“As President Buhari sets about his agenda of making Nigeria a destination for foreign investors, it is imperative as has been done by former British Colonies, that his administration sets about the task of amending the provision of Sheriffs and Civil Process Law which make it virtually impossible for judgment debts to be enforced”.
Last week I continued my discussion of the issue of equality before the law vis-à-vis the difficulty encountered by individuals in their bid to enforce monetary judgements in Nigeria against governments at the Federal and state levels. I referred to the provisions of Section 83 of the Sheriffs and Civil Process Act Cap 56 Laws of the Federation of Nigeria 2004. As I do not intend this to be a legal discussion of the principles applicable to garnishee proceedings, my concern being limited at this time only to the inequality brought about by the provisions of the archaic law, I will attempt only a brief explanation of the procedure and the problems associated with it.
NATURE OF GARNISHEE PROCEEDINGS
Garnishee proceedings are normally employed where a creditor knows that his debtor has funds in the possession of another person which can be used to satisfy a part or all of the debt. The judgement creditor will then apply to court for an order nisi asking that other party to disclose just how much of the funds belonging to the debtor are his possession. Where the third party discloses that he holds such funds, he will be asked to turn them over to the judgement creditor. The matter is strictly between the judgement creditor, the third party holding the funds and the Court.
Over the years, many successful litigants have found garnishee proceedings most convenient compared to other means of enforcement of judgement which are often acrimonious and cumbersome. With diligence a judgement creditor utilising the procedure is almost certain of getting the fruits of his judgement.
CONSENT OF ATTORNEY GENERAL IS REQUIRED WHERE FUNDS ARE HELD BY GOVERNMENT AGENCY
However by the provisions of Section 84(2) a judgement creditor who has secured judgement against the government or any of its agencies must firstly seek the consent of either the Attorney General of the Federation or that of the State depending on the circumstances such as where the funds are held by an agency of government. As a result of this, many Attorney Generals traditionally refuse consent to successful litigants. Even on some rare occasions when they do grant consent, it is usually done arbitrarily devoid of any defined parameters.
However, equality before the law or rule of law dictates that parties to a litigation, whether individual or government must be subject to the same rules. If a government which is a judgment creditor can institute garnishee proceedings against a judgment debtor without any inhibition, the rule of law requires that individuals should not be subject to conditions which are not applicable to government. The requirement of consent of the Attorney General before an order of attachment can be made is similar to requirements under the Petition of Rights Act passed in England in 1915 by which the consent of the Attorney General was required before an action could be instituted against government. The law which was passed in England under the concept that the king or crown could do no wrong was incorporated into Nigeria by virtue of the Interpretation Act, Laws of the Federation of Nigeria 1959. However the consequent Republican status of Nigeria rendered the continued application of the law a legal absurdity. In stating this, the courts held that it was inconsistent with the provisions of Section 16(6)(b) of the constitution. In Eche v. State Education Commission (1983) 4 NCLR 735 the court stated that
It cannot be conceived how one could seriously make the submission that Sections 3 and 5 of the Petitions of Right Law still apply in this country after the 1st day of October 1979, when the new constitution came into force. In my view, most of the Sections of the Petitions of Right Law, if not all the Sections, are in conflict with the provisions of the 1979 Constitution. If the Petitions of Right Law did not die a natural death on the 1st of October, 1979 at least Sections 3 and 5 died and were buried as from that day.”
The above is also applicable to the law which requires the consent of the Attorney General.
LAUDABLE EXAMPLES FROM ABROAD
The Judiciary in some countries which operate judicial systems similar to that of Nigeria have consistently held as unconstitutional provisions which seek to inhibit the ability of successful litigants from instituting garnishee proceedings against funds which are held by or on behalf of public authorities.
UGANDA
In Suit No. 0086 of 2002 Mildred Lwanga v. Administration General & Anor, Hon. Justice J.B.A Katutsi of the High Court of Uganda at Kampala made an order absolute in respect of funds held by the Administrator General, a public officer. In making the order the court observed that since the Administrator General could not deny that he was a judgment debtor, he had no option but to pay the said judgment debt.
MALAWI
In Civil Cause No. 3645 of 2001, Apex Car Sales v. Attorney General, Hon. Justice F. E. Kapanda of the High Court of Malawi held that Garnishee Proceedings could lie against the government. In holding that to confer immunity on the government against garnishee proceedings would be contrary to equality before the law. The court held as follows:
Can a rule of law exist where Government want(s) to overprotect itself? If Government wants to participate in Commercial Banks facilities it must realise that garnishee orders fully attach to Commercial banks and there would be nothing improper in making a garnishee order against a Commercial Bank for its credit balance in favour of Government Department or agency account
As Nigeria celebrates another peaceful change in government and as President Buhari sets about his agenda of making Nigeria a destination of choice for foreign investors as characterised by his attendance at the recently concluded G7 Summit in Germany, it is imperative that his administration, as has been done by former British Colonies, sets about the urgent task of amending the provision of Sheriffs and Civil Process Law, which make it impossible for judgements of courts to be enforced.
AARE AFE BABALOLA SAN, CON, D.LL, D.Litt