffs and Civil Process Act, has
witnessed serious abuse of the consent requirement. Many garnishee
proceedings have been truncated as a result of absence of the
Attorney General’s consent, and yet, most Attorneys General in
Nigeria deliberately hold back or refuse their consents for purely
political and connected reasons.
Having experimented on the provision of Section 84 of the Act
for many years, and having seen the challenges usually encountered
by judgment creditors, there is the need for review of the said
provision to enable us arrive at the conclusion whether the
provision is of any utilitarian value to the economy of Nigeria or
not. There is also the need to review this section so as to
discover whether its provision is not capable of discouraging
foreign direct investments in Nigeria in the sense that investors
become scared of how they will recover judgment debts validly
granted them by the court in the face of difficulties usually
encountered in obtaining consent from the Attorney General, who as
a functionary of Government will most likely refuse the consent
with or without reasons.
Above all, lawyers should note that it is not in all
circumstances that the consent of the Attorney General is required
before the commencement of garnishee proceedings against the
Government. The Attorney General should also know when to raise an
objection to garnishee proceedings. It should not be raised as a
matter of course or simply as routine. By the clear provision of
section 84 of the Sheriffs and Civil Process Act, the consent of
the Attorney General is only required where the money sought to be
attached is in the custody or under the control of a public
officer. Our Noble Lords of the various courts in Nigeria should
also note this clear provision of the law.
The office of the Attorney General is a highly respected and
noble office anywhere in the world. In Nigeria, it is about the
only office in the executive arm of government specifically
provided for in the Constitution. This makes the Attorney General a
high ranking and highly respected member of the executive arm with
great nobility attached to his office. It is hereby submitted that
the nobility of the office of the Attorney General will be more
pronounced if judgments of courts given against the government are
religiously obeyed, without resort to avoidable foot-dragging and
employment of technicalities.
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
Introduction:
If there are ten most frequently discussed issues in garnishee
proceedings in Nigeria, the issue of the Attorney General’s consent
is perhaps one of the first two. Like the beautiful lady’s skirt,
this article is intended to be as brief as possible but long enough
to cover the subject matter.
Attorney General’s Consent in Garnishee Proceedings –
What the law provides
It is the law that where money sought to be attached is in the
custody of a public officer in his official capacity, the consent
of the Attorney General must first be sought and obtained before
garnishee proceedings can be duly or validly commenced for the
attachment of any judgment debt against the affected government.
For this reason, any garnishee proceedings commenced against the
government, without obtaining the consent of the Attorney General
is incompetent and liable to be struck out by the court. This is
the provision and purport of Section 84 of the Sheriffs and Civil
Process Act, Laws of the Federation of Nigeria, 2004.
For ease of reference and clarity of our discussion we take the
liberty to reproduce the provision of the above section herein
below:
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.
Breakdown of the above section:
- There must be in existence a judgment of a court of law which
pronounced a debt against the Government.
- If Government refuses to pay the debt, the judgment debtor has
the right to go to court to compel the Government to pay. This can
be done through the machinery of garnishee proceedings.
- There is the possibility that Government could keep some monies
under the custody, control, care or supervision of its staff [it
could be a civil servant or public servant in, let’s say the
revenue department of the Ministry of Finance].
- Once the money sought to be garnished is in custody or control
of such a public officer, before the garnishee proceedings can be
validly commenced and sustained, the judgment creditor/applicant
must first obtain the consent of the Attorney General. This will
mostly be in writing.
- If the money sought to be attached belongs to the State
Government, the consent of the Attorney General of the State is
required. If the money sought to be attached is that of the Federal
Government, the appropriate officer to give consent is the Attorney
General of the Federation.
- Without this consent, garnishee proceedings for the attachment
of money in the custody of a public officer is
incompetent, dead on arrival and liable to be struck out.
- Note the deliberate use of the phrase ‘’public
officer’’ which, by Section 84(3) above is a person
who holds a public office in the public service of the
Federation or State as the case may be. This definition does
not include a bank. The bank is not a public officer or person
holding any public office in the public service of the Federation
or State. Please permit me to leave this very discussion for
another day in another article.
Essence of the Consent
Requirement:
The legal argument for the requirement of the consent of the
Attorney General before the attachment of government funds in the
custody of the public officer was recently captured by the Court of
Appeal in the case of Federal Government of Nigeria v.
Interstella Communications Ltd [2015] 9 NWLR (Pt. 1463) 1
at 36 – 37 paragraphs H-A as follows:
What then is the import of section 84 of the Sheriffs and
Civil Process Act? It is to avoid embarrassment of not knowing that
funds earmarked for some purposes have been diverted in
satisfaction of a judgment debt which the government may not know
anything about.
In the case of Christopher Onjewu v. Kogi State Ministry
of Commerce & Industry (2003) 10 NWLR (Pt. 872) 41,
the Court of Appeal, per Albert Gbadebo Oduyemi,
JCA had this to say on the rationale for Section 84 of the
Sheriffs and Civil Process Act:
In my view, the rationale for the provision in Section 84(1)
of the Sheriffs and Civil Process Act for the previous consent of
the Attorney General before a court could validly issue even an
order garnishee nisi against funds in the hands of a Public Officer
is to ensure that moneys that have been voted by the House of
Assembly of a State for a specific purpose in the Appropriation
Bill presented to that House and approved in the Budget for the
year of appropriation does not end up being the subject of
execution for other unapproved purposes. [Also reported in: (2002)
LPELR – 5507 (CA) page 57-58 paragraph G-A].
Whether the above rationale is fair and just is a discussion for
another day in another article. But may it quickly be added that
any law which leaves the judgment creditor at the mercy of the
Attorney-General in whose name actions against Government are
brought would amount to a judgment creditor seeking permission from
his adversary to allow him reap the fruits of his validly obtained
judgment. Such law will certainly run contrary to the hallowed
principle of law which states that the judgment of a court of law
takes immediate effect from the day of its pronouncement. It will
also create a dichotomy between parties before the court by making
one appear superior to the other contrary to the trite position of
the law on equality of persons before the court. I rather prefer
the argument which says that the provision of section 84 is aimed
at giving notice to the Government to pay up its just debts.
As stated earlier, this is a discussion for another day. Our
discussion here is whether the consent of the Attorney General is
also required for the attachment of Government funds where the
Attorney General was himself a party to the suit that pronounced
the debt owing?
Where the Attorney General was a party to the
suit:
One condition for the commencement of garnishee proceedings for
the attachment of money belonging to any judgment debtor is that
there must be a valid and subsisting judgment of a court of law of
competent jurisdiction which pronounced the debt owing. Where the
case is against the Government (State or Federal) the Attorney
General’s office is usually included as a necessary
party/defendant. This is because, the Attorney General being the
chief law officer of the State or Federal Government is well
clothed with the legal personality to institute and defend actions
in court for the Government which he represents.
Once served with processes from the court, the Attorney
General’s office is expected to enter appearance and defend the
Government in the suit if it so wishes. Memorandum of appearance is
usually filed and the requisite statement of defence also filed
with documents and exhibits attached in defence of the affected
Government. The Attorney General or officers in his department also
participate at the pre-trial conference and progress to the hearing
of the matter. They also participate in the examination-in-chief
and cross-examination of witnesses. They also write and adopt final
addresses and await the judgment of the trial court. In essence,
the Attorney General has always participated in the defence of most
cases instituted against the Government and is therefore, always
aware of the judgments of the courts pronouncing the Government as
a debtor.
The question again is: Whether the consent of the Attorney
General is required for the attachment of Government funds where
the Attorney General was himself a party to the suit that
pronounced the debt owing?
If the essence of the provision of section 84 of the Sheriffs
and Civil Process Act is to put the Attorney General on notice
about the pendency of a judgment debt and to avoid embarrassment,
it will therefore, (ordinarily) not make sense to give notice to a
man (Attorney General) who himself was a party to the suit and who
participated fully in the proceedings that led to the pronouncement
of the judgment (debt) against the Government. This is in line with
common sense; the Attorney General is already aware of the judgment
debt having participated in the suit that pronounced the debt
owing.
The Law must be obeyed:
The requirement of section 84 of the Sheriffs and Civil Process
Act (which provides that the consent of the Attorney General must
be sought and obtained before the commencement of garnishee
proceedings against the Government) is a requirement of law. Same
must be strictly obeyed. The consent must be sought and obtained.
It is immaterial that the Attorney General was a party to the suit
and very much aware of the judgment debt. If his participation in
the suit was intended to be an exception to the provision, the Act
would have stated so. There not being such exception, it therefore
means that the consent of the Attorney General must be sought and
obtained before garnishee proceedings can be validly commenced and
sustained for the attachment of funds belonging to the Government,
were such funds are in the custody of a public officer in his
official capacity.
Whether the Attorney General was a party to the suit or not and
whether he participated fully in the proceedings or not, the
requirement of the law is that he must be informed and his consent
obtained before the commencement of garnishee proceedings against
the Government. The requirement of the law must be strictly
complied with until such day when the provision will be amended by
the legislature.
It should be noted however that by the clear provision of
section 84 of the Sheriffs and Civil Process Act, the consent of
the Attorney General is only required where the money in issue is
in the custody or possession of a public officer in his
official capacity. A bank is not a public officer in any
official capacity whatsoever; it is simply a business entity
(garnishee) keeping the funds of its customers, the government
being one of such customers. Such funds can therefore be validly
attached through garnishee proceedings for the satisfaction of a
judgment debt without the necessity of obtaining the Attorney
General’s consent.
The Exception – Where the judgment debt has been paid in
part
The next question here is: What happens in a situation where the
Government has already paid part of the judgment debt to the
judgment debtor remaining the balance which is now the subject of
garnishee proceedings? Is the consent of the Attorney General still
mandatory so as to put him on notice of the pendency of the
judgment debt before commencement of garnishee proceedings?
To answer the above question, it is pertinent to refer to the
recent case of Federal Government of
Nigeria v. Interstella Communications Ltd (2015) 9
NWLR (Pt. 1463) 1 where the above question presented itself for
determination before the Court of Appeal sitting in Owerri, South
East Nigeria. In that case, Interstella Communications Ltd and Obi
Barth Thompson sometime in 2004 sued the Nigerian
Telecommunications Ltd (NITEL) at the Federal High Court sitting in
Umuahia, Abia State for breach of contract and damages therefrom.
Judgment was delivered in their favour in 2007 by Honourable
Justice H. T. Soba.
As at October, 2008, the judgment debt stood at over N23 Billion
Naira and 48 Million Dollars. Consequently, an inter-ministerial
committee was set up by the Federal Government of Nigeria for the
amicable settlement of the judgment debt. A compromise was reached
and the sum of 12 Billion was accepted to be paid to the plaintiffs
in full and final settlement of the judgment debt. With the consent
of all parties, the said offer of 12 Billion Naira was entered in
court as consent judgment of the Federal High Court. The Federal
Government then commenced payment of the judgment sum, paying about
thirty percent and failing to pay the balance despite repeated
demands.
As a result of the delay and frustration by the judgment debtors
to defray the debt, the judgment creditors commenced garnishee
proceedings against them for purpose of recovering the outstanding
balance of the judgment debt. The garnishee proceedings succeeded
and, an order absolute was made against the garnishee.
Not happy with the decision of the trial court, the Federal
Government appealed the decision and argued inter alia
that, the consent of the Attorney General was not sought and
obtained before the commencement of the garnishee proceedings and
for that reason, the order absolute was incompetent and ought to be
set aside by the Court of Appeal.
Resolving this issue, the Court, per Abba Aji,
JCA at pages 38 – 40, referred to page 75 of the record of
appeal wherein the appellant admitted that pursuant to the consent
judgment, the judgment creditor was paid the sum of Five Hundred
Million Naira and a further sum of One Billion Naira in November
2010. His Lordship also referred to page 76 of the record of appeal
wherein the appellant admitted that the judgment creditor has so
far been paid a total sum of Two Billion, Seven Hundred Million
Naira in fulfillment of the agreement and towards the discharge of
the judgment sum. His Lordship then resolved as follows:
The Attorney General of the Federation having paid part of
the money to be attached, there is in fact no consent left. The
consent, by express and necessary implication has been given by the
Attorney General of the Federation. It will thus amount to a
reversal or superfluity to seek for his consent when he has already
given his consent. Moreover, even if the consent is needed to be
obtained, he has waived it by the payment he has made and cannot
not be heard now to turn around to deny what he has consented to
expressly and by conduct. It is my humble opinion therefore that
this case is an exception to the provision of section 84 of the
Sheriffs and Civil Process Act and the consent of the Attorney
General of the Federation needs not be obtained again and I so
hold.
Away from the consent requirement:
The consent requirement should not be employed to frustrate
garnishee proceedings. In most countries of the world, judgments of
courts of law are either obeyed with immediate effect or taken to
the appellate court if government is not in agreement with the
trial court. As soon as the appellate court hands down its verdict,
the judgment is immediately obeyed without delay.
A provision such as the one in Section 84 of the Sheriffs and
Civil Process Act, Laws of the Federation of Nigeria which requires
the consent of the Attorney General before the enforcement of a
valid judgment of a court of law is unheard of in most countries of
the world. Judgments of courts are sacrosanct and take immediate
effect upon delivery. It does not make sense that one has to take
permission from his debtors before he can go to court to seek his
legal right. Government should not always wait to be taken to court
before it can pay its debts. Government should lead by example.
In the case of Jallo v. Military Governor of Kano
State (1991) 5 NWLR (Pt. 194) 154, Honourable Justice
Ogunare, JCA (as he then was) admonished Attorneys
General as follows:
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.
In the later case of Christopher Onjewu v. Kogi State
Ministry of Commerce & Industry (2001) LPLR –
page 42, the Court of Appeal, Jos per … held thus:
The present position is that it is the duty of the Attorney
General of the Federation or the State to ensure that the Federal
Government or State Governments pay their lawful debts. The
Attorney General can no longer fold his arms for the judgment
creditors to write him soliciting for his consent before he can
enforce the judgment given in his (judgment creditor’s)
favour.
Conclusion:
There is the urgent need to review the provision of Section 84
of the Sheriffs and Civil Process Act which requires that consent
of the Attorney General must be obtained before commencement of
garnishee proceedings for attachment of judgment debt against the
government. While the intendment of the drafters of that section of
the law may have been for the public good, the last couple of years
of the operation of the Sheriffs and Civil Process Act, has
witnessed serious abuse of the consent requirement. Many garnishee
proceedings have been truncated as a result of absence of the
Attorney General’s consent, and yet, most Attorneys General in
Nigeria deliberately hold back or refuse their consents for purely
political and connected reasons.
Having experimented on the provision of Section 84 of the Act
for many years, and having seen the challenges usually encountered
by judgment creditors, there is the need for review of the said
provision to enable us arrive at the conclusion whether the
provision is of any utilitarian value to the economy of Nigeria or
not. There is also the need to review this section so as to
discover whether its provision is not capable of discouraging
foreign direct investments in Nigeria in the sense that investors
become scared of how they will recover judgment debts validly
granted them by the court in the face of difficulties usually
encountered in obtaining consent from the Attorney General, who as
a functionary of Government will most likely refuse the consent
with or without reasons.
Above all, lawyers should note that it is not in all
circumstances that the consent of the Attorney General is required
before the commencement of garnishee proceedings against the
Government. The Attorney General should also know when to raise an
objection to garnishee proceedings. It should not be raised as a
matter of course or simply as routine. By the clear provision of
section 84 of the Sheriffs and Civil Process Act, the consent of
the Attorney General is only required where the money sought to be
attached is in the custody or under the control of a public
officer. Our Noble Lords of the various courts in Nigeria should
also note this clear provision of the law.
The office of the Attorney General is a highly respected and
noble office anywhere in the world. In Nigeria, it is about the
only office in the executive arm of government specifically
provided for in the Constitution. This makes the Attorney General a
high ranking and highly respected member of the executive arm with
great nobility attached to his office. It is hereby submitted that
the nobility of the office of the Attorney General will be more
pronounced if judgments of courts given against the government are
religiously obeyed, without resort to avoidable foot-dragging and
employment of technicalities.
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